IN THE COURT OF MS. SHUNALI GUPTA, ADJ06, SOUTH DISTRICT, SAKET COURT COMPLEX, NEW DELHI CS DJ No.205878/16 CNR No. DLST010000842010 In the matter of: Sh. [ENTITY] S/o Mr. Sadiq Khan R/o TA32/2, Tughlakabad Extn., New Delhi110019. Plaintiff VERSUS Sh. [ENTITY] S/o Mr. Darab Khan R/o RZ531A/25, Tughlakabad Extn., New Delhi110019. Defendant Date of Institution : 02.11.2010 Date on which reserved for judgment : 22.01.2019 Date of pronouncement of judgment : 02.02.2019 Suit for Specific Performance, Perpetual & Mandatory Injunction. J U D G M E N T:
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking perpetual & mandatory injunction against the defendant and specific performance of the Agreement to Sell dated 24.05.2010 entered between the parties.
The brief facts of the case as culled out from the pleadings of the parties are summarized as under:
[ENTITY] v. [ENTITY] 1.1 The plaintiff had entered into an agreement to sell with the defendant whereby he agreed to purchase the property of the defendant bearing no.RZ531A/25, measuring 50 sq. yards in khasra no.437 in Tughlakabad Extn. consisting of basement, ground floor, first floor, second floor and third floor (hereinafter referred to as the 'suit property'). The Agreement to Sell was entered between the parties on 24.05.2010, total sale consideration agreed was Rs.13,30,000/ and out of the same, plaintiff had paid a sum of Rs.9 lacs to the defendant which was duly acknowledged by the defendant in the said ReceiptcumAgreement to Sell. The details of payment are as under:
Date of Payment Amount of Payment 10.05.2010 Rs.3 lacs 17.05.2010 Rs.3 lacs 24.05.2010 Rs.3 lacs
The balance payment of Rs.4.30 lacs was to be made on or before 22.08.2010.
1.2 The plaintiff had asked the defendant a number of times to receive the balance consideration and to handover the possession of the suit property.
However, as son of the defendant met with an accident and he was busy in his treatment, he requested the plaintiff for some more time to complete the sale transaction. Later on, the defendant agreed to return the money received by him under the Agreement along with the penalty thereon as [ENTITY] v. [ENTITY] per the terms of the Agreement to Sell. Thus, he agreed to return Rs.18.00 lacs to the plaintiff - Rs.9.00 lacs as the principal money paid by him under the agreement and Rs.9.00 lacs as penalty thereon. In partial discharge of his liability for the said amount, plaintiff issued to the defendant, two cheques dated 28.09.2010 & 04.10.2010 in the sum of Rs.5.00 lacs each and undertook to pay the remaining amount of Rs.8.00 lacs by December, 2010. Both the cheques when presented for payment, were returned dishonoured vide return memo dated 05.10.2010 with the remarks 'funds insufficient'.
1.3 Plaintiff has stated that he is still willing to pay the balance consideration to the defendant but the defendant is not willing to perform his part of the contract. Further, he has come to know that the defendant is trying to enter into an Agreement to Sell with regard to the suit property with someone else for a sale consideration of Rs.22.00 lacs. Hence, the present suit has been filed seeking the following reliefs:
(i) decree for specific performance thereby directing the defendant to honour the agreement dated 24.05.2010 i.e. taking the balance payment of Rs.4,30,000/ and handing over the possession of the suit property to the plaintiff;
(ii) decree for permanent injunction thereby directing the defendant not to enter into any kind of agreement to sell and purchase or creating [ENTITY] v. [ENTITY] third party interest over the suit property; and
(iii) decree for mandatory injunction thereby directing the defendant to take the balance payment of Rs.4,30,000/ from the plaintiff and to hand over the possession of the suit property to the plaintiff.
2. Written statement has been filed by the defendant whereby he has denied the averment of having entered into an Agreement to Sell with the plaintiff for the suit property or having received Rs.9.00 lacs from him. 2.1 The case setforth in the written statement is that the son of the defendant met with an accident on 09.05.2010. The plaintiff visited him in the hospital and suggested him to take a loan from him for his treatment. Since the defendant was in need of money for treatment, he took a loan of Rs.2.00 lacs from the plaintiff on 24.05.2010 in presence of many persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], etc. Plaintiff obtained his signatures on blank stamp paper and took six blank signed cheques from him. It is stated that the plaintiff has forged the said blank signed papers and the blank signed cheques which he took as security from him. It is further stated that out of the loan of Rs.2.00 lacs taken from the plaintiff, he has returned Rs.10,000/ to the plaintiff and assured to repay the balance sum of Rs.1.90 lacs on or before 10.12.2010. As regards the averment of looking for some other buyer for the property, it is stated that the defendant has already sold the shop on the ground floor of [ENTITY] v. [ENTITY] the suit property to one Sh. [ENTITY] on 27.10.2008 and remaining portion of basement and ground floor to [ENTITY] on 03.09.2010. Further, first, second & third floor have also been sold to one Ms. [ENTITY] on 10.09.2010.
Rest all the contrary allegations viz. promise to return Rs.9.00 lacs along with penalty, undertaking to receive the balance consideration and to give the possession of the property, issuance of two cheques of Rs.5.00 lacs each to the plaintiff, have been categorically denied and dismissal of the suit has been sought.
3. Replication has been filed by the plaintiff reiterating the averments made in the plaint and denying the contrary averments made in the written statement.
4. Upon completion of the pleadings, on 08.06.2011 the following issues were settled:
1(a) Whether the defendant and the plaintiff entered into a receipt cumagreement to sell dated 24.05.2010? OPP 1(b) Whether the agreement to sell is forged and fabricated, the plaintiff got signed on blank stamp papers and two blank papers? OPD
2. Whether the plaintiff made part payment of Rs.9,00,000/ (i.e. Rs.3 lacs, three times), out of total consideration amount of Rs.13,30,000/ to the defendant? OPP 3(a) Whether the defendant promised to return Rs.18 lacs, the [ENTITY] v. [ENTITY] double of Rs.9 lacs and defendant issued two cheques of Rs.5 lacs each (i.e. total Rs.10 lacs), a part refund of money, with promise to pay remaining amount of Rs.8 lacs in December 2010? OPP 3(b) Whether the defendant took friendly loan of Rs.2,00,000/ from plaintiff and gave six signed but blank cheques, with signature on stamp papers and two blank papers to plaintiff as security?
OPD 3(c) Whether the plaintiff forged and fabricated the blank papers and two cheques by converting them into Rs.5 lacs each, which were given as security? OPD
4. Whether the plaintiff filed suit by suppression of material facts and by misrepresentation, if so, its consequences? OPD 5(a) Whether the plaintiff is entitled for decree of specific performance, as prayed in prayer clause(a), against the defendant? OPP 5(b) Whether the plaintiff is entitled for decree of mandatory injunction against the defendant, as prayed in prayer clause(c)?
6. Whether the plaintiff is entitled for decree of permanent injunction, against the defendant, as prayed in prayer clause(b)?
7. Relief.
5. In support of his case, the plaintiff has examined 2 (two) witnesses which are as under:
(1) PW1 Sh. [ENTITY] - the plaintiff himself. In lieu of his [ENTITY] v. [ENTITY] examinationinchief he has deposed by way of affidavit Ex.A1, wherein he has reiterated the case set forth in the plaint and has relied upon the following documents:
i. Ex.PW1/A - Site Plan.
ii. Ex.PW1/B - Original receiptcumagreement to sell and purchase dated 24.05.2010.
iii. [ENTITY] (Colly) - Photocopies of cheques along with their respective return memos.
(2) PW2 Sh. [ENTITY] - witness to the Agreement to Sell. In lieu of his examinationinchief he has deposed by way of affidavit Ex.PW2/A and has relied upon agreement to sell and purchasecum advance receipt already exhibited as Ex.PW1/B and has identified his signature at point 'B' on the said document.
Both the witnesses were duly crossexamined whereafter PE was closed and the matter was posted for DE.
6. In defence evidence, Sh. [ENTITY] - the defendant himself, has stepped into the witness box as DW1. In lieu of his examinationinchief he has deposed by way of affidavit Ex.DW1/X1, wherein he has reiterated the case set forth in the written statement and has relied upon following documents:
i. Ex.DW1/1 - Certified copy of legal notice dated 19.10.2010. ii. Ex.DW1/2 (Colly) - Certified copy of courier and postal receipt. iii. Ex.DW1/3 - Certified copy of complaint filed U/[SECTION] [ACT].
[ENTITY] v. [ENTITY] iv. Ex.DW1/4 - Certified copy of list of documents. v. Ex.DW1/5 - Certified copy of list of witnesses. vi. Mark X - Copy of FIR No.504/10, P.S. NOIDA, Sector20. vii. Mark DW1/A - Copy of GPA in favour of [ENTITY]. viii.Mark DW1/B - Copy of affidavit dated 27.10.2008. ix. Mark DW1/C - Copy of agreement to sell dated 10.09.2008. x. Mark DW1/D - Copy of receipt of consideration. xi. Mark DW1/E - Copy of possession letter.
xii. Mark DW1/F - Copy of Will dated 27.10.2008. xiii.Mark DW1/G - Copy of NOC.
xiv. Mark DW1/H - Copy of GPA dated 04.09.2010.
xv. Mark DW1/J - Copy of agreement to sell in favour of [ENTITY]. xvi. Mark DW1/K - Copy of possession letter in favour of [ENTITY]. xvii. Mark DW1/L - Copy of consideration receipt in favour of [ENTITY]. xviii. Mark DW1/M - Copy of affidavit dated 04.09.2010. xix. Mark DW1/N - Copy of Will executed in favour of [ENTITY]. xx. Mark DW1/O - Copy of letter sent to bank dated 31.08.2010.
(2) DW2 Sh. [ENTITY] - Notary Public. He was a summoned witness. The document Ex.PW1/B was shown to the witness and after seeing the same, the witness has deposed that the stamp of 'notary public' is not his stamp and does not bear his registration number. However, the signatures appended on the body of the document at point 'F' and initials in the round seal at point 'C', 'D', & 'E' are his signatures.
Both the witnesses were duly crossexamined whereafter, DE was closed and the matter was posted for final arguments.
[ENTITY] v. [ENTITY]
7. Final arguments addressed by Ld. Counsel Sh. [ENTITY] for the plaintiff and Ld. Counsel Sh. [ENTITY] for the defendant were heard and record carefully perused.
Discussion on Issues:
ISSUE No.1(a) : Whether the defendant and the plaintiff entered into a receiptcumagreement to sell dated 24.05.2010? OPP ISSUE No.1(b) : Whether the agreement to sell is forged and fabricated, the plaintiff got signed on blank stamp papers and two blank papers?
OPD ISSUE No.2 : Whether the plaintiff made part payment of Rs.9,00,000/ (i.e. Rs.3 lacs, three times), out of total consideration amount of Rs.13,30,000/ to the defendant? OPP ISSUE No.3(b) : Whether the defendant took friendly loan of Rs.2,00,000/ from plaintiff and gave six signed but blank cheques, with signature on stamp papers and two blank papers to plaintiff as security? OPD ISSUE No.3(c) : Whether the plaintiff forged and fabricated the blank papers and two cheques by converting them into Rs.5 lacs each, which were given as security? OPD ISSUE No.4 : Whether the plaintiff filed suit by suppression of material facts and by misrepresentation, if so, its consequences? OPD Issue no.1(a), 1(b), 2, 3(a), 3(c) and 4 are taken up together as they are interconnected and a common discussion shall suffice.
8. The crux of the case is that the plaintiff claims to have entered into an agreement with the defendant for purchase of suit property owned by the defendant and had also paid him partconsideration to the tune of Rs.9.00 [ENTITY] v. [ENTITY] lacs which finds an acknowledgment in the agreement itself. As the defendant failed to honour his commitments and to complete the sale transaction, he opted to return to the plaintiff the money received by him as well as penalty thereon and in part repayment of the said liability, he issued two cheques totaling to Rs.10.00 lacs to the plaintiff which too got dishonoured.
9. Whereas, the defendant's case is that he had never agreed to sell the suit property to the plaintiff but had only taken a loan of Rs.2.00 lacs from him for the treatment of his son. At the time of giving the loan, plaintiff obtained his signatures on blank papers and also took six blank signed cheques from him as security for the said loan. The said blank papers and cheques were later on misused by the plaintiff to grab his property and to extort money from him.
10. Now, since the very execution of the agreement dated 24.05.2010 is disputed by the defendant, hence, I shall firstly examine the said agreement to give a finding about the execution of the same.
11. As the defendant though admits his signatures on the agreement to sell but claims that when he signed the said papers, they were blank. Hence, the onus shifts upon the defendant to explain as to under what circumstances he appended his signatures on blank papers. In the entire written statement, the defendant has not tendered any explanation for [ENTITY] v. [ENTITY] signing on blank papers. Careful examination of agreement to sell Ex.PW1/B reveal that it purportedly contains the signatures of defendant on all the three pages thereof. The points on which his signatures appears have been marked as point 'X', 'Y' & 'Z'. During crossexamination, the defendant was confronted with the said signatures and he admitted his signatures on points 'X' and 'Y'. Now, the signature of defendant at point 'Y' is on two revenue stamps running across the said stamps. Thus, in view of the admission of his signatures on the said revenue stamps affixed on the agreement to sell, his plea of having signed on blank papers is outrightly unacceptable.
12. Delving further on this plea, in order to discredit the version of the plaintiff of execution of the agreement to sell, defendant had examined as DW2 the Notary Public Sh. [ENTITY] whose stamp is affixed on the agreement to sell. Interestingly, though DW2 is a defendant's witness but his deposition has, in fact, assisted the case of the plaintiff. DW2, after seeing the document Ex.PW1/B, though has denied that the stamp of Notary Public appearing thereon belongs to him as it does not bear his registration number but at the same time he has identified his signatures at points 'C', 'D', 'E' & 'F'. The signatures at point 'C', 'D' & 'E' are initials whereas signatures at point 'F' are full signatures.
13. Now, as per the procedure, a Notary Public attests a document only after [ENTITY] v. [ENTITY] due execution thereof - the same must have been a complete document. Obviously notary must not have put his signatures on blank documents or otherwise signed without securing the presence of both the parties before him. As such the execution of the documents stands proved.
14. Coming to the second limb of the plea of the defendant that he had handed over six blank signed cheques to the plaintiff. Interestingly, the defendant's case is that out of the six blank cheques given to the plaintiff he had misused two. Now, after the defendant came to know about the misuser of those two cheques, his immediate natural/ obvious reaction should have been to get 'stop payment' of at least the remaining four blank signed cheques in the possession of the plaintiff and also to seek back the same from the plaintiff lest they might be attempted to be misused by him. However, there is not even a single averment in the entire written statement that he had at any point of time sought back those four cheques from the plaintiff or gave any notice to the plaintiff seeking an explanation for misuse of those cheques. Further, there is not even any complaint made to the police or to the court in this regard. On the other hand, viz.a viz. the dishonourment of the said two cheques, the plaintiff filed a complaint against the defendant U/[SECTION] [ACT] which too has resulted in the judgment of conviction.
15. Additionally, I may also note that though the defendant has set up a case [ENTITY] v. [ENTITY] that he had taken a loan of Rs.2.00 lacs from the plaintiff and the loan was given in the presence of many persons namely [ENTITY], [ENTITY], [ENTITY], [ENTITY], etc., however, none of these witnesses has been examined by him in support of his defence. Similarly, the averment of having return Rs.10,000/ out of the said loan, is also a bald one has he has not even mentioned the date on which he had returned the same to the plaintiff.
16. Considering the overall averments of the parties and appreciating the evidence led thereon, the defence setup by the defendant, has fallen like a pack of cards. Thus, I hold that the defendant had entered into the agreement to sell with the plaintiff vide agreement dated 24.05.2018 Ex.PW1/B. Further, as the agreement mentions that a sum of Rs.9.00 lacs in total have been paid to the defendant and [SECTION] & [SECTION] of [ACT] bars any oral evidence contrary to the terms / contents of the documents, I hold that the defendant has received a sum of Rs.9.00 lacs under the agreement and there was no transaction of a loan of Rs.2.00 lacs between them as averred by the defendant. Issues no.1(a), 1(b), 2, 3(b), 3(c) and 4 accordingly stand decided. ISSUE No.3(a) : Whether the defendant promised to return Rs.18 lacs, the double of Rs.9 lacs and defendant issued two cheques of Rs.5 lacs each (i.e. total Rs.10 lacs), a part refund of money, with promise to pay remaining amount of Rs.8 lacs in December 2010? OPP [ENTITY] v. [ENTITY] ISSUE No.5(a) : Whether the plaintiff is entitled for decree of specific performance, as prayed in prayer clause(a), against the defendant? OPP ISSUE No.5(b) : Whether the plaintiff is entitled for decree of mandatory injunction against the defendant, as prayed in prayer clause(c)? OPP Issues no.3(a), 5(a) and 5(b) are taken up together as they are inter connected and hence, a common discussion shall suffice.
17. Plaintiff has averred that he was willing to perform his part of the agreement and wanted to pay the balance sale consideration but the defendant was not coming forward to accept the same and to hand over the possession of the property to him. Thus, the fault in not concluding the transaction lies with the defendants. Hence, he has argued that he is entitled to a decree of specific performance in his favour.
18. Now, before proceeding further, I may note that the remedy of specific performance being one in the realm of equitable jurisdiction, the burden clearly is on the plaintiff to prove the positive facts of readiness & willingness on his/her part. The defendants are not expected to prove the negative. In this reference, the observations made by Hon'ble Supreme Court in the case of [PRECEDENT] can be taken as the guiding principles.
The observations made in paragraph 5 of the said judgment are reproduced hereinunder:
" [SECTION] of the Act envisages that Plaintiff must plead and [ENTITY] v. [ENTITY] prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the Defendant. The continuous readiness and willingness on the part of the Plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the Plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the Plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the Defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the Plaintiff was ready and was always ready and willing to perform his part of the contract."
(underlining mine) Further, on this aspect I also rely upon the judgment of [PRECEDENT]:
" This provision ([SECTION] of [ACT] requires that a proposed purchaser has always to be and continues to be ready and willing to perform its part of the [ENTITY] v. [ENTITY] agreement to sell. It is settled law that the expressions 'readiness' and 'willingness' refer to the capacity to pay so far as the expression 'readiness' is concerned and the intention to go through with the transaction as reflected in the expression 'willingness'. These are the meanings of the expressions 'readiness' and 'willingness' as held in various judgments of the Supreme Court and one such judgment of the Supreme Court in this regard is in the case of J.P. Builders and Another v. A. Ramadas Rao and Another, VIII (2010) SLT 546=IV (2010) CLT 4[SECTION] (SC)=(2011) 1 SCC 429. We will therefore have to examine as to whether the plaintiff was always ready and willing to enter into the sale deed till the time of the present final arguments and from the date of entering into the agreement to sell. At the time of considering this issue, no doubt, it is borne in mind that the plaintiff has to be willing to perform its part of the contract only when the defendants have obtained the NOC, however, [SECTION] of the [ACT] requires not one but two aspects to be proved by the plaintiff I.e. both readiness and willingness. In law the aspect of willingness being there is one which is to be acted upon by making the payment when the defendants make themselves capable of performing the agreement to sell by taking the necessary NOC, however, as contrasted from willingness, readiness is an aspect which has to be independently proved. Readiness pertains to the financial capacity of a proposed purchaser to make payment of the balance consideration under the agreement to sell. The issue with respect to readiness and willingness is overlapping with the issue to defendants being guilty of breach of contract, but, the expression "has always been ready and willing" is an expansive expression not only encompassing therein that it has to be shown that the defendants are guilty of [ENTITY] v. [ENTITY] breach of contract, but also that it has to be shown that plaintiff had necessary financial capacity to pay the balance sale consideration at all points of time after the agreement to sell was entered into. The aspect of a plaintiff/proposed purchaser always being ready to perform its part of the contract i.e. having the necessary capacity to pay the sale consideration is because specific performance is a discretionary relief and an alternative to the relief of grant of damages "
(underlining mine) Thus, it is abundantly clear that the amount of consideration, which a buyer must pay to the seller, must be necessarily proved to be available and only on proof of which readiness & willingness would stand established.
19. Now, testing the case of the plaintiff on the above touchstone, it has to be seen whether the plaintiff has been able to prove the necessary ingredient i.e. the readiness & willingness. A reading of the plaint reveals that it is conspicuously silent on both these essential ingredients. There is not even a specific averment with regard to the date on which he had asked the defendant to come forward to complete the obligations under the agreement, or any date when he had offered the balance sale consideration to the defendant. Also, there is not even in an averment in the entire plaint that the plaintiff had at any point of time given any legal notice to the defendant calling upon him to accept the balance sale consideration and to complete the sale transaction. Further, vizaviz the [ENTITY] v. [ENTITY] other important aspect i.e the financial capacity to pay the balance sale consideration - neither there is any averment that he had at all relevant times the financial capacity to pay the remaining sale consideration nor he has placed on record any document to show his financial soundness or the source of fund from where he intended to pay the sale consideration. Thus, in these circumstances, as there is no material on record to substantiate the essential aspect of readiness and willingness - required to be proved for getting the discretionary relief decree of specific performance, clearly the plaintiff has failed to establish his entitlement for a decree of specific performance of agreement to sell dated 24.05.2010 Ex.PW1/B.
20. As far as the prayer for grant of mandatory injunction is concerned, the same is implicit/ interwoven with the relief of specific performance. Rather, both the reliefs are overlapping in as much as what has been sought by way of specific performance, has been sought by way of mandatory injunction too. Since the relief of specific performance has been declined, the decree of mandatory injunction also cannot be granted.
21. As regards the averment that the defendant had promised to pay Rs.18.00 lacs to the plaintiff - Rs.9.00 lacs as refund of the sum paid under the agreement and other Rs.9.00 lacs as penalty thereon in terms of the clause contained in the agreement Ex.PW1/B, the same has not been [ENTITY] v. [ENTITY] substantiated by any evidence - there is not even an iota of evidence led by the plaintiff on this account. Admittedly, there is no written acknowledgment on record containing any undertaking to pay Rs.18.00 lacs to the plaintiff. There is not even any averment in the plaint that he ever gave any notice to the defendant reminding him of his oral promise to pay Rs.18.00 lacs or asking the said amount from him. Thus, except the selfserving averment of the plaintiff that the defendant had assured to return him Rs.18.00 lacs, there is nothing on record to suggest existence of any such undertaking by the defendant or any such understanding between them. Further, such clauses in the agreement are in the nature of penalty and as per the settled law, cannot be made applicable in toto. Also, as discussed in the preceding paragraphs, the plaintiff has failed to prove his readiness & willingness to perform the agreement and the consequent fault for nonperformance thereof attributable to the defendant. Thus, by no stretch of imagination, the plaintiff can be held entitled to return of Rs.18.00 lacs - double the amount of money paid under the agreement.
All the three issues are accordingly decided against the plaintiff. ISSUE No.6 : Whether the plaintiff is entitled for decree of permanent injunction, against the defendant, as prayed in prayer clause(b)? OPP
22. In view of my finding on issue no.5(a) and (5(b) that the plaintiff is not entitled to a decree of specific performance against the defendant, he is [ENTITY] v. [ENTITY] also not entitled to a decree of permanent injunction against him. Issue accordingly decided against the plaintiff. Relief:
23. In view of my discussion on aforesaid issues, the relief of specific performance has been declined. However, plaintiff is held entitled to recovery of a sum of Rs.9.00 lacs from the defendant along with interest @12% per annum from the date of filing of the suit till recovery thereof. Costs of the suit is allowed. Decree sheet be prepared accordingly and file be consigned to record room after necessary compliance.
Announced in the Open Court ([ENTITY]) Dated: 02.02.2019 Digitally signed Addl. District Judge06 by [ENTITY] Date: South Distt. Saket Courts, GUPTA 2019.02.04 16:16:14 New Delhi. +0530 [ENTITY] v. [ENTITY]