Delhi High Court
Om Prakash vs Iocl Officers Welfare Society & ... on 11 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th January, 2019
+ CS(OS) 590/2016
OM PRAKASH ..... Plaintiff
Through: Mr. Ravinder Kumar Yadav and Mr.
Vinayak Sharma, Advs.
Versus
IOCL OFFICERS WELFARE SOCIETY & ANR..... Defendants
Through: Mr. Shyamal Kumar and Mr.
Samdarshi Sanjay, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.5463/2017 (of defendants u/O VII R-11 CPC)
1.
The counsel for the defendants/applicants states that with the filing of
subsequent application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (CPC), this application has become infructuous.
2. The application is disposed of.
IA No.11174/2018 (of defendants u/O VII R-11 CPC)
3. The two defendants, namely (i) M/s IOCL Officers Welfare Society
and (ii) Bijoy Kumar Sharma seek rejection of the amended plaint dated
16th July, 2018 in this suit for recovery of Rs.3,72,00,000/- with pendente
lite and future interest at 12% per annum, on the ground of (i) the plaintiff
having not approached this Court with clean hands and having suppressed
material facts; (ii) the claim in the plaint being contrary to the registered
Sale Deed between the parties and the claim thus being barred by Sections
91 and 92 of the Indian Evidence Act, 1872; (iii) the suit being barred by
the principles of estoppel; and, (iv) the suit having been filed with mala fide
intention of extorting money from the defendants.
4. The counsel for the defendants/applicants and the counsel for the
plaintiff have been heard.
5. The plaintiff has claimed recovery of Rs.3,72,00,000/- pleading, (i)
that the plaintiff is the absolute owner and recorded bhumidhar in actual
possession of 1/4th share ad measuring 15 bighas 11 biswas and 15 biswani
(3.247 acres) out of total agricultural land measuring 62 bighas and 7
biswas comprised in Khasra No.25/17/2 (1-2), 18 (4-4), 19 (4-1), 21(4-11),
22(4-12), 23 (4-16), 24 (4-10), 30 (0-5), Khasra No.30, Killa No.1(4-16),
2/1 (2-6), 3/1 (2-8), 4 (4-16), 5/1 (3-4), 10 (4-16) and Khasra No.31, Killa
No.6(4-16), 15(4-16), 16/1 (2-8) of Revenue Estate of Village
Daulatpur,Tehsil - Kapashera, District-South West, New Delhi - 43; (ii)
that the defendant no.2 Bijoy Kumar Sharma is the authorised signatory and
Secretary of the defendant no.1 Society; (iii) that the plaintiff had agreed to
sell the land aforesaid to the defendant no.1 Society for a total sale
consideration of Rs.14,49,00,000/- and in pursuance to the said agreement
executed a Sale Deed dated 29th August, 2013, registered on 30th August,
2013, in favour of the defendant no.1 Society; (iv) that the defendants have
committed fraud upon the plaintiff; out of total sale consideration of
Rs.14,49,00,000/-, only Rs.10,77,00,000/- has been paid to the plaintiff; (v)
that a sum of Rs.78,00,000/- was paid in cash before the execution of the
Sale Deed; (vi) a sum of Rs.50,00,000/- in cash was received before the
execution of the Sale Deed; (vii) a sum of Rs.8,00,00,000/- was received
vide cheque/DD dated 26th August, 2013 at the time of execution and
registration of the Sale Deed; (viii) a sum of Rs.1,49,00,000/- was received
through cheque/DD dated 28th August, 2013, again at the time of execution
and registration of the Sale Deed; (ix) the balance amount of
Rs.3,72,00,000/- has not been paid; (x) that the defendants, on 29th August,
2013 when the Sale Deed was executed, had paid two cheques/DDs to the
plaintiff besides the cash paid earlier and the plaintiff, after calculation
discovered the total amount paid to be deficit by Rs.3,72,00,000/-; (xi) the
plaintiff immediately pointed out the same to the defendants who told the
plaintiff that the same was inadvertently left out due to a mistake in
calculation and assured that ―let the ‗sale deed' be executed, this balance
amount of Rs.3,72,00,000/- (Rupees Three Crore Seventy Two Lakhs only)
will be paid in cash after mutation, but the defendants till today failed to
make the payment of balance consideration‖; (xii) ―that the defendants
undue advantage of the simplicity of the plaintiff with mala fide intention,
ulterior motive committed fraud upon the plaintiff and has wrongly got
mentioned in the sale deed that Rs.5,00,00,000/- (Rupees Five Crore Only)
was paid in cash to the plaintiff at the time of execution and registration of
sale deed‖; (xiii) that the plaintiff, on several occasion demanded the
balance sale consideration of Rs.3,72,00,000/- from the defendants but the
defendant no.1 through defendant no.2 and others, on each and every
occasion gave false assurance to the plaintiff that there is some problem in
the accounts of the defendant no.1 and as soon as the problem is sorted out,
they will make the payment of balance sale consideration; (xiv) that the
plaintiff got served a legal notice dated 11 th April, 2016 for payment of
balance sale consideration but despite the said legal notice, the defendants
neither gave any reply thereto nor paid the balance sale consideration; (xv)
that the defendants ―now on the basis of the said sale deed‖, ―have started
interfering in the peaceful possession of the plaintiff and threatened to take
forcible possession of the land in question; (xvi) that the defendants never
intended to make payment of balance consideration of Rs.3,72,00,000/-
with sole purpose of cheating, misappropriation and committing fraud upon
the plaintiff; (xvii) that the Sale Deed dated 29 th August, 2013 is without
full consideration and is liable to be set aside; (xviii) that the plaintiff ―also
came to know that the defendant with same modus operandi have cheated
other farmers also‖; (xix) the modus operandi is that the entire sale
consideration money is first transferred to some company and later on from
the account of this company incomplete payment is made to the farmers;
and, (xx) the plaintiff has also made complaint to Commissioner of Police
and upon no action being taken thereon, filed complaint under Section 200
of the Cr.PC.
6. The suit was initially instituted on 27th August, 2016 and
successively re-filed on 22nd September, 2016, 22nd October, 2016, 3rd
November, 2016, 7th November, 2016, 22nd November, 2016 and came up
first before this Court on 25th November, 2016, when also was without
court fees and the plaintiff granted one week's time to deposit the court
fees. Ultimately the suit was ordered to be registered on 22nd December,
2016 and summons thereof ordered to be issued.
7. The suit, as originally filed was for (i) declaration of the Sale Deed as
illegal, null, void and invalid; (ii) declaration that the plaintiff was still the
owner of the property; and, (iii) permanent injunction restraining the
defendants from taking possession of the land and/or from dealing with the
land.
8. However vide order dated 7th September, 2017, the suit as filed,
without appropriate court fees, was found to be not maintainable and the
plaintiff given an opportunity to deposit the balance court fees.
9. The plaintiff thereafter filed an application for amendment which was
allowed vide order dated 17th May, 2018 and the amended plaint, claim
wherein is as aforesaid, taken on record. The counsel for the plaintiff states
that the deficient court fees has been paid.
10. Though several grounds for rejection are pleaded, but the counsel for
the defendants during the hearing emphasized only on Sections 91 and 92
of the Evidence Act and rightly so, inasmuch as at the stage of Order VII
Rule 11 of the CPC, the defence of the defendants to the suit or rather
anything other than the plaint and the documents filed therewith, cannot be
seen. Thus, the application has to be decided merely by seeing whether the
claim made in the plaint on its own averments is sustainable in law.
11. The counsel for the defendants in this context placed heavy reliance
on Karan Madaan Vs. Nageshwar Pandey (209) 2014 DLT 241 though
also handed over copies of Jai Bhagwan Vs. Rajesh 2008 Indlaw Del 419,
Phoolwati Vs. Ram Dei (2008) 150 DLT 105, Mange Ram Vs. Union of
India 2010 SCC OnLine 3322; and, Subhadara Vs. Surender Singh (2016)
157 DRJ 407.
12. Per contra, the counsel for the plaintiff has merely contended that on
the basis of the pleas contained in the plaint, the plaintiff cannot be non
suited summarily and has to be granted an opportunity to prove his case by
adducing evidence. Reliance is placed on Kaliaperumal Vs. Rajagopal
(2009) 4 SCC 193 and on judgment dated 24th April, 2012 of this Court in
RFA (OS) No.49/2008 titled Shakuntala Chawla Vs. Om Prakash
Chawla.
13. I have considered the rival contentions.
14. The registered Sale Deed dated 27th August, 2013 admittedly
executed by the plaintiff in favour of the defendant no.1 and copy of which
has been filed by the plaintiff himself before this Court shows the sale
consideration therefor as Rs.14,49,00,000/- and contains inter alia the
following clauses:
"NOW THIS SALE DEED WITNESSSTH AS UNDER:
That in pursuance of this Sale Deed and against the total consideration of
Rs.14,49,00,000/- (Rupees Fourteen Crore Forty Nine Lac Only)
1. The VENDOR doth hereby sell, convey, assign and transfer their all
rights, titles and interest in the aforesaid land (fully described above)
together with all structures (pucca or otherwise), crops, trees, groves,
tubewell, boundary, other movable attached thereto alongwith their all
rights, title and interest including Bhumidari, cultivator rights, to the
VENDEE, absolutely and forever.
2. That the Vendee have paid the aforesaid consideration of
Rs.14,49,00,000/- (Rupees Fourteen Crore Forty Nine Lac Only) in the
following manner:-
Sr. No. Cheque/DD No. Date Amount In words
1 100550 26/08/2013 8,00,00,000/- (Eight Crore Only)
2 100558 28/08/2013 1,49,00,000/- (One Crore and
forty nine lac only)
3 By Cash 5,00,00,000/- (Five Crore Only)
All payments were made by M/s River Park Eden (P) Ltd. through its
account No.608620110000094 maintained with Bank of India,
Branch - Palam Extension, Dwarka, New Delhi-110075 on behalf of
M/s IOCL Officers Welfare Society full and final payment to the
VENDORS and the legal receipt of the same is hereby admitted and
acknowledged by the VENDORS in full and final payment towards
the sale price of their rights, titles and interest in the aforesaid land.
3. That the VENDOR hereby explicitly admits and declares that having
received the aforesaid consideration in full and final payment, now
nothing is left due to be paid by the VENDEE to the VENDOR on
account of sale consideration against the purchase of the said land, as
the aforesaid consideration represents the full and final consideration
for the transaction.
4. That with the execution of this sale deed all the rights, titles, interest,
claim or concern of the vendors have ceased and the Vendee have
stepped into the shoes of the VENDOR forever. The VENDEE shall
henceforth enjoy the rights of absolute ownership without any
interference or objection from the VENDOR or anyone else.
5. That the Vendor has handed over the actual and peaceful physical
vacant possession of the said land unto the VENDEE on spot.
6. That the Vendor has undertaken and assured the VENDEE that his
right and title in the said land subsists and except the VENDOR none
else including their legal heirs, representatives, etc. have any right,
title, interest or claim whatsoever or howsoever in the said land and
the Vendors have full, unfettered and, unrestricted right, power and
absolute authority to sell, transfer, convey and assign the said land
and they are fully competent to execute this Sale Deed and to sign all
necessary documents in this regard.
15. That the VENDOR admits and confirms that after execution of this
sale deed in favour of the VENDEE, the Vendor have been left with
no right, title, claim or interest whatsoever in the said land and the
Vendee have become the absolute owner thereof, for all intents and
purposes and the VENDEE is fully competent and empowered to
avail all benefits, rentals, deposits, accruals, enjoy the same as well
as to transfer or alienate the same or any part thereof, by way of sale,
mortgage, gift, collaboration, lease or otherwise deal with the same in
the manner, they like, subject to Revenue Authorities / Tehsil's rules
and regulations without any disturbance, hindrance, approval,
objection or demand from the VENDOR or anybody else claiming
under or in trust for them.
17. That the VENDOR and all persons claiming under or through the
VENDOR shall and will, as and when required by the VENDEE,
agree to do all acts and execute all documents and to present
themselves before the concerned authorities as be reasonably
required by the VENDEE for more fully effectuating the sale being
hereby made or for more fully owning and enjoying the said land or
defending any action or proceeding concerning the same.
19. That the VENDEE can get the said land mutated / transferred in their
own name in the records of concerned authorities, and as well as the
meter connections, facilities etc. related to the said land, wherever if
so required, on the basis of this Sale Deed or its certified true copies,
and the VENDOR shall be deemed to have given their ―No
Objection‖ in this regard and the VENDEE may also get new
connections installed at the said land in their own name at their own
costs and expenses. The VENDEE shall also be entitled for all the
security deposits etc. made by the VENDOR and may derive all
benefits and accruals thereof.
20. That all the expenses of this sale deed viz. Stamp Duty, Registration
Charges etc. have been borne and paid by the VENDEE.‖
15. The counsel for the defendants states and the counsel for the plaintiff
has not controverted, that the land sold vide the sale deed aforesaid also
stands mutated in the revenue records in the name of the defendants.
16. The sale deed also contains the endorsement as under of the Sub-
Registrar with whom the sale deed is registered:
―Execution admitted by the said Shri / Ms Shri Om Prakash
and Shri/Ms Ms IOCL Officers Welfare Socity Through Its Auth Sign.
Shri Bijoy Kumar Sharma
who is / are identified by Shri/Smt/Km. Shri K.S. Krishna S/o W/o D/o
Shri K.V.S. Manian R/o Flat No.305 Krishna Kunj Appt. Sec-7 Plot
No.14 Dwarka New Delhi
and Shri /Smt./Km Shri Raghuvinder Singh S/o W/o D/o Shri Mahavir
Singh R/o C-280 VPO Chhawala Kurat Street Badhosra New Delhi
Witness No.II is known to me.
Contents of the documents explained to the parties who understand the
conditions and admit them as correct.
Certified that the left (or Right, as the case may be) hand thumb
impression of the executant has been affixed in my presence.
Vendor(s) Mortgagor(s) admit(s) prior receipt an entire consideration
Rs.144,900,000.00 Rupees Fourteen Crore Forty Nine Lakh Only.
The Balance of entire consideration of Rs.________________ Rupees
____________ has been paid to the Vendor(s) Mortgagor(s) by Sh./Ms.
Ms IOCL Officers Welfare, S/o W/o R/o J-86/12 Top Floor Dilshaad
Colony, Delhi.‖
17. Sections 91 and 92 of the Evidence Act which are invoked by the
defendants to oust the plaintiff summarily, are as under:
91. Evidence of terms of contracts, grants and other dispositions of
property reduced to form of document. - When the terms of a contract,
or of a grant, or of any other disposition of property, have been reduced to
the form of a document, and in all cases in which any matter is required by
law to be reduced to the form of a document, no evidence shall be given in
proof of the terms of such contract, grant or other disposition of property,
or of such matter, except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible under the
provisions hereinbefore contained.
Exception 1. - When a public officer is required by law to be appointed in
writing, and when it is shown that any particular person has acted as such
officer, the writing by which he is appointed need not be proved.
Exception 2. - Wills [admitted to probate in [India]] may be proved by the
probate.
Explanation 1.-This section applies equally to cases in which the
contracts grants or dispositions of property referred to are contained in one
document and to cases in which they are contained in more documents
than one.
Explanation 2.-Where there are more originals than one, one original
only need be proved.
Explanation 3. - The statement, in any document whatever, of a fact other
then the facts referred to in this section, shall, not preclude the admission
of oral evidence as to the same fact.
92. Exclusion of evidence of oral agreement. - When the terms of any
such contract, grantor other disposition of property, or any matter required
by law to be reduced to the form of a document have been proved
according to the last section, no evidence of any oral agreement of
statement shall be admitted, as between the parties to any such instrument
or their representatives in interest, for purpose of contradicting, varying,
adding to, or subtracting from, its terms;
Provision (1). - Any fact may be proved which would invalidate any
document, or which would entitle any person to any decree or order
relating thereto; such as fraud, intimidation, illegality, want of due
execution, want of capacity in any contracting party, 76[want or failure] of
consideration, or mistake in fact or law.
Proviso (2). - The existence of any separate oral agreement as to any
matter on which a document is silent, and which is not inconsistent with its
terms, may be proved. In considering whether or not this proviso applies,
the Court shall have regard to the degree of formality of the document.
Proviso (3). - The existence of any separate oral agreement, constituting a
condition precedent to the attaching of any obligation under any such
contract, grant or disposition of property, may be proved.
Proviso (4). - The existence of any distinct subsequent oral agreement to
rescind or modify any such contract, grant or disposition of property, may
be proved, except in cases in which such contract grant or disposition of
property is by law required to be in writing, or has been registered
according to the law in force for the time being as to the registration of
documents.
Proviso (5). - Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that
description, may be proved.
Provided that the annexing of such incident would not be repugnant to, or
inconsistent with the express terms of the contract.
Proviso (6).--Any fact may be proved which shows in what manner the
language of a document is related to existing facts.
18. While Section 91 prohibits proof of the terms of a contract or any
other disposition of property reduced to the form of a document other than
by the document itself, Section 92 bars evidence of any oral agreement or
statement between the parties to the contract for the purpose of
contradicting, varying, adding or subtracting from its terms when it has
been proved in accordance with Section 91. The provisos to Section 92
however contain exceptions to the said bar / prohibition.
19. Though the plaintiff in the sale deed has admitted and acknowledged
receipt of entire agreed sale consideration and delivery of possession of
land in lieu thereof, but the plaintiff now, by this suit, wants this Court to
hold that though the plaintiff in the Sale Deed admitted and acknowledged
receipt of entire sale consideration, but in fact has not received the same
and the sale consideration received is deficit by Rs.3,72,00,000/-. Needless
to state, proof of such pleaded case of the plaintiff would require the
plaintiff to step in the witness box and to contradict, vary or subtract from
the terms of the Sale Deed and which is barred by Section 92 of the
Evidence Act. Without the plaintiff doing so, the plaintiff cannot succeed.
Thus, when the plaintiff is barred from contradicting the terms of a
registered Sale Deed, the plaintiff cannot be granted an opportunity to lead
evidence which is barred by law, unless the case of the plaintiff falls in any
of the provisos to Section 92 of the Evidence Act and to which reference
was invited by the counsel for the plaintiff also.
20. The case set up by the plaintiff in the plaint however is ―that on
29.08.2013 date of execution and presentation of sale deed the defendants
came up with only two cheques / DD as mentioned above apart from the
cash paid before execution of sale deed, plaintiff after calculation
discovered the total amount paid is deficit by Rs.3,72,00,000/- (Rupees
Three Crore Seventy Two Lakhs Only) out of the total sale consideration
agreed, plaintiff immediately pointed out the same to defendants who told
him that the same was inadvertently left out due to mistake in calculation
and assured that let the ‗sale deed' be executed, this balance amount of
Rs.3,72,00,000/- (Rupees Three Crore Seventy Two Lakhs Only) will be
paid in cash after mutation, but the defendants till today failed to make the
payment of balance consideration.‖
21. The aforesaid indicates that the plaintiff, on the date of execution of
the Sale Deed itself i.e. on 29th August, 2013, was aware that the
consideration being paid by the defendants to the plaintiff was deficit by
Rs.3,72,00,000/-.
22. Else, the case of the plaintiff as aforesaid is, a) that the defendants
took undue advantage of the simplicity of the plaintiff and inspite of
repeated demands have not paid the balance sale consideration; and, b) that
the possession of the land subject matter of Sale Deed was never delivered
to the defendants as it was an oral understanding between the plaintiff and
the defendants that the possession will be delivered after making payment
of balance sale consideration of Rs.3,72,00,000/-. These pleas contradict
the terms of the registered Sale Deed, of entire sale consideration having
been paid and possession of the land subject matter of the Sale Deed having
been given.
23. Significantly, the plaintiff has not pleaded that (i) the Sub-Registrar,
with whom the Sale Deed is registered, had not explained the contents of
the documents to the plaintiff or has wrongly stated that the plaintiff had
understood the conditions and admitted them to be the same; (ii) the
plaintiff had not admitted the receipt of entire sale consideration under the
Sale Deed, as endorsed by the Sub-Registrar on the Sale Deed as aforesaid;
and, (iii) that the Sub-Registrar of documents was / is in collusion with the
defendants or that the plaintiff had informed the Sub-Registrar that the
entire sale consideration had not been received and possession had not been
delivered but the Sub-Registrar, in collusion and conspiracy with the
defendants, endorsed that the entire sale consideration had been received.
24. It is also not the case of the plaintiff that he did not know the nature
of the document being executed and registered by him being a Sale Deed or
that it contained a term that the entire sale consideration had been received
and / or possession delivered. The plaintiff, rather has not pleaded any facts
concerning execution of Sale Deed. It is also not the case of the plaintiff
that he had not read and / or understood the contents of the Sale Deed or
that the same were not explained to him.
25. It is also not the case of the plaintiff that he executed the Sale Deed
under any coercion, duress or influence. It is merely claimed that the
defendants have taken undue advantage of the simplicity of the plaintiff.
26. The Sale Deed is witnessed by (i) Raghvinder Singh, son of Mahavir
Singh, resident of C-280, village Chawala, Kurat Street, Badhosra, South
West, Delhi-110071; and, (ii) K.S. Krishnan, son of Sh. K.V.S. Manian,
resident of 305, Krishna Kunj, Sector-7, Plot No.14, Dwarka, New Delhi-
110075. There is no plea with respect to the said witnesses also. Ordinarily,
when payment is made by cash at the time of execution of the document, as
the Sale Deed in the present case records, the witnesses to the document
would be in the knowledge of whether the payment was made or not made.
27. However, since the plaintiff has used the word ‗fraud' in the plaint, it
needs to be seen whether the pleas in the plaint constitute a plea of fraud.
‗Fraud' is defined in Section 17 of the Indian Contract Act, 1872. A party
to a contract, is defined in Section 17 of the Indian Contract Act to have
committed a fraud, when that party, with the intent to deceive another party
or to induce him to enter into the contract, suggests something which is not
true and which act the other party would not do without believing the same
to be true or a promise made without any intention of performing it or any
other act fitted to deceive. The plaintiff in the present case admits having
found out at the time of execution of the Sale Deed that the consideration
being paid to him was short by Rs.3,72,00,000/-. The plaintiff was thus not
under any deception in this respect. Still the plaintiff went ahead and
executed and registered the Sale Deed which recorded that the entire sale
consideration has been paid. The only explanation is, that the plaintiff did
so on the assurance of the defendant that the balance sale consideration will
be paid after mutation. What falls for consideration is, whether the plaintiff
is to be permitted to prove such promise made by the defendants and which
the defendants made without any intention of performing it.
28. As far back as in Bishundeo Narain Vs. Seogeni Rai AIR 1951 SC
280, it was held that if there is one rule which is better established than any
other, it is that in cases of fraud, undue influence and coercion, the parties
pleading it must set forth full particulars and the case can only be decided
on the particulars as laid; there can be no departure from them in evidence;
general allegations are insufficient even to amount to an averment of fraud
of which any Court ought to take notice however strong the language in
which they are couched may be. To the same effect is Varanaseya
Sanskrit Vishwavidyalaya Vs. Dr. Rajkishore Tripathi (1997) 1 SCC 279.
Again, in Bijendra Nath Srivastava Vs. Mayank Srivastava (1994) 6 SCC
117, it was observed that the High Court, whose judgment was under
consideration, had lost sight of the well recognized distinction between
statement of material facts which is required under Order 6 Rule 2 CPC and
particulars which are required to be stated under Order 6 Rule 4 CPC. It
was held that omission of a single material fact leads to an incomplete
cause of action and the statement of claim becomes bad and it is not
permissible to introduce by way of particulars, a plea of fraud or
misconduct other than that raised in the pleadings. The Division Bench of
this Court also, in Dipak Arora Vs. Vijay Bhushan Arora 2016 SCC
OnLine Del 4401 (SLP Diary No.20828/2017 whereagainst was dismissed
in limine on 28th August, 2017) held that mere statement that signatures on
the MOU were obtained by fraud and misrepresentation did not suffice
inasmuch as what was the fraud and what was the misrepresentation had not
been pleaded. It was reiterated that unless the particulars of fraud and
misrepresentation are disclosed, the plea of fraud has to be ignored. It was
further noted that the bare plea of fraud was contradicted by also pleading
that the other party had agreed to clear the loan of the bank and which plea
was in contradiction of Clause 11 of the MOU which clearly recorded that
it was the claimant who would clear the loan and redeem the mortgage.
29. That brings me to the provisos to Section 92 of the Evidence Act.
30. Proviso (1) applies to a fact which if proved, will invalidate any
document and which would entitle any person to any decree or order
relating thereto. The plaintiff though had initially filed this suit for
declaration of the Sale Deed as null and void, amended the plaint and the
plaint as amended, does not claim any relief of invalidating the Sale Deed
or any decree or order relating to the Sale Deed. The promise by the
defendants, pleaded by the plaintiff, of paying the balance sale
consideration after mutation, being in contradiction of the registered Sale
Deed, cannot fall in proviso (1) to Section 92 of the Evidence Act. Provisos
(2) and (3) to Section 92 of the Evidence Act also do not apply inasmuch as
the Sale Deed is not silent with respect to the payment of the sale
consideration and it is not the plea of the plaintiff that payment of balance
sale consideration was a condition precedent to the obligation of the
plaintiff under the Sale Deed to convey the property to the defendants. The
plaintiff could have very well got recorded in the Sale Deed, that the
balance sale consideration was still to be paid by the defendants to the
plaintiff.
31. Similarly, provisos (4) to (6) to Section 92 of the Evidence Act are
not found applicable. Neither is the oral agreement subsequent to the Sale
Deed nor the Sale Deed as aforesaid is silent about the payment of the
balance sale consideration.
32. Merit is thus found in the contention of the counsel for the
defendants, that Section 92 of the Evidence Act bars the plaintiff from
proving non payment of sale consideration of Rs.3,72,00,000/- and which
will be in contradiction of the registered Sale Deed.
33. Once the plaintiff is barred from proving so, the question of the
plaintiff being entitled to a decree for recovery of balance sale
consideration does not arise.
34. This Court in Karan Madaan supra also was concerned with an
application under Order VII Rule 11 of the CPC for rejection of a counter-
claim in a suit for recovery of possession of immovable property, registered
sale deed with respect whereto had been executed by the defendant in
favour of the plaintiff and which sale deed recorded possession having been
delivered. It was the defence of the defendant that possession had not been
delivered and the intention was not to transfer the property to the plaintiff
by way of sale deed. It was held, that (i) a mere mention of fraud in a
pleading is not sufficient; (ii) a party pleading fraud is obliged, under Order
VI Rule 4 of CPC, to give particulars of the pleaded fraud, with dates and
items in the pleadings; (iii) the defendant having admitted knowledge that
he was executing the sale deed, it was not open to the defendant to claim
that the instrument of sale was hit by fraud because according to the
defendant the intention of the parties was to create a security in favour of
the plaintiffs for the loan granted to the defendant; (iv) the spirit and
purpose of enacting Sections 91 and 92 of the Evidence Act is to render the
written contract, grant or other disposition the sole repository of the terms
contained therein; (v) if the intention of the parties was, as was claimed by
the defendant, then that intention, objective and purpose should have been
so spelled out in the instrument; (vi) to permit a party to plead contrary to
the terms of the Sale Deed, to which he is a party, would be to put premium
on dishonesty; (vii) the terms of a contract reduced to writing cannot be
ascertained by allowing parole evidence as to what transpired antecedent to
the contract or what the parties did subsequent to the contract; once the
contract between the parties is reduced to writing, the court can only look at
the writing alone in order to construe what the terms of the contract are;
(viii) the terms of a registered document can be altered, rescinded or varied
only by subsequent registered document and not otherwise; (ix) if the oral
agreement is allowed to be substantiated by parole evidence, it would mean
re-writing of the registered document which is not permissible; (x) once
there is an admission of execution of Sale Deed, the defence which is
barred by Sections 91 and 92 of the Evidence Act has to be ignored.
Resultantly, the counterclaim was rejected. I find that the appeal preferred
against this judgment was also dismissed vide Nageshwar Pandey Vs.
Karan Madaan 2016 SCC OnLine Del 816.
35. In Jai Bhagwan supra also, the suit seeking cancellation of registered
sale deeds executed in favour of the defendant on the plea, that the entire
sale consideration was not received and the sale deed was got executed for
more land than intended to be conveyed taking advantage of the illiteracy of
the plaintiff therein, the suit was summarily dismissed finding that, (i) at the
time of the registration of the Sale Deed, the Sub-Registrar issued a
certificate that the contents of the documents were explained to both the
parties who understood the conditions and admitted execution of the sale
deed; the Sub-Registrar had also recorded his satisfaction that the entire
consideration had been paid; (ii) when in respect of a transaction a written
document is executed, any kind of oral evidence contrary to the document
is not admissible; (iii) the allegations of fraud made by a party must specify
giving role of each person and all those involved in the fraud must be made
a party; (iv) bare allegation that plaintiff had not received the full
consideration or that the plaintiff signed the documents without reading the
contents thereof is not a ground for cancellation of the sale deed; (v) if the
plaintiff chooses not to read the documents, he does so at its own peril; (vi)
to say that the plaintiff was a poor villager was also absolutely wrong; a
person who is selling his land for lacs of rupees and is receiving lacs of
rupees in cash, cannot be a poor villager; in Delhi, villagers are not
simpletons or fools enough to not take help of educated persons in
understanding the documents being executed by them; (vii) the plaintiff
having given his photographs to the Registrar as well as his driving licence
in proof of his identity, it could not be believed that the plaintiff executed
the Sale Deed ignorantly, without receiving full consideration and only on
an oral assurance of payment of balance sale consideration later on.
36. To the same effect is Phoolwati supra, where the plea of the plaintiff
for seeking declaration of the Sale Deed as null and void because the
intention was to create a mortgage, was held to be barred.
37. The other judgments cited by the counsel for the defendants /
applicants are however not found applicable.
38. As far as Kaliaperumal supra relied upon by the counsel for the
plaintiff is concerned, the same only lays down that though registration is
prima facie proof of intention to transfer property, it is not a proof of
operative transfer and if recitals in the Sale Deed are insufficient or
ambiguous, subject to the provisions of Section 92 of the Evidence Act,
evidence can be permitted to be led. The dicta of the Supreme Court in
Kaliaperumal supra would not apply because the terms of the Sale Deed in
the present case are not ambiguous but unambiguous. The Sale Deed, in
unequivocal and unambiguous terms records, that the entire sale
consideration had been paid.
39. Mention may also be made of:
(a) Keshao Balasa Saoji Vs. Shashikar Jankiram Saoji 1982
SCC OnLine Bom 197 holding that where a document recited
payment of Rs.7,000/-, it is not open to the executant thereof, having
admitted the execution, to contend that there was a partial failure of
consideration - that is prohibited by Section 92 of the Evidence Act.
(b) Bhandari Construction Co. Vs. Narayan Gopal Upadhye
(2007) 3 SCC 163 laying down that when the terms of transaction are
reduced to writing, it is impossible to lead evidence to contradict its
terms.
(c) Tamil Nadu Electricity Board Vs. N. Raju Reddiar (1996) 4
SCC 551 holding that where there is a written agreement, the parties
are bound by terms and conditions thereof and it is not open to any of
the parties to seek to prove the terms of the contract with reference to
some oral or other documentary evidence, to find out the intention of
the parties. It was further held that where the written instrument
appears to contain the whole terms of the contract, then parties to the
contract are not entitled to lead any oral evidence to ascertain the
terms of the contract; it is only when the written contract does not
contain the whole of the agreement between the parties and there is
any ambiguity, that oral evidence is permissible to prove the other
conditions which also must not be inconsistent with the written
contract.
(d) Sunrise Construction Vs. Veena Wahi 2009 (III) DRJ 710
discussing the scope of the provisos to Section 92 in a similar factual
situation as before this Court.
40. Reference may also be made to Section 114(e) of the Evidence Act
raising a presumption in favour of a document which has been duly
registered. The recitals of the Sale Deed in the present case clearly stipulate
that the entire sale consideration had been received by the plaintiff in the
presence of the Sub-Registrar and the Sub-Registrar has also endorsed so
on the document. The bar of Section 92 thus squarely applies. The present
suit is also squarely covered by Karan Madaan and Jai Bhagwan supra
and following the same, the plaint in the present suit is also rejected.
I refrain from imposing costs.
RAJIV SAHAI ENDLAW, J.
JANUARY 11, 2019
‗bs/pp/gsr'
(corrected & released on 25th January, 2019)
