Delhi High Court
Ramji Dass Arora vs Sunita Sharma on 15 April, 2015
Author: Manmohan
#16
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 372/2014 & I.A. 2472/2014, 22254/2014
RAMJI DASS ARORA ..... Plaintiff
Through Mr. S.C. Singhal with Mr. Pradeep
Verma, Advocates
versus
SUNITA SHARMA ..... Defendant
Through Mr. Vikas Sharma, Advocate
% Date of Decision: 15th April, 2015
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present suit has been filed for recovery of Rs. 5,19,51,074/-. The
application being I.A. 22254/2014, under Order 12 Rule 6 CPC, has been
filed seeking decree on admission of Rs. 1,91,00,000/- against the defendant
pending adjudication of other claims of the plaintiff.
2. Mr. S.C. Singhal, learned counsel for the plaintiff-applicant states that
the defendant has filed a written statement in which she has admitted receipt
of Rs. 1,91,00,000/- as part of the sale consideration for House No. 147,
measuring 434 sq. mtrs. in Sector 38, U.E., Gurgaon, Haryana.
3. Mr. Singhal further states that the plaintiff has been dispossessed by
IDBI Bank after resorting to proceedings under Section 13 of The
Securitisation and Reconstruction of Financial Assests and Enforcement of
Security Interest Act, 2002 (for short "SARFAESI Act"). He states that lien
of IDBI Bank on the suit property was not disclosed by the defendant to the
plaintiff.
4. Mr. Vikas Sharma, learned counsel for defendant states the defence
put forward in the written statement is that the lien created by the defendant
was known to the plaintiff at the time of execution of Agreement to sell
inasmuch as a property worth Rs. 5,05,00,000/- was sold at a discounted
price of Rs. 3,05,00,000/-. Mr. Sharma points out that a One Time
Settlement agreement has been entered into between the defendant and IDBI
Bank.
5. Mr. Sharma also states that the plaintiff can only seek the relief of
specific performance and the defendant is entitled to utilize the advance
amount paid by plaintiff to repay the debt of the bank.
6. Having heard learned counsel for the parties, this Court finds that the
fact that the plaintiff has paid Rs. 1,91,00,000/- to the defendant towards
partial consideration under the Agreement to sell is an admitted position.
The relevant admission in the written statement is reproduced hereinbelow:-
"10. ....It is admitted that an amount of Rs. 1,91,00,000/- has
been paid by the plaintiff to the defendant."
7. Further, the fact that the plaintiff has been dispossessed by the IDBI
Bank from the suit property under Section 13(1) of SARFAESI Act is also
an admitted position. The relevant admission in the written statement is
reproduced hereinbelow:-
"14....the possession of the plaintiff was disturbed as the IDBI
bank took possession of the suit property......"
8. The defendant‟s argument that creation of lien on the suit property
was known to the plaintiff, is contrary to an admitted document namely,
Agreement to Sell dated 29th March, 2011 executed between the parties. In
the said Agreement to Sell, the defendant has specifically stated, "That
property to be transferred/sold under this Agreement is free from all
encumbrances such as prior-sale, mortgage, loan, dispute, litigation etc.".
9. This Court is of the view that the defendant‟s stand that the plaintiff
had prior knowledge of IDBI lien is barred under Sections 91 and 92 of the
Evidence Act, 1872. The said Sections are reproduced hereinbelow:-
"91. Evidence of terms of contracts, grants and other dispositions
of property reduced to form of documents.--When the terms of a
contract, or of a grant, or of any other disposition of property, have
been reduced to the form of a document, and in all cases in which
any matter is required by law to be reduced to the form of a
document, no evidence shall be given in proof of the terms of such
contract, grant or other disposition of property, or of such matter,
except the document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under the
provisions hereinbefore contained.
92 - Exclusion of evidence of oral agreement--When the terms of
any such contract, grant or other disposition of property, or any
matter required by law to be reduced to the form of a document have
been proved according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the parties to
any such instrument or their representatives in interest, for the
purpose of contradicting, varying, adding to, or subtracting from, its
terms:
Proviso (1).-Any fact may be proved which would invalidate any
document, or which would entitle any person to any decree or order
relating thereto; such as fraud, intimidation, illegality, want of due
execution, want of capacity in any contracting party [want or
failure] of consideration, or mistake in fact or taw:
Proviso (2).-The existence of any separate oral agreement as to any
matter on which a document is silent, and which is not inconsistent
with its terms, may be proved. In considering whether or not this
proviso applies, the Court shall have regard to the degree of
formality of the document:
Proviso (3).-The existence of any separate oral agreement,
constituting a condition precedent to the attaching of any obligation
under any such contract, grant or disposition of property, may be
proved.
Proviso (4).-The existence of any distinct subsequent oral agreement
to rescind or modify any such contract, grant or disposition of
property, may be proved, except in cases in which such contract,
grant or disposition of property is by law required to be in writing,
or has been registered according to the law in force for the time
being as to the registration of documents.
Proviso (5).-Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that
description, may be proved:
Provided that the annexing of such incident would not be
repugnant to, or inconsistent with the express terms of the contract:
Proviso (6).-Any fact may be proved which shows in what
manner the language of a document is related to existing facts."
10. The defendant‟s further defence that plaintiff can only seek specific
performance of Agreement dated 29th March, 2011 is misconceived in law
as the suit property is admittedly in possession of the Bank under
SARFAESI Act and till the debt of the Bank is discharged, the plaintiff
cannot seek such a relief. Moreover, in the opinion of this Court the
plaintiff‟s advance cannot be utilized by the defendant to repay her debts.
11. As far as the plea that the plaintiff must await repayment under the
One Time Settlement agreement is concerned, this Court is of the view that
plaintiff cannot be asked to „wait endlessly‟. Already four years have lapsed
since the execution of the Agreement and the dispute between the Bank and
the defendant has not been resolved.
12. From the aforesaid, it is apparent that there is a clear and unequivocal
admission that defendant has received Rs. 1,91,00,000/- and the defences of
the defendant to deny repayment are not only baseless and frivolous but also
untenable in law.
13. Accordingly, suit is decreed for Rs. 1,91,00,000/- in favour of the
plaintiff and against the defendant. Resultantly, I.A. 22254/2014 stands
allowed.
14. List before Joint Registrar on 19th May, 2015 for admission/denial of
documents.
MANMOHAN, J
APRIL 15, 2015
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