Vishal Grover & Anr. vs O.P. Batra
2013 Latest Caselaw 5733 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
15.
+                         CS (OS) No. 320 of 2011

        VISHAL GROVER & ANR.                            ..... Plaintiffs
                     Through: Mr. Vikram Jetly, Advocate for
                     Plaintiffs/Applicants in IA Nos. 17385 of 2011,
                     17386 of 2011 & 18190 of 2011.


                          versus


        O.P. BATRA                                    ..... Defendant
                          Through: Mr. Dinesh Garg with Ms. Surbhi
                          Sharma, Advocates for proposed Defendant
                          No.3.
                          Mr. Jitendra Jain, Advocate for proposed
                          Defendant Nos. 1 and 2.


        CORAM: JUSTICE S. MURALIDHAR

                          ORDER

% 11.12.2013

CS (OS) No. 320 of 2011 & IA No. 17385 of 2011 (under Order VI Rule 17 CPC), 17386 of 2011 (under Order XXXIX Rules 1 and 2 CPC), 18190 of 2011 (under Order I Rule 10 CPC)

1. Shri Vishal Grover and his brother Shri Neeraj Grover have filed the

above suit seeking specific performance of a purported agreement to sell

dated 24th October 2010 entered into by them with the Defendant Shri

O.P. Batra in respect of the property at H-92/1, Shivaji Park, New Delhi-

110026 (the 'suit property'). According to the Plaintiffs it had been

agreed that the total consideration would be Rs.30 lakhs out of which the

Plaintiffs paid the Defendant Rs.1 lakh at the time of execution of the

aforementioned "receipt -cum-agreement to sell". The balance Rs.29

lakhs was to be paid by 24th January 2011 simultaneous with the

execution of the sale deed. The Plaintiffs claim to have gone to the office

of the Registrar on 24th January 2011 but the Defendant failed to turn up

and in the facts and circumstances the present suit was filed. Along with

the suit the Plaintiffs filed the so-called 'receipt-cum-agreement to sell

dated 24th October 2010' which is a hand written document bearing the

signature of the Defendant in two places one of which is on a revenue

stamp.

2. After service of summons in the suit and notice in the application for

interim relief, an application IA No. 18190 of 2011 was filed under Order

I Rule 10 CPC by the Plaintiffs praying for the impleadment of Smt. Ritu

Batra, the wife of the Defendant and Vanshika Buildtech Ltd. ('VBL')

through its Director Shri Udit Garg as Defendants. In the application it

was stated that the Plaintiffs had learnt that under a sale deed the suit

property had been sold to VBL. It was further averred that the Defendant

was the owner only of the first floor of the suit property whereas he had

executed a 'receipt-cum-agreement to sell' for the whole property. It was

further averred that Smt. Ritu Batra was the actual owner of the ground

floor. She had executed a sale deed dated 12th September 2011 in favour

of the VBL in respect of the ground floor of the suit property. Notice in

the said application was issued by the Court on 18th November 2011.

3. In the written statement filed by the Defendant on 16th January 2012

inter alia it was stated that the entire case of the Plaintiffs was bases on a

forged and fabricated document and there was a deliberate suppression of

material facts. The Defendant denied entering into an agreement to sell

with the Plaintiffs. He stated that he had informed the Plaintiffs that he

owned only the first floor of the suit property and that his wife Smt. Ritu

Batra is the owner of the ground floor and that the photocopy of the

property documents given to the Defendant also indicated likewise. The

Defendant stated that he had already sold the suit property to VBL and,

therefore, the suit had been rendered infructuous. He pointed out that a

perusal of the document filed by the Plaintiffs shows that the words

"receipt-cum-agreement to sell for Rs.30 laksh" on top of the document

as well as the words "bal 29 laksh on 24-01-2011" as well as the

signatures other than those of the Defendant showed that the above

portions of the receipt were written subsequently by different persons.

The Defendant also stated that Plaintiff had connived with Shri S.P.

Arora and Shri Rahul Anand, property agent, to commit the forgery. It

was submitted that while Plaintiffs accompanied by Shri Rahul Anand

had met the Defendant in connection with his expressing his interest to

sell the suit property and gave a token amount of Rs.1 lakh to show their

inclination to enter into an agreement to sell in case the deal was finally

agreed to, the deal did not in fact go through. The Defendant was

categorical that he gave a receipt of Rs.1 lakh by writing on a piece of

paper "Received a sum of Rs.100,000/- (Rs. one lac only from Mr. Niraj

Grover and Shri Vishal Grover for property transaction pertaining to H-

92/1, Shivaji Park, New Delhi-26" and thereafter signed at the bottom,

wrote his name and also wrote the date. He stated that "Nothing else

above the receipt or below his signature was written on that paper."

4. The Defendant stated that he did not know Shri S.P. Arora, who also

signed on the forged document as he had never met him. It is stated that

when the Defendant met the Plaintiffs on 31st October 2010 they

informed him that they would need a few more days to take a final call.

On 5th November 2010 when the Defendant spoke to Plaintiff No.2 he

stated that they were not interested in buying the suit property and that

the Defendant could hold the said sum of Rs.1 lakh as trust and that they

would arrange to collect the said amount at any time. It was thereafter

that on 12th September 2011 the suit property was sold to VBL.

5. It appears in the meanwhile Defendant filed a criminal complaint

against the Plaintiffs in police station Kirti Nagar stating that Plaintiffs

had committed cheating and forgery. In the process of investigating FIR

No. 103 of 2012, the SHO of police station Kirti Nagar filed IA No. 1409

of 2012 for a direction to the Registry to hand over the originals of the

receipt-cum-agreement to sell dated 24th October 2010 allegedly executed

by the Defendant for the purpose of sending it to the Forensic Sciences

Laboratory ('FSL') for expert opinion. On 9th August 2012 while

allowing the said application, the Court passed the following order:

"This is an application filed by SHO of Police Station Kirti Nagar to handover the original receipt-cum- Agreement to Sell, to him as the document is required in connection with the investigation of a case vide FIR No. 103/2012 at Police Station Kirti Nagar. The Registry is directed to handover the documents to SHO of Police Station Kirti Nagar after keeping its photocopies on record. The SHO would return the

document to the Registry as soon as it is possible for him to do so. Copy of the report of CFSL shall also be filed in the Court as soon as it is received from CFSL. The application stands disposed of. "

6. The Court has since received the status report of the SHO police

station Kirti Nagar enclosing the original receipt-cum-agreement to sell

and the expert report of the FSL. By an order dated 29th August 2013,

copies thereof were directed to be given to learned counsel for the parties.

While adjourning the case to 11th December 2013, the Court made it clear

that there would be no further adjournment for consideration of the

pending applications.

7. In his status report the SHO police station Kirti Nagar has stated that

the FSL report "revealed that the main receipt of Rs.1,00,000 has been

written by complainant Shri O.P. Batra. The addition at top of receipt

"Receipt-cum-agreement to sell for Rs.30 lakhs" and at in bottom

"balance 29 Laksh on 24-1-2011" has been written by Neeraj Grover."

Further, the SHO states that the "Handwriting expert has opined that it

could not be ascertained whether the addition in the receipt at top and

bottom was made at the same and one time or otherwise when the main

body was written." The scanned copy of the said document is reproduced

as under:

8. The FSL report gives the following opinion:

"The person who wrote the red enclosed signatures stamped and marked S1 to S5 also wrote the red enclosed signature similarly stamped and marked Q1 for the following reasons".

9. The red enclosed signatures are those of the Defendant. The further

opinion is as under:

"The person who wrote the red enclosed writings and signatures stamped and marked S16 to S30 also wrote the red enclosed writings and signature similarly stamped and marked Q3 to Q5 for the following reasons:"

10. Q3 and Q5 are the writings on top of the receipt i.e. "receipt-cum-

agreement to sell for Rs.40 laksh". Q4 is the writing "bal 29 laksh on 24-

01-2011" and signature Q5 is of Neeraj Grover, Plaintiff No.2. The

opinion is as under:

"The person who wrote the red enclosed signatures stamped and marked S31 to S35 also wrote the red enclosed signature similarly stamped and marked Q6 for the following reasons:" and "The person who wrote the red enclosed writings and signatures stamped and marked S36 to S41 also wrote the red enclosed writings and signature similarly stamped and marked Q7 and Q8 for the following reasons:"

11. The writings marked S36 to S41 refer to the subsequent writings of

Shri S.P. Arora and the Q7 and Q8 are the witnesses' signatures.

12. In the considered view of the Court, the FSL report shows that the

Defendant did not write the crucial words "receipt-cum-agreement to sell

for Rs.30 laksh" on the top of the agreement or the words "bal 29 laksh

on 24-01-2001". Further the FSL report opines that the Plaintiff No.2 was

responsible for those writings.

13. In light of the above opinion of the FSL, the Court is of the view that

the document forming the basis of the suit is in fact not an agreement to

sell at all but is a manipulated document on which no reliance can be

placed.

14. Learned counsel for the Plaintiffs on the basis of the decisions in

Kamlesh Sharma v. Satya Devi 2013 VII AD (Delhi) 145, Shamsher

Singh v. Smt. Nandi Devi 2011 VII AD (Delhi) 496 and Kalawati Devi

v. Yoganti Devi AIR 2012 Patna 125 urged that the addition of the wife

of the Defendant as well as VBL as party Defendant is essential. He

submitted that it would be a matter of evidence whether the agreement to

sell was indeed a genuine document.

15. The Court is unable to accept the above submission of learned

counsel for the Plaintiffs. The FSL report substantiates the stand of the

Defendant that the agreement to sell is a forged and fabricated document.

It is clarified that this conclusion of the Court is on a preponderance of

probabilities. It will not affect the criminal case will proceed on its own

merits. However, as far as the present case is concerned the Court is

satisfied that no relief of specific performance or any relief whatsoever

can be granted to the Plaintiffs on the basis of such document. There is

no alternative relief prayed for. Consequently, the question of making

the subsequent purchasers parties to the suit does not arise.

16. The suit is dismissed for the aforementioned reasons and for not

disclosing a cause of action in relation to the reliefs prayed for. The

applications are disposed of.

S. MURALIDHAR, J.

DECEMBER 11, 2013 dn