Usha Rastogi vs Nisha Rastogi
2017 Latest Caselaw 3925 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.199/2017

%                                                     4th August, 2017

USHA RASTOGI                                           ..... Appellant
                          Through:       Mr. F.S. Chauhan, Mr. Kapil
                                         Chaudhary, Mr. B.S. Pal,
                                         Advocates.
                          versus

NISHA RASTOGI                                          ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.27840/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RSA No.199/2017 and C.M. No.27839/2017 (stay)

2. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the

suit impugning the concurrent judgments of the courts below; trial

court dated 17.4.2017 and the first appellate court dated 3.6.2017; by

which the courts below have decreed the suit for the relief of

possession with respect to the ground floor of property no. 424, Gali

Pan Wali, Farsh Bazar, Shahdara, Delhi. The suit was also decreed by

granting a permanent injunction restraining the appellant/defendant

from creating third party rights in the suit property.

3. The facts of the case are that respondent/plaintiff filed the

subject suit seeking relief of possession and injunction by pleading

that the appellant/defendant is the real sister-in-law of the

respondent/plaintiff and that appellant/defendant approached the

respondent/plaintiff in the year 2005 to support her and to provide her

shelter. Appellant/defendant was therefore allowed to live in the suit

property by the respondent/plaintiff. Respondent/plaintiff pleaded that

when in May 2015 appellant/defendant was asked to vacate the suit

property as the property is required for her son being a heart patient,

however, the appellant/defendant instead of vacating the property she

falsely claimed that she had purchased the suit property and had paid

Rs. 4,38,000/- towards sale consideration of the suit property to the

respondent/plaintiff on 2.3.2014. It was pleaded by the

respondent/plaintiff that the amount in question was actually and only

taken by the respondent/plaintiff from the appellant/defendant as a

security and which was to be refunded on the appellant/defendant

vacating the property and for which purpose a security agreement

dated 2.3.2014 was entered into between the parties.

4. Appellant/defendant contested the suit by pleading that

respondent/plaintiff had agreed to sell the property on 2.3.2014 for a

total consideration of Rs. 7 lakhs of which Rs. 4,38,000/- was paid

under the agreement dated 2.3.2014. Appellant/defendant claimed

that she was residing in the suit property since the year 2005, and

therefore the suit has to be dismissed because the security agreement

dated 2.3.2014 is not a security agreement but an agreement to sell.

5. It is seen that there is no dispute that the parties entered

into the security agreement dated 2.3.2014. Appellant/defendant

claims that the agreement dated 2.3.3014 is not a security agreement

but is an agreement to sell. First appellate court has therefore held that

even if the agreement has to be taken as an agreement to sell, yet,

since the agreement to sell was not in accordance with Section 53-A of

the Transfer of Property Act, 1882 as amended by Act 48 of 2001

which came into effect on 24.9.2001 inasmuch as agreement to sell is

not registered, therefore, the appellant/defendant cannot claim rights

under the same. In the opinion of this Court, the courts below have

rightly held that appellant/defendant cannot have benefit of Section

53-A of the Transfer of Property Act.

6. I would like to note that the contention of the

appellant/defendant that the agreement in question was not a security

agreement but was an agreement to sell, is an argument which the

appellant/defendant cannot be permitted to take as it is barred by

Sections 91 and 92 of the Evidence Act, 1872. Section 91 of the

Evidence Act stated that the agreement is proved by the document

being the agreement itself and once the agreement is so proved the

agreement cannot be contradicted by any parol evidence. In my

opinion, therefore once the agreement dated 2.3.2014 is a security

agreement the same cannot be as per its literal language be taken as an

agreement to sell because that would amount to the

appellant/defendant being permitted to contradict the terms of the

agreement dated 2.3.2014 and which is not permissible under Section

92 of the Evidence Act. I cannot agree with the argument urged on

behalf of the appellant/defendant that appellant/defendant is allowed

to show that the agreement in question is an agreement to sell on

account of para 3 of the preliminary objections of the written

statement inasmuch as the averments made in para 3 of the

preliminary objections of written statement if allowed and pleaded to

be proved would be hit by the Section 92 of the Evidence Act and

hence not a permissible defence in law. The averments made in para 3

of the preliminary objections of written statement does not set up a

case of fraud or undue coercion in terms of First Proviso to Section 92

of the Evidence Act and therefore, the averments in para 3 of the

preliminary objections of the written statement that an agreement to

sell was signed and not a security agreement cannot bring into play the

First Proviso to Section 92 of the Evidence Act. Para 3 of the

preliminary objections of the written statement is reproduced below

for the sake of convenience:-

"3. That, there is no relationship of licensor and Licensee between the plaintiff and the defendant. The defendant is residing in the Suit property as owner of Ground Floor portion as the defendant had paid a sum of Rs.4,38,000/- to the plaintiff as an earnest money / part payment with respect to purchase of the said property from the plaintiff for total consideration of Rs.7,00,000/- and had paid the earnest money / part payment of Rs.4,38,000/- with respect to the purchase of the said property on 02.03.2014. The plaintiff has intentionally and deliberately got typed a Security Agreement in respect of the said some of Rs.4,38,000/- instead of Agreement to Sell to be executed between, the Plaintiff and Defendant. It is pertinent to mention here that defendant is a widow lady and is residing in the suit property alone and plaintiff with connivance of her son and husband got typed the alleged security agreement between plaintiff and defendant. The defendant reserves its right to file appropriate legal proceeding for cancellation of the said document."

7.(i) Learned counsel for the appellant/defendant sought to

place reliance upon the judgment of the Supreme Court in the case of

S.M. Asif Vs. Virender Kumar Bajaj, (2015) 9 SCC 287 to argue that

the present was not a fit case for applying Order XII Rule 6 CPC not

only because power under Order XII Rule 6 CPC is discretionary but

also because appellant/defendant should be allowed to prove her stand

that the agreement in question is not a security agreement but is an

agreement to sell.

(ii) I cannot agree with the argument urged on behalf of the

appellant/defendant for two reasons. Firstly, the judgment in the case

of S.M. Asif (supra) will not apply in the facts of the present case

because in S.M. Asif's case (supra) the fact is that the defendant relied

on an agreement which was in fact an agreement to sell the premises

and in fact a suit for specific performance had been also filed on the

basis of the agreement to sell. In the present case, there is no

agreement to sell and there is only a security agreement with the fact

that there is no suit filed by the appellant/defendant for specific

performance against the respondent/plaintiff. The second reason for

not accepting the argument urged by the appellant/defendant that

present is not a fit case under Order XII Rule 6 CPC because as

already discussed above the defences which are raised by the

appellant/defendant even if taken as correct are those defences which

are impermissible in law being barred by Section 53-A of the Transfer

of Property Act and Sections 91 and 92 of the Evidence Act and once

a defence cannot be looked into legally, then such a defence cannot be

allowed to be continued as the said defence would not even if proved

allow the appellant/defendant the prayer for dismissal of the suit.

Order XII Rule 6 therefore has been righty relied upon/invoked by the

courts below. Therefore, the judgment in the case of S.M. Asif (supra)

relief upon by the appellant/defendant has no application to the facts

of the present case and is distinguishable for the reasons stated

hereinabove.

8. In view of the above, I do not fine any substantial

question of law raised for this second appeal to be entertained under

Section 100 CPC.

9. Dismissed.

AUGUST 04, 2017 / godara                  VALMIKI J. MEHTA, J