Mohinder Kumar Sharma vs N.K. Mann & Ors.
2016 Latest Caselaw 706 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 1st February, 2016

+                  RFA No.382/2015 & CM No10256/2015 (for stay).

       MOHINDER KUMAR SHARMA              ..... Appellant
                  Through: Mr. Rohan Thawani & Mr. Manoj
                           Kapoor, Advs.

                                  Versus
       N.K. MANN & ORS.                              ..... Respondents

                    Through:         Mr. Arvind Nigam, Sr. Adv. with Mr.
                                     Jaswant Mann, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 impugns the judgment and decree dated 5th January, 2015 of the Court

of the Additional District Judge (ADJ)-06 (West) Delhi decreeing the suit

bearing M.No.1/14 (Unique Case ID No.02401C1144952005) for specific

performance filed by the respondent no.1 N.K. Mann against the appellant

by directing the appellant to execute the Sale Deed in favour of the

respondent no.1/plaintiff after receiving the remaining sale consideration

amount and declaring the Sale Deed dated 6th July, 2006 executed by the

appellant and the respondent no.2 Pradeep Kumar Sharma in favour of the

respondent no.3 Gurdeep Singh Grover as null and void and injuncting the

appellant and the respondents no.2&3 / defendants from creating third party

interest in the suit property i.e. the roof of the first floor bearing no.63,

situated in Block-E, Mansarovar Garden, New Delhi.

2. The appeal came up before this Court first on 27th May, 2015 when

notice thereof was issued and the Trial Court record requisitioned. The

respondents / defendants no.2&3 failed to appear despite service and were

vide order dated 11th January, 2016 proceeded against ex parte. Vide order

dated 6th August, 2015 execution proceedings were stayed. When the appeal

came up on 20th January, 2016, it was the contention of the senior counsel

for the respondent no.1/plaintiff that the grounds contained in the

Memorandum of Appeal do not show any substantial challenge to the decree

for specific performance and that the appeal either was liable to be dismissed

or the stay granted of execution liable to be vacated. The counsels were

heard. After some hearing the counsel for the appellant under instructions

from the appellant present in Court quoted an additional price subject to

payment of which it was stated that the appellant was ready to withdraw the

appeal. However the respondent no.1/plaintiff expressed inability to pay the

additional amount. The matter was adjourned to 21st January, 2016 for

further consideration. On 21st January, 2016 though the respondent

no.1/plaintiff conveyed willingness for the proposal of the appellant but

since the appellant was not present the matter was adjourned to 22 nd January,

2016. On 22nd January, 2016 though the appellant was present but sought

adjournment on the ground of non-availability of his Advocate and the

matter was adjourned to 27th January, 2016. The Advocate for the appellant

did not appear on 27th January, 2016 also and the appellant in person stated

that the compromise as earlier proposed by him was not acceptable to him.

In this circumstance, the appeal was listed for further hearing for today.

Today the counsel for the appellant has fairly stated that the appellant has

now backed off from the proposal for settlement given himself. The counsels

have been heard further and the Trial Court record perused.

3. The respondent no.1/plaintiff on 13th December, 2005 instituted the

suit from which this appeal arises impleading the appellant and the

respondent no.2, who is the brother of the appellant, only as the defendants

thereto and for specific performance of an Agreement dated 7th September,

2005 of sale of roof of the first floor of property no.63, Block-E, Mansarover

Garden, New Delhi. Though the appellant and the respondent no.2

defendants filed an application under Order 7 Rule 11 for rejection of the

plaint in the said suit but failed to file their written statement and ultimately

their defence to the suit was struck off and the respondent no.1/plaintiff

examined himself and his two witnesses who were cross-examined to the

extent permissible by the counsel for the appellant and the respondent

no.2/defendant. The suit, being suit no.254/2005, was decreed by the

judgment and decree dated 3rd November, 2007.

4. The appellant only preferred RFA No.6/2008 thereagainst and which

was disposed of vide order dated 10th December, 2013 by setting aside the

decree for specific performance insofar as against the appellant (the

respondent no.2 failed to appear in the appeal) and by remanding the suit to

the learned ADJ for time bound disposal.

5. The respondent no.1/plaintiff applied for amendment of the plaint to

impleaded the respondent no.3 Gurdeep Singh Grover as defendant no.3 to

the suit averring that the appellant and the respondent no.2, notwithstanding

the injunction order in force, had executed and registered a Sale Deed dated

6th July, 2006 with respect to the property agreed to be sold in favour of the

respondent no.1/plaintiff in favour of the said respondent/defendant no.3 and

seeking the relief of declaration of the said Sale Deed as void. The said

amendment was allowed and the respondent no.3 impleaded as defendant

no.3. However the respondent/defendant no.3 failed to appear before the

Trial Court and was proceeded against ex parte. Similarly, the

respondent/defendant no.2 Pradeep Kumar Sharma also did not appear

before the learned ADJ in the remanded proceedings.

6. On the pleadings of the appellant/defendant and the respondent no.1

/plaintiff the learned ADJ on 23rd January, 2014 framed the following

issues:-

"1. Whether the Plaintiff is entitled for specific performance of the agreement to sell dated 07.09.2005? OPP

2. Whether the agreement dated 07.09.2005 is not a valid agreement? OPD

3. Whether the plaintiff has not paid sum of Rs.5 Lacs to the defendants? OPD

4. Whether plaintiff is entitled for possession of the suit property as claimed for? OPP

5. Whether plaintiff is entitled for permanent injunction? OPP

6. Relief."

and on 15th April, 2014 framed the following additional issue:-

"Whether sale deed dated 06.07.2006 in favour of defendant no.3 Gurdeep Singh is null and void abinitio? OPP"

7. The learned ADJ, on a consideration of the pleadings and the

evidence, has decided all the issues aforesaid in favour of the respondent

no.1/plaintiff.

8. The counsel for the appellant/defendant No.1 has during the hearing

earlier and today made only the following contentions:-

A. that the Agreement to Sell in writing ordered to be specifically

performed and titled "Agreement-cum-Receipt" is signed only

by the appellant and the respondent no.2 defendants and the

witnesses and is not signed by the respondent no.1/plaintiff and

thus does not constitute an enforceable contract. With reference

to the dicta of the Supreme Court in Aloka Bose Vs. Pramatma

Devi (2009) 2 SCC 582 relied upon by the learned ADJ in this

regard, it is contended that in that case the seller was not

disputing the receipt of the earnest money while it was the plea

of the appellant in the present case that as against the earnest

money of Rs.5 lacs stated to have been paid in the "Agreement-

cum-Receipt", only a sum of Rs.1 lac in cash had been paid i.e.

Rs.50,000/- was received by the appellant and the other

Rs.50,000/- was received by his brother respondent/defendant

no.2 and the cheques for Rs.2 lacs in favour of each of the

appellant and the respondent/defendant no.2 recorded in the

"Agreement-cum-Receipt" to have been given were never given

and thus the said judgment has no application.

B. that since the earnest money which according to the Agreement

of which specific performance was sought was required to be

paid was not paid, no Agreement in fact came into force.

C. that the broker to the transaction in his cross-examination by

the counsel for the appellant/defendant admitted that the blanks

in the printed "Agreement-cum-Receipt" were filled up in his

handwriting.

D. that the respondent no.1/plaintiff on the dates when he claimed

to have called upon the appellant/defendant to fulfill his part of

the Agreement did not have the balance sale consideration of

Rs.16 lacs in his account as evident from the bank statement

produced by the respondent no.1/plaintiff and thus the

respondent no.1/plaintiff was not throughout ready and willing

to perform his part of the Agreement as he was required to be in

terms of the judgment of the Supreme Court in N.P.

Thirugnanam Vs. Dr. R. Jagan Mohan Rao (1995) 5 SCC

115.

9. Per contra the senior counsel for the respondent no.1/plaintiff has

argued:-

I. that the conduct of the appellant defendant and his brother

respondent no.2/defendants, of having executed the Sale Deed

of the property notwithstanding injuction order in force

disentitles the appellant from maintaining the present appeal.

II. the mala fide of the appellant are evident from the fact that the

appellant even post execution of the Sale Deed in favour of the

respondent/defendant no.3 did not disclose the said fact in the

amended written statement filed.

III. the fact that the respondent defendant no.3 in whose favour the

Sale Deed has been executed, inspite of notice failed to appear

before the Trial Court as well as before this Court clearly

demonstrates that the said transaction is a sham transaction.

IV. that the appellant and his brother respondent no.2/defendants

even refused to receive the telegrams sent by the respondent

no.1/plaintiff calling upon them to complete their part of the

Agreement to Sell in favour of the respondent no.1/plaintiff.

V. that the earnest money of Rs.5 lacs, even in the "Agreement-

cum-Receipt", is shown to have been paid in the form of Rs.1

lac in cash and Rs.4 lacs vide two cheques in the name of the

appellant and the respondent no.2/defendants for Rs.2 lacs each

and the appellant or the respondent no.2/defendants at no time

prior to the institution of the suit complained that they had not

received the cheques or that the entire earnest money agreed to

be paid had not been paid. It is however admitted that the said

cheques were not encashed. It is thus contended that the

appellant cannot raise a grievance in this respect.

VI. that the decree for specific performance with respect to the 50%

share of the respondent/defendant no.2 in the property has

already attained finality and the respondent/defendant no.2 has

not even bothered to appeal thereagainst.

VII. that though the appellant took a stand that he had signed the

"Agreement-cum-Receipt" in blank and claimed to be in

possession of a photocopy of the same but did not produce the

same. Adverse inference has to be drawn against the appellant

and it has but to be held that the photocopy in possession of the

appellant is the same as produced before the Court and the

appellant had not signed the "Agreement-cum-Receipt" in

blank.

VIII. that the statement produced by the respondent no.1/plaintiff of

his bank account shows that though the respondent

no.1/plaintiff did not have the money on the date when he had

sent the communication asking the appellant and the

respondent/defendant no.2 to come for registration but on the

date fixed for registration had the requisite money.

IX. that it was not the case of the appellant that the respondent

no.1/plaintiff had no means.

X. reliance besides on Aloka Bose supra is placed on Rajendra

Pratap Singh Vs. Rameshwar Prasad (1998) 7 SCC 602 to

contend that the purchaser of immovable property need not sign

the Agreement to Sell.

XI. reliance is placed on:

(a) Biswanath Ghose (Dead) by LR's Vs. Gobinda Ghosh

@ Gobinda Chandra Ghosh JT 2014 (4) SC 132.

(b) Gurdial Kaur (Dead) through LR's Vs. Piara Singh

(Dead) through LR's (2008) 14 SCC 735.

(c) Sukhbir Singh Vs. Brij Pal Singh (1997) 2 SCC 200.

(d) Azhar Sultana Vs. B. Rajamani (2009) 17 SCC 27.

(e) Meera Narula Vs. G.G. Malvankar 2014 (144) DRJ 522.

(f) Triveni Verma Vs. Vikas Girdhar 203(2013) DLT 508.

(g) Satya Jain (Dead) through LR's Vs. Anis Ahmed

Rushdie (Dead) through LR's JT 2012 (12) SC 30.

(h) Silvey Vs. Arun Varghese (2008) 11 SCC 45.

(i) P. D'souza Vs. Shondrilo Naidu (2004) 6 SCC 649.

on the aspect of readiness and willingness and it is argued that the

respondent no.1/plaintiff was not required to carry the money with him all

the time.

10. The counsel for the appellant in rejoinder has contended that the

question of the appellant demanding the balance earnest money from the

respondent no.1 / plaintiff did not arise as according to the appellant no

Agreement to Sell came into existence since the respondent no.1 / plaintiff

had not paid the entire agreed earnest money. It is also contended that the

respondent no.1 / plaintiff did not prove having issued the two cheques for

Rs.2,00,000/- each in favour of the appellant and the respondent no.2

towards earnest money.

11. I have considered the aforesaid contentions of the appellant and do not

find any merit therein.

12. As far as the first of the aforesaid contentions of the counsel for the

appellant is concerned, it is significant that it was / is not the case of the

appellant that the agreement orally reached with the respondent no.1 /

plaintiff was anything other than as reflected in the "Agreement-cum-

Receipt". It was / is not the case of the appellant that the total sale

consideration was not agreed to be Rs.17,00,000/- or that the earnest money

was not agreed to be Rs.5,00,000/- or that the time agreed for completion of

the sale was anything other than of three months. It was / is also not the case

of the appellant that the "Agreement-cum-Receipt" was not signed by him or

not delivered by him to the respondent no.1/plaintiff. Supreme Court, in

Aloka Bose supra has held that an Agreement of Sale comes into existence

when the vendor agrees to sell and the purchaser agrees to purchase, for an

agreed sale consideration on agreed terms - it can be oral - it can be by

exchange of communications which may or may not be signed - it can be by

the vendor executing the document and delivering it to the purchaser who

accepts it. Similarly, in Rajendra Pratap Singh supra, though in the context

of lease, it has been held that when the defendant does not dispute the fact of

a lease having been validly made, it is not open to him to later on raise a

contention that the instrument was void for the reason of having not been

executed by both the lessor and the lessee.

13. The effort of the counsel for the appellant to distinguish the said

judgments by contending that since the appellant was disputing the receipt of

money, the ratio therein would not apply, has but to fail. Significantly, the

parties here also are not at issue as to the total amount received by the

appellant towards earnest money. The respondent no.1 / plaintiff also agrees

that the cheque for Rs.2,00,000/- towards earnest money has not been

encashed by the appellant. The only difference is that while according to the

respondent no.1 / plaintiff, the said cheque had been delivered to the

appellant, according to the appellant, it had been not. The said fact would

make no difference to the fact whether a binding Agreement to Sell had

come into force between the parties. It was / is not the case of the appellant

that such an agreement was to come into force only on encashment of the

cheque. The learned ADJ has on appreciation of the evidence has returned a

finding of fact that the cheque for Rs.2,00,000/- was received by the

appellant but the appellant did not encash the same. I have also perused the

evidence in this regard and do not find the appellant in his evidence to have

laid any foundation for the said argument urged.

14. As far as the contention of the counsel for the appellant of the

appellant having signed the "Agreement-cum-Receipt" in blank, again a

perusal of the evidence does not show the appellant to have established the

said case in his evidence or in the cross-examination of the witnesses of the

respondent no.1 / plaintiff. Even today, the counsel for the appellant is

totally unable to answer from the evidence as to why the appellant and his

brother i.e. respondent no.2 in the normal course of human behaviour would

have signed the "Agreement-cum-Receipt" in blank. The matter however is

put beyond any pale of controversy from the appellant, though having taken

a stand of possessing a photocopy of the Agreement-cum-Receipt but having

not produced the same. The senior counsel for the respondent no.1 / plaintiff

is correct in his contention that adverse inference has to be drawn therefrom.

In fact, the counsel for the appellant fairly admits that the appellant in his

examination-in-chief did not even depose so.

15. That brings me to the last of the contentions of the counsel for the

appellant, of the respondent no.1 / plaintiff having not been ready and

willing to perform his part of the Agreement to Sell i.e. being not possessed

of the balance sale consideration of Rs.16,00,000/-.

16. The learned ADJ in the impugned judgment in this respect has

discussed the evidence of the Manager of the bank of the respondent no.1 /

plaintiff to the effect that the respondent no.1 / plaintiff, on the last date

agreed for completion of the sale i.e. on 6 th December, 2005, was having a

sum of over Rs.16,00,000/- in his account and that the respondent no.1 /

plaintiff had also proved having sent telegrams dated 1 st December, 2005,

2nd December, 2005 and 6th December, 2005 to the appellant and the

respondent no.2 calling upon them to complete the sale. The contention of

the counsel for the appellant as aforesaid is that though the respondent no.1 /

plaintiff on 6th December, 2005 had over Rs.16,00,000/- in his account but

did not have the said money on 1st December, 2005 and 2nd December, 2005

when he sent the telegrams. The learned ADJ has in this regard also relied

on the judgments aforesaid cited by the senior counsel for the respondent

no.1 / plaintiff before the learned ADJ also to the effect that a plaintiff in a

suit for specific performance is not required to prove being possessed of

ready cash at all times to come.

17. I have enquired form the counsel for the appellant whether the

appellant in the cross examination of the respondent no.1 / plaintiff quizzed

the respondent no.1 / plaintiff as to from where he got over Rs.16,00,000/- in

his account on 6th December, 2005 and / or suggested that the said monies

were not available to the respondent no.1 / plaintiff at any earlier point of

time.

18. The counsel for the appellant has fairly admitted that no such cross

examination has been done.

19. I am in the circumstances unable to appreciate the purport of the

contention. As aforesaid, the respondent no.1 / plaintiff on the date fixed for

completion of the sale i.e. 6th July, 2005 was admittedly possessed of the

balance sale consideration. There is no requirement of law for the

respondent no.1 / plaintiff to with effect from the date of entering into the

Agreement to Sell and till the agreed date for completion of sale throughout

hold the balance sale consideration in the savings bank account. In fact,

when the appellant did cross-examine the respondent no.1 / plaintiff in this

regard, it is not open to the appellant to contend that the monies, though

available on the date stipulated, were not available earlier.

20. It is indeed found that the challenge in this appeal to the judgment and

decree of the learned ADJ is not substantial.

21. I have otherwise satisfied myself that the findings arrived at by the

learned ADJ on all the issues are based on the evidence on record and are

consistent with the law in force.

22. There is thus no merit in the appeal.

Dismissed.

The appellant having co-operated in expeditious disposal of the

appeal, no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 1, 2016 „pp/gsr‟ ..