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2007 DIGILAW 1437 (DEL)

C. L. JAIN v. RAGHUBIR SINGH

2007-07-20

SHIV NARAYAN DHINGRA

body2007
( 1 ) THE plaintiff filed this suit for specific performance of an agreement to sell dated 17th April. 1995. He alleged that vide this agreement, defendant raghubir Singh agreed to sell him his 1/4th share in agricultural land in Khasra no. 51/25 (4-12), 28 (0-4), 76/5 (4-16), 76/6 (4-16), 76/15 (4-16), 76/16 (4-4) situated in Village Dera Mandi, Tehsil Mehrauli, New Delhi for a sum of rs. 35,64,583/ -. The 1/4th share comes to 5 Bighas and 17 Biswas. The land was agreed to be sold at the rate of Rs. 29,50,000/- per acre. The plaintiff, in pursuance of the above agreement to sell, paid a sum of Rs. 8,80,000/- towards part of the sale consideration, in advance between 17th February, 1995 and 20th december, 1995 in cash. The balance sale consideration of Rs. 26,84,583/- was to be paid at the time of execution and registration of sale deed in favour of the plaintiff. Simultaneously, the possession of the land was to be handed over to the plaintiff. It is submitted that defendant was to obtain No Objection certificate from Revenue Authorities, income tax clearance certificate from income Tax Department and other requisite permission for sale of the land to the plaintiff. The sale deed was to be executed thereafter. The defendant, however, did not obtain 'no Objection Certificate' and other clearances/ permission to sell despite requests by plaintiff and this amounted to refusal on the part of the defendant in performing his part of the contract. The plaintiff thereafter sent a notice dated 19. 2. 1997 through his counsel to the defendant calling upon defendant to perform his part of contractual obligation by obtaining requisite clearance and permission from competent authorities and executing 'sale deed' in favour of the plaintiff, simultaneously receiving the balance consideration and handing over of the possession. However, the notice evoked no response from the defendant. Rather the defendant refused to receive the notice. The plaintiff served another notice dated 12th March, 1997 with similar request. This was also refused to be received by the defendant. It is submitted that plaintiff had always been willing and ready to perform his part of the contract while defendant failed to perform his part of the contract. Hence the suit. A prayer is made for passing a decree for specific performance directing defendant to execute the sale deed and hand over the possession, after obtaining necessary permissions. It is submitted that plaintiff had always been willing and ready to perform his part of the contract while defendant failed to perform his part of the contract. Hence the suit. A prayer is made for passing a decree for specific performance directing defendant to execute the sale deed and hand over the possession, after obtaining necessary permissions. Plaintiff also prayed for injunction against the defendant restraining defendant from selling or alienating the property in question. ( 2 ) THE defendant filed the written statement and took the stand that there was no agreement dated 17th February, 1995 entered between plaintiff and defendant and the suit was barred by provisions of Specific Relief Act. However, the defendant did admit that defendant was owner of 1/4th share in the agricultural land as stated in the plaint. Defendant denied that any payment was made by the plaintiff in furtherance of agreement dated 17th February, 1995 and took the stand that the said agreement was no agreement in the eyes of law. The question of payment of balance consideration by the plaintiff and execution of the sale deed by defendant or obtaining necessary clearances did not arise because of the fact that the agreement was not a valid agreement. ( 3 ) IN the replication, plaintiff reiterated the stand taken by him and submitted that the defendant had executed the receipts of the amount received by him and had also executed the agreement to sell. Defendant had taken false stand in the written statement. ( 4 ) FOLLOWING issues were framed by the Court on 17th September, 2004: " 1. Whether the agreement dated 17th February, 1995 was executed by the defendant" OPP 2. Whether the present suit is barred by time as stated by the defendant in the preliminary objection No. 2 of the written statement" 3. If issue No. 1 is decided in affirmative, whether the plaintiff is entitled to the relief of specific performance" OPP 4. To what relief the plaintiff is entitled to" OPP 5. Relief. ( 5 ) AFTER framing of issues, parties were given time to file additional documents. No additional documents were filed by either party and the matter was fixed for evidence. The defendant did not appear for cross examination of the plaintiff's witnesses and was burdened with cost of Rs. 5000/- vide order dated 20th October, 2005. Relief. ( 5 ) AFTER framing of issues, parties were given time to file additional documents. No additional documents were filed by either party and the matter was fixed for evidence. The defendant did not appear for cross examination of the plaintiff's witnesses and was burdened with cost of Rs. 5000/- vide order dated 20th October, 2005. The defendant or his counsel did not pay the costs and did not conduct cross examination of the plaintiff's witnesses. The defendant was proceeded ex parte vide order dated 9th December, 2005. ISSUE NO. 1 ( 6 ) IN order to prove this issue, plaintiff examined himself as PW-1. In his testimony by way of affidavit he testified that the agreement to sell dated 17th February, 1995 was executed by defendant Raghubir Singh whereby he had agreed to sell the suit land for total consideration of Rs. 35,64,583/ -. Defendant made representation to the plaintiff that he was owner of 1/4th share of the agricultural land described in para 1 above free from all incumbences and entered into the said agreement. The agreement is stated to be Ex. P1. ( 7 ) A perusal of agreement would show that the agreement is only signed by defendant and one witness Mahavir (son of the defendant ). The agreement is not signed by the plaintiff and the place of signature of plaintiff is blank. Simultaneously, with the signing of the agreement, the defendant is also alleged to have signed receipt Ex. P2 and received an amount of Rs. 1 lac ( Rs. 50, 000/- in cash and Rs. 50,000 by cheque No. 536351 dated 31. 12. 1994 ). It is to be noted that although in the written statement, defendant had taken the stand that no such agreement to sell was executed, the plaintiff in his affidavit has not given where this agreement to sell was executed by defendant. The genuineness of the agreement is doubtful because of various facts (i) The agreement to sell is not signed by the plaintiff. (ii) No revenue stamp is required to be affixed on the agreement to sell, but a revenue stamp has been affixed near the alleged signatures of defendant and crossed. (iii) There are cuttings in the agreement, month Jan has been scored off and February has been substituted. Similarly, cheque number has also been tampered. (ii) No revenue stamp is required to be affixed on the agreement to sell, but a revenue stamp has been affixed near the alleged signatures of defendant and crossed. (iii) There are cuttings in the agreement, month Jan has been scored off and February has been substituted. Similarly, cheque number has also been tampered. (iv) The cuttings have not been initialed either by the defendant or the plaintiff. There is another aspect. There are two receipts allegedly executed by defendant on 17th February, 1995 itself. One receipt is of Rs. 1 lac and the other receipt is of Rs. 50,000/ -. In both these receipts, revenue stamps have been affixed later on and crossed. In both receipts, the month of January has been scored off and February has been over written. Rs. One lac receipt shows payment of Rs. 50,000/- in cash and rs. 50,000/- in cheque and other receipt shows Rs. 50,000/- payment in cash. It is not understood if at the time of execution of the agreement, an amount of rs. 1,50,000/- is paid by the plaintiff to the defendant on 17th February 1995 itself, why two receipts had been executed and why the month of January has been scored off and February has been substituted. Why the initial cheque number was scored off and another cheque number dated 31st December, 1994 was filled in. I consider that the plaintiff was supposed to clarify these aspects as to why the alterations were there in the agreement and why two receipts were executed on the same day and why cheque dated 31st December, 1994 was given to the defendant when the agreement was executed on 17th February, 1995. There is no evidence of negotiations between the parties prior to 17th February. ( 8 ) THE different money receipts placed on record by the plaintiff also throw doubt. While only one payment of Rs. 50,000/- is allegedly made by way of a cheque of December, 1994, all other payments are stated to be made in cash despite the fact that the Income Tax Act specifically prohibits that no payment of more than Rs. 20,000/- be made in cash and the payment of more than rs. 20,000/- be made by cheque. The two of cash receipts are in Urdu, two in english and two in Hind. Who executed these receipts of cash and under what circumstances is not known. 20,000/- be made in cash and the payment of more than rs. 20,000/- be made by cheque. The two of cash receipts are in Urdu, two in english and two in Hind. Who executed these receipts of cash and under what circumstances is not known. All these undisputed facts throws doubt on the genuineness of the agreement and transaction. Another aspect of the agreement to sell, which throws doubt on it is that the rate of land and the value has been filled in pen by somebody and is not signed or initialed either by plaintiff or by defendant. ( 9 ) I, therefore, come to conclusion that the agreement to sell dated 17. 2. 1995 does not seem to be a genuine document and seems to be a forged one. I, therefore, decide this issue against the plaintiff and in favour of the defendant. ISSUE NO. 2 ( 10 ) THIS issue does not arise out of the pleadings of the parties. No such preliminary objection has been taken by defendant and the issue seems to be wrongly framed. ISSUE NO. 3 ( 11 ) IN view of my discussion in issue no. 1, I consider that plaintiff is not entitled to relief of specific performance. ISSUE NO. 4 and 5 ( 12 ) THE plaintiff does not seem to have come to Court with clean hands and has relied upon the documents which do not appear to be genuine. The suit of the plaintiff is hereby dismissed.