Manoj Gupta vs Munna Lal Sadh
2017 Latest Caselaw 5971 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 151/2005

                                   Reserved on: 23rd October, 2017
%                                  Pronounced on: 30th October, 2017

MANOJ GUPTA                                               ..... Appellant
                          Through:       Mr. Vipin K. Saini, Advocate
                                         with appellant in person.

                          versus

MUNNA LAL SADH                                       ..... Respondent

                          Through:       Mr. M.L.Sharma, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of Code of

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

impugning the judgment of the trial court dated 15.9.2004, by which

trial court has decreed the suit for specific performance filed by the

respondent/plaintiff and has directed the appellant/defendant to

execute the sale deed with respect to the suit property being the

ground floor and the first floor of the property no. 254, part of Khasra

No. 378, measuring 160 sq. yards, Masjid Moth, New Delhi.

2.(i) The facts of the case are that the respondent/plaintiff filed

the subject suit for specific performance of the suit property pleading

that appellant/defendant had on 18.8.2000 received the total sale

consideration of Rs.15 lacs and had executed the following documents

in favour of the respondent/plaintiff:-

"a. Agreement to sell dt. 18.8.2000 b. General Power of Attorney dt.18.8.2000 duly registered with SR-VII. c. Will dt. 18.8.2000 duly registered with SR-VII. d. Indemnity Bond dt. 18.8.2000.

e. Affidavit dt. 18.8.2000.

f. A receipt for Rs.15 lacs dt. 18.8.2000.

g. Possession letter dt. 18.8.2000."

(ii) It was also pleaded by the respondent/plaintiff that the

appellant/defendant handed over to the respondent/plaintiff the

following documents in order to prove his title and possession in the

suit property:-

"i. Will dt. 5th day of June 1995 duly executed by the testator Smt. Shanti Devi w/o Late Sh. Mithan Lal (the grandmother of the defendant). ii. A Demand Notice for the year 1983-84 issued by the Assessment and Collection Department, M.C.D. South Zone, Green Park, New Delhi in respect of the property tax of the property bearing no.254, village Masjid Moth, New Delhi (the suit property).

iii. Sale Deed dt. 24th day of January 1985 in favour of Smt. Shanti Devi W/o Late Sh. Mithan Lal duly registered on 24.1.85 with Sub Registrar, Kashmiri Gate, Delhi."

(iii) Respondent/plaintiff pleaded that though appellant/defendant

executed the possession letter in favour of the respondent/plaintiff but

he stated that possession be retained with him not only because it was

the mid-school session of the children of the appellant/defendant, but

also that appellant/defendant had creditors and the appellant/defendant

would not like to reveal that he had transferred rights in the suit

property to the respondent/plaintiff after receiving the consideration

and which aspect of transfer of rights to the respondent/plaintiff would

become clear in case possession of the suit property was taken by the

respondent/plaintiff. It is further pleaded by the respondent/plaintiff

that since in spite of repeated requests the appellant/defendant failed to

execute the sale deed of the suit property in favour of the

respondent/plaintiff and also failed to hand over possession of the suit

property to the respondent/plaintiff, hence the subject suit was filed.

3. Appellant/defendant contested the suit and filed his

written statement alleging that the transaction in question was not a

transaction of transfer of rights in the suit property by the

appellant/defendant to the respondent/plaintiff but the relevant

documents dated 18.8.2000 were executed in favour of the

respondent/plaintiff only as a security for loan of Rs.15 lacs which the

appellant/defendant was to take from the respondent/plaintiff for a

new project of construction which the appellant/defendant was

engaged in. Appellant/defendant also pleaded that respondent/plaintiff

took three blank cheques as security for the loan, but, the

respondent/plaintiff not only did not give the loan but also did not give

back the documents dated 18.8.2000 which were executed by the

appellant/defendant in favour of the respondent/plaintiff. Hence

dismissal of the suit was prayed for.

4. From the pleadings of the parties, the following issues

were framed:-

"1. Whether the documents GPA, Agreement to Sell, Will, Indemnity Bond, Affidavit, Receipt were got executed by the Plaintiff from the defendant as a security for loan as alleged in preliminary objection no.1 of the WS? OPD

2. Whether the amount of Rs.15 lacs was not received by defendant from the Plaintiff? OPD.

3. Whether the suit is barred u/s 6 of Specific Relief Act as alleged in preliminary objection no.7 in the WS? OPD.

4. Whether the plaintiff is entitled to the decree as prayed? OPP

5. Relief."

5. Since the appellant/defendant admitted the documents

and the onus of proof was on him that the subject documents were

executed for securing the loan and not that by the documents there was

to be transfer of rights in the suit property to the respondent/plaintiff,

the appellant/defendant was directed to first lead evidence.

Respondent/plaintiff did not lead evidence as he was confident that

appellant/defendant had failed to discharge onus of proof on him that

the documents in question dated 18.8.2000 were documents

transferring rights in the suit property and were not loan documents.

The relevant issues were issues nos. 1 and 2 as to whether the

documents in question were for transfer of rights in the suit property

or were only security for loan, and these issues were decided by the

trial court vide its impugned judgment in favour of the

respondent/plaintiff and against the appellant/defendant by observing

as under:-

"ISSUE NO.1 & 2:

These two issues are inter-connected and are being disposed of together, as they required common appreciation of their evidence. It is not disputed that the defendant executed the documents Agreement to Sell Ex.DW1/P-1, Receipt Ex.DW1/P-2, GPA Ex.DW1/P-3, Will Ex.DW1/P-4, Indemnity Bond Ex.DW1/P-5, Affidavit Ex.DW1/P-6. The signature on Ex.DW1/P-1 to DW1/P-6 are admitted by the defendant in the cross examination.

The defendant's case is that he executed these documents to secure an amount of Rs.15 lacs from the Plaintiff, is not worth believing, as the defendant seems to be a literate man and admittedly engaged in the work of building construction and can be presumed to have sufficient business acumen not to sign the documents without obtaining money. Further the GPA Ex.DW1/P-3 and Will Ex.DW1/P-4 are the registered documents and the Receipt Ex.DW1/P-2 is duly notarised, which facts show authenticity of these documents. Furthermore, DW1 in the cross examination has admitted that at the time of registration of some of these documents, he had gone to the office of Sub-Registrar for the purpose of registration. Therefore, it cannot be said that the defendant signed the documents Ex.DW1/P-1 to DW1/P-6 without obtaining Rs.15 lacs. Hence, the terms and conditions of the document Agreement to Sell Ex.DW1/P-1 are binding upon the parties and the defendant is not only liable to hand over the possession of the

disputed property to the Plaintiff, but also executed Sale Deed in favour of the Plaintiff with regard to the same as he has already given sale consideration of Rs.15 lacs as shown in ex.DW1/P-1. Learned counsel for the defendant has relied upon the authority M/s Sanjay Cotton Co,. Partnership Firm Akola Vs. M/s Om Prakash Shioparkash & another, AIR 1973 Bombay 40, which is entirely on different facts and is not applicable. Similarly the authority Ram Khilona & Others Vs. Sardar & Others, (2002) 6 S.C.C. 375 relied by counsel for the defendant is also not applicable as there is no credible evidence on record to show any alteration, was made in the sale agreement by the Plaintiff without consent of the defendant.

Similarly the authority M/s Mirahul Enterprises & others Vs Mrs. Vijaya Srivastava, 2002 VI AD (Delhi) 417 relied by counsel for the defendant does not have even remote bearing in the facts of the present case. So this authority is also inapplicable to the present case. In view of the above, the defendant has not been able to prove that he executed document Ex.DW1/P-1 to DW1/P-6 as a security for loan or the amount of Rs.15 lacs was not received by the defendant. Therefore, both the issues are decided in favour of the plaintiff and against the defendant."

(underlining added)

6.(i) I completely agree with the aforesaid conclusions of the

trial court because it is seen that the appellant/defendant admitted to

execution of the documents dated 18.8.2000 but led no credible

evidence whatsoever that the documents were executed not for

transfer of rights in the suit property but were only executed as

security for a loan. There is not a single document on record showing

that the documents dated 18.8.2000 were allegedly part of a loan

transaction.

(ii) In fact, in my opinion, the case of the appellant/defendant has

no legs to stand upon also because if the documents dated 18.8.2000

were not documents to transfer rights in the suit property then there

was no need to, besides execution of the documents, get the general

power of attorney dated 18.8.2000 and the Will of the same date

registered before the Sub-Registrar. It is not disputed that these two

documents were registered before the Sub-Registrar and once there is

a general power of attorney executed which is for consideration then

as per Section 202 of the Indian Contract Act, 1872 this general power

of attorney would become irrevocable. Further, since the case of the

appellant/defendant was that he was not given the loan of Rs.15 lacs in

terms of the documents dated 18.8.2000 and respondent/plaintiff did

not return these documents to the appellant/defendant then if this was

true then the appellant/defendant should have issued a legal notice to

the respondent/plaintiff for return of the documents stating therein that

no amount of Rs.15 lacs is received by the appellant/defendant

however, admittedly no notice or legal notice was issued by the

appellant/defendant against the respondent/plaintiff for return of the

documents dated 18.8.2000.

(iii) In my opinion, not only the appellant/defendant failed to prove

that the documents in question were security for the loan transaction,

the appellant/defendant also failed to prove that he had given three

cheques as security to the respondent/plaintiff. Though counsel for the

appellant/defendant sought to argue that with respect to one cheque

the son of the respondent/plaintiff, namely Sh. Vikas Kumar Sadh

misused the cheque and got it dishonoured and for which a notice

under Section 138 of the Negotiable Instruments Act, 1881 was issued

by the said son Sh. Vikas Kumar Sadh Ex.DW2/1, it is however noted

that in the examination-in-chief of Sh. Vikas Kumar Sadh as DW-2 he

stated that he had business transactions with the appellant/defendant,

and therefore, it cannot be held that the cheque which was

dishonoured in favour of Sh. Vikas Kumar Sadh was one of the three

cheques given as security by the appellant/defendant to the

respondent/plaintiff. Curiously, Sh. Vikas Kumar Sadh was

summoned as a witness by the appellant/defendant, and once that is

so, the appellant/defendant took a risk of the statements made by his

own witness DW-2 being used against him. In fact DW-2 in his cross-

examination by the counsel for the respondent/plaintiff admitted that

appellant/defendant had executed documents with respect to the suit

property in favour of the respondent/plaintiff on 18.8.2000 after

receiving Rs.15 lacs from the respondent/plaintiff and that the notice

Ex.DW2/1 has no concern with the subject case. In my opinion,

therefore, not only the appellant/defendant could take no benefit of the

deposition of DW-2, it is also otherwise established on record that

there were business relations between the appellant/defendant and the

son of the respondent/plaintiff namely Sh. Vikas Kumar Sadh, and for

such relations the dishonoured cheque could have been issued by the

appellant/defendant in favour of Sh. Vikas Kumar Sadh. I may note

that the documents dated 18.8.2000 are admitted documents and have

been duly proved and exhibited as Ex.DW1/P-1 to Ex.DW1/P-6.

7.(i) Learned counsel for the appellant/defendant then argued

that the suit is barred under Section 6 of the Specific Relief Act, 1963

and which was issue no.3 before the trial court. This issue no.3 has

been rightly decided against the appellant/defendant by the trial court

by observing as under:-

"ISSUE NO.3:

This issue is based upon the objection of the defendant in the Written Statement that the suit is barred under Section 6 of Specific Relief Act. Section 6 of Specific Relief Act comes to the rescue of a person, who is dispossessed of immovable property, otherwise than in due course of law and the limitation period for recovery of possession by such dispossessed person is six months. The facts of the present case, in my view, do not attract Section 6 of Specific Relief Act and the reliance of the defendant on this provision of law is misplaced.

The issue is, therefore, decided in favour of the Plaintiff and against the defendant."

(ii) In my opinion, besides the reasoning given by the trial court for

deciding issue no.3 in favour of respondent/plaintiff it is also to be

noted that the bar under Section 6 of the Specific Relief Act would not

arise once possession is sought to be taken under an agreement to sell

of which specific performance is sought. Section 6 of the Specific

Relief Act applies against a person who takes illegal possession and it

is not the case of the respondent/plaintiff that the appellant/defendant

had taken illegal possession of the suit property inasmuch as the case

of the respondent/plaintiff was that the appellant/defendant was in

permissive possession after execution of the documents dated

18.8.2000 on account of the education session of

appellant's/defendant's children being in mid-session and also that the

appellant/defendant did not want to reveal the factum of transfer of

rights in the suit property to his creditors. Accordingly, I hold that the

issue no.3 was rightly decided by the trial court in favour of the

respondent/plaintiff and against the appellant/defendant.

8. Learned counsel for the appellant/defendant then argued

various nano issues and which in my opinion would have no bearing

on the findings and conclusions arrived at by the trial court as also this

Court that the documents dated 18.8.2000 were not loan documents,

however, for completion of narration I note the aspects urged on

behalf of the appellant/defendant and the reasons for rejecting the

same as under:-

(i) Argument was sought to be raised by the appellant/defendant

that the amount received of Rs.15 lacs written in receipt Ex.DW1/P2

is typed in a different typewriter than the other portions of the receipt

Ex.DW1/P2, however, in my opinion, this argument is of no effect

because the appellant/defendant does not deny execution of all the

documents dated 18.8.2000 including the receipt Ex.DW1/P2. It is not

the case of the appellant/defendant in the written statement that the

documents dated 18.8.2000 were signed in blank and once that is so

the contents of documents cannot be disputed and which talk of

receipt of Rs.15 lacs by the appellant/defendant from the

respondent/plaintiff. Also, as stated above, if the appellant/defendant

had not received Rs.15 lacs, then, what prevented him from issuing a

notice to this effect to the respondent/plaintiff including seeking return

of the documentation dated 18.8.2000 on account of non-receipt of the

loan of Rs.15 lacs, and which the appellant/defendant never did.

(ii) Another argument urged on behalf of the appellant/defendant

was that the agreement to sell Ex.DW1/P1 does not state the mode of

payment of consideration, however, in my opinion, the

appellant/defendant cannot take benefit of this argument once the

appellant/defendant had executed the receipt Ex.DW1/P2 mentioning

the factum of the appellant/defendant receiving Rs.15 lacs but also it is

not the case of the appellant/defendant that the agreement to sell or the

receipt dated 18.8.2000 were blank documents when executed. This

argument of the appellant/defendant is therefore rejected.

(iii) Counsel for the appellant/defendant argued that the

respondent/plaintiff has failed to prove and aver his readiness and

willingness in terms of Section 16(c) of the Specific Relief Act and

therefore the suit had to be dismissed. Once again this argument is

misconceived because no doubt it is preferable to use the expression

of a plaintiff in a suit for specific performance being ready and

willing, however, it is equally settled law that existence of the said

averment can otherwise be deduced from other facts as stated in the

plaint. In the present case, there is no issue to be decided of any

readiness and willingness by the respondent/plaintiff because

respondent/plaintiff had no further obligation to perform under the

agreement to sell inasmuch as he had paid the entire consideration to

the appellant/defendant. The only obligation which thereafter had to

be performed was by the appellant/defendant of executing the sale

deed and there was no obligation of the respondent/plaintiff left to be

performed. Therefore in my opinion the fact that the

respondent/plaintiff in the plaint mentioning about execution of the

documents dated 18.8.2000 and receipt by the appellant/defendant of

Rs.15 lacs has to be taken as sufficient compliance of provision of

Section 16(c) of the Specific Relief Act in the facts of the present case

and where no further obligation remained or was to be performed by

the respondent/plaintiff and that it was only the appellant/defendant

who had to perform the obligation of executing the sale deed and

transfer the possession of the suit property to the respondent/plaintiff.

This argument of the appellant/defendant is therefore rejected.

(iv) It was argued that the respondent/plaintiff in the plaint has

mentioned that he received original title documents of the suit

property whereas the alleged title document is only a photocopy of the

sale deed dated 24.1.1985, however, once again this argument is

without any substance because the only title document to the suit

property was the Will dated 5.6.1995 Ex.PW1/1 executed by the

grandmother Smt. Shanti Devi in favour of her

grandson/appellant/defendant, and original of which Will has been

filed and proved as Ex.PW1/1. Therefore some minor contradictions

in the pleadings and in the deposition will really not make much

difference and which is all the more so because it is seen that the

photocopy of the sale deed dated 24.1.1985 is not with respect to the

suit property but some other property and therefore it is not the case of

the respondent/plaintiff that he received the original title document

dated 24.1.1985 which was pertaining to the suit property. This

argument of the appellant/defendant is therefore rejected.

(v) An argument was also raised as to the difference of the amount

of construction existing as per the site plain filed with the plaint by the

respondent/plaintiff and construction actually existing at site,

however, once again this argument has no substance because the

construction existing at site when the suit was filed in the year 2003

and thereafter the status thereof during the pendency of the suit from

14.8.2003 would obviously be much different because the

appellant/defendant continued in possession of the suit property after

execution of the documents in favour of the respondent/plaintiff on

18.8.2000. In any case this argument has no bearing or effect with

respect to the documents dated 18.8.2000 having been duly executed

in favour of the respondent/plaintiff and the appellant/defendant

having failed to prove that the documents were as security for the loan

transaction only. This argument of the appellant/defendant is also

therefore rejected.

(vi) Learned counsel for the appellant/defendant then sought to take

me through certain contradictions in cross-examination of the

respondent/plaintiff conducted over different dates, however, I find

none of the answers given by the respondent/plaintiff will in any

manner benefit the appellant/defendant to say that the

respondent/plaintiff ever admitted that the documents dated 18.8.2000

were for the alleged loan transaction and not for transfer of the suit

property in favour of the respondent/plaintiff.

9. To complete the narration, I must note that in the affidavit

by way of evidence dated 15.7.2015 filed by the appellant/defendant

some totally new facts of the appellant/defendant entering into various

transactions with various other persons were stated including the

construction business, and which were inter alia paras 12 to 18 and 30

to 34 of this affidavit by way of evidence, but, not only such

averments being wholly beyond pleadings could not be looked at, and

that it is also further required to be noted that the documents as

mentioned in this affidavit by way of evidence were sought to be got

proved on record through the affidavit by way of evidence much after

the framing of issues and after completion of evidence by the

respondent/plaintiff and therefore the said documents were not taken

on record by the trial court by the order dated 1.8.2015. This order

dated 1.8.2015 of the trial court was carried on in challenge to this

Court by the appellant/defendant in C.M.(M) No.1178/2016 but this

C.M.(M) No.1178/2016 was dismissed by a learned Single Judge of

this Court vide his order dated 8.12.2016 and which order reads as

under:-

"1. By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to impugn the order dated 01.08.2015 by which

his application under Order 7 Rule 14 CPC for filing additional documents was dismissed.

2. The respondent has filed the suit for specific performance of an alleged agreement to sell dated 18.08.2000. The case of the respondent is that he has entered into an agreement to sell with the petitioner and has paid the entire consideration of Rs.15 lacs for the suit property bearing No. 254, Masjid Moth, Delhi. Petitioner also executed General Power of Attorney, Will, Indemnity Bond, etc.

3. The petitioner in his defence has taken the plea that the transaction was not an agreement to sell but a loan and on the instructions of the respondent these documents were executed.

4. The suit was decreed. The petitioner has filed an RFA. The appellate court permitted the parties to lead additional evidence before the trial court and remanded the matter back to the trial court for leading additional evidence. The said RFA is still pending.

5. Now at this stage, the petitioner has sought to bring on record voluminous documents. It is the stand of the petitioner that some of the documents were initially executed and registered by the petitioner for the purpose of getting a loan from the respondent but the respondent did not accept the documents. Further the petitioner also submits that various loans have been taken from various other private financers and the nature of the documents executed with such financers is what he seeks to bring on record.

6. The trial court by the impugned order noted that the case is time bound as per the directions of the High court. The documents executed by the petitioner are mostly in favour of third parties or executed in favour of the petitioner by the third parties. The makers of these documents were stated to have no connection with the suit and hence, the trial court held that the documents are not relevant for decision of the issue involved in the present petition.

7. In my opinion, as the matter is now fixed for additional evidence, the introduction of these documents by the petitioner at this belated stage would normally be not permissible. These documents are also not stated by him or referred to by him in his written statement. There is no such averment made about a loan taken from the other private financers who would execute these kind of documents stated in the written statement. At this belated stage, after passing of a decree and when the appellate court permitted to lead additional evidence, there are no grounds made out to permit the petitioner to start filing additional documents.

8. The present petition is without merit and is dismissed.

9. All pending applications also stand dismissed."

10. Therefore I have not permitted counsel for the

appellant/defendant to argue the aforesaid aspects in aforesaid

affidavit by way of evidence, especially paras 12 to 18 and 30 to 34

thereof once the averments are not supported by any documents as

such prayer was rejected in terms of the aforesaid order dated

8.12.2016 by this Court in C.M. (M) No.1178/2016.

11. In view of the above discussion, I do not find any merit in

the appeal. Dismissed. Parties are left to bear their own costs.

OCTOBER 30, 2017                           VALMIKI J. MEHTA, J
ib/Ne