Sasr Infrastructure Private ... vs Surabhi Sathish
2021 Latest Caselaw 1879 Tel

     HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO

                                      AND

         HONOURABLE SRI JUSTICE T. VINOD KUMAR

              Civil Miscellaneous Appeal No.250 of 2021


JUDGMENT :        (Per Sri Justice M.S.Ramachandra Rao)


       This appeal is filed against the order dt.10.03.2021 passed in

Interlocutory Application No.365 of 2020 in Original Suit No.58 of 2020

on the file of Special Judge for Trial of Offences under Schedule Tribe

and Schedule Caste (Prevention of Atrocities) Act, 1989 - cum - V

Additional District and Sessions Judge, Medchal, at Sanga Reddy.


2.     The appellant herein is 1st defendant in the above suit.


The case of 1st respondent / plaintiff in the suit :

3. The 1st respondent / plaintiff filed the said suit for specific

performance of an Agreement of Sale dt.29.07.2009 executed by

appellant in his favour agreeing to sell ten apartments in a complex, viz.,

Sri Ayappa Sai Ram Residency IV, as described in the plaint Schedule.

4. The 1st respondent / plaintiff contended that appellant is the

absolute owner of the land on which the above complex was built having

acquired the same under registered Sale Deed dt.04.02.2016, and he was

in physical possession and enjoyment of the same.

5. The 1st respondent contended that appellant was in the real estate /

construction business and had offered to sell the above ten flats to him MSR,J & TVK,J ::2:: cma_250_2021

for Rs.2 crores and executed Ex.P.1 - Agreement of Sale dt.29.07.2019

after receiving Rs.5 lakhs through a cheque and Rs.45 lakhs in cash as

advance sale consideration on the date of agreement in the presence of

witnesses.

6. It is also the contention of 1st respondent that appellant executed a

separate receipt Ex.P.2 dt.29.07.2019 on the same day acknowledging

receipt of the said amount.

7. The 1st respondent / plaintiff contended that as per the terms of

the agreement, the appellant had to furnish to 1st respondent certain

documents before the property was to be registered pursuant to Ex.P.1 -

Agreement of Sale, but the appellant kept the matter pending though the

1st respondent was always ready and willing to pay the balance sale

consideration.

8. He contended that the appellant had promised to the 1st respondent

on 20.02.2020, along with witnesses, that he would execute Sale Deed

and also register the suit schedule property in favour of 1st respondent

within one (01) months.

9. Thereafter, from 22.03.2020, there was a lockdown imposed on

account of COVID-19 Pandemic for three months, and only on

15.05.2020 when the lockdown was lifted, the 1st respondent could

approach the appellant, and at that time the appellant refused to execute

any Sale Deed.

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10. He also stated that he came to know when he obtained the

Encumbrance Certificate on 04.08.2020 that Flat No.205 which was part

of flats agreed to be sold under Ex.P.1 to him was sold to respondent

nos.2 and 3 / defendant nos.2 and 3 under a registered Sale Deed Ex.P.4

dt.26.02.2020, and that Flat No.201 was sold in favour of respondent

nos.4 and 5 / defendant nos.4 and 5 under registered Sale Deed Ex.P.5

dt.20.03.2020.

11. The 1st respondent contended that this conduct on the part of

appellant was not fair since he had received a huge amount as advance

under Ex.P.1 - Agreement and he cannot avoid to complete the

transaction.

Written statement of 1st respondent :

12. The 1st respondent filed a written statement denying the very

execution of Ex.P.1 Agreement of Sale agreeing to sell the ten flats to 1st

respondent. The appellant also denied receiving Rs.50 lakhs by way of

advance from the 1st respondent and denied executing Ex.P.2 - Receipt,

acknowledging receipt of the said amount.

13. According to him, Ex.P.1 - Agreement of Sale is created by the 1st

respondent by impersonation of signature of appellant basing on forged

signature, and the suit was filed; that Ex.P.1, being a forged document,

relief of specific performance cannot be granted; and that the said suit is

not maintainable.

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14. Under the heading 'Additional Grounds', the appellant took the

plea that it is in the construction business; that the 1st respondent was the

friend of appellant's Director, that the appellant approached the 1st

respondent for hand loan of Rs.2 crores, and at that time, the 1st

respondent demanded the appellant for collateral security and advised

the appellant to execute an Agreement of Sale for 10 flats in the

complex, viz., Sri Ayappa Sai Ram Residency IV.

15. The appellant further contended that its Director sent an e-mail,

and at that time, the 1st respondent had agreed to pay Rs.5 lakhs by

cheque and Rs.45 lakhs by cash and remaining Rs.1.50 crores within

three months through cash, and after receiving the remaining amount,

the appellant promised that it would execute the mortgage deed over the

suit schedule property.

16. The appellant contended that as per the oral understanding, it's

Director signed on the agreement, but after completion of his

(appellant's Director's) signature, the appellant requested the 1st

respondent to handover the cheque and cash, that 1st respondent stated

that the cheque is at his residence and he will hand over the said cheque

and amount on the next day at this residence, and the appellant believed

this version of 1st respondent.

17. It contended that on the next day, when the appellant approached

the 1st respondent and demanded to hand over the cheque and amount as

per the agreement, the 1st respondent did not hand over the cheque and

cash.

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18. It contended that after it received summons from the Court below

in the instant suit, the appellant verified the agreement of sale filed in the

suit and to its surprise, it discovered that in the agreement of sale two

papers are replaced by putting forged signatures on page nos.4 and 5

thereof, and those signatures are forged.

19. It also claimed that it filed an objection under Section 45 of the

Evidence Act to send the said Agreement of Sale to a forensic laboratory

for comparison of all signatures on the Agreement of Sale with original

signatures of the 1st respondent. It also stated that no notice was issued

prior to filing of the suit by the 1st respondent.

IA No.365 of 2020

20. Along with the suit, the 1st respondent filed Interlocutory

Application No.365 of 2020 under Order XXXIX Rules 1 and 2 of Civil

Procedure Code, 1908 for an ad interim injunction restraining appellant

and respondent nos.2 and 3 from alienating or creating any charge over

the suit schedule property in favour of third - parties, pending disposal

of the suit.

21. The 1st respondent reiterated the contents of plaint in the affidavit

filed in support of the said application.

22. He also contended in the said application that if the appellant and

respondent nos.2 and 3 are not restrained from alienating the suit

schedule property, he would be put to irreparable loss and hardship

which cannot be compensated in terms of money.

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The stand of appellant in Interlocutory Application No.365 of 2020 :

23. The appellant filed a counter-affidavit reiterating the contents of

the Written Statement filed by it and opposing grant of interim relief.

The stand of the 4th respondent

24. The 4th respondent filed a separate counter-affidavit and

respondent nos.2, 3 and 5 adopted the counter of 4th respondent. They

took the same stand as the appellant.

25. In addition, they also contended that the stamp alleged to have

been purchased by the 1st respondent for himself was not for entering

into Contract of Sale, and the signature of appellant in Ex.P.1 varies

from page to page, and it is visible even to the naked eye.

26. He also contended that as per Guidelines of Reserve Bank of

India, a sum of Rs.45 lakhs cannot be paid in cash and the 1st respondent

had failed to file the Statement of Account to show that an amount of

Rs.5 lakhs was credited and paid as alleged by 1st respondent to the

appellant. They also pleaded that they are all bona fide purchasers.

Order of the Court below in Interlocutory Application No.365 of 2020 :

27. Initially, Ad interim injunction was granted by the Court below on

19.08.2020 and the said injunction was made absolute by Order

dt.10.03.2021 in Interlocutory Application No.365 of 2020 by the Court

below.

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28. The court below referred to the contentions of parties and the

documents filed by them.

29. It observed that the appellant had admitted execution of Ex.P.1

Agreement of Sale by putting signatures in page nos.1 to 3 thereof, but

denied his signatures on page nos.4 and 5 of Ex.P.1. It then referred to

the wording in Ex.P.1-Agreement of Sale and noted that in that

agreement the appellant agreed to sell the suit schedule property to the

1st respondent for Rs.2 crores and also admitted to receiving Rs.5 lakhs

by cheque and Rs.45 lakhs by way of cash, and this is also corroborated

by Ex.P.2.

30. It further observed that burden is on the appellant to prove that

signatures on page no.4 and 5 of Ex.P.1 - Agreement of Sale and Ex.P.2

are forged, and though the appellant referred to Ex.P.3 - Expert Report

of Truth Laboratories, such report was obtained without giving any

notice to 1st respondent and without sending the admitted and disputed

signatures of the 1st respondent along with copy of Ex.P.1 - Agreement

of Sale to the handwriting expert. Therefore it observed that Ex.R.3 -

Report cannot be considered.

31. It also observed that there is no proof of the plea raised by the

appellant that it approached the 2nd respondent to lend Rs.2 crores as

collateral security under Ex.R.1, and there was no mortgage deed

produced before the Court in support of the said plea.

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32. It then noted that Exs.P.1 and P.2 nevertheless establish receipt of

Rs.50 lakhs by the appellant from the 1st respondent.

33. It then referred to the contention of respondent nos.2 to 5 (who are

purchasers under Exs.P.4 and P.5 from the appellant) that the appellant

is a Private Limited Company and without a resolution by the Board of

Directors, any transaction made by appellant was void, but rejected the

same on the ground that the executant of Exs.P.3 to P.5 was also the

Director of Appellant-Company by name Sri S. Venkatram Reddy, and

he had filed Vakalat representing the appellant as Director, and if he was

not authorized to file the same or not authorized to execute the

documents, the other Directors would have raised objections. It also

recorded that the appellant admitted that he is having authority in respect

of the suit schedule property and had filed Vakalat on behalf of appellant

on the basis of such authority.

34. It also observed that whether it is permissible or not to receive

Rs.45 lakhs in cash as recorded in Exs.P.1 and P.2, is a matter to be

looked into after considering the R.B.I. Rules, and the same cannot be

accepted at this stage.

35. It also rejected the plea of respondent nos.2 to 5 that each

apartment costs Rs.40 lakhs and so it was not possible for the appellant

to sell each flat at Rs.20 lakhs since the appellant never raised such a

plea.

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36. It also observed that since the 1st respondent had contended that

he had demanded from the appellant to execute a Sale Deed, non-

issuance of notice will not be material. It held that whether the

respondent nos.2 to 5 are bona fide purchasers or not, it can be decided

only after full-fledged trial, particularly since Exs.P.4 and P.5 Sale

Deeds were executed in favour of respondent nos.2 to 5 during the

subsistence of Ex.P.1.

37. It then held that irreparable loss would be caused to 1st respondent

if the appellant was further allowed to alienate the property and prima

facie case and balance of convenience also exist in favour of 1st

respondent.

The present Civil Miscellaneous Appeal

38. Challenging the same, the present Appeal is filed.

39. Heard Sri L. Ravichander, Senior Counsel appearing for

Ms. Rakee Sridharan, counsel for appellant.

40. The learned Senior Counsel contended that the signature of

appellant's Director had been forged by the 1st respondent on Exs.P.1

and P.2. He also sought to rely on Ex.R.3 - Report of Truth

Laboratories in support of plea of forgery.

Consideration by this Court :

41. Admittedly, in the Written Statement and counter filed by

appellant in the Court below, the appellant - Director admitted his MSR,J & TVK,J ::10:: cma_250_2021

signature on page nos.1 to 3 on Ex.P.1 and sought to contend that his

signatures on page nos.4 and 5 only were forged, and that those two

pages were changed and new matter was substituted by the 1st

respondent.

42. The admission about receipt of Rs.5 lakhs by cheque and Rs.45

lakhs in cash is found on page no.2 of Ex.P.1, Agreement of Sale.

Therefore, this admission on page no.2 in clause (2) of Ex.P.1 would be

binding on the appellant prima facie and would also corroborate Ex.P.2

receipt which contained the same recitals.

43. Normally, when Agreements of Sale are executed a copy of the

same is retained by each party, and the appellant would have also

retained a copy of the original Ex.P.1 which its Director had executed in

favour of 1st respondent. Why the said copy of the Agreement of Sale

Ex.P.1 which the appellant possesses is not produced by the appellant, is

not explained by the counsel for appellant. This conduct throws serious

doubt prima facie on the case pleaded by the appellant.

44. The learned Senior Counsel then sought to contend that as per

R.B.I. Rules it was not permissible to pay large sums of money as Rs.45

lakhs in cash. If there is any such infringement of the Rules framed by

the R.B.I. it is prima facie open to the said authority to take appropriate

action, but the appellant who had admittedly received the said money

cannot rely on R.B.I. guidelines to wriggle out of its obligation under

Ex.P.1 - Agreement of Sale.

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45. As rightly held by the Court below, Ex.R.3 - Expert Report,

cannot be accepted prima facie at this stage since the same was obtained

without the consent of 1st respondent and without taking admitted

signatures of 1st respondent for the purpose of comparison.

46. The fact that Exs.P.4 and P.5 - Sale Deeds have been executed by

appellant in favour of respondent nos.2 to 5 during the subsistence of

Ex.P.1 - Agreement of Sale in favour of 1st respondent shows that

appellant had an intention to create third-party rights which would cause

prejudice to 1st respondent if interim relief were not to be granted in his

favour.

47. We also do not accept the contention of counsel for appellant that

each apartment costs Rs.40 lakhs and appellant would be foolish to agree

to sell the apartment at Rs.20 lakhs, because there is no such plea raised

by the appellant.

48. The contention of appellant that it only intended to create a

security for a loan and Ex.P.1 is executed only for the said purpose,

cannot be accepted prima facie, because the appellant is a Real Estate

businessman and clearly understands the difference between an

'Agreement to Sell' immovable property and a 'Mortgage Deed'. Such

worldly-wise person cannot be allowed to take the plea that he did not

know the difference between a mortgage deed and an agreement to sell.

49. We also prima facie do not accept the contention of the counsel

for appellant that after the appellant signed Ex.P.1 - Agreement of Sale, MSR,J & TVK,J ::12:: cma_250_2021

the 1st respondent promised to pay Rs.5 lakhs by cheque or Rs.45 lakhs

in cash, and the appellant's Director was gullible enough to sign the

document bona fidely believing the assurance of 1st respondent without

receiving the said money. No prudent man, that too a real estate dealer,

would normally sign any documents acknowledging receipt of money if

such money was in fact not paid at the time of signing the agreement.

50. In this view of the matter, we do not find any merit in the Civil

Miscellaneous Appeal. It accordingly fails and it is dismissed at the

stage of admission. No order as to costs.

51. The Court below is directed to decide the suit uninfluenced by any

findings or observations made in this order or in the order passed by it

on 10.03.2021 in I.A.No.365 of 2020 in O.S.No.58 of 2020.

52. As a sequel, miscellaneous petitions pending if any in this Appeal,

shall stand closed.

____________________________ M.S.RAMACHANDRA RAO, J

_______________________ T.VINOD KUMAR, J

Date: 30.06.2021 Ndr