Rajesh vs M/S Pienne Industrial ...
2017 Latest Caselaw 5288 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No. 654/2017

%                                                21th September, 2017

RAJESH                                                   ..... Appellant
                           Through:     Mr. Samir Jha and Mr. Vivek
                                        Dagar, Advocates.

                           versus

M/s PIENNE INDUSTRIAL CONSULTANTS PVT. LTD.
                                        ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 26342/2017 (for exemption) Exemption allowed, subject to all just exceptions.

The application stands disposed of.

C.M. Appl. No. 26341/2017 (for extension of time to file Court fees) Since Court fees has been deposited by the appellant, the C.M. stands disposed of.

C.M. Appl. No. 26340/2017 (for delay)

This is an application seeking condonation of delay of 79 days in filing the appeal.

For the reasons stated in the application the same is allowed and the delay of 79 days in filing the appeal is condoned.

C.M. stands disposed of.

RFA No. 654/2017 and C.M. Appl. No. 26339/2017 (for stay)

1. This Regular First Appeal is filed under Section 96 of the

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

impugning the judgment of the trial court dated 1.2.2017 by which the

trial court has decreed the suit for specific performance, injunction,

etc. under Order XII Rule 6 CPC.

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

the subject suit for specific performance seeking specific performance

of the agreement to sell dated 1.6.2011. Originally the agreement to

sell between the parties was entered into on 20.4.2011 and thereafter

the fresh agreement to sell dated 1.6.2011 superseded the first

agreement to sell. The subject matter of the agreement to sell, and

therefore the suit is 1/8th share of the appellant/defendant in the suit

property comprising total land of 36 bighas and 5 biswas situated in

Khasra no. 24/11(South)(1-2), 20(South)(2-3), 21(South)(2-

3)25//15(East)(2-6), 16(East)(4-13), 25 (East)(4-13), 26//17(South)(0-

6), 18(South)(1-12), 23(4-14), 24(4-16), 28//4(North)(2-1),

29//5(East)(4-5) and 13//1(1-11) within the revenue estate of Village

Badu Sarai, Tehsil Kapashera, New Dehli. As per the agreement to

sell dated 20.4.2011 total sale consideration was Rs.1,01,35,000/-.

Respondent/plaintiff is pleaded to have paid a sum of Rs.50,00,000/-

at the time of entering into the agreement to sell dated 20.4.2011.

Respondent/plaintiff pleaded further payment of Rs.5,00,000/- on

12.5.2011 and the entire balance sale consideration by 1.6.2011 in

terms of the following cheques:-

"(i) Rs.14,50,000/- through cheque No. 580681 dated 21.4.2011 drawn on Syndicate Bank, Bijwasan, New Delhi in favour of defendant i.e. Rajesh paid on 20.4.2011.

(ii) Rs.50,000/- in cash to defendant on 20.04.2011.

(iii) Rs.5,00,000/- through cheque No. 874295 dated 12.5.2011 drawn on The Bank of Rajasthan, Kailash Colony, New Delhi in favour of defendant i.e. Rajesh paid on 12.05.2011.

(iv) Rs.81,35,000/- through cheque No. 005163 dated 01.06.2011 drawn on ICICI Bank Ltd., Kailash Colony, New Delhi in favour of defendant i.e. Rajesh paid on 01.06.2011."

3. It was the further case of the respondent/plaintiff that on

receipt of the entire sale consideration a fresh agreement to sell dated

1.6.2011 was entered into by the parties and when also a Special

Power of Attorney was given in favour of Sh. Vidhu Sharma who was

the son of Sh. Prem Raj Sharma, Director of the respondent/plaintiff

company, and which Power of Attorney is a registered Power of

Attorney. Respondent/plaintiff company pleaded that the

appellant/defendant wrongly has sought to cancel the registered Power

of Attorney and cancellation of the registered Power of Attorney was

refused by the Sub-Registrar vide his order dated 20.3.2015.

Respondent/plaintiff pleaded that appellant/defendant had no right to

cancel the registered Special Power of Attorney dated 1.6.2011 issued

in favour of Sh. Vidhu Sharma and since the appellant/defendant has

received the entire sale consideration the suit for specific performance

should be decreed.

4. The appellant/defendant filed his written statement and

did not deny execution of the agreement to sell dated 20.4.2011 as also

the subsequent agreement to sell dated 1.6.2011. The

appellant/defendant also does not deny receipt of the sale

consideration of Rs.1,01,35,000/-. The appellant/defendant however

pleaded that the total sale consideration was not Rs.1,01,35,000/- but

was Rs.3.20 crores. The appellant/defendant pleaded that there was

still a remaining amount of Rs.2,18,65,000/-.

5. After pleadings were complete the trial court framed the

following issues on 3.9.2016:-

"1. Whether the sale consideration of the suit property i.e. agricultural land measuring 4 bigha 10 biswas and 13 biswansi situated in village Badu

Sarai, Tehsil Kapashera, New Delhi was fixed by the parties as Rs.1,01,23,000/- (Rupees One Crore One Lac and Thirty Five Thousands), as contended by the plaintiff or as Rs.3,20,00,000/- (Rupees Three Crores and Twenty Lacs), as contended by the defendant? ..... Onus on parties.

2. Whether the plaintiff company had been put in possession of the suit property by the defendant? ........ OPP

3. Whether the plaintiff is entitled to decree of specific performance of the agreement to sell dated 20.04.2011, as prayed for? ...... OPP

4. Whether the plaintiff is entitled to decree of declaration, as prayed for? ...... OPP

5. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? ...... OPP

6. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? ...... OPP"

6. The respondent/plaintiff thereafter filed the subject

application under Order XII Rule 6 CPC and which has been allowed

by decreeing the suit by the impugned judgment dated 1.2.2017 and

hence the present appeal. I may note that there was an issue of

limitation decided by the trial court in favour of the

respondent/plaintiff, and which issue is not urged/challenged on behalf

of the appellant/defendant before this Court.

7. Learned counsel for the appellant/defendant has very

vehemently argued that once issue no.1 was framed as to whether the

sale consideration was or was not Rs.1,01,35,000/- (wrongly written

as Rs.1,01,23,000/- in the issues), the trial court erred in decreeing the

suit under Order XII Rule 6 CPC because this was a disputed question

of fact which required trial as to whether the total sale consideration

was Rs.1,01,35,000/- or Rs.3.20 crores as was case of the

appellant/defendant.

8. In my opinion, the argument urged on behalf of the

appellant/defendant is barred by the provisions of Sections 91 and 92

of the Indian Evidence Act, 1872 inasmuch as, once there is a written

agreement between the parties containing the terms of transactions,

then, a party who is a party to the written document cannot plead that

the transaction is not what is stated in the written contract/agreement.

In sum and substance, Section 92 of the Indian Evidence Act prevents

a signatory to a contract to dispute the contents of the written terms.

Written terms can only be disputed in terms of the Provisos to Section

92 of the Indian Evidence Act and appellant/defendant has not pleaded

his case to fall under any of the Provisos to Section 92 of the Indian

Evidence Act and hence there is no such issue in the facts of the

present case. I completely agree with the observations of the trial

court as regards the applicability of Sections 91 and 92 of the Indian

Evidence Act and the relevant paras of the impugned judgment, in this

regard, are paras 21 to 23 and which paras read as under:-

"21. I am in agreement with the contentions of the ld. Counsel for the plaintiff that the defence of the defendant that the sale consideration was fixed at Rs.3,20,00,000/- does not merit any consideration for the reason that

it is contrary to the contents of the admitted documents executed between the parties. Once the defendant has admitted the execution of agreement to sell, receipt, possession letter, affidavit/undertaking and special power of attorney with regards to the suit property in favor of the plaintiff company wherein the sale consideration is mentioned as Rs.1,01,35,000/- only and he has also admitted his signatures on all these documents, it is not open to him to controvert the contents of these documents and to take a contrary stand. It has been held by the High Court in the case of Parivar Sewa Sansthan (Supra) that any plea raised against the contents of documents, only for delaying the trial, being barred by Section 91 and 92 of Evidence Act or other statutory provisions, can be ignored. Therefore, the aforesaid plea raised by the defendant being contrary to the contents of the admitted documents executed between the parties, is clearly barred by Section 91 & 92 of the Evidence Act and hence has to be ignored. Moreover, no material has been placed on record by the defendant to show that the sale consideration was actually arrived at Rs.3,20,00,000/- and not Rs.1,01,35,000/- as stated by the plaintiff.

22. Therefore, in view of the admitted documents executed between the parties as mentioned herein above, the case of the plaintiff company stands admitted in its entirety by the defendant and the plaintiff company has become entitled to judgment u/O XII Rule 6 CPC.

23. It is limpid from the admitted documents filed on record, which have been executed between the parties, that the entire sale consideration of Rs.1,01,35,000/- (One Crore One Lakh Thirty Five Thousand) stands paid by the plaintiff company to the defendant and the defendant has also handed over the possession of the suit property to the plaintiff. Only a regular sale deed remains to be executed between the parties. Considering the admitted facts on record, no dispute survives for adjudication and there does not appear to be any impediment in passing a decree in favour of the plaintiff company on the basis of these admitted facts."

9. Learned counsel for the appellant/defendant further

argued that agreement to sell dated 1.6.2011 talks of receipt of

possession of the suit property and such an agreement therefore being

unregistered and unstamped could not be looked into by the trial court.

In my opinion, not only such an issue has not been raised before the

trial court and no such issue has been got framed, even assuming such

an issue was framed, the same had to be decided in favour of the

respondent/plaintiff because an unregistered and unstamped agreement

to sell cannot be looked into so as to base a claim thereupon under the

doctrine of part performance contained in Section 53A of the Transfer

of Property Act, 1882 but an unregistered agreement to sell can always

be looked into in a suit seeking specific performance of the agreement

to sell. This is made clear by the Proviso to Section 49 of the

Registration Act, 1908. Therefore, in my opinion the argument urged

on behalf of the appellant/defendant that the respondent/plaintiff could

not file the suit for specific performance on the basis of an

unregistered agreement to sell is a misconceived argument and is

hereby rejected.

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

the same is hereby dismissed.

SEPTEMBER 21, 2017                          VALMIKI J. MEHTA, J
Ne/AK