Delhi High Court
Sushma vs Gamesh Mathur & Ors on 16 May, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 14th May, 2019
Judgment Pronounced On : 16th May, 2019
+ RFA(OS) 31/2018
SUSHMA ..... Appellant
Through Mr. S.K. Anand, Advocate.
versus
GAMESH MATHUR & ORS ..... Respondents
Through Mr. Anand Yadav & Ms. Anita
Tomar, Advocates for respondents
no.1 to 3.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J.
CM APPL 19984/2018 (delay in re-filing)
1. This application has been filed by the applicant seeking condonation
of 2 days delay in re-filing the appeal.
2. The prayer made in this application is not opposed.
3. Accordingly, delay of 2 days in re-filing the appeal is condoned.
4. The application stands disposed of.
CM APPL 19983/2018 (delay in filing)
5. This application has been filed by the applicant seeking condonation
of 22 days delay in filing the present appeal.
6. The prayer made in this application is not opposed.
7. Accordingly, delay of 23 days in filing the appeal is condoned.
8. The application stands disposed of.
RFA(OS) 31/2018
9. This is an appeal under Section 96 and Order XLI Rule 1 of the Code
of Civil Procedure, 1908 read with rule 10 of Delhi High Court Rules,
assailing the ex-parte judgment and decree dated 03.01.2018 passed
by the learned Single Judge in CS(OS) 1097/2011.
10. At the outset, counsels for the parties submit that it is not necessary to
call for the record as the entire record has already been filed alongwith
the appeal. With the consent of learned counsels for the parties, the
appeal is set down for final hearing and disposal.
11. A suit for specific performance of an agreement to sell dated
24.12.2010 was filed by respondents no.1 to 3. The appellant herein as
also respondents no.4 & 5 were parties to the agreement to sell and
were arrayed as defendants in the suit. The subject matter of the
agreement to sell was land measuring 31 bighas 18 biswas comprised
in Khasra No.11/6 (1-18), 11/15 (4-9), 11/16 (4-5), 11/25 (4-5), 12/11
(1-10), 12/201 (4-3), 12/21 (4-16), 12/22 (4-0), 28/1/1 (2-06) and
28/1/2 min. (0-06), situated in the revenue estate of Village Jat Khore,
Delhi (hereinafter referred to as the 'subject land'). The agreement to
sell pertains to 3/4th share in the subject land. It is not in dispute that
during the pendency of the suit, respondents no.4 & 5 herein, being
defendants no.1 & 2 in the suit, settled the matter with the purchaser
being respondents no.1 to 3 herein and a decree was passed in terms of
the settlement. It may also be noted that despite various opportunities
having been granted, the appellant did not file her written statement.
Accordingly, her right to file written statement was closed by an order
dated 02.08.2013 passed by the learned Single Judge. However, the
plaintiffs/respondents no.1 to 3 were directed to lead evidence and an
opportunity to cross-examine the witnesses was granted to the
appellant. Total 9 witnesses were produced. They were subjected to
cross-examination. Decree of specific performance was passed on
03.01.2018. Learned counsel for the appellant has challenged the
judgment and decree dated 03.01.2018 on the grounds that the ex parte
judgment and decree, which has been passed is without jurisdiction.
The respondent no.1 to 3 allegedly entered into agreement to sell dated
24.12.2010 with respondents no.4, 5 and the appellant for sale of ¾
share of 31 bighas 18 biswas land for the consideration
Rs.2,06,18,778/-. Respondents no.1 to 3 paid an amount of
Rs.25,00,000/- to the respondent no.4 on 02.03.2010 with a prayer for
specific performance of an agreement to sell dated 24.12.2010 with an
alternative relief of Rs.2,06,18,778/-. Since the relief of specific
performance is allowed to respondents no.1 to 3 without adjudicating
the other relief. The value of the limited dispute is only Rs.25,00,000/-
, which is less than one crore. Also, as per the terms of the said
agreement in case of breach of an agreement by the seller the
purchasers are entitled to recover double of earnest money/bayana,
which is computed at Rs.50,00,000/-. Hence the impugned order
passed by learned Single Judge lacks jurisdiction.
12. Counsel for the appellant further submits that since the respondents
have obtained the alleged agreement to sell dated 24.12.2010 by
playing a fraud and misrepresentation in collusion with the
respondents no.4 and 5, who then approached the appellant to obtain
her signature on a stamp paper on the plea that the same was required
to be submitted in the office of SDM for mutation of their respective
shares.
13. It is the case of the appellant that she has never met and agreed with
respondents No.1 to 3 for selling her ¼ share in the subject land and
has not entered into any sale agreement with respondents No.1 to 3.
The alleged agreement to sell dated 24.12.2010 was prepared in a
clandestine manner, behind the back of the appellant and her signature
was obtained by fraud and misrepresentation. Counsel further submits
that there is no meeting of mind between the appellant and the
respondents no.1 to 3, neither the appellant has received any money
from respondents no.1 to 3 or from respondents no.4 and 5 in
consideration of the sale agreement dated 24.12.2010. Therefore, the
alleged agreement to sell dated 24.12.2010 is without any
consideration by the respondents No.1 to 3 and the same is void,
illegal and not enforceable.
14. He further submits that in fact witness of the respondents has admitted
in his cross examination that the respondents no.1 to 3 have not paid
any consideration to the appellant in terms of the sale agreement. It is
further contested that respondents no.1 to 3 have clearly admitted in
their plaint and evidence that they have only paid Rs.25,00,000/- to
respondent no.4 on 2.3.2010 and in absence of any evidence of
payment of earnest money / bayana to the appellant, respondents no.1
to 3 are not entitled to file the said suit for specific performance and
nor entitled to any relief. Therefore, the impugned ex-parte judgment
and decree dated 03.01.2018 is illegal and liable to be set aside.
15. It is the case of the appellant that respondents no.1 to 3 entered into an
earlier sale agreement dated 02.03.2010 with respondent no.4 for
which respondent no.4 obtained an affidavit from the appellant for
filing it in the office of learned SDM. Appellant was given an
impression that the said affidavit was required so that no objection
regarding title is claimed. However, the appellant was not party to the
said agreement to sell dated 2.3.2010. Therefore, it cannot be legally
presumed that the appellant received any money from respondent no.4
as consideration for the agreement to sell dated 24.12.2010. It was also
stated by respondents no.1 to 3 in their plaint that they have cancelled
the earlier agreement to sell dated 2.3.2010 making both the
agreement and affidavit dated 02.03.2010 as void and as far the
bayana is concerned, the same was returned to respondents no.1 to 3.
Counsel for the appellant further contends that mutation of the subject
land was not carried in the name of the appellant, thus, she was not
legally competent to sell the said land to the respondents No.1 to 3 on
24.12.2010. According to the revenue record, the subject land was
mutated in favour of the appellant on 28.12.2010. Hence the said
agreement to sell dated 24.12.2010 is void and illegal. Counsel further
submits that respondents no.1 to 3 have not produced any bank record
showing any transaction made in favour of the appellant. Therefore,
the agreement to sell dated 24.12.2010 is without any consideration
making the same void, illegal and not enforceable. The respondents
No.1 to 3 have not examined the respondent No.4 for proving transfer
of 1/3 share of Rs.25,00,000/- to the appellant. Therefore, it is clear
that the respondents have not paid any money to the appellant and the
finding of learned Single Judge of the bayana being the
acknowledgment of receipt is without any basis.
16. It is further submitted that the learned Single Judge has erred by
directing the respondents No.1 to 3 to pay Rs.70,39,593/- to the
appellant in view of the facts that it is admitted in the impugned
judgment that respondents No.4 and 5 have further settled their
dispute with the respondents No.1 to 3 and the respondents No.1 to 3
have paid the enhanced balance amount of Rs.14,75,000/- excluding
the earlier payment of Rs.25,00,000/- implying that respondents No.4
and 5 have received the total consideration amount of Rs.17,24,5000/-
from the respondents No.1 to 3. Thus, each of them has received
Rs.86,22,500/-. Therefore, directing the respondent to pay a sum
Rs.70,39,593/- to the appellant is illegal and discriminatory.
17. Counsel for the appellant further submits that the earlier advocate of
the appellant has not filed written statement in the said case before this
court intentionally and for ulterior motive, despite getting the same
signed by the appellant. The said counsel has also made an admission
of agreement to sell dated 2.3.2010 and 24.12.2010 without the
consent and instruction from the appellant. The counsel had been
assuring the appellant that he is looking after the case properly. He has
also not cross examined the witnesses effectively and fairly
intentionally to provide undue benefit to the respondents No. 1 to 3.
Therefore, the impugned order deserves to be set aside.
18. Counsel for the appellant has also submitted that the impugned decree
dated 03.01.2018 came to the knowledge of appellant on 24.01.2018
when she received a notice from Sh. Anand Yadav, advocate of the
respondents No. 1 to 3 for compliance of the impugned judgment. The
appellant then filed an application under order IX Rule 13 CPC for
setting aside the impugned decree dated 26.02.2018. However, the
same was dismissed vide order dated 12.03.2018. Thereafter the
appellant applied for the certified copy of impugned decree dated
20.03.2018 however, the same were refused by the copying agency on
plea that the appellant was ex-parte. Further, the appellant filed an IA
No. 5326/18 for providing certified copies of complete record for
filing appeal and same was allowed on 19.4.18. Certified copy are
supplied to the appellant on 26.4.18. Therefore, the present RFA (OS)
is filed in time as per law.
19. It is contended that although the sale agreement was signed on
24.12.2010, however, no payment was made to the appellant herein on
the date of signing of the agreement to sell. Mr. S.K. Anand, counsel
for the appellant, has drawn attention of the Court to an agreement to
sell dated 24.12.2010, which reflects that Rs.25 lacs stands paid in the
following manner:
"NOW THIS AGREEMENT TO SELL WITNESSETH AS
UNDER: -
1. That in pursuance of the said agreement and in
consideration as sum of Rs.2,06,18,778/- (RUPEES TWO
CRORE SIX LACS EIGHTEEN THOUSANDS SEVEN
HUNDRED SEVENTY EIGHT ONLY), out of which the
first party has received a sum of Rs.25,00,00/- (Rupees
TWENTY FIVE LACS only) as a advanced money/Bayana
against the above said property, in following manner :-
a) Rs.3,00,000/- (Rupees Three Lacs only) vide Cheque
no.366756, dated 02.03.2010, Drawn on The Delhi State
Co-operative Bank, Ltd., Karala, Delhi-110081, in the
name of Smt. Prem Vati.
b) Rs.3,00,000/- (Rupees Three Lacs only) vide Cheque
no.382846, dated 02.03.2010, Drawn on State Bank of
India, Mazra Dabas, Delhi, in the name of Smt. Prem
Vati.
c) Rs.8,00,000/- (Rupees Eight Lacs only) Vide Cheque
no.904249, dated 02.03.2010, Drawn on State Bank of
India, Kanjhawala, Delhi, in the name of Smt. Prem Vati.
d) Rs.11,00,000/- (Rupees Eleven Lacs only) in cash at
Home and the balance amount will be paid at the time of
Registration/completion of Sale Deeds."
20. Mr. S.K. Anand contends that firstly on the date of signing of the
agreement to sell, no payment was made and thus, the suit was liable
to be dismissed. Secondly, he contends that the payment pertains to a
date prior to signing of the agreement to sell dated 24.12.2010, and
therefore, the suit should have been dismissed. The third submission
made by learned counsel for the appellant relying on ground-K of the
appeal, is that the appellant is being offered a lessor amount than her
other siblings. The fourth ground, which has been urged before us is
that respondents no.1 to 3, the purchasers were not ready and willing
to perform their part of the agreement. They did not have sufficient
funds and thus, the relief for specific performance could not have been
granted. Another ground, which has been raised by counsel for the
appellant is that the agreement to sell is dated 24.12.2010 on which
date, the land was not mutated in favour of the appellant as also
respondents no.4 & 5 and thus, the agreement to sell itself would be
bad in law. He points out that the land was actually mutated on
28.12.2010.
21. Mr. S.K. Anand, learned counsel for the appellant has also drawn
attention of the Court to page 87 of the paper book wherein, cross-
examination of PW-1 Mr. Ajay Kumar has been recorded as under :
"PW1 Mr. Ajay Kumar (Recalled for cross-examination
after 08.05.2014).
On SA.
XXXXX by Mr. Jaspreet Singh, counsel for the
defendant No.3.
It is correct that on agreement to sell dated
02.03.2010 there was no signatures of defendant No. 3
Ms. Sushma. It is correct that the advance amount for suit
property in question was not given to defendant No. 3
Ms. Sushma. It is correct that Sh. Umed Singh had four
legal heirs. It is correct that I have no agreement with the
second son namely Sh. Sudhir Kumar of Sh. Umed
Singh. It is wrong to suggest that Sh. Sudhir Kumar had
not given me any No Objection for purchasing the suit
property in question. (Vol.) the earlier agreement was on
the basis of Will of Sh. Umed Singh and the daughters
and son had given their affidavit of No Objection. It is
correct that wife of Sh. Sudhir Kumar had filed
objections for mutation before the SDM Court at
Khanjhawala. (Vol.) at the time of entering into
agreement I was not aware of these objections before the
SDM. It is correct that agreement Ex.PW1/1 was
executed in my presence and I am aware about clause V
and specifically the line marked as A to A. It is correct
that after Ex.PW1/1, other agreement to sell was
executed i.e. Ex.P4. It is correct that Ex.P4 is not with Sh.
Sudhir Kumar. It is incorrect that defendant No.3 has not
received any payment for agreement Ex.P4. (Vol.)
defendant No.3 has told me that she has received the
payment from her mother. Thereafter, she signed the
Ex.P4. It is wrong to suggest that defendant No.3 has told
me that she has not received the payment from her
mother. I cannot tell from Ex.P4 if my above statement is
mentioned in it or not as I do not understand much
English. It is wrong to suggest that I did not pay any
consideration to defendant No.3. It is wrong to suggest
that I have deposed falsely."
22. Counsel for the appellant submits that in the cross-examination, PW-1
has admitted that on agreement to sell dated 02.03.2010, the appellant
herein (defendant no. 3 in the suit) did not append her signature and
further the advance for the properties was not given to defendant no.3,
Smt. Sushma. Learned counsel for the appellant has also elaborated
his arguments by saying that the passbook, copies of which, have been
placed on record do not reflect that respondents no.1 to 3 had
sufficient funds in their bank account.
23. Mr. Anand Yadav, counsel for respondents no.1 to 3 submits that there
is no merit in this appeal. The first agreement was entered into on
02.03.2010 between respondents no.1 to 3 (purchasers) and
respondent no.4. After it was realized that the property in fact
devolved upon 4 persons being Prem, Arun, Sushma and Sudhir, it is
for this reason that the second agreement to sell was executed, which
was duly signed by the appellant herein. As far as the first submission
is concerned regarding the appellant not having received the payment
on the date of signing of the agreement on 24.12.2010, counsel for the
respondents submits that a factually incorrect statement is made that
the appellant did not receive her share out of Rs.25 lacs, which was
paid and reflected in the agreement to sell itself. The attention of this
Court is drawn to clause 12 of the agreement to sell dated 24.12.2010,
as per which, appellant has admitted that she has received her share
from her mother. Clause 12 of the agreement to sell dated 24.12.2010
reads as under:
"12. That Arun and Shushma have received their share
amount from their mother."
24. As far as the second submission that the other siblings have received a
higher amount than the amount, which is being offered to the appellant
is concerned, Mr. Anand Yadav, counsel for the respondents submits
that admittedly the total sale consideration was Rs.2,06,18,778/-,
which was to be paid to the three sellers in equal share, which would
translate into Rs.68,72,926/-. He further submits that when the
purchaser entered into an out of Court settlement with respondents
no.4 and 5 herein, the purchasers agree to pay a sum of Rs.5 lac each
to these persons over and above Rs.68,72,926/-. Thus, it is contended
that the figures as mentioned in ground-K are factually incorrect. As
far as third submission with regard to respondents no.1 to 3 not having
sufficient fund is concerned, it is contended that the purchasers had
produced 8 witnesses from various banks. The copies of passbook
have been exhibited. There is no cross-examination as to when
respondents no.1 to 3, purchasers have not sufficient fund in their
bank account. It is also contended that no benefit can accrue in favour
of the appellant to show that the land was mutated on 28.12.2010
while the agreement to sell is dated 24.12.2010. It is also contended
that the affidavits filed at page 87 of the paper book has been read
selectively. Reading of the complete affidavit would show that the
witnesses had clarified that the defendant no.3 being appellant herein
had received the payment from her mother.
25. We have heard learned counsel for the parties and considered their
rival submissions. The witnesses have proved the following
documents:
S.No. Name/Designation of Document proved /Affidavit &
witness page no.
PW-1 Shri Ajay Kumar, Plaintiff Exhibit no.PW-1/A to PW-1/11
PW-2 Shri Vinod Kumar, Ex PW-2/1 (Colly.), account of
Assistant, Plaintiff No.1. (Pg. 76 PART
Delhi State Cooperative III)
Bank, Karala
PW-3 Shri Ashutosh Kumar ExhibitPW-3/1 account of
Singh, Plaintiff No.2 (Pg.83 PART III)
Branch Manager, ExhibitPW-4/1 account of Smt.
Corporation Bank, Raj Bala. (Pg. 84 PART III)
Kanjhawala.
26. The submission of Mr. S.K. Anand, counsel for the appellant, that no
payment was received by the appellant on the date of signing of the
agreement and thus, the suit for specific performance should have
been dismissed, this submission in our view is without any force
specially in the light of the fact that the appellant herein is signatory to
the agreement dated 24.12.2010. The agreement stands admitted and
till date, the appellant has not taken any steps to dispute the contents
of the agreement to sell. Reading of the agreement to sell clearly
reflects that six payments were made at an earlier date and the
payments made on 02.03.2010 stands fully justified. In view of the
fact that the first agreement to sell was cancelled and second
agreement to sell was executed. Reading of clause 12 of the agreement
to sell dated 24.12.2010 shows that the appellant had admitted having
received her share out of Rs.25 lacs, which was paid on 02.03.2010
from her mother. It may also be noted that even at the time of first
agreement to sell was executed, the appellant herein has executed the
following affidavit Ex. P-3, which reads as under:
"AFFIDAVIT
I, SUSHMA DAUGHTER OF SHRI UMED SINGH
WIFE OF SHRI BHAGWAN SINGH MANN R/O
C3/100, SECTOR-11, ROHINI, DELHI-110085 do
hereby solemnly affirm and declare as under:-
1. That MY MOTHER is owner/occupier and in
possession of LAND MEASURING 29-BIGHA &
06-BISWAS, OUT OF KHASRA NOS.11/6 (1-18),
11/15 (4-9), 11/16 (4-5), 11/25 (4-5), 12/11 (1-10),,
12/20 (4-3), 12/21 (4-16), 12/22 (4-0), SITUATED IN
THE AREA OF VILLAGE JAT KHORE, DELHI-
110039 by Virtue of Regd. Will as Documents
No.439, Book No.III, Volume no.121, on pages 92 to
94, on dated 22.04.2009, in the office of Sub-Registrar
VI-C, Rohini, Delhi. (HEREINAFTER CALLED
THE PROPERTY).
2. That MY MOTHER is selling the said LAND
MEASURING 29-BIGHA & 06-BISWAS, OUT OF
KHASRA NOS.11/6 (1-18), 11/15 (4-9), 11/16 (4-5),
11/25 (4-5), 12/11 (1-10), 12/20 (4-3), 12/21 (4-16),
12/22 (4-0), SITUATED IN THE AREA OF
VILLAGE JAT KHORE, DELHI-110039 to (1) SHRI
GAMESH MATHUR SON OF SHRI ISHWAR
SINGH RESIDENT OF VPO KARALA, DELHI-
110081 (3) SHRI ASHISH DABAS SON OF SHRI
BHAGWAN SINGH R/O VPO CHAND PUR,
DELHI-110081 in my knowledge and in my consent.
3. That I have No-Objection in regarding of sale of
aforesaid property and I will not claim, title in future
over it and any objection raised by me or my other
legal heirs in any manner whatsoever, be treated as
null & void in any court of laws.
4. That it is my true and correct statement.
DEPONENT
VERIFICATION: -
Verified at Delhi on 02.03.2010 that the contents
of this affidavit are true and correct to the best of my
knowledge and belief and that nothing has been
concealed therefrom.
DEPONENT"
27. Another ground, which has been urged before us is that the
respondents no.1 to 3 had offered a lessor amount to the appellant. We
do not find any force in this submission as well. The submission that
the respondents did not have sufficient funds in their bank account and
thus, no specific performance should have been directed is also
baseless. Respondents no.1 to 3 have examined 8 witnesses from the
bank. We may note that there was no cross-examination of these
witnesses or the plaintiff. Therefore, we find no merit in this
submission as well.
28. Mr. Yadav submits that his bonafide are further established by the fact
that he has already entered into a settlement with respondents no.4 &
5.
29. Resultantly, the appeal must fail. Accordingly, the appeal and CM
APPLs 19982-84/2018 are dismissed.
G.S. SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
th
MAY_16 , 2019/ck
