Radhey Shyam Gupta vs Rahisuddin & Anr.
2014 Latest Caselaw 803 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.47/2014

%                                                    11th February, 2014

RADHEY SHYAM GUPTA                                       ......Appellant
                Through:                 Mr. Ram Niwas, Advocate.

                          VERSUS

RAHISUDDIN & ANR.                                          ...... Respondents
                          Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.2709/2014 (exemption)

1.           Exemption allowed subject to just exceptions.


             C.M. stands disposed of.


+ RSA No.47/2014

2.           This Regular Second Appeal under Section 100 of Code of

Civil Procedure, 1908 (CPC) impugns the concurrent judgments of the

Courts below; of the trial Court dated 2.3.2006 and the first appellate Court


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 dated 15.10.2013; by which the suit filed by the appellant/plaintiff for

cancellation of the documents dated 20.8.1998 was dismissed.           By the

documents dated 20.8.1998, the appellant/plaintiff transferred to the

respondents/defendants his rights in the suit property bearing No. 48-B,

Janta Flat, Ashok Vihar-III, Delhi.           The appellant/plaintiff claimed

cancellation of the documentation on the ground that the consideration

which was alleged to have been paid under the same was actually not paid to

the appellant/plaintiff.

3.            The Courts below have given the following conclusions to

reject the case as set up by the appellant/plaintiff:-

(i)     The agreement to sell in question (Ex.PW1/D5) mentioned the aspect

of payment of consideration of Rs.49,000/- to the appellant/plaintiff by

means of a pay order bearing No.058278 dated 21.8.1998 of Nagrik Sehkari

Bank Ltd, Subzi Mandi, Clock Tower, Delhi.

(ii)    The aforesaid pay order was no doubt prepared by one Sh. Jai

Bhagwan but it was on behalf of the respondents/defendants, and, the case of

the appellant/plaintiff having received a loan of Rs.49,000/- from Sh. Jai

Bhagwan by means of the said pay order was false.

(iii)   The case set up by the appellant/plaintiff that pay order in question

issued by Sh. Jai Bhagwan was towards giving of loan to the appellant is
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 false because such a case was not set up in the plaint in spite of the fact that

in reply to the legal notice issued by the appellant/plaintiff to the

respondents/defendants,    the    respondents/defendants     had    specifically

mentioned about the subject pay order towards payment of consideration for

transferring of the suit property to the respondents/defendants by the

appellant/plaintiff.


(iv)   Sh. Jai Bhagwan was a witness (PW-3) to the documentation dated

20.8.1998 and he would have objected if the pay orders mentioned in the

documents as consideration was allegedly of loan from Sh. Jai Bhagwan to

the appellant/plaintiff, but was written as consideration payable for transfer

of suit property.


(v)    The case set up of loan given by Sh. Jai Bhagwan to the

appellant/plaintiff by the subject pay order and its repayment by the

appellant/plaintiff to Sh. Jai Bhagwan is false because the statement of

account which was relied upon by the appellant/plaintiff for repayment of

the loan to Sh. Jai Bhagwan shows the entry of alleged repayment as dated

5.11.1999 i.e after the appellant/plaintiff received the reply Ex.PW1/11 to

the legal notice given by the respondents/defendants in which the factum of

pay order being towards consideration was mentioned.

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 (vi)   Courts below also held that the case of the appellant/plaintiff lacks

credibility inasmuch as without receipt of consideration, appellant/plaintiff

would never have transferred possession of the suit property, much less

given the entire chain of title documents.


       To the above conclusion, I must add that if really the case of the

appellant/plaintiff was correct that he did not receive any sale consideration,

then, the appellant/plaintiff would not have waited for more than one year

after execution of the documents in August, 1998 to file the subject suit in

October, 1999.


4.           In my opinion, the aforesaid findings and conclusions of the

Courts below are clearly unimpeachable and no substantial question of law

arises under Section 100 CPC for this appeal to be entertained.


5(i)         Two arguments were urged by the appellant/plaintiff before this

Court. First argument was that there was difference in the font in the blank

portion filled in the documents in which originally blanks were left, and

therefore this showed that the documents, namely the agreement to sell

(Ex.PW1/D5), general power of attorney (Ex.PW1/D1), special power of

attorney (Ex.PW1/D3), affidavit (Ex.PW1/D2), receipt (Ex.PW1/D4) and

Will (Ex.PW1/D6) were not valid documents executed on 20.8.1998 when
RSA No.47/2014                                                  Page 4 of 6
 the same are said to have been executed and in fact the documents were to

be executed on 21.8.1998 before the sub-Registrar on the next date.

(ii)         In my opinion, this argument urged on behalf of the appellant is

misconceived because the argument is really like making a mountain out of

a molehill and this I say so because it is a routine that the documents are

printed out first by leaving the blanks with respect to the portions which

have to contain the details of payment etc. The blanks which are left are

thereafter filled in by means of a manual typewriter, and which is so as was

done in this case and therefore nothing turns upon the fact that the

documents had blanks which are filled in by means of a typing instrument

containing a different font. I may also note that I do not find any such

argument was urged before the first appellate Court or even before the trial

Court, as admitted before me by the counsel for the appellant.

6(i)         The second argument urged before this Court was that the

documents in question not having been stamped and registered would not

transfer rights in the suit property.

(ii)         Once again, this argument was never urged before the Courts

below and even no issue was framed before the trial Court. Therefore, this

argument cannot be urged for the first time in the second appeal. In any

case, the argument is also misconceived on merits because the documents in
RSA No.47/2014                                                   Page 5 of 6
 question are of the year 1998 which is before amendment of Section 53A of

the Transfer of Property Act, 1882 by Act 48A of the year 2001 w.e.f

24.9.2001 and before which amendment came in there was no requirement

of stamping and registration of the agreement to sell, power of attorney etc.

7.           In view of the above, there is no merit in the appeal and no

substantial question of law arises under Section 100 CPC.           Appeal is

therefore dismissed, leaving the parties to bear their own costs.




FEBRUARY 11, 2014                             VALMIKI J. MEHTA, J.

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