Mr. Vijay Kumar & Anr. vs Mr. Neeru Rajput & Anr.
2013 Latest Caselaw 3671 Del

$~R-7.

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                       Date of Decision: 22.08.2013


+     CS(OS) 1068/2008

      MR. VIJAY KUMAR & ANR.                 ..... Plaintiffs
                   Through: Mr. G.S.Rana, Advocate

                         versus

      MR. NEERU RAJPUT & ANR.                            ..... Defendants
                    Through:  None.

      CORAM:
      HON'BLE MR. JUSTICE VIPIN SANGHI

                              JUDGMENT

VIPIN SANGHI, J. (ORAL)

1. The matter was shown at item No. 7 in the 'Finals' of cause list which was effectively item No.1 on 07.08.2013. None appeared for the defendants. I heard learned counsel for the plaintiffs for about 30 minutes. At about 03.45 p.m, I proceeded to judgment. The same was partly dictated in Court. As no time was left, the matter continued to remain on board and has been taken up today once again. Again, there is no appearance on behalf of the defendants.

2. The two plaintiffs are the father and daughter. They have filed the present suit to seek a decree of specific performance in respect of the Agreement to Sell dated 30.08.2007 (Ex.CW1/D). The case of the plaintiffs is that defendant No. 1 - Mrs. Neeru Rajput through her husband-defendant No. 2 Mr. Vijay Kumar Rajput approached the plaintiffs for sale of her entire built up Western Northern (Left Side) portion of built-up ground floor, without roof rights over area admeasuring 75 sq. yds out of total area measuring 150 sq. yds. out of freehold built-up property No. WZ-8 built on plot Nos. 19 and 20 out of Khasra No. 15/13 situated in the area of village Keshopur in colony known as New Sahibpura, Major Bhupinder Singh Nagar, post Office Tilak Nagar, New Delhi. The further case of the plaintiffs is that the defendant No. 1 is the registered owner of the suit property vide sale deed, duly registered in her favour as document No. 145 in Book No. 1 Vol. No. 13539 on pages 138 to 145 registered on 03.01.2006 in the office of Sub Registrar, SR II, Janakpuri, New Delhi, i.e. Ex.P2, also marked as Ex. CW1/B. The further case of the plaintiffs is that after due negotiations between the parties, they entered into the Agreement (Ex.CW1/D). Under the said Agreement, the plaintiffs agreed to purchase the suit property from defendant No. 1 for a total consideration of Rs. 12,25,000/-. At the time when the Agreement was executed, the defendant No. 1 had received Rs. 10 lacs from the plaintiffs towards advance earnest money or part payment. The balance amount of Rs. 2,25,000/- was to be paid by the plaintiffs at the time of execution of the sale deed/transfer documents of the suit property in favour of the plaintiffs, or their nominee. It was agreed that at the time of execution of the sale deed, defendant No. 1 shall deliver the vacant possession of the suit property along with all its

previous connected relevant documents to the plaintiffs. The government dues, demands, taxes, charges, water & electric connection charges, maintenance charges, builder's transfer charges and house tax etc. were to be paid by the defendant No. 1 till the date of final payment, and thereafter the same was to be borne by the plaintiffs. The further case of the plaintiffs is that the plaintiffs made further payment of Rs. 1,30,000/- to the defendants on 06.01.2008, which was acknowledged by defendant No. 2 on the agreement itself. The case of the plaintiffs is that the defendants agreed to execute the sale deed as early as possible, within the period of 3 days. The plaintiffs claim that since the defendants did not move to execute the sale deed by 09.01.2008, a legal notice was issued to defendant No. 1 on 09.01.2008 (Ex.CW1/E) which was replied to by the defendants on 12.01.2008 vide Ex.P3 also marked as Ex.CW1/F. The plaintiffs aver that on 15.01.2008, they waited for the defendants in the office of the Sub Registrar at Janakpuri for them to execute the sale deed. However, they did not turn up. The plaintiffs state that they sent another legal notice to the counsel for the defendants on 23.01.2008 vide Ex.CW1/G, to which the defendants responded on 10.03.2008 vide Ex.P4 also marked as Ex.CW1/H.

3. In the aforesaid premise, the plaintiffs filed the present suit on 06.05.2008. The reliefs sought in the plaint, apart from the reliefs of specific performance, as aforesaid, also include the relief of permanent injunction against the defendants-restraining them, their servants, their associates, authorized representatives, attorneys, agents, etc. from selling, pledging, alienating, transferring and/or creating any third party interest in

respect of the suit property. The plaintiffs have filed the site plan of the suit property (Ex.P1 also marked as Ex.CW1/A).

4. On 30.05.2008, while issuing summons in the suit and notice in I.A. No. 6858/2008 preferred by the plaintiff under Order 39 Rules 1 and 2 CPC, the Court directed that till the next date, status-quo in respect of title and possession of the suit property be maintained. The said order was confirmed on 22.01.2009 till the disposal of the suit.

5. The defendants have filed their written statement. The case of the defendants is that they were on the lookout to sell the suit property so as to purchase a bigger property. For this purpose, they were considering taking a bank loan as well. The defendants claimed that the plaintiff No. 1 suggested that the suit property be sold to him, and he promised that he will arrange a bank loan of approximately Rs. 10,00,000/- for them. The defendants claimed that plaintiffs advised them to give a few blank signed cheques for the purpose of securing a loan for them. The defendants claimed that believing plaintiff No. 1, they have handed over 13 blank cheques to him to be able to arrange a bank loan for the defendants.

6. The defendants admit that they had entered into an Agreement to Sell with the plaintiffs, though it is claimed that the agreement was got drafted by the plaintiffs, and the defendants were only verbally told of the contents, which they believed. The defendants also admit that total sale consideration of the suit property was agreed at Rs. 12,25,000/-. The defendants claimed that they were not given a copy of the Agreement to Sell. The defendants state that after the execution of the Agreement, the plaintiff No. 2 - Pooja

Sharma issued two cheques bearing Nos. 735473 dated 31.08.2007 and 735474 dated 01.09.2007 of Rs. 48,000/- each towards part payment. The defendants state that it was agreed that the remaining payment of Rs.11,29,000/- would be paid at the time of execution of the sale deed, or at any time prior thereto. The defendants state that after receiving the earnest money, the defendants kept waiting for the remaining balance payment and also reminded the plaintiffs about the balance payment, but the plaintiffs kept on delaying the making of balance payment on one pretext, or the other. The defendants admit that the plaintiffs made further payment of Rs.1,30,000/- on 06.01.2008, which was acknowledged on the Agreement to Sell itself. The defendants claimed that the original sale deed of the suit property was taken by the plaintiffs, on the pretext of showing it to their Advocate for purpose of necessary documentation required for transfer of suit property in their favour. The defendants claimed that the plaintiffs promised and assured them that the balance payment would be made within 10 days. However, no further payment was made. Instead, they issued a legal notice dated 09.01.2008 (Ex.CW1/E), which was duly replied on 12.01.2008 vide Ex.P3. The defendants have raised an objection to the maintainability of the suit before this Court on the ground of pecuniary jurisdiction. It is claimed that since the sale consideration was Rs.12,25,000/-, out of which Rs. 96,000/- only had been paid by the plaintiffs initially, and Rs. 1,30,000/- had been paid on 06.01.2008, this Court would not have the jurisdiction, as the payment made to the defendants aggregates to Rs. 2,26,000/- only, and even if the plaintiffs are entitled to any relief of refund, it would be the double of the said amount only.

7. On the basis of the respective pleadings, the Court framed the following issues on 22.01.2009:

1. Whether the plaintiff is entitled for specific performance of agreement to sell dated 30th August, 2007, if so on what terms and conditions? OPP

2. Whether the plaintiff has always been ready and willing and is still ready and willing to perform his part of agreement? OPP

3. Whether the plaintiff is entitled for a decree of Rs.22,06,000/-

as damages in alternative in case the specific performance of the agreement to sell is not granted to the plaintiff? OPP

4. Whether the plaintiff is entitled for a decree of permanent injunction? OPP

5. Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction and the Court does not have pecuniary jurisdiction as alleged by the defendants? OPD

6. Whether the suit is bad for mis-joinder of the parties as alleged by the defendants? OPD

7. Relief

8. The plaintiffs led in evidence of plaintiff No. 1 as PW1 and plaintiff No. 2 as PW2, and of Shri Kailash Chopra as PW3. All of them were cross- examined by the defendants before the Joint Registrar. The defendants led

their own respective evidence as DW2 and DW1 respectively, and they were cross-examined by the plaintiffs.

9. The plaintiffs' witnesses PW1 and PW2 have deposed in their affidavits by way of evidence towards examination-in-chief in terms of their averments made in the plaint. PW3 - Shri Kailash Chopra has affirmed that on 12.08.2007, the defendant No. 1 had entered into an Agreement to Sell with him to sell their property for a consideration of Rs. 10 lacs which was paid by him to defendant No. 1 on 12.08.2007. He further states that he came to know that defendant No. 1, in connivance with her husband - Mr.Vijay Rajput, and her son Mr. Vikas Rajput were attempting to sell the property to another person for higher consideration. On this, he insisted that either the property be transferred to him, or the consideration paid by him be returned. He further states that on 26.08.2007, defendant No. 1 - after much persuasion, gave three post dated cheques. Two cheques of Rs. 4.5 lacs each and one cheque of Rs. 1,00,000/- dated 30.08.2007 were delivered to him. He has given the details of these cheques in his evidence. He states that these cheques were dishonoured on presentation and he has initiated action against the drawers of the cheques under Sections 138/142 of the Negotiable Instruments Act.

10. In the cross-examination of PW1, it has come out that Rs. 10 lacs was paid to the defendant on 30.08.2007 by way of two cheques of Rs. 48,000/- each, and rest of the amount was paid in cash. PW1 states that the Agreement to Sell (Ex.CW1/D) was executed in the office of the Sub Registrar, Janakpuri. The instructions were given to the Deed Writer who prepared the Agreement to Sell. PW1 denies that the plaintiffs' did not pay

Rs. 10 lacs to the defendants. He further states that the original documents were taken from the defendants on 30.08.2007 itself. He has denied the suggestion that the defendants handed over the original documents to the plaintiffs for getting the loan sanctioned from the bank. He has also denied the suggestion that certain blank cheques were taken from the defendant. He denies the suggestion that the Agreement to Sell had certain blank portions when the signatures were appended by the defendants on the said document. He states that there was no middleman involved in the deal. He denies having taken a blank cheque from the defendants, or having passed it on to a friend of his. PW2 also states that the Agreement to Sell (Ex.CW1/D) was executed in the office of the Sub Registrar, Janakpuri, Delhi. She states that the signatures were put by the parties before a typist. She states that the bayana amount of Rs. 10 lacs was paid before the parties put their signatures on the Agreement to Sell, though she did not know the details of payment of Rs. 10 lacs. She states that the said amount was not paid in her presence. She states that all the five persons, namely, the plaintiffs, defendants, and Mr. Vikas Rajput remained present in the premises of the Sub Registrar, Janakpuri, from the time of their reaching in the said office till their departure, after signing the documents in question. PW3 in his cross- examination stood by his examination-in-chief.

11. DW1 and DW2 in their examination-in-chief have deposed in terms of the averments made in the written statement. In his cross-examination, DW1 admits that the property was mortgaged. He denies that any Agreement to Sell was executed in favour of the plaintiffs. He admits that the suit property was mortgaged to Smt. Usha Rani on 11.09.2006. The

mortgage deed is Ex.CW1/C. I may note that though the mortgage deed recites that defendant No. 1 had taken a loan of Rs. 3,55,000/- under the mortgage, DW1 denies the suggestion that a loan of Rs. 3,55,000/- was taken from Smt. Usha Rani. He stated that loan of only Rs. One lakh was taken from her. DW1 states that he is illiterate. At this stage itself, I may note that this assertion of DW1 is contradicted and belied by his own subsequent statement - that he had written the encircled the portion on page of Ex.CW1/D, in his own hand. This encircled portion of Ex.CW1/D is the acknowledgement of receipt of Rs. 1,30,000/- on 06.01.2008. A perusal of the said encircled portion shows that the same has been written in flowing handwriting, and certainly cannot be said to be written or inscribed by a person who is illiterate. DW1 denies the suggestion that when the loan of Rs. 3,55,000/- to Smt. Usha Rani could not repaid, he requested the plaintiffs to pay the said loan amount to Smt. Usha Rani and that on such request, plaintiff No. 1 paid the said amount to Smt. Usha Rani and took into his possession the original title deed of the suit property along with the mortgage agreement.

12. DW1 admits his signatures on the Agreement to Sell Ex.CW1/D. However, he states that the same was blank stamp paper with nothing written on it when he signed. It is not explained by the said witness as to why he, or his wife DW2, signed on blank papers. The circumstances in which, and the occasion for signing the blank papers, has not been explained. Pertinently, he admits that his son Mr. Vikas Rajput - who is a graduate, has also signed the Agreement to Sell (Ex.CW1/D). Both DW1 and DW2 claimed to have signed the Agreement to Sell (Ex.CW1/D) either

at the residence of the defendants, or at the shop of plaintiff No. 1 - Vijay Kumar. DW1 admits not to have issued any notice to the plaintiffs for making payment of the balance consideration. He also admits that no complaint was made to the police, or any other authority, in respect of the fraud allegedly committed by the plaintiffs.

13. The answer of DW2 to several questions was that she was not personally aware, as her husband would be knowing about the same. She states that she did not enter into any transaction with anybody for selling the suit property. She states that she executed the document in relation to the suit property on the asking of her husband, and that her husband never told her that the suit property had already been sold to the plaintiffs.

14. On the basis of the pleadings of the parties and the evidence led by them, it has emerged that the defendants do not deny the execution of the Agreement to Sell (Ex.CW1/D) in respect of the suit property in favour of the plaintiffs for a total consideration of Rs. 12,25,000/-. This is so admitted by the defendants in their written statement itself. Though the defendants have claimed that the plaintiffs had represented that they would arrange a bank loan of Rs. 10 lacs, and had collected thirteen blank signed cheques from the defendants, no credible evidence in this respect has been led by them. The defendants have admitted the receipt of Rs. 96,000/- by way of two cheques dated 01.09.2007. While it is the case of the plaintiffs that they had paid an amount of Rs. 10 lacs at the time when the Agreement to Sell was executed, the case of the defendants is that they had only received Rs.96,000/- at the time when the said Agreement was executed and, therefore, the balance amount remaining to be paid at the time of execution

of the sale deed or at any time prior thereto, was Rs. 11,29,000/-. On the aforesaid aspect, I am inclined to believe the case of the plaintiffs - that they had paid the amount of Rs. 10 lacs to the defendants at the time of execution of the Agreement to Sell (Ex.CW1/D) on 30.08.2007 for the following reasons:

(i) That the defendants have executed the Agreement to Sell. The Agreement to Sell itself records and acknowledges the receipt of Rs. 10 lacs by the defendants and also records that the balance amount of Rs. 2,25,000/- will be paid to the defendants at the time of execution of the proper sale deed in favour of the plaintiffs or their nominee. There is no reason to believe, as it has not been established by evidence that the document was blank when the defendants and their son had signed the same. The defendants do not even claim that the plaintiffs, or any of them, were in a fiduciary capacity qua the defendants or that their relationship was such as to inculcate implicit faith in the plaintiff, such that the defendants would sign on blank stamp papers while entering into a serious commercial transaction with the plaintiffs for sale of their immovable property. Though there is discrepancy in the version of the plaintiffs and the defendants about the place of signing of the document Ex. CW-1/D - the plaintiffs claim that the same was prepared and then signed by the parties in the office of the Sub-Registrar, while the defendants claim that the same was signed at their residence by defendant No.1 and at the shop of the plaintiffs by defendant No.2 and by their son, the same is not of any

significance, as the defendants admit their execution of the said document - though in blank.

(ii) The story set up by the defendants that they had signed on blank stamp papers is completely unbelievable. The Agreement to Sell (Ex.CW1/D) was signed not only by the two defendants but also by their son Mr. Vikas Rajput as one of the witnesses. The endeavour of the defendants, as noticed above, is to distance themselves from the said Agreement to Sell (Ex.CW1/D) by firstly claiming that they had signed in blank - for which there is no explanation forthcoming, and by DW1 claiming that he is illiterate - which too is completely false, as noticed hereinabove. There is no explanation as to why a party, who is not receiving the full amount as being acknowledged in writing, should so give an acknowledgement. Pertinently, it is not the case of the defendants that they signed the said document (Ex.CW1/D) in good faith, or on the plaintiffs' promised that the balance amount, from the out of the amount of Rs. 10 lacs shall be paid later. No case of coercion, undue influence, or the like has been pleaded and established.

(iii) It is also to be noticed that the original title deeds came into the hands of the plaintiffs. It is highly improbable that the plaintiffs would get vested with the original title deeds of the suit property, as also the mortgage deed (Ex.CW1/C) if they had only paid a paltry amount of Rs. 96,000/- from out of a total sale consideration of Rs. 12.25 lacs. The defendants have not sought to explain as to how the plaintiffs came to possess the original mortgage deed (Ex.CW1/C). The

defendants have not been able to establish that the title deed of the suit property and the mortgage deed Ex. CW-1/C were delivered to the plaintiffs only to enable the defendants to obtain a bank loan. When the defendants admit to have agreed to sell the suit property to the plaintiffs, where was the question of taking a loan against the same? The version of the defendants is absurd - to say the least.

15. Having reached the aforesaid conclusions, I proceed to now answer the issues framed in the suit as follows:

16. The first two issues, namely, whether the plaintiff is entitled for specific performance of agreement to sell dated 30th August, 2007, if so on what terms and conditions, and whether the plaintiff has always been ready and willing and is still ready and willing to perform his part of agreement, can be dealt with together.

17. In view of the aforesaid finding, it is clear that the plaintiffs were always ready and willing to perform their part of the agreement. The plaintiffs have disclosed that after payment of Rs. 1.30 lacs on 06.01.2008, as per their agreement, they proceeded to the office of the Sub Registrar on 09.01.2008. Legal notice dated 09.01.2008 (Ex.CW1/E) was served on the defendant No. 1 informing her that the plaintiffs waited for the defendants in the office of the Sub Registrar - II, Janakpuri on 09.01.2008 till 2.00 p.m. but the defendants did not turn up. The response given by the defendants vide Ex.P3 dated 12.01.2008 is of no avail since the story of the defendants

to have received Rs. 96,000/-, and not Rs. 10 lacs at the time of execution of the Agreement to Sell (Ex.CW1/D), stands belied.

18. The further case of the plaintiff is that once again the plaintiffs proceeded to the office of the Sub Registrar on 15.01.2008. Pertinently, in the cross-examination of the plaintiffs' witnesses, this averment of the plaintiffs has not been challenged. The plaintiffs filed the present suit on or about 06.05.2008. There is no delay in the filing of the present suit and the same has been filed with sufficient promptitude. It is clear that the plaintiffs have been ready and willing to perform their part of the Agreement to Sell (Ex.CW1/D).

19. There is no evidence brought on record by the defendants to show as to why the Agreement to Sell (Ex.CW1/D) should not be specifically enforced. The defendants have received substantial part of the sale consideration i.e. Rs. 11.30 lacs, out of the total consideration of Rs. 12.25 lacs - thereby leaving a balance consideration of only Rs. 95,000/-. The said amounts were received by the defendants contemporaneously - Rs. 10 lacs having been received on the date of the Agreement to Sell i.e. on 30.08.2007, and Rs. 1.30 lacs having been received on 06.01.2008. The plaintiffs are, therefore, entitled to a decree of specific performance of the Agreement to Sell (Ex.CW1/D).

20. Since the plaintiffs are entitled to a decree for specific performance of the Agreement to Sell (Ex.CW1/D), the plaintiffs would not be entitled to the alternative relief.

21. The suit has been valued by the plaintiffs for the purpose of court fee and jurisdiction at Rs. 22,60,000/- on the basis that the alternative relief of refund of double the amount of advance/earnest money i.e Rs. 11,30,000/- comes to Rs. 22,60,000/-. In my view, since the alternative relief is valued higher than the primary relief of specific performance - which could be valued on the basis of the sale consideration disclosed in the Agreement to Sell (which in this case was Rs. 12.25 lacs), the plaintiffs have valued the suit properly and affixed ad valorem court fees on the alternative relief. This issue is accordingly decided in favour of the plaintiff.

22. Though the defendants claim that the suit is bad for misjoinder of parties, no specific averment is made as to how and on what basis it is claimed that the suit is bad for misjoinder of parties. The same has not been shown by the defendants, and is accordingly decided against the defendants.

23. Since the plaintiffs are entitled to a decree for specific performance of the Agreement to Sell (Ex.CW1/D), the plaintiffs are also entitled to a decree of permanent injunction as prayed for, to restrain the defendants from in any manner dealing with, selling, pledging, alienating or transferring or creating third party interest in the suit property, except in favour of the plaintiffs, in perpetuity.

RELIEF

24. In the light of the aforesaid, the suit is decreed in terms of the prayers

(a) and (b) made in the plaint along with costs. The plaintiffs shall deposit the balance sale consideration of Rs. 95,000/- in this Court within a period of two weeks, which shall be placed in a fixed deposit in the name of the Registrar General for a period of one year, and the deposit shall be kept renewed till further orders.

VIPIN SANGHI, J AUGUST 22, 2013 sl