Delhi High Court
Dinesh Tanwar & Anr. vs Kunwar Singh Tanwar & Ors. on 15 April, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 19th February, 2019
Date of decision :15th April, 2019
+ RFA 544/2016 & CM APPL. 7381/2017
DINESH TANWAR & ANR. ..... Appellants
Through: Mr. Madhu Sudan Bhayana,
Advocate.
Mr. J.K. Sharma, Mr. Mahender
Singh & Mr. Aabhas Dahiya,
Advocates (M-9810808725)
versus
KUNWAR SINGH TANWAR & ORS. ..... Respondents
Through: Mr. Achal Gupta & Ms. Annie Rais,
Advocates for R-1 (M-8860751919)
Inspector Ram Kishan and SI
Pardeep.
AND
+ RFA 695/2016 & CM APPLS. 20788/2017, 20809/2017,
23088/2017
PRATIBHA ..... Appellant
Through: Mr. Madhu Sudan Bhayana,
Advocate.
Mr. J. K. Sharma, Mr. Mahender
Singh & Mr. Aabhas Dahiya,
Advocates.
versus
KANWAR SINGH TANWAR & ORS. ..... Respondents
Through: Mr. Achal Gupta & Ms. Annie Rais,
Advocates for R-1
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. The Plaintiff - Shri Kanwar Singh Tanwar (hereinafter, „Plaintiff‟)
filed the present suit for specific performance of bayana cum receipt
agreement dated 15th March, 2010 against Mr. Devender Kumar and Mrs.
Pratibha (hereinafter, „Defendants‟), both residents of WZ-508, Village
Basai Dara Pur, New Delhi. The case of the Plaintiff was that the
Defendants represented themselves to be the absolute owners of property
bearing No. WZ-523/30, situated at village Basai Dara Pur, New Delhi
admeasuring 170 Sq. Yards (hereinafter, „suit property‟). The agreed sale
consideration was at the rate of Rs.35,000/- per sq. yard i.e. for a total
consideration of Rs.59,50,000/-. According to the Plaintiff, the period for
execution of the sale deed, in terms of the agreement, was to expire on 14th
August, 2010. The Plaintiff had paid an advance of Rs.1 lakh. The Plaintiff
approached the Defendants on several occasions that he is ready with the
balance sale consideration, however, the Defendants avoided the issue and
failed to even give original title documents to the Plaintiff.
2. Thereafter, legal notice dated 3rd July, 2010 was issued, calling upon
the Defendants to appear before the Sub-Registrar on 16th August, 2010, to
execute the sale deed in favour of the Plaintiff. However, the Defendants did
not turn up. The Plaintiff then filed a suit for permanent injunction as he
was apprehending that the Defendants may create third party interest in the
suit property. The suit bearing No.143/2010 was filed before the Ld. Senior
Civil Judge, Delhi seeking injunction. The Defendants moved an application
under Order VII Rule 11 CPC, in the said suit, on the ground that the said
suit is not maintainable, as an alternate remedy of specific performance was
available to the Plaintiff. Accordingly, the present suit came to be filed
where the Plaintiff seeks the following reliefs:
"In view of the aforesaid facts and circumstances, it is,
therefore, most respectfully prayed that this Hon‟ble
Court may be pleased to pass a decree of specific
performance in favour of the plaintiff, and against the
defendants, thereby directing the defendants to
specifically perform their part of the contract in terms
of the bayana receipt cum agreement dated 15.03.2010
and to transfer the property/land bearing No.WZ
523/30, situated at Village Basai Darapur, New Delhi,
total measuring 170 sq. yds., by executing the
necessary sale documents in respect of the said
property in favour of the plaintiff on receipt of the
balance sale consideration amount of Rs.58,50,000/-
(Rupees fifty eight lacs and fifty thousand only). In
case, the defendants fail to execute the Sale Deed in
favour of the plaintiff in respect of the said property on
receipt of the balance consideration amount of
Rs.58,50,000/- (Rupees fifty eight and fifty thousand
only) in that event, this Hon‟ble Court may be please to
appoint an officer of this Hon‟ble Court to execute the
Sale Deed in favour of the plaintiff in respect of the
aforesaid property, in accordance with the bayana
receipt cum agreement dated 15.03.2010;
Costs of the present suit/proceedings be also awarded
in favour of the plaintiff and against the defendants.
Such other or further orders as this Hon‟ble Court may
deem fit and proper in the facts and circumstances of
the case be also passed in favour of the plaintiff and
against the defendants to meet the ends of justice.
It is prayed accordingly."
3. Summons were issued in the suit on 27th September, 2010.
Thereafter, on 22nd March, 2011, the parties were referred to mediation. In
the meantime, the Defendants filed their written statement. The case of the
Defendants was that the bayana receipt dated 15th March, 2010 stood
repudiated on 26th May, 2010. It was pleaded that on 11th May, 2010, the
Defendants called upon the Plaintiff to produce the original bayana receipt
and also to make payment of the balance sale consideration within 15 days.
However, since the same was not done, on 26 th May, 2010 the bayana
receipt stood repudiated. The Defendants further contended that the bayana
receipt lacked the essential ingredients to constitute a binding agreement, as
there was no description of the property or the area or the amount in it.
Further, the stamp paper on which the bayana receipt was issued, was dated
December, 2009, and the notarisation on the same was post-dated i.e., on
15th March, 2010, which is the date of the agreement as per the Plaintiff.
Accordingly, the Defendants sought dismissal of the suit on the ground that
it lacked cause of action.
4. The Plaintiff, however, denied the receipt of letter dated 11 th May,
2010 and claimed that the said letter was a forged document. Reliance is
placed on the letter dated 28th July, 2010 sent by the Defendants, in response
to legal notice dated 3rd July, 2010, sent on behalf of the Defendants which
contains no reference to notice dated 11th May, 2010. It was contended that
the Defendants are liable for forgery of the same. The receipt of Rs.1 lakh
out of the total sale consideration, having been admitted by the Defendants,
the Plaintiff contended that he is entitled to specific performance.
5. Mediation efforts were made but were not fruitful between the parties.
An application under Order XI Rule 12 CPC being I.A. No.12678/2011 was
filed calling upon the Defendants to produce the original
documents/envelope containing the letter dated 11 th May, 2010. It was
directed on 10th August, 2011 that Defendant No.2 shall produce all the
original documents, copies of which are on record. On 31st October, 2011,
time was sought by the Defendants for production of the originals. It was,
thereafter, claimed that the original documents were filed by the Defendants,
which were somehow not on record. Further, the Ld. Joint Registrar notes on
16th January, 2012 that no such documents are on record.
6. The Defendants acquired knowledge that the suit property has been
sold to one Smt.Kiran Tanwar and Shri Dinesh Tanwar vide two registered
sale deeds dated 29th December, 2011 and 31st December, 2011.
Accordingly, two applications - one for impleadment under Order I Rule 10
CPC being I.A. No.3062/2012 was filed and another application being I.A.
No.3063/2012, under order XXXIX Rules 1 and 2, were filed. Notices were
issued in the said applications on 21st February, 2012 to proposed Defendant
Nos. 3 and 4, Smt. Kiran Tanwar and Shri Dinesh Tanwar. On 18th April,
2012, status quo order was granted. Appeal FAO (OS) 363/2012 against the
said order was dismissed on 8th August, 2012. On 28th January, 2013, the
application under Order I Rule 10 CPC was allowed and Smt. Kiran Tanwar
and Mr. Dinesh Tanwar were impleaded as Defendant Nos.3 & 4. The status
quo order in respect of title and possession was also confirmed. Thereafter,
issues were framed in the suit on 25th February, 2014 and the same read as
under:
"(i) Whether the bayana receipt-cum-agreement, of
which specific performance is sought, was executed on
15.03.2010 as claimed by the plaintiff or in December,
2009 as claimed by the defendants No.l&2? OPP and
OPD-1 & 2
(ii) Whether the plaintiff has been ready and willing to
perform his part of the Agreement to Sell? OPP
(iii) Whether the defendants No.l&2 had sent and
served any letter dated 11.05.2010 as claimed in the
written statement? OPD1&2
(iv) Whether the bayana receipt-cum-agreement stood
repudiated by efflux of time on 26.05.2010? OPD 1&2
(v) If the Issue No.1 is decided in favour of the
defendants No. 1&2, whether the plaintiff is not
entitled to the relief of specific performance for the
reason of having misrepresented facts? OPD 1&2
(vi) Whether time for payment of balance sale
consideration /completion of the sale was essence of
the Agreement? OPD1&2
(vii) Whether the discretion implicit in the grant of the
relief of specific performance is to be exercised in
favour of the plaintiff? OPPr
(viii) Relief."
7. A Court Commissioner was appointed for recordal of evidence. At
that stage, in view of the increase in the pecuniary jurisdiction of the Delhi
High Court, the suit was transferred to the District Court vide order dated 9 th
December, 2015. The suit was heard by the Ld. Additional District Judge.
In the said suit, the Plaintiff led evidence of 10 witnesses. Most of the
witnesses were official witnesses including from the Delhi High Court, Tis
Hazari Court, State Bank of India, Oriental Bank of Commerce and
Syndicate Bank as also Rural Electrification Corporation Ltd. Apart from
these official witnesses, the Plaintiff examined himself, Shri Ramesh Kumar
Tanwar, Shri Gajraj Singh Tanwar and Mr. Mahipal Tanwar, who were PW-
7, PW-8, PW-9 and PW-10 respectively. Various other affidavits were also
filed of other witnesses, however, the said witnesses were not summoned or
deposed.
8. On behalf of the Defendants, no evidence was led by Defendant Nos.1
& 2, the original owners. Defendant Nos.3 & 4 also did not lead any
evidence as it was claimed that the purchase of the suit property by them
was an admitted fact.
9. Based on the pleadings and the evidence on record, the Trial Court
arrived at the following findings:
a) The execution of the bayana receipt dated 15th March, 2010 was
proved on record. The same was to expire in August, 2010,
therefore, there was no question of repudiation of the same on 26th
May, 2010.
b) The Plaintiff had shown availability of funds as also financial
status and liquidity to pay the balance sale consideration to the
Defendants.
c) Since there was no injunction order, Defendant Nos.1 & 2 had sold
the property to Defendant Nos.3 & 4, along with the additional
area. The sale was malafide as the same was during the pendency
of the suit.
d) The amount, for which the property was sold to Defendant Nos.3
& 4, was not in variance with the sale consideration mentioned in
the Plaintiff's bayana agreement.
10. The Trial Court, vide its judgment dated 23rd April, 2016, concluded
as under:
"28. Relief: In view of the discussion made herein
above, instant suit is decreed in favour of the plaintiff
and against the defendants No. 1 and 2 with cost
whereby defendants are directed to execute the
necessary registered sale documents in favour of
plaintiff in respect of the suit property bearing No.WZ-
523/30, Village Basai Darapur, New Delhi, total
measuring 170 sq. yds within two months against
receipt of balance sale consideration amount. Decree
sheet be prepared accordingly. File be consigned to
record room."
11. Two appeals have been filed challenging the impugned judgment
dated 23rd April, 2016. One appeal, being RFA 695/2016 has been filed by
one of the original owners Mrs. Pratibha. The second appeal being RFA
544/2016 has been filed by the subsequent purchasers Defendant Nos.4 & 3,
Shri Dinesh Tanwar and Smt. Kiran Tanwar. Contention in these appeals
was that the bayana receipt was not proved on record. Date of the bayana
receipt is not clear as to whether it is December, 2009 or March, 2010.
Further, the Plaintiff had not shown availability of funds or even readiness
and willingness to pay the balance sale consideration. The so-called visit to
the Sub-Registrar's Office is also not established by producing any receipt.
The bayana receipt stood repudiated by the Defendants vide letter dated 26th
May, 2010. No stamp paper was even produced to show that the Plaintiff
was willing to purchase the property.
12. On the other hand, it is argued on behalf of Plaintiff that the findings
of the Trial Court are liable to be upheld. The Defendants had not led any
evidence in the matter. The Plaintiff, on the other hand, had led evidence of
various witnesses to establish its case. Further, the subsequent purchasers
had no right in law as they had purchased the property during pendency of
the suit. The Plaintiff, being the earlier purchaser, had a better right and title
to the suit property. Reliance is placed on Section 52 of the Transfer of
Property Act, 1882. Plaintiff also relied on the following judgments.
Guruswamy Nadar v. P. Lakshmi Ammal (Dead) Through LRs &
Ors. (2008) 5 SCC 796
A. Nawab John and Ors. V. N. Subramaniyam (2012) 7 SCC 738
Analysis and Findings
13. The present two appeals have two separate dimensions. One is in
respect of the dispute between the Plaintiff- Mr. Kanwar Singh Tanwar
arising out of the bayana receipt dated 15th March, 2010. Second dimension
is the disappearance of one of the original owners of the suit property
namely Mr. Devender Kumar during the pendency of the suit. Both are dealt
with separately.
Judgement on merits in the RFAs
14. A perusal of the bayana receipt shows that the bayana receipt is in
Hindi and it is written and signed on a 100/- rupee stamp paper. The
signature of Plaintiff and Mr. Devender Kumar on the same are not disputed.
The translated text of the bayana receipt reads as under:
"We both sister and brother (Devender Kumar S/o Mr.
Chhotey Lal and Pratibha, wife of Shri Sunil Kumar)
have sold our portion of land WZ-523/30, Basai Dara
Pur to Shri Kanwar Singh Tanwar S/o Shri Ramesh
Tanwar R/o WZ-407, Basai Dara Pur at 35,000
(Rupees Thirty Five Thousand) per square yards for
which we have received Rs.1 lakh as bayana (token
money). Remaining amount has to be paid within five
months at the time of execution of papers.
Signed by Devender Kumar Tanwar (in Hindi and
English)
signed by Pratibha
signed by Shri Kanwar Singh Tanwar
Dated 15.03.2010
Sagar Singh
WZ-113A, Basai Dara Pur, New Delhi-15."
The rear side of stamp paper shows that it was purchased in December, 2009
by Mr. Kanwar Singh Tanwar.
15. The following persons appeared as witnesses of the Plaintiff:
PW-1: Shri Kumar Kala, Judicial Assistant, RKD Branch, Delhi High
Court;
PW-2: Shri Suresh Kumar, Junior Judicial Assistant, Tis Hazari
Court, Record Room Civil, Delhi;
PW-3: Shri Benoy Joseph, Clerk, State Bank of India, Moti Nagar,
New Delhi;
PW-4: Shri Raj Kumar Aggarwal, Clerk, Oriental Bank of
Commerce, Kirti Nagar Branch, New Delhi;
PW-5: Shri Jitender Kumar, Senior Officer, Rural Electrification
Corporation Ltd., New Delhi;
PW-6: Shri Madan Singh, Clerk, Syndicate Bank, Kirti Nagar
Branch, New Delhi;
PW-7: Shri Kanwar Singh Tanwar, the Plaintiff;
PW-8: Shri Ramesh Kumar Tanwar, father of the Plaintiff;
PW-9: Shri Gajraj Singh, uncle of the Plaintiff;
PW-10: Shri Mahipal Tanwar, cousin brother of the Plaintiff.
16. The documents, which have been exhibited by the Plaintiff's
witnesses, are as under:
Exhibit P-1 - Original bayana receipt executed between the Plaintiff
and the Defendants;
Exhibit P-2 - Legal notice dated 3rd July, 2010 sent by the Plaintiff to
the Defendants;
Exhibit P-3 - Reply dated 28th July, 2010 to legal notice dated 3rd
July, 2010;
Exhibit PW2/A- Plaint of Suit no.143/2010 filed by the Plaintiff,
seeking permanent injunction;
Exhibit PW2/B - Application under Order VII Rule 11 filed by the
Defendants in Suit No.143/2010;
Exhibit PW1/A- Certified copy of judgment dated 28th May, 2008,
passed in the CS(OS) 600/89, filed by the father of the Defendants for
partition;
Exhibit PW3/A - Statement of account of Mr. Mohar Singh, by State
Bank of India;
Exhibit PW3/B - Statement of Account of Mr. Ramesh Kumar
Tanwar, by State Bank of India;
Exhibit PW4/A - Statement of Account of Mr. Ramesh Kumar
Tanwar, by Oriental Bank of Commerce;
Exhibit PW5/A - Certificate of investment of Mr. Mohar Singh,
issues by Rural Electrification Corporation Ltd., wherein the Plaintiff
is the nominee;
Exhibit PW6/A - Acknowledgment of issuance of FDR to the
Plaintiff by Syndicate Bank
17. The evidence led on behalf of the Plaintiff, apart from the official
witnesses, was by 4 witnesses - PW-7, PW-8, PW-9 & PW-10. Their cross-
examination was conducted before the Local Commissioner.
Summary of evidence of PW-7 - Shri Kanwar Singh Tanwar
18. He exhibited all the relevant documents. The case in his affidavit in
evidence was identical to the one pleaded in the plaint. In his cross
examination, he stated that Defendant Nos.1 & 2 belong to the same village
as his, though there is no relationship between them. He stated that he had
approached Defendant Nos.1 & 2 for purchase of the suit property, which
was owned by Mr. Devender Kumar and Mrs. Pratibha. He had seen the
fard of the suit property and the partition order relating to the land in which
Mr. Devender Kumar was recorded as the owner of the suit property. In the
Court order, which was shown recording partition, Mr. Devender Kumar's
name was shown. The Plaintiff, further, claimed that he knew Mr. Devender
Kumar since childhood. He denied the suggestion that he was mentally sick.
He also stated that when he went for execution of bayana receipt, he was
accompanied by one Shri Sagar and both the Defendants were also present.
The document was executed at the house of the Defendants at WZ-508,
Basai Darapur, New Delhi.
19. He claimed that he was running a pathology lab and his annual
income was Rs.6 to 7 lakhs. In his income tax return, he showed Rs.2 to
Rs.2.5 Lakhs as his income. He confirmed the sale consideration of
Rs.35,000/- per sq. yards for the suit property, which was the market price.
He did not deal in disputed properties. He denied the suggestion that the
consideration was less than the market price. There was one tenant in
possession of the plot. Initially, demand was for Rs.40,000/- per sq. yards
but was later re-negotiated after 8 to 10 meetings. He confirmed that apart
from Rs.1 lakh, he had not paid any other amount to the Defendants. He
stated that in July, 2010, he had served a notice on the Defendants. He
confirmed having received Ex..P3 i.e. notice dated 28th July, 2010 issued on
behalf of the Defendants. There was no agreement in respect of the suit
property, which was executed except the bayana receipt. He stated that he
had sufficient funds to pay the remaining consideration. A period of five
months was agreed for registration of the sale deed. He stated that he had
cheques at the time when he visited the office of the Sub-Registrar for
execution of the sale deed. The same were signed by his family members.
Though the stamp papers were not purchased for execution of the sale deed,
the same would have been purchased by him at the office of the Sub-
Registrar. He stated that Ex.P3 i.e. notice dated 28th July, 2010 was issued
after filing of the injunction suit.
20. He stated that before entering into the agreement with Defendant
Nos.1 & 2, he had consulted Defendant No.4, Mr. Dinesh Tanwar. He had
also informed Defendant No.4 that Defendant Nos.1 & 2 were not executing
the sale deed. He stated that Defendant Nos.3 & 4 purchased the property
after 15th August, 2010. He learnt about the same only when the Sub-
Registrar issued letter dated 27th January, 2012 to him. He denied the
suggestion that he was well aware that Defendant Nos.3 & 4 were
purchasing the property. He also denied that the suit was filed in collusion
with Defendant Nos.3 and 4 in order to extort money from Defendant No.1
and 2.
Summary of evidence of PW-8 - Shri Ramesh Kanwar Tanwar
21. He is the father of the Plaintiff. He confirmed that he used to be the
senior manager of Oriental Bank of Commerce and that he owned
agricultural land. He stated that he is not an income tax assessee. He stated
that whenever his son required money, he could take from him, as all of his
money belonged to his son. He stated that he had fixed deposits and bank
accounts in Oriental Bank of Commerce and State Bank of India. For
payment of the consideration, he had not encashed the fixed deposits but he
was capable of raising loan. Whenever his son demanded a huge amount, he
gave payment by way of cheque.
Summary of evidence of PW-9 - Shri Gajraj Singh
22. He is the uncle of the Plaintiff - Mr. Kanwar Singh Tanwar. He
stated that the family was living jointly. He also stated that the Plaintiff had
asked him for arrangement of some money. He was aware of the agreement
entered into with Mr. Devender Kumar Tanwar in 2010. He also confirmed
that he had bank accounts in Oriental Bank of Commerce, State Bank of
Patiala and State Bank of India. He stated that in August, 2010 he had not
signed any cheques for withdrawing any amounts.
Summary of evidence of PW-10 - Shri Mahipal Tanwar
23. He is the brother of the Plaintiff. He stated that he was working in the
firm „Action Shoes‟ since 2007. He was also aware of the agreement with
Mr. Devender Kumar. He stated that he had bank accounts in State Bank of
Patiala, Oriental Bank of Commerce, State Bank of Bikaner and Jaipur. He
stated that his brother had asked him for money from time to time which he
sometimes gave in cash or sometimes by way of cheque. He also stated that
if his brother requested for cheques in somebody else's name, he would
issue the same. He further stated that his brother told him to make
arrangements for money.
24. Apart from the above four witnesses, bank officials, record keepers of
the courts, etc. produced the office records. The documents placed on
record by PW-1, Shri Kumar Kala, Judicial Assistant, RKD Branch, Delhi
High Court, pertained to the partition suit no.600/1989 and showed that vide
judgment dated 28th May, 2008, in a suit for partition filed by the
Defendants' father, the suit property devolved upon Shri Devender Kumar
only. Relevant extract of the said judgment is set out herein below:
"14............ The record of the Arbitrators shows that
another compromise was entered into between the
parties on 11th April, 1976 and in this compromise the
parties recorded as under:
"Sir,
We, Mangat Ram & Chottey Lal have mutually
compromised to divide the undermentioned
jointly owned properties mentioned in our
compromise dated 4.4.1974 amongst our
children as under:-
1. ..................
2. ..................
3. ..................
4. That property No.WZ-523/30 rented out to
M/s Jalapano Industrial is given to Shri
Devinder Tanwar s/o Shri Chotay Lal.
5. ..................
It is therefore, requested that the
aforesaid compromise be made part of the
arbitration proceeding.
Delhi
Dated 11.4.1976
Sd/- Mangat Ram
Sd/- Chhotey Lal"
........................
19. I, therefore, come to conclusion that plaintiff and
defendant had entered into an agreement dated 11 th
April, 1976 apportioning the properties among
themselves. The agreement is a valid agreement since
it was signed by both the parties and was presented
before Arbitral Tribunal and was accepted by the
Arbitral Tribunal after recording statement of the
parties. Even though the agreement does not find
mention in the final award but it is part of the Arbitral
Tribunal records and it cannot be said that there was
no agreement between the parties or the agreement
was not a valid agreement only because in the final
award there is no mention of it."
25. Further, the bank statements, placed on record, of various members of
the family of the Plaintiff show balance of around Rs.15 lakhs, Rs.3 lakh,
Rs.2 lakh, Rs.1.50 lakhs, in different bank accounts, being available with
them. The said officials had also placed on record copies of the non-
convertible redeemable bonds for Rs.2.63 lakhs, Rs.2.73 lakhs, Rs.4.73
laksh etc. The Defendants led no evidence.
Findings on the merits of the case
26. It is clear from a perusal of the pleadings and the evidence that the
Plaintiff's family was reasonably well off. They were all living together and
were earning members. They operated as a joint family. They had capacity
to pay as they were also owners of agricultural land and had agricultural
income. Further, the bayana receipt is itself an admitted document. The
bayana receipt mentions the date., the consideration amount and it
mentioned that papers have to be finalized within five months. The date on
the agreement is 15th March, 2010. It bears the signature of the Plaintiff,
Defendant Nos.1 & 2, as also the witness. Payment of Rs.1 lakh is also
admitted. Thus, the findings of the Trial Court are completely justified.
27. The subsequent sale deeds entered into with Defendant Nos.3 & 4 (at
pages 941 and 965 of the Trial Court Record) show the total sale
consideration as Rs.72 lakhs for 200 sq. yards. However, the Plaintiff had
agreed to purchase 170 sq. yards. Thus, the effective price between the
Plaintiff's transaction and transaction of Defendant Nos.3 and 4, was almost
the same i.e. in the Plaintiff's case, it was Rs.35,000/- per sq. yard and in the
Defendants' case it was Rs.36,000/- per sq. yards. Though the Plaintiff's
transaction was of March, 2010, and the sale to the Defendant Nos. 3 and 4
was in December, 2011 there was not much difference in the price between
the two transactions. The price being comparable, the Plaintiff being the
prior purchaser, its agreement being admitted and the Plaintiff having
established his readiness and willingness as also availability of funds, the
decree for specific performance is liable to be upheld.
28. The Plaintiff, pursuant to the said judgment, deposited the entire
balance sale consideration amount to the tune of Rs.67,63,580/-, in the Tis
Hazari Court, which is lying in an FDR there. After the judgment was
pronounced, the Plaintiff moved an application under Section 152 CPC,
seeking modification/correction of the judgment. Vide its order dated 20th
September, 2016, the Trial Court observed as under:
"8. In the instant matter, it is apparent on record
that measurement of the property was mentioned at
170 sq. yards in the plaint. Upon the objection taken by
the defendant in written statement regarding the area
being 200 sq. yards, as submitted in the replication,
plaintiff was willing and ready to purchase the entire
premises in terms of bayana cum sale agreement which
is basis of entire dealing between the parties. Plaintiff
had agreed to purchase the entire property against the
sale consideration of Rs.35,000/- per yard, which itself
is suggestive of the fact that the entire property was
intended to be sole by defendants No.1 and 2 in favour
of plaintiff at above mentioned rate. The contention of
plaintiff was that he was given the impression about
measurement of property as 170 sq. yards which if, it
was 200 sq. yards, he was ready to purchase the same
at the same rate as mentioned in bayana receipt.
9. Issues were framed in the presence of parties
and no issue was framed on the said aspect, nor was
ever pressed for by defendants to be framed. Judgment
has been passed in favour of plaintiff holding his
entitlement to seek specific performance which has to
be in consonance with agreement between the parties
and provision of Section 152 CPC, does not
disempower the Court to make accidental slips or
omissions corrected at any time.
10. The decree, accordingly, stands modified to
the extent that necessary registered sale documents
shall be executed in favour of plaintiff in respect of the
suit property bearing No. WZ-523/30, Village Basai
Darapur, New Delhi within two months against receipt
of balance sale consideration amount.
11. With regard to defendants No.3 and 4,
Judgment having been passed in favour of plaintiff,
defendants No.3 and 4 shall also be bound to above by
Judgment and decree, passed as respective sale deeds
in their favour also become null and void consequent
to Judgment having been passed in favour of plaintiff.
They can also ensure the protection of their interest
seeking release of balance sale consideration amount
deposited by plaintiff in their favour instead of
defendants No.1 and 2. However, Counsel for the
plaintiff placed reliance upon Lala Durga Prasad and
Anr. v. Lala Deep Chand and Ors. (1954 SCR 360),
wherein it was observed that "proper form of decree is
to direct specific performance of the contract between
the vendor and plaintiff and direct the subsequent
transferee to join in the conveyance so as to pass on
the title which resides in him to plaintiff." As suggested
and directed by Hon‟ble Apex Court, subsequent
transferees are also joined in the conveyance.
Operative portions of Judgment with modification shall
be read as follows:
"instant suit is decreed in favour of the plaintiff
and against the defendants No.1 and 2 with
cost whereby defendants are directed to execute
the necessary registered sale documents in
favour of plaintiff in respect of the suit property
bearing No.WZ-523/30, Village Basai Darapur,
New Delhi, at sale consideration amount of
Rs.35,000/- per yard within two months against
receipt of balance sale consideration amount.
Defendants No.3 and 4 shall be involved in
conveyance and after conveyance has been
executed, defendants No.3 and 4 shall be paid
equal share of Rs.67,63,580/- lying deposited in
this Court as compensation for the loss suffered
by them with further rights they may have
against defendants No.1 and 2. Fresh decree
sheet be drawn.""
29. In the modification order dated 20th September, 2016, the Trial Court
also records that the Plaintiff was willing to purchase the suit property at the
same rate, if it was a 200 sq. yards property, as agreed to by Defendant
Nos.3 & 4. Thus, as per the above modification order, the Trial Court made
the decree of specific performance dated 23rd April, 2016, binding even on
the subsequent purchasers i.e. Defendant Nos.3 & 4. They have been
directed to join in the conveyance and then the money lying deposited would
be released in their favour. Following the judgment of the Supreme Court in
Lala Durga Prasad v. Lala Deep Chand AIR 1954 SC 75, even the
transferees are liable to be joint in the conveyance when a specific
performance decree is passed. This position is again reiterated by the
Supreme Court in its recent judgment in Vijay A. Mittal and Ors. v.
Kulwant Rai (Dead) thr. L.Rs and Ors. [Civil Appeal No. 5177/2009
decided on 29th January, 2019]. Thus, Defendant Nos.3 & 4 shall be bound
by the decree of specific performance granted in favour of Plaintiff. This
modification order is liable to be upheld.
30. It is, accordingly, directed that the sale deed shall be executed by Mrs.
Pratibha with confirmation by Defendant Nos.3 & 4, Mrs. Kiran Tanwar and
Mr. Dinesh Tanwar, within three months. Upon the sale deed being
registered and the certified copy of the same being placed before the
Executing Court, the amount of Rs.67,63,580/- lying deposited in the Tis
Hazari Court, Delhi shall be released in favour of Mrs. Kiran Tanwar and
Mr. Dinesh Tanwar in equal proportions. Any interest, which has accrued
on the same, shall be reimbursed to the Plaintiff.
31. The appeals are disposed of in the above terms. All pending
applications also stand disposed of. Decree sheet be drawn.
Developments post filing of the present suit - Mr. Devender Kumar going
missing and conduct of Mrs. Pratibha in RFA 695/2016
32. In the present appeal filed by Mrs. Pratibha, being RFA 695/2016, her
brother Mr. Devender Kumar, who was the owner of the suit property was
not impleaded, either as a party or as Respondent. He has gone missing and
is completely untraceable. His bank accounts are being operated, huge sums
of cash are being collected by his sister from the sale of his properties and
despite repeated efforts by the court, the police have not conducted proper
investigation and Mr. Devender Kumar continues to be missing.
33. Due to the non-impleadment of Mr. Devender Kumar, an objection
was taken by the Plaintiff that the original owners, who had executed the
bayana agreement, were Mrs. Pratibha and her brother Mr. Devender
Kumar, and accordingly he ought to be impleaded in the appeal. Counsel
appearing for Mrs. Pratibha, at that stage, stated that the non-impleadment of
Mr. Devender Kumar was an inadvertent, bonafide error. Time was sought
to implead Mr. Devender Kumar and one week's time was granted. Despite
him being impleaded as a Respondent, Mr. Devender Kumar was not served
in the appeal. An objection was taken by the Plaintiff that the intention of
Mrs. Pratibha in making her brother as a Respondent was merely to delay
the hearing in the appeal.
34. On 5th July, 2017, in RFA 695/2016, execution proceedings were
allowed to continue, but it was observed that no final order would be passed.
An application came to filed being I.A.20788/2017 by Mrs. Pratibha under
Order XXXII CPC for appointing her as the „next friend‟ of her brother Mr.
Devender Kumar- Respondent No.4. The pleading in the application was
that Mr. Devender Kumar had a history of mental sickness, epilepsy attacks,
and reliance was placed on medical certificates/prescriptions issued by MGS
hospital, dated 11th October, 2005, Deen Dayal Upadhaya Hospital, and
Khetrapal Hospital. It was, further, pleaded that the condition of Mr.
Devender Kumar had worsened in 2014 and he suffered from complete
memory loss. It is then stated that Mr. Devender Kumar left the house in
February, 2016 and did not return, and that he has gone missing. Thus, it is
prayed that Mr. Devender Kumar be impleaded as an Appellant, after
appointing Mrs. Pratibha as her next friend. The relevant extracts of the said
application are set out below:
"3. During the pendency of the suit, Davinder Kumar
(brother of Pratibha) had a history of mental illness,
epilepsy attack etc. True copy of medical report of
Davinder Kumar is annexed herewith and marked as
Annexure-A/1
4. That the condition of Devender Kumar became
worse in 2014 and thereafter due to this medical
condition he remained in state of forgetfulness and
there was complete memory loss. Thus, Davinder
Kumar was bodily fine, however without any memory.
He was taken care of by the applicant (Pratibha) and
her family members only.
There are no other brothers/sisters of Davinder who
took care of him and it is in this background Davinder
was being looked after by Pratibha only.
5. That Davinder Singh left the house on Feb 2016, did
not return. Applicant and her family got concern and
they even got his complaint registered with police.
4. That the suit property belonged to Mr. Davinder
Kumar, who has lost his memory and as a person of
unsound mind now has gone missing. Therefore, it is in
the interest of justice that his sister Mrs.
Pratibha/Applicant herein be appointed as his 'next
friend' so as to take care of his legal interest before the
Hon'ble Court. Due to memory loss, Davinder Kumar
falls in the category of unsound mind whose interest is
to be protected till the time he himself becomes fit in
his mental faculties and/or becomes competent to
protect his own interest.
5. In light of the above, the cause title of the present
appeal be shown as Appellant 'Davinder Kumar S/o
Chhote Lal through Next Friend Ms. Pratibha and
memo of parties be corrected in the said terms. True
Copy of the corrected memo of parties is annexed
herewith and is marked as Annexure A-2
6. That the present application should have been filed
at the time of filing of appeal but due to inadvertence,
same could not be done. At this stage it is pertinent to
note that Ms. Pratibha in the appeal is espousing the
cause of 'Davinder Kumar S/o Chhote Lai' only as it is
he who was the owner of the property in question.
7. Present application is made bonafide and in the
interest of justice."
35. The said application is accompanied by the following medical
certificates:
Certificate dated 11th October, 2005 issued by Department of Radio-
Diagnosis & Imaging at M.G.S. Hospital;
Out-patients Ticket from Deen Dayal Upadhaya Hospital, dated 4th
October, 2005;
Prescription for Convulsion Disorder and Head CT Scan from
Khetrapal Hospital, dated 27th August, 1997;
Chest X-Ray report from Khetrapal Hospital dated 27th August, 1997;
Out-patients Ticket from Deen Dayal Upadhaya Hospital, dated 11th
July, 1996;
Out-patients Ticket from Deen Dayal Upadhaya Hospital.
Certificate issued from Khetrapal Hospital for Convulsion disorder
dated 26th August, 1997.
36. Along with this application, two other applications, one for exemption
and another application for placing on record the amended memo of parties
showing Mr. Devender Kumar as Appellant No.2, was filed. When the said
applications were listed before Court on 19th February, 2018, the Court
directed as under:
"Counsel for the Appellant submits that Mr. Devinder
Tanwar for whom the Appellant wishes to act as next
friend is missing since the last one year. On
instructions from the Appellant who is present in
Court, he submits that a complaint has been filed by
the Appellant with the SHO PS Janak Puri that her
brother is missing. A copy the complaint be produced
before the Court on the next date of hearing.
Relist on 15th March, 2018.
Parties shall remain present on the next date"
37. On the next date i.e. 15th March, 2018, the following order was
passed:
"1. Appellant in RFA 695/2016 is present in court. She
has produced an extract of the missing person register
maintained by S.H.O., Police Station, Janak Puri
which shows that Mr. Devender Kumar who was the
actual owner of the property has been missing since 23
October, 2013. It is surprising that this fact was not
brought to the notice of any of the courts till today until
the application was filed by the Appellant to act as next
friend. There are two sets of documents that have been
executed qua the suit property. The first set of
documents are executed with the Respondent No.l, Mr.
Kanwar Singh Tanwar by which it was agreed that the
suit property was to be sold for a sum of Rs.70 lakhs
vide documents dated 15th March, 2010. Counsel for
Respondent No.l submits that Rs.l lakh which was paid
at the time of the agreement was entered into and after
passing of the impugned decree, the balance amount
has been deposited before the Trial Court.
2. The second sets of documents have been executed
with Mr. Dinesh Tanwar and Mrs. Kiran Tanwar.
These sets of documents are dated 29th December,
2011 to 31st December, 2011. As per this set of sale
deeds, Rs.72 lakhs was the agreed consideration. The
sale deeds record that Rs.40 lakhs has been paid by
cash and Rs.32 lakhs has been paid by cheque. Mr.
Dinesh Tanwar is present in court who submits that
Mr. Devender Kumar is his first cousin i.e. Chacha's
son. When asked as to where his whereabouts, he says
that Mr. Devender Kumar used to reside with his
sister, Mrs. Pratibha and brother-in-law, Mr. Sunil
Arya. Mrs. Pratibha is present in court and submits
that Mr. Sunil Arya is working in BSES. Mr. Dinesh
Tanwar further submits that cash was handed over to
Mr. Devender Kumar and to Mrs. Pratibha, but the
cheques were given in the name of Mr. Devender
Kumar. On a query as to who is operating the bank
accounts of Mr. Devender Kumar (Saving Bank
Account No.65025152475), who is reportedly missing
since 23rd October, 2013, she submits that no one is
operating the bank account.
3. The Manager of State Bank of Patiala, Bali Nagar
Branch (now merged into State Bank of India) is
directed to produce a complete statement of account of
the bank accounts of Mr. Devender Kumar from 1 st
January, 2010 till date. He will also produce any
letters and documents which are on the bank records to
show as to who is operating the said account. A
responsible official of the bank shall be present in
Court on the next date. Let Court notice be issued to
the Manager, State Bank of Patiala, Bali Nagar
Branch along with a copy of the present order.
4. The S.H.O. Police Station Janak Puri is also
directed to file a status report as to the whereabouts of
Mr. Devender Kumar and any investigation conducted
in respect thereof, including the details as to when the
complaints was made as to when he is missing.
5. Relist on 20th April, 2018."
38. From the above, it was clear that the police record in police station
Janakpuri showed that Mr. Devender Kumar was missing since 23rd
October, 2013. However, this fact was not brought to the notice of any
Court, till the filing of the application for „next friend‟ in May, 2017. The
proceedings in the Court also revealed that Mr. Devender Kumar used to
reside with his sister Mrs. Pratibha. The subsequent purchasers, Defendant
Nos.3 and 4, had handed over the sale consideration to Mr. Devender Kumar
and Mrs. Pratibha. The cheques were in the name of Mr. Devender Kumar.
The cash was given Mrs.Pratibha. It was not clear as to who was operating
the bank account of Mr. Devender Kumar, who was stated to be missing
since 23rd October, 2013. The Bank Manager of State Bank of Patiala was
directed to produce the complete statement of account of the bank account
of Mr. Devender Kumar, and a status report was also called from the SHO
police station Janak Puri.
39. On the next date i.e. on 20th April, 2018, a constable from the police
station Janak Puri submitted that no missing persons complaint in respect of
Mr. Devender Kumar in the year 2013 was recorded with them. Mr. Ranbir
Singh, the official who appeared from the State Bank of India and submitted
the statement of account of Mr. Devender Kumar for the period from 1 st
January, 2010 to 18th April, 2018. The statement of account showed that
there are two entries showing deposit of Rs.16 lakhs in the bank account on
26th November, 2010 and 29th November, 2010. Out of the amount of Rs.32
lakhs which was deposited, Rs.29 lakhs had been withdrawn or transferred
to some other account vide entries dated 29th November, 2011, for Rs.15
lakhs and 20th December, 2011 for Rs.14 lakhs. It was not clear as to who
had signed the cheques or the forms for withdrawal/transfer of the impugned
amounts. The bank official was, accordingly, directed to produce the
vouchers and all other details to show the manner in which a sum of Rs.32
lakhs was moved. In fact, the last debit in the account of Mr. Devender
Kumar was on 4th June, 2014, which is subsequent to the missing persons
report claimed to have been filed.
40. On the said date, Mrs. Pratibha, who had originally stated that her
brother was missing from 23rd October, 2013, now stated that he went
missing only in 2016. Mrs. Pratibha, was paid cash of Rs.40 lakhs by the
subsequent purchasers, Mr. Dinesh Tanwar and Kiran Tanwar. She was
directed to file an affidavit as to who accepted the cash payments and how it
was utilised.
41. On 15th May, 2018, last opportunity was granted to Mrs. Pratibha to
comply with the earlier orders of the Court. On 22nd May, 2018, since both
Mrs. Pratibha and her husband did not appear before Court, bailable
warrants were issued to ensure their presence. On the said date, the bank
statements, which were produced, showed that the amounts from the account
of Mr. Devender Kumar were transferred to Mrs. Pratibha's account, vide
three cheques dated 29th November 2011, 20th December 2011 and 23rd
October, 2012. Mrs. Pratibha, thereafter, filed an affidavit dated 30 th May,
2018 pursuant to the order dated 20th April, 2018. In this affidavit, she
stated that her brother was of fragile health. She further stated that the sum
of Rs.40 lakhs received in cash and Rs.32 lakhs received by way of cheques
in the name of Mr. Devender Kumar, from the subsequent purchasers, were
utilised for the welfare of Mr. Devender Kumar. Relevant extracts of the
affidavit are set out hereinbelow:
"16. That the sale of the present property which is the
subject matter of the present appeal was also one of the
efforts to make him independent and the amount as
received against the sale consideration of the same
(4000000/- as cash as well as 32 lacs as cheque were
utilized for paying his debt as well as for his welfare.
17. That the payment as received in cash quantified to
be Rs.4000000/- was utilised for the payment of the
liabilities of the brother of the deponent as sum of
Rs.300000/- (thirty lacs) were paid to one Sh. Braham
who had paid to the brother of the deponent the sum of
Rs.1500000/ as earnest money towards some property
and further sum of Rs.600000/ were given to him as
interest on the same.
18. That the sum of Rs.500000/ were given to the
tenant to get the factory premises vacated. The name of
the tenant was Mr. Puran Singh, the deponent is
having the documentary proof qua the same which she
can file before the Hon‟ble Court as and when
directed.
19. That the sum of Rs.500000/ were also paid to one
Sh. Vinod Kumar and in addition to the same a sum of
Rs.200000/ were also paid to him in cash. And all the
payment were made on the insistence of the brother of
the deponent.
20. That there was a joint property of the brother of the
deponent and the deponent herself and at one point of
time the deponent had to pay a sum of Rs.1500000/- to
get the same vacated to then tenant occupied the
premises.
...................."
42. In the above affidavit, Mrs. Pratibha, apart from stating that the cash,
which was paid by Defendant Nos.3 & 4, to her, was utilized for treatment
of Mr. Devender Kumar also stated that she and her brother owned another
property bearing No. WZ-508, Village Basai Dara Pur, New Delhi. She
further submits that there were some tenants in the said property, who had to
be evicted and the money given by Defendant Nos.3 & 4 was utilized for the
said purpose.
43. It was further stated in this affidavit that further amounts were given
to various tenants to get the property vacated. The said property was another
property of which Mr. Devender Kumar and Mrs. Pratibha were claimed to
be the joint owners. It was also stated that all the payments were made to the
tenants on the insistence of Mr. Devender Kumar.
44. Upon perusing the said affidavit, on 31st May 2018, it was directed
that the said joint property, for which the amounts were utilised being,
property No.WZ-508, Village Basai Darapur, Delhi shall remain attached.
There was no other explanation in respect of the amount of Rs.72 lakhs,
which were paid by Defendant Nos. 3 and 4, to Mrs. Pratibha.
45. The status report filed by SHO police station Sagar Pur showed that
the last transaction in the bank account of Mr. Devender Kumar was of 6th
April, 2014 in favour of his sister - Mrs. Pratibha. On the next date, a
shocking state of affairs was revealed, that the joint property bearing
No.WZ-508, Basai Darapur, New Delhi, which was attached, had in fact
been sold. The statement of Mrs. Pratibha was recorded, wherein she stated
as under:
"Statement of Pratibha, w/o Sh. Sunil Arya, R/o WZ-
46A/10 Gali No.2, Village Sagarpur Main, New
Delhi.
On SA
The property WZ-508, Village Basai Dara Pur, New
Delhi-110015 stands in my name. The same was
inherited by me from my father. Total of 16 flats have
been constructed in that plot. All the 16 flats stand in
my name. Some of the flats are vacant and some have
been given on rent. The rent is not received by me. I
had given the property on Power of Attorney to Mr.
Prathvi Dutt Sharma (M-9811411501) and Mr. Ashok
Shukla for them to construct. The loan was taken by
the said dealers who are dealing with the tenants. I am
not aware of the actual amounts. The whereabouts of
my brother, Mr. Davinder Kumar are not known. I
don‟t know in whose name the electricity and water
meters are. I cannot deposit the sum of Rs.72,00,000/-
(Rupees Seventy Two Lakhs) which has been paid by
Mr. Dinesh Tanwar."
46. In this statement, she resiled from the earlier statement made in the
affidavit that property bearing No. WZ-508, Basai Darapur, New Delhi, was
a joint property. She now stated that the said property belonged to her. In
view of her statement, a Local Commissioner was appointed to ascertain the
exact status of property bearing No. WZ-508, Village Basai Dara Pur, New
Delhi.
47. The report of the Local Commissioner was received, which showed
that Mrs. Pratibha had sold 290 sq. metre of the property bearing No. WZ-
508, Village Basai Darapur, New Delhi, in favour of Mrs. Meera Shukla.
The sale deed is dated 16th January 2013 for a total consideration amount of
Rs.1,12,00,000/- and is claimed to have been witnessed by Mr. Devender
Kumar, the missing brother. The sale deed also specified that a
relinquishment deed dated 4th January, 2013 had been executed by Mr.
Devender Kumar in favour of his sister Mrs. Pratibha for property bearing
No. WZ-508, Village Basai Darapur, New Delhi. Another sale deed dated
17th December, 2013 had also been entered into by Mrs. Pratibha in favour
of Mrs. Renu Sharma W/o Mr. Prithvi Dutt Sharma for a consideration of
Rs.56 lakhs. The Local Commissioner's report showed that the statement
made by Mrs. Pratibha on 20th July, 2018 that she had given the property
bearing No. WZ-508, Village Basai Darapur, New Delhi, on power of
attorney to Mr. Prithvi Dutt Sharma and Mr. Ashok Shukla, was a false
statement. She had, in fact, sold the property to their respective wives and
collected total consideration of Rs.1.12 crores + Rs.56 lakhs = Rs.1.68
crores.
48. On 3rd August, 2018, after perusing the Local Commissioner's report,
notice to show cause was issued as to why contempt action ought not to be
taken against Mrs. Pratibha. She had made several false statements, as
recorded in paragraph 5 of the said order. On the said date, the Inspector
who had appeared from police station Sagar Pur informed the Court that Mr.
Devender Kumar was last found missing from the house of Mrs. Pratibha.
FIR was also directed to be registered to investigate the missing status of
Mr. Devender Kumar.
49. On 4th September, 2018, since no reply was filed to show cause for
contempt, last opportunity was granted to Mrs. Pratibha. The SHO police
station Sagar Pur had filed a further status report. On 26th September, 2018
a status report was filed which showed that some of the relatives of Mr.
Devender Kumar claimed that he was missing only since 2017. Mrs.
Pratibha then claimed that she did not have any medical records of her
brother. The status report further revealed that a sum of Rs.1.12 crores was
received by Mrs. Pratibha from Mr. Ashok Shukla, and there was no
explanation as to what was done with the said amount.
50. On 12th October 2018, a new counsel appeared on behalf of Mrs.
Pratibha in the contempt initiated against her and sought further time to file
reply to the show cause for contempt. The same was granted, subject to
payment of costs. The SHO police station Sagar Pur also reported that they
had moved the CFSL for conducting a lie-detector test on Mrs. Pratibha and
her husband in order to determine the whereabouts of Mr. Devender Kumar.
On 11th December, 2018 no reply to show cause notice was filed. No
counsel put in appearance in the contempt matter for Mrs. Pratibha. The
right to file reply was closed and Mrs. Pratibha was directed not to leave the
jurisdiction of this Court. On 19th February, 2019, orders were reserved in
the main appeal as also in the contempt proceedings.
51. A perusal of the various status reports and the affidavits filed, as also
the statements of the various bank officials reveals the following facts:
a) That the suit property actually belonged only to Mr. Devender Kumar.
The consideration was paid by the subsequent purchasers, partly by
cheque and partly by cash. The cheques were issued in the name of
Mr. Devender Kumar and the cash payment was accepted by Mrs.
Pratibha.
b) Apart from filing the written statement, Mr. Devender Kumar has not
appeared before the trial court.
c) At the time of filing of the appeal, Mrs. Pratibha simply filed the
appeal without impleading her brother, on the ground she was
aggrieved by the impugned judgement.
d) The appeal was filed in 2016, but no disclosure was made that the
brother, Mr. Devender Kumar, who is the original owner of the suit
property, was missing;
e) Statement was made on 2nd November, 2016 that the omission to
implead Mr. Devender Kumar was inadvertent and bonafide;
f) Application for being appointed as next friend is moved on the basis
of completely false statements made in the application;
g) That in the application under Order XXXII CPC, Mrs. Pratibha
claimed that her brother was missing since February, 2016. Thus, she
had prayed for being allowed to appear for her brother as his next
friend.
h) However, thereafter on 15th March 2018, she made a statement that
her brother has been missing since 23rd October 2013.
i) That she suddenly resiled from her stand recorded on 20th April, 2018
when she stated that her brother was missing since 2016. Para 6 of the
said order reads as under:
"6. Today Mrs. Pratibha states that her brother who
was initially missing in 2013, had come back and
again went missing from her house in 2016.
Insofar as the amount allegedly paid by the Appellants
in cash of Rs.40,00,000/-, Mrs. Pratibha and her
husband Mr. Sunil Arya to file affidavit in this Court
within two weeks as to who accepted the same and how
the same was utilized. Both Mrs. Pratibha and her
husband Mr. Sunil Arya shall remain present on the
next date of hearing."
j) The status report dated 26th September 2018 submitted by SHO police
station Sagar Pur shows that Mr. Devender Kumar was missing only
since 2017 as per the other relatives.
k) It was originally claimed that property bearing No.WZ-508, Village
Basai Darapur, New Delhi was a joint property of Mrs. Pratibha and
Mr. Devender Kumar, as per the affidavit of Mrs. Pratibha dated 30th
May, 2018. Paragraph 20 of the said affidavit reads as under:
"20. That there was a joint property of the brother of
the deponent and the deponent herself and at one point
of time the deponent had to pay a sum of Rs.1500000/-
to get the same vacated to then tenant occupied the
premises."
l) That a part of the amount of consideration received from the
subsequent purchasers of the suit property was utilized to vacate the
tenant from the joint property bearing No.WZ-508, Village Basai
Darapur, New Delhi.
m) On 20th July 2018 it was submitted that the property bearing No.WZ-
508, Village Basai Darapur, New Delhi, has been given on power of
attorney to Mr. Prithvi Dutt Sharma and Mr. Ashok Shukla. Her
statement reads as under:
"I had given the property on Power of Attorney to Mr.
Prathvi Dutt Sharma (M-9811411501) and Mr. Ashok
Shukla for them to construct."
n) The Local Commissioner's report further revealed that Mrs. Pratibha
had sold the property to the wives of Mr. Prithvi Dutt Sharma and Mr.
Ashok Shukla for a consideration of Rs.1.12 crores and Rs.56 lakhs,
respectively, in the year 2013 itself.
o) The stand of Mrs. Pratibha is now that the second property i.e., WZ-
508, Village Basai Darapur, was owned by her, and Mr. Devender
Kumar had executed a relinquishment deed in her favour qua his share
in the said property.
52. The conduct of Mrs. Pratibha, who was Defendant No.2 in the suit
and is the Appellant in RFA 695/2016 reveals that she has, during pendency
of this litigation, been making completely misleading and false statements
before this Court. She has, in fact, not only been misrepresenting to the
various parties i.e. the purchasers concerned, who are the Appellants in RFA
544/2016, and the Plaintiff in the suit, but has also indulged in some severe
contumacious conduct towards the Court. The suit property was sold
initially by her along with her brother jointly to the Plaintiff - Shri Kanwar
Singh Tanwar, as per the bayana agreement dated 15th March, 2010. The
written statement filed by Mrs. Pratibha and Mr. Devender Kumar were joint
in nature. An affidavit was also signed by Mr. Devender Kumar in support
thereof.
53. During the pendency of the suit, vide two agreements to sell dated
29th December, 2011 and 31st December, 2011, the property was again sold
by Mrs. Pratibha and Mr. Devender Kumar to Defendant Nos.3 & 4. This
was done without seeking permission of the Court. The amount of
consideration paid by Defendant Nos.3 & 4 was collected substantially by
Mrs. Pratibha in cash. There was no clarity as to how she utilized the said
amount. Even the amount of Rs.32 lakhs paid by cheque to Mr. Devender
Kumar, has been substantially withdrawn by Mrs. Pratibha from Mr.
Devender Kumar's account. Since the written statement itself originally
claimed that Mr. Devender Kumar was an epileptic patient and not in a
sound mental condition, it is not clear as to who negotiated the second
transaction for the suit property and how the entire consideration came to be
paid. Thereafter, at some point, Mr. Devender Kumar had gone missing and
continues to be missing till this date. Initially, Mrs. Pratibha was directed,
by this Court, to deposit the amount of Rs.72 lakhs vide order dated 31st
May, 2018, in the Court, however, she refused to do so, thereafter. On the
Court calling for an explanation as to how she utilized the amount paid by
Defendant Nos.3 & 4, she made a false statement, misleading the Court that
the same was used for the medical treatment of Mr. Devender Kumar and
some portion was used to evict the tenant from the joint property of Mr.
Devender Kumar and Mrs. Pratibha. Further enquiry was made into this
new fact, which she revealed, and even these statements were proven to be
false. In fact, the second property i.e., WZ-508, Village Basai Dara Pur,
New Delhi, which she claimed was jointly owned by her with her brother,
was sold by her to third parties on the basis of a relinquishment deed
executed by Mr. Devender Kumar in her favour. So, it is not clear as to
whether Mr. Devender Kumar, in fact, was a party to the second sale of the
suit property which took place in 16th January, 2013 It is not clear as to
whether he actually signed as a witness to the sale of the second suit
property in Basai Dara Pur, though he is shown to be a witness. It is not
clear as to whether he actually executed the relinquishment deed or not in
his sister's favour, as during this entire period, nobody seems to be aware of
the whereabouts of Mr. Devender Kumar.
54. His bank account is being continuously operated. Substantial
amounts have been withdrawn from the same and most of the amounts have
gone to Mrs. Pratibha. She had earned a huge sum of money by reselling the
suit property, by selling away the second property, and she continued to
mislead the Court as to the true status of the whereabouts of Mr. Devender
Kumar. She, in fact, tried to play innocent and moved an application to be
permitted to act as „next friend‟ of her brother, without disclosing in the
application that her brother was missing. In the said application, it was only
claimed that the brother was mentally ill. It was only after consistent
probing and enquiry by the Court that a completely sad state of affairs has
been revealed wherein a sister has been involved in misusing her brother's
property and cornering to herself all the money arising from the sale of his
properties. This entire sequence of events has played out during the
pendency of the litigation while the Court was adjudicating the issues. At
no point of time, does Mrs. Pratibha reveal to the Court the serious nature of
her brother's illness or that the fact that he was missing. She has indulged in
completely contumacious conduct, which has impeded adjudication of the
disputes involved in the suit.
55. Two sets of purchasers are before the Court. One of them has
deposited the entire sale consideration in the Court. The second set of
purchasers have paid the money to Mrs. Pratibha and Mr. Devender Kumar,
however, the said amount is not forthcoming. This Court took suo moto
notice of her conduct, which clearly constitutes contempt and she was
directed to file reply to the show cause as to why contempt action should not
be taken against her, but no reply has been filed by her to the said notice.
56. The conduct of Mrs. Pratibha, in completely usurping all the money
of her brother and not revealing the true facts to this Court, deliberately and
consciously clearly constitutes contempt. She has sold the suit property
jointly owned by her and her brother and accepted the sale consideration in
cash. She sold the second property belonging to her brother, as also all along
made false and incorrect statements before the Court. There is serious non-
disclosure of material and relevant facts before this Court. In fact, Mr.
Devender Kumar, brother of Mrs. Pratibha is still untraceable, despite
investigations by the police. The owner of the suit property, subject matter
of the appeal, was Mr. Devender Kumar. The money was accepted by Mrs.
Pratibha in her brother's name. It is not even clear as to whether the
affidavits filed in the present case, affidavits/pleadings filed by Mr.
Devender Kumar were, in fact, filed by him at all. Huge sums have been
siphoned off by Mrs. Pratibha from her brother's account and repeated sales
of the same property are being made. Even orders imposing costs on Mrs.
Pratibha have not been complied with. Mr. Devender Kumar was a
signatory to the agreement to sell/bayana receipt dated 15th March, 2010 in
the present case. He was supposed to have gone missing since 2013. He
has, however, been shown as a witness to the sale deed in respect of a
portion of the property bearing No.WZ-508, Village Basai Darapur, New
Delhi dated 16th January, 2013 in favour of Mrs. Meera Shukla. It is not
clear if the signatures on the said sale deed and relinquishment deed are even
genuine as he was purportedly missing. Even the date since when Mr.
Devender Kumar is missing is not clear. The signatures and spelling of Mr.
Devender Kumar as is available in the affidavit filed in support of the
written statement before the Trial Court, appear to be prima facie different
from the signatures appearing on the cheques placed on record by the bank
official. It is, thus, possible that the amounts have been withdrawn from the
account of Mr. Devender Kumar by forging his signatures, which will
however require an investigation.
57. The two purchasers of the property are before this Court. The facts
reveal an alarming situation, wherein a brother has gone missing and his
sister has garnered to herself the entire money in respect of the joint
property. Mrs. Pratibha has showed scant regard to the orders passed by this
Court and in fact, made false and misleading statements, time and again, as
recorded herein above. The contents of her application as `next friend‟ are
telling. In the said application, which is supported by her affidavit, she has
claimed that only Mr. Devender Kumar is the owner of the suit property.
She doesn't reveal the facts as to exactly from when he is missing, but states
that it was near February, 2016. She pleads that she inadvertently did not
make her brother a party to the appeal. She has feigned innocence when
clearly her brother was last residing with her and she was aware all along
that he is missing. She has impeded the administration of justice and
repeatedly violated orders passed by this Court. This is nothing but contempt
in the face of the Court.
Analysis of the Law
58. The jurisprudence on contempt of Courts is fairly well settled in India.
The relevant provisions of the Contempt of Courts Act, 1971, are set out
below:
"Section 2. Definitions. - In this Act, unless the
context other requires, -
(a)...............
(b) "civil contempt" means willful disobedience to any
judgment, decree, direction, order, writ or other
process of a court or willful breach of an undertaking
given to a court;
(c) "criminal contempt" means the publication
(whether by words, spoken or written, or by signs, or
by visible representation, or otherwise) of any matter
or the doing of any other act whatsoever which -
(i) scandalizes or tends to scandalize, or lowers or
tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere
with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs
or tends to obstruct, the administration of justice in
any other manner;
..................
Section 12. Punishment for contempt of court. - (1)
Save as otherwise expressly provided in this Act or in
any other law, a contempt of court may be punished
with simple imprisonment for a term which may extend
to six months, or with fine which may extend to two
thousand rupees, or with both:
Provided that the accused may be discharged or the
punishment awarded may be remitted on apology being
made to the satisfaction of the court.
Explanation. - An apology shall not be rejected merely
on the ground that is qualified or conditional if the
accused makes it bona fide.
(2) Notwithstanding anything contained in any other
law for the time being in force, no court shall impose a
sentence in excess of that specified in sub-section (1)
for any contempt either in respect of itself or of a court
subordinate to it.
(3) Notwithstanding anything contained in this section,
where a person is found guilty of a civil contempt, the
court, if it considers that a fine will not meet the ends
of justice and that a sentence of imprisonment is
necessary shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil
prison for such period not exceeding six months as it
thinks fit.
(4)..........(5)........."
59. As held in Louis Vuitton Malletier v. Omi & Anr. (2018) 251 DLT
472, in case of false and misleading statements being made before the Court,
the Court can invoke its contempt jurisdiction. The Court specifically
observed, following the judgment of the Supreme Court in Dhananjay
Sharma v. State of Haryana (1995) 3 SCC 757, that swearing of false
affidavit in judicial proceedings results in obstruction of administration of
justice. It reveals the intention of the parties in perverting the course of
justice. The Ld. Single Judge in the said case observed as under:
"32. Contempt in the face of the Court may be
criminal or civil contempt. However, in both cases of
contempt in the face of the Court, the procedure under
Section 14 of the Act, 1971 is attracted. For all other
cases of criminal contempt Section 15 is applicable.
33. Further, this Court is of the opinion that a
contemnor is not in a position of an accused and
contempt proceedings are separate and distinct from
criminal proceedings. In a criminal trial where a
person is accused of an offence, there is a Public
Prosecutor who prosecutes the case on behalf of the
prosecution against the accused, but in contempt
proceedings the Court is both the accuser as well as
the Judge of the accusation as observed by the
Supreme Court in Debarata Bandopadhyay v. State of
West Bengal, AIR 1969 SC 189. In fact, contempt
proceeding is sui generis. It has peculiar features
which are not found in criminal proceedings. In this
view the contemnors do not stand in the position of a
person accused of an offence and the Court is free to
evolve its own procedure consistent with principles of
fair play and natural justice. The Supreme Court in
Delhi Judicial Service Association, Tis Hazari Court,
Delhi v. State of Gujarat, (1991) 4 SCC 406 has held
so. The relevant portion of the said judgment is
reproduced hereinbelow:-
"12................... A criminal is punishable by the
superior courts by fine or imprisonment, but it
has many characteristics which distinguishes it
from ordinary offence. An offence under the
criminal jurisdiction is trial by a Magistrate or a
Judge and the procedure of trial is regulated by
Code of Criminal Procedure, 1973 which
provides an elaborate procedure for framing of
charges, recording of evidence, cross
examination, argument and the judgment. But
charge of contempt is tried on summary process
without any fixed procedure as the court is free to
evolve its own procedure consistent with fair play
and natural justice. In contempt proceedings,
unlike the trial for a criminal offence, no oral
evidence is ordinarily recorded and the usual
practice is to give evidence by affidavits......"
..................
36. In any event, the Apex Court in Leila David v.
State of Maharashtra, (2009) 10 SCC 337 has held,
"Although, Section 14 of the Contempt of Courts Act,
1971, lays down the procedure to be followed in cases
of criminal contempt in the face of the Court, it does
not preclude the court from taking recourse to
summary proceedings when a deliberate and willful
contumacious incident takes place in front of their eyes
and the public at large........."
37. In the opinion of this Court, the present case
is a case of contempt in the face of the Court and
therefore, Section 14 of the Act, 1971 applies."
60. Recently, in the case of National Lawyers Campaign for Judicial
Transparency and Reforms and Ors. v. Union of India [W.P.(C)
No.191/2010 decision dated 12th March, 2019], the Supreme Court
observed as under:
"13. When contempt is committed in the face of the
Court, judges‟ hands are not tied behind their back"
61. In Suman Chand v. Central Bank of India (2018) 254 DLT 29 (DB),
a Division Bench of this Court, considering the various uses of contempt
jurisdiction has held that making a false statement, willful disobedience,
persistent and continuous disobedience with an intention to violate an
undertaking made to the Court, non-adherence of promises and
representations made to the Court are in inexcusable and constitutes
contempt. The relevant portion of the said judgment is set out herein below:
"52. The decision in Rita Markandey (supra)
would be squarely applicable to the facts of the present
case, even if we were to assume that the appellants had
not given any "undertaking" to the Court. The
observations made in the said case are significant and
refer to another facet when contempt jurisdiction can
be invoked, different and distinct from cases where
parties have given undertaking to the court and have
thereafter willfully refused to abide and comply with
the same. However, we must caution that where a party
has given a statement and made a promise and
representation to the court with the intent and purpose
to comply with the same but due to subsequent events
and for bonafide reasons compliance could not be
made, it would not be a case of willful disobedience. In
such cases, the party aggrieved must ask for execution
of the decree or implementation of the order and the
court would not exercise its discretion in the contempt
jurisdiction.
53. Facts of the case, as noticed by the learned
single Judge, are glaring and disclose the cavalier
attitude, scorn and abuse of the process of the Court by
the appellants, not on one occasion but several
occasions, and demonstrate the intent of the appellants
to deceive and procure interim orders by giving
undertaking and making promises on solemn
assurance to the Court, notwithstanding the true intent
and knowledge that the undertaking to the Court would
not be complied with.
54. It is stated and observed in several cases that
the contempt is between the Court and the contemnor
and the aggrieved party cannot insist that the Court
should exercise such jurisdiction. The discretion is
exercised by the Court for maintenance of Court‟s
dignity and majesty of law. However, it would not be
entirely correct to state that punishment under the
contempt jurisdiction is granted to uphold the dignity
of the Court. Contempt jurisdiction is invoked and
punishment is imposed to uphold the authority of the
Court to punish the contemnor and to act as a
deterrent to others. This deterrent is motivated in the
interest of the public in order to prevent future
incidents of willful disregard and disobedience of the
Court orders by a party. Further, contempt jurisdiction
may even invoke belated compliance, which is in public
interest and when such compliance is made, the
contemnor may seek reduction or discharge of the
sentence in view of subsequent conduct to purge the
contempt by complying with the order. Contempt
jurisdiction is invoked when breaches are of the
highest level of culpability in the sense that they are
willful. Further, persistence and continuous damage
and disobedience could in a given case reflect no
remorse from the person against whom action is
taken."
62. Considering the settled law, as contained in the above judgments,
there is no doubt that Mrs. Pratibha is liable to be punished for contempt of
Court. Her initial non-disclosure of her brother's illness and his missing
status is a deliberate concealment. Thereafter, filing of the application and
affidavit praying for her to be appointed as her brother's next friend without
disclosing the missing status of her brother, is again willful
misrepresentation and deliberate concealment. The initial statement made
by her that her brother is missing since 2013 was recorded by the Court.
She resiled from it when she got cornered into a piquant situation, which
revealed that in subsequent documents and bank account transactions money
has been transferred to her account from her brother's account. She then
changed her statement and stated that her brother is missing from 2016. The
status report filed by the police reveals that the brother, Mr. Devender
Kumar was last residing with his sister. Some relatives, however, claim that
he was missing since 2017. Mr. Devender Kumar owned various properties,
all of which have been sold and money has been taken by Mrs. Pratibha.
She has repeatedly appeared before the Court along with her husband Mr.
Sunil Arya, who is a BSES employee. Despite repeated enquiries, they have
not revealed the true facts.
63. Mrs. Pratibha has usurped the entire money paid by the subsequent
purchasers i.e. Defendant Nos.3 & 4. She has made false statements about
the second property, i.e., WZ-508, Village Basai Dara Pur, New Delhi,
which is revealed to have been sold by her, as per the report of the Local
Commissioner. She initially stated that the said property was given for
construction on power of attorney basis to Mr. Prithvi Dutt Sharma and Mr.
Ashok Shula, whereas it was revealed that she had sold the property in
question to the wives of the said two persons. She was directed vide order
dated 31st May, 2018 to deposit the sum of Rs.72 lakhs, which was paid as
consideration by Defendant Nos.3 and 4, which she has not complied with.
Repeated costs have been imposed on her, which have not been complied
with. She has not even bothered to file a reply to the show cause notice for
contempt issued against her. Though she continues to instruct her counsel to
defend her case on merits, in her appeal i.e., RFA 695/2016, she has not
filed any reply to the show cause notice of contempt. She has earned more
than Rs.2 crores by selling the properties owned by her brother as also those
jointly owned by them. Mr. Devender Kumar continues to be missing.
64. This case has shaken the conscious of the Court as to how a sister can,
in fact, behave in this completely deceitful and unscrupulous fashion,
towards her own brother. She has initially concealed the whereabouts of her
brother and repeatedly made false statements as to since when he is missing.
She has sold his properties and appropriated all the sale consideration,
having scant regard for the Court and to her own role as a sister. The
brother's missing status has not caused any concern to his sister as she has
shown no remorse even while appearing in Court and has, in fact, exhibited
complete defiance. She has violated orders passed by the court including
order dated 31st May, 2018 directing deposit of a sum of Rs.72 lakhs, i.e.,
the money she has received from the subsequent purchasers and orders 12th
October, 2018 and 11th December, 2018 directing deposit of costs. In the
overall facts and circumstances of the present case, Mrs. Pratibha is held
guilty of contempt of Court. Her conduct, clearly, constitutes even civil
contempt, which can be punished by this Court under the provisions of the
Contempt of Courts Act, 1971. It is contempt on the face of the court. She is
held guilty of contempt of Court and is sentenced to simple imprisonment
for a period of three months.
65. In the circumstances, it is also directed that a Writ petition be
registered as a habeas corpus petition, to investigate the missing person case
of Mr. Devender Kumar, so that a comprehensive investigation is conducted
into the disappearance of Mr. Devender Kumar, as also to investigate the
misuse of his bank accounts and his money and property. For the said
purpose, let the matter be placed before the Hon'ble Chief Justice for
marking to the appropriate Bench. The order sheets of these two appeals,
various status reports filed by the Investigating officers, Police Station Sagar
Pur, including the present judgment be placed before the appropriate Court.
66. The contempt proceedings are disposed of in the above terms.
67. The SHO, Sagarpur is directed to take Mrs. Pratibha into custody for
serving the sentence.
68. Both RFAs are disposed of in the above terms. All pending
applications are also disposed of. Dasti.
PRATHIBA M. SINGH, J.
JUDGE
APRIL 15, 2019/dk
