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2009 DIGILAW 1307 (PNJ)

Veena Sharma v. Shri Kapoor Chand Jain

2009-08-03

HEMANT GUPTA

body2009
JUDGMENT Hemant Gupta, J. - This order shall dispose of three Regular Second Appeal Nos. 1806 to 1808 of 2005. Regular Second Appeal 1806 of 2006 arises out of suit for specific performance of agreement to sell dated 22.04.1987 in respect of House No. 603 (measuring 193 sq. yards), Sector 15-A, Faridabad. 2. The plaintiff-Respondents have sought a decree for specific performance of the aforesaid agreement pleading that defendant No. 1 Smt. Veena Sharma (appellant No. 1) is the daughter of Shri Vishva Mitra Avasthi and wife of defendant No. 2 Om Parkash Sharma (appellant No. 2). The plaintiff claimed that he has paid an amount of Rs. 3,75,000/- to defendant No. 2, husband of defendant No. 1, for purchase of land in the name of plaintiff or his nominee but defendant No. 2 did not purchase the land for the plaintiff and, in fact, given the amount of Rs. 3,75,000/- to his wife. Neither defendant No. 1 nor defendant No. 2 returned the amount to the plaintiff and on persistent demand defendant No. 1 accepted and acknowledged the receipt of the said amount. Both the defendants expressed their inability to return the said amount in cash and defendant No. 1 with the consent and consultation of her husband offered to sell plot No. 603 Sector 15-A, Faridabad and the house constructed thereon. 2A. The plaintiff claims that the defendant has put the plaintiff in actual physical possession of the house at the time of agreement to sell dated 22.4.1987. The income tax clearance certificate was required to be obtained from the competent authority before 30.06.1987 and on such certificate having obtained, the sale deed was to be executed and registered. 3. Defendant No.1 also executed irrevocable power of attorney dated 22.4.1987 in respect of the suit property in favour of Satish Kumar and also handed over the original documents pertaining to the plot and the house to the plaintiff. Defendant No. 1 executed and signed rent note on 23.04.1987 agreeing to pay rent at the rate of Rs. 1200/- per month. It is also pleaded that defendant No. 2 vide his letter dated 5.1.1988 admitted the receipt of various amounts from the plaintiff for the purchase of land for the plaintiff and that he owed amount of Rs. 16.25 lacs to the plaintiff. The amount of Rs. 1200/- per month. It is also pleaded that defendant No. 2 vide his letter dated 5.1.1988 admitted the receipt of various amounts from the plaintiff for the purchase of land for the plaintiff and that he owed amount of Rs. 16.25 lacs to the plaintiff. The amount of Rs. 8.25 lacs was adjusted out of the aforesaid amount as the sale consideration of Houses No. 604 and 605 belonging to defendant No. 2 and house No. 603 belonging to the wife of defendant No. 2. The sale deed in pursuance of the aforesaid agreements was to be executed by 31.03.1988. The plaintiff alleged that he was always ready and willing to perform his part of the contract but the defendants have failed to comply with the terms and conditions of the agreement which led to the present suit for specific performance on 17.07.1990. 4. In joint written statement filed on behalf of the defendants, it was asserted that a suit for declaration to the effect that agreement to sell dated 22.04.1987 is bogus and sham transaction has been filed on 14.03.1988. The defendants denied that any agreement to sell was executed or there was consensus and between the parties for the sale of House No. 603, Sector 15-A, Faridabad. It was also pleaded that agreement to sell was without any consideration as the amount of Rs. 3,75,000/- was never paid by the plaintiff to defendant No. 2. It was also denied that plaintiff was put in physical possession of the house in dispute. However, it was asserted that power of attorney dated 22.4.1987 has been cancelled and said attorney was arrayed as defendant No. 2 in the earlier suit filed by Smt. Veena Sharma. The execution of rent note was denied as well as the fact that defendant No. 2 ever admitted that he owed an amount of Rs. 16.25 lacs to the plaintiff or that an amount of Rs. 8.25 lacs stands adjusted towards the sale consideration of House No. 604 and 605 belonging to defendant No. 2. It was also alleged that the alleged agreement is a bogus and sham transaction and there is no question of the plaintiff being ready and willing to get the sale deed executed. 5. 8.25 lacs stands adjusted towards the sale consideration of House No. 604 and 605 belonging to defendant No. 2. It was also alleged that the alleged agreement is a bogus and sham transaction and there is no question of the plaintiff being ready and willing to get the sale deed executed. 5. Regular Second Appeal No. 1808 of 2005 arises out of suit for declaration filed by Om Parkash Sharma seeking declaration that agreement dated 22.4.1987 in respect of House No. 604, Sector 15-A, Faridabad, is bogus and sham transaction. It was also claimed that power of attorney dated 22.4.1987 executed in favour of defendant No. 2 to deal with House No. 604 and 605, Sector 15-A, Faridabad, is bogus and sham. In the aforesaid suit, it was pleaded that in the year 1982, defendant No. 1 approached the plaintiff for seeking assistance for his proposed project of import of some diary machinery. On account of such project, the relations between the plaintiff and defendant developed. Defendant No. 1 requested the plaintiff to arrange purchase of certain farm lands situate in and around District Faridabad as the defendant was having very wide circle of his clients and was very well connected in the upper strata of society in Delhi. It was alleged that on 29.06.1984, an agreement was reduced into writing between the plaintiff and defendant No. 1, wherein it was agreed that the plaintiff would arrange the purchase of land situate in village Ankhir, Tehsil Ballabgarh, District Faridabad, from the land owners of the village and that land would be sold and profit would be shared equally. It is the case of the plaintiff that defendant No. 1 agreed to give advance money to the plaintiff, but for the purpose of securing the amount defendant No. 1 asked the plaintiff to give the title deeds of the residential houses bearing Nos. 604 and 605 situate in Sector 15-A, Faridabad. It was also pleaded that title deed of House No. 603, Sector 15-A, Faridabad, belonging to the wife of the plaintiff was also handed over to defendant No. 1 on his asking. It is pleaded that from 29.6.1984 till October, 1985, a sum of Rs. 604 and 605 situate in Sector 15-A, Faridabad. It was also pleaded that title deed of House No. 603, Sector 15-A, Faridabad, belonging to the wife of the plaintiff was also handed over to defendant No. 1 on his asking. It is pleaded that from 29.6.1984 till October, 1985, a sum of Rs. 16,52,000/- approximately given to the plaintiff by defendant No. 1 was spent for procurement of the land and that defendant No. 1 used to accept money from the prospective buyers and would call upon the plaintiff to get the title deeds passed over to the persons as per his direction from time to time and would also dictate to the plaintiff the amount at which the registration of the title deed was to be done but during the period the plaintiff worked for the defendant, no proper accounts were rendered by the defendant. A dispute arose in respect of purchase of land in April, 1987 and the parties came on negotiating table. It is pleaded that the plaintiff then in good faith entered into an agreement to sell in respect of House No. 604 which, in fact, was a paper transaction and also appointed him as the general power of attorney. There was no intention on the part of the plaintiff to sell the house in favour of the defendant. The agreement was stated to be without consideration. It is further pleaded that the plaintiff was made to write on a paper on 5.1.1988 in the police station that the plaintiff has to pay a sum of Rs. 16,52,000/- to defendant No. 1. 6. In the written statement filed on behalf of defendant No. 1 in the aforesaid suit, it was asserted that the plaintiff executed agreement to sell dated 22.4.1987 in respect of House Nos. 604 and 605, Sector 15-A, Faridabad, voluntarily out of his free will with sound and conscious mind. The plaintiff reiterated the execution of agreement to sell dated 22.4.1987 in his affidavit. Income tax clearance certificate was not procured by the plaintiff which was necessary for the registration of sale deed and that the plaintiff admitted the contents and terms of agreement to sell dated 22.4.1987 besides other liabilities in his letter dated 5.1.1988. Defendant No. 1 admitted agreement dated 29.06.1984 executed between the parties for the purchase of land in village Ankhir. Defendant No. 1 admitted agreement dated 29.06.1984 executed between the parties for the purchase of land in village Ankhir. It was pointed out that the plaintiff was to purchase land from the prospective sellers and would disclose the rate to the answering defendant and thereafter the answering defendant will fix the sale price of the land to be paid by the answering defendant to the plaintiff for that land. However, this term was superseded when it was decided to form a cooperative society for the land to be purchased in village Ankhir and the plaintiff agreed to get a commission of Rs. 250/- per acre from the answering defendant for his services of procurement of land and getting sale deeds executed. It was denied that there was an agreement to share the profits. It was pointed out that from 29.06.1984 to October, 1985, defendant has paid an amount of Rs. 21,02,000/- to the plaintiff and not Rs. 16,52,000/- It was denied that on 5.1.1988, the plaintiff was called in police station and made to write on a paper. It was asserted that the defendant belongs to Ludhiana and the plaintiff is a local person of Faridabad and, therefore, how the defendant could exert influence with the local police when the plaintiff has close relations with the high up authorities in Haryana State and ruling party. It was stated that the plaintiff has written letter independently out of his own free will without any pressure or coercion. It was denied that the agreements are false, sham and bogus transaction or that acknowledgment of payment of Rs. 16 lacs is under pressure. 7. Regular Second Appeal No. 1807 of 2005 arises out of civil suit filed by Smt. Veena Sharma, defendant No. 1, challenging the agreement to sell dated 22.4.1987 in respect of House No. 603, Sector 15-A, Faridabad, on the similar ground as was raised by her husband which is subject matter of RSA No. 1808 of 2005. 8. The suits filed by the defendants challenging the agreement to sell dated 22.04.1987 have been dismissed by the learned Courts below. Regular Second Appeal Nos. 1807 and 1808 of 2005 arise out of such suits. Regular Second Appeal No. 1806 of 2005 arising out of suit for specific performance, was decreed by the learned Court below in respect of House No. 603, Sector 15-A, Faridabad. Regular Second Appeal Nos. 1807 and 1808 of 2005 arise out of such suits. Regular Second Appeal No. 1806 of 2005 arising out of suit for specific performance, was decreed by the learned Court below in respect of House No. 603, Sector 15-A, Faridabad. It is admitted by learned counsel for the parties that ex parte decree for specific performance has been passed in respect of Houses No. 604 and 605, Sector 15-A, Faridabad. Though it was pointed out by the learned counsel for the appellants that such ex parte judgment and decree have been clandestinely put on the suit record. 9. From the above, it transpires that initially an agreement was executed between Kapoor Chand Jain and Om Parkash on 29.06.1984, Exhibit DW3/1. Subsequently, on 22.04.1987 three agreements to sell were executed, one by Smt. Veena Sharma in respect of House No. 603 and two by Om Parkash Sharma in respect of Houses No. 604 and 605, all in Sector 15-A, Faridabad. Power of attorneys were also executed on the aforesaid date. It was on 30.07.1987, the power of attorney executed on 22.4.1987 was cancelled. On 5.1.1988, a writing Exhibit P-5 has been executed admitting that a sum of Rs. 16.52 lacs is due and payable by Om Parkash Sharma. It was on 15.03.1988, the first suit was filed by Shri Om Parkash Sharma challenging the agreement to sell dated 22.4.1987 followed by a suit by Smt. Veena Sharma and later suit for specific performance by Kapoor Chand Jain. 10. Both the learned Courts below have returned concurrent finding of fact that agreement to sell in respect of Houses No. 603 or 604 are not sham and bogus agreement. In a suit for specific performance, finding was returned that defendant No. 1 is bound by the said agreement and that the plaintiff was ready and willing to perform his part of the contract and consequently granted decree for specific performance. 11. Learned counsel for the appellants has vehemently argued that agreement to sell is without payment of any earnest money or sale Consideration but is adjustment of payment allegedly made to defendant No. 2, therefore, grant of decree for specific performance is inequitable. 11. Learned counsel for the appellants has vehemently argued that agreement to sell is without payment of any earnest money or sale Consideration but is adjustment of payment allegedly made to defendant No. 2, therefore, grant of decree for specific performance is inequitable. It is also contended that grant of decree for specific performance in such a case would cause great hardship to the appellants and, thus, at best the Court could grant decree for recovery of amount and not specific performance of the agreement. Reliance was placed upon Kanshi Ram v. Om Parkash Jaswal and others, JT 1996(4) SC 733 and Parakunnan Veetill Josephs son Mathew v. Nedumbara Kuruvilas son and others, AIR 1987 SC 2328. It is further argued that the execution of the sale deed was in the nature of security for the amount received by appellant No. 2, therefore, it would be inequitable to grant a decree for specific performance. Reliance is placed upon S. Rangaraju Naidu v. S. ThiruvarakkarasuAIR 1995 SC 1769 and Balkar Singh and others v. Ashok Kumar, 2009(2) PLR 217 (SB). It is argued that unexplained delay in filing of suit for specific performance disentitles the plaintiff to seek a decree for specific performance. 12. It is also argued that since, as per plaintiff, tenancy was created after the agreement to sell was executed in favour of the plaintiff, therefore, suit for possession is not maintainable. It is submitted that though possession of the appellants is said to be that of a tenant but inaction of the landlord- plaintiff to seek payment of rent for the last 20 years shows farcical nature of the transaction between the parties. It is argued that the appellants have sought cancellation of the agreement even prior to the filing of suit for specific performance which shows that the agreements relied upon by the plaintiff were sham transactions and the Courts below have erred in law in granting decree for specific performance of the aforesaid agreement. Still further, the plaintiff has not sought permission from the Haryana Urban Development Authority which is a sine quo non for sale of the property and, therefore, decree for specific performance could not have been granted. Lastly, it is argued that the plaintiff has not come to the Court with clean hands. 13. Still further, the plaintiff has not sought permission from the Haryana Urban Development Authority which is a sine quo non for sale of the property and, therefore, decree for specific performance could not have been granted. Lastly, it is argued that the plaintiff has not come to the Court with clean hands. 13. I have heard learned counsel for the parties at some length but do not find any merit in the present appeals. The argument that the agreement is without payment of any earnest money or sale consideration has no merit. The agreement recites the transaction of money by defendant No. 2 to defendant No. 1. The Courts below have taken into consideration that defendant No. 2 has not appeared as a witness in the suit for specific performance. The execution of power of attorney, affidavit and the agreement contain numerous signatures of defendant No. 1 which shows that she has signed all such documents after understanding the same. It has been found that defendant No. 1 is an educated lady working as a teacher. In view of the recital in the agreement, such argument that earnest money was not paid is wholly untenable. 14. The plaintiff and defendant No. 2 have entered into agreement for purchase and sale of the property. In terms of such agreement, money was advanced to defendant No. 2 and the same remains unaccounted for and defendant No. 2 reiterated to pay the same on 5.1.1988. The defendant has denied the execution of the agreement in the written statement. The defendants have failed to plead and or prove hardship in execution of the aforesaid agreement. Therefore, the plea of hardship sought to be raised in the second appeal is untenable. The hardship, if any, in execution of the sale in pursuance of the agreement to sell was not only required to be pleaded but proved as well. In the absence of any pleading or proof, the argument raised in second appeal is without any merit. 15. The judgments in S. Rangaraju Naidus case (supra) and Kanshi Rams case (supra) are the judgments in the facts of the case and to do substantial justice between the parties. In Parakunnan Veetill Josephs son Mathews case (supra), the Court has held that section 20 of the Specific Relief Act, 1963, preserves judicial discretion to Courts as to grant decree of the specific performance. In Parakunnan Veetill Josephs son Mathews case (supra), the Court has held that section 20 of the Specific Relief Act, 1963, preserves judicial discretion to Courts as to grant decree of the specific performance. It was observed that the Courts should take care to see that is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the present case, the plaintiff has advanced large sum of money to defendant No. 2. In business transactions, there is a possibility of losses as well. Since the amount received by defendant No. 2 was not returned to the plaintiff, he has agreed to sell the properties owned by him and his wife and executed numerous documents. In fact, defendant No. 2 has agreed to pay specific amount to the plaintiff on 5.1.1988. Both the learned Courts below have exercised discretion in favour of the plaintiff. Failure to exercise such discretion would have resulted in oppression to the plaintiff. The judgment of Single Bench in Balkar Singhs case (supra) is hardly helpful to the appellant as in the aforesaid case, plaintiffs appeal was accepted and decree for specific performance was granted. In view thereof, I am of the opinion that there is no illegality or irregularity in the findings recorded by the Courts below granting decree for specific performance of the agreement dated 22.4.1987 and such findings do not give rise to any substantial question of law. 16. The other argument raised by learned counsel for the appellants are contradictory to each other. He has argued that plaintiff has not claimed rent for the last 20 years and also argued as tenancy is said to have been created, therefore, the plaintiff is not entitled to possession. Both these arguments are destructive to each other. But it appears that though rent note was written on 23.04.1987 but there is no evidence on payment of rent of even a day, therefore, such rent note appears to be a paper transaction. Therefore, the defendants on the basis of such document, which is denied to be executed by the defendant, the defendants cannot claim themselves to be tenant over the suit property. 17. The argument that filing of a suit for declaration earlier in point of time than the suit for specific performance shows that the transaction of agreement of sale was a sham transaction is again not tenable. 17. The argument that filing of a suit for declaration earlier in point of time than the suit for specific performance shows that the transaction of agreement of sale was a sham transaction is again not tenable. The defendant in the written statement has denied the execution of the agreement. Since the case of the defendant is of denial and which denial has been found to be wholly untenable, filing of a suit earlier in point of time is only an action contemplated in advance to counter forthcoming events. The aforesaid suit out of which RSA No. 1808 of 2005 arises, was dismissed by the both the Courts below. In the said suit, the defendants, who are the plaintiffs in the suit for specific performance, have led voluminous evidence in respect of payment of over Rs. 20 lacs and also that the defendant has executed the agreement of sale of property voluntarily. It has been further held that defendant No. 2 with his own free will and consent agreed to pay the amount vide writing dated 5.1.1988. The facts enumerated by the learned Courts below are sufficient to support the finding that such transactions are not sham transactions. 18. The argument that permission from the Haryana Urban the question required to be examined is whether the defendant has executed a Development Authority (HUDA) is required for the purposes of sale is again not tenable. Some permission, if required, would be necessary at the time of registration of the sale deed but in a suit for specific performance, the agreement to sell and whether the plaintiff is ready and willing to perform his part of the contract. The permission from the statutory Authorities, even if required, is not relevant at the stage of the consideration of the above-said two issues. Therefore, the said argument is without any basis. 19. The last argument that plaintiff has not come to the Court with clean hands is untenable. The plaintiff has enumerated complete background leading to the filing of the suit, whereas the defendant even denied the agreement to sell. It is the appellants who have not come to the Court with clean hands. 19. The last argument that plaintiff has not come to the Court with clean hands is untenable. The plaintiff has enumerated complete background leading to the filing of the suit, whereas the defendant even denied the agreement to sell. It is the appellants who have not come to the Court with clean hands. In view of the above, I am of the opinion that the findings recorded by the learned Courts below are the possible findings in law and that such findings are not passed either by misreading of evidence or non consideration of material evidence. Consequently, I do not find that any substantial question of law arises for consideration by this Court in second appeal. Appeal dismissed.