IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment pronounced on 4' Apr/I, 202 ± . RFA NO.. 480/2010 • . LAXMI DEVI .,.. Appellan Through: Mr. SP Aggarwal, Mr. Sandeep Vishn and Mr. KKThakur, Advocates VErSUS INDER PAL SINGH . .......Respondent Through: Mr. Nasimuddin, Adv. CORAM: HCN'BLE MR. JUSTICE: G.S$ISTANI Whether reporters of local papers may be allowed to see th Judgment? To be referred to the Reporter or riot? Whether the judgment should be reported in the Digest? 5'S]AELL ..The present appeal has been filed by the appeflant under sectio 96 of the Code of Civil Procedure against the judgment and decre dated 3030.0 passed by th trial court decreng the suit for recovery of money against the appellant, The brief facts necessary to be noticed for disposal of the prese1t appeal are that the appellant is stated to be the owner of the buit up area property bearing no, 13/221, built on a plot admeasuri 62 Sq. Yd. along with super structure , comprising of two roonis set on ground floor, two rooms set on first floor and two rooms sIt RFA N048012 010 • • Page 1 df 21 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified on second floor duly fitted with electricity and water connectin with further right to construct upto the last storey situated at Geeta Colony, New Delhi -110031 (hereinafter referred to as ut property"). As per the plaint, the appellant had entered into an Agreemet to Sell dated 07.04.2001 with the respondent for sale of the suit property for a total sale consideration of Rs. 10.5 la<hs out of which Rs 2 lakhs was paid as earnest money, by the respondent to the appellant. At the time of the execution of the said agreement, the appellant had handed over the physical possession of the second floor portionof the said property toFthe respondent. As per the appeuant's, the appellant had secu a - loan against the suit property from Central Bank of India, Bagh Branch and had assured the respondent that after cieaing the said loan, she would •hand over the possession 1 of the remaining portion of the property to the respondent and the respondent would pay the balance sale consideration after the said loan was cleared and a clearance letter/settlement ft tte r along with an NOC was obtained from the Central Bank of Karol Bagh Branch. Despite repeated reminders by respondnt, appellant failed to handover the possession of the remairiing portion to the respondent. On 29.09.2003, the respondent ivas shocked to learn that some third person was in the posessioh of RFA No.48012010 Pe of 21 the suit property and was raising construction on the same. Th belongings of the respondent were missing and therefore, thi respondent filed a police complaint to this effect. Upon inquiries it Was ryled that the appellant had tr. nsferred the suit properti to a third person despite having entered into an Agreement to Sell with the respondent. The respondent, thus, filed a suit for recovery of a sum of Rs. 4 laçs &ong with interest @ 18 %per annum since as per the terms of the said Agreement to Sell, in case the appellant failed to comply with the terms of the saiØ Agreement, she would be liable to repay the amount received b her along with penalty of an equal amount. 3. Before the trial court, the respondent plaintiff examined tw witnesses and the appellant examined herself. It would relevant to reproduce the evidence of the witnesses. PW-1, Sh. Inder Pal Dua stated in his evidence by way of affidavit as under: "I say that as per the terms of the said Agreement to Sel, the total sale consideration amount, in respect of the aforementioned property was fixed at Rs. 10,50,000/-. I say that in terms of the said Agreement to Sell, th Deponent paid a sum of Rs.2,00,000/-, as earnest money, - towards the sale consideration, to the Defendant, in terms of the said Agreement to Sell dated 07.04.2001. The sai1 • amount was duly received by the Defendant and sh acknowledged the receipt of the same, in writing. It is worttl mentioning here that at the time of execution of the said • Agreement to Sell between the Deponent and Defendant, Defendant had handed over the physical possession of the RFA No.48012010 Page 3 o21 second floor portion of the said property, to the Deponent. The said Agreement to Sell dated 0704.2001 bearing • signatures of the Defendant at Point 'A', executed in m' presence and in the presence of the witnesses Sh. Gopal Krishan Arora and Sh. Tilak Raj Dhawan shall be marked un • the Court as ExhibitPWi/1. I say that the Defendant, as per her own representation, ha.d obtained a loan on the basis of the said property froin Central Bank of India, Karol Bagh Branch, Delhi. THe Defendant further assured to the deponent that she woud clear the said loan and would thereafter, hand over tHe possession of the remaining part of the said property, to the deponent. It was clearly stipulated that the balance sate consideration amount would be paid by the deponent, after the said loan was cleared by the defendant and a ciearane letter/settlement letter alongwith an NOC was obtained froT1 the Bank. I say that the deponent regularly followed up with the defendant, calling upon her time and again to tender the requisite No Objection Certificate from the said Bank, and thereafter, accept the balance sale consideration arnount and simuftaneous thereto, hand over the possession of the remaining portion of the said property. But, the defendat, avoided the same, on one pretext or the other. 11 I say that on 29.092003, the deponent went to Te aforementioned premises, but was shocked to find that e • defendant was no longer in possession of the same andin fact, the same was in the possession of some other person, • who was raising construction on the same. It is pertinentto point out here that the belongings of the Complainant, lyi 1ng on the said second floor of the said premises were missing and in fact, the deponent had been illegally and unauthorisedly dispossessed from the said premises. A police complaint in this regard, was made by the deponent, on the same date. Upon enquiries it has been revealed to the deponent that the defendant, despite having entered into an Agreement to Sell dated 07.04.2001, as transferred/sold the said property, to a third person. It was specifically agreed that in case the defendant failed to comply with the terms of the said agreement, then in that RFA No.48012010 Page4of2l 6 p event, she shall be liable to repay the amount received by her, from the deponent, alongwlth equal penalty. The defendant has neither tendered the clearance letter/settlement letter, which was to be obtained fron Centrl Bank of India, Karol Bagh Branch nor she had handed over the No Objection Certificate, which was to b issued by the said Bank, in respect of the aforementioned property, A period of almost three years has since elapsed and all requests and demands made by the deponent, in this regard, have proved futile. It is pertinent to mentio 1n here that the deponent has always been willing to pay the balance sale consideration amount of Rs.8,50,000/-. Accordingly, the defendant has rendered herself liable to pay a sum of Rs.4, 00,000/- being the double of the earnet money, paid by the deponent, to defendant, in terms of the Agreement to Sell dated 07.04.2001. To add to tIe Deponent's agony, the defendant has unwarranted!/, sold/transferred/alienated the said property, in favour bf third party, and the defendant, besides ilIegaly dispossessing the deponent, has also usurped the belongings of the deponent, which were lying on the seco9d floor portion of the said property, in connivance with third persons." 4. In his cross-examination by counsel for appellant, PW-1, Sh lndr Pal Dua has deposed as under: "1 came in contact with Smt. Laxrni Dcvi through Sh. Goal. Kishan © Bali but I was not interested in purchasing this property. The stamp paper for the document, Ex.PW-1/1" was purchased by Sh Tilak Raj, 5/0 defendant. The same was typed in my presence. It was typed by Shri Ramesh Grovler who has office.-cum-residence in Block 13 of Geeta Colony. It may also be correct that his signatures may not appear on Ex.PW-1/1. The entire Ex.PW-1/1 was signed in my presenLe at the residence of the defendant. The said document ws also signed by Shri Tilak Raj s/o defendant. The signatures of Tilak Raj appears at point X. It may be correct that RFA No.48012010 Page 5 of 21 p - signatures at point X may not be of Sh. Tilak Raj. It is wron to suggest that Ex.PW-1/1 is not signed by Smt. Laxmi Dcvi. It is wrong to suggest that Smt. Laxmi Dcvi was not in DeUi on that day. There is no receipt regarding the consideration Va Agreement to Sell itself shows that. It was paid in cash. Th same was counted by Tilak Raj Dhawan in presence of Sm Laxmi Dcvi. QJp ut it to you that upto what. time you were in possessic of second floor of property No 13/221? A. I came to know that I was no longer in possession on when I saw some labburérs working and 1 immediate reported the matter asEx. PW-1/2. I know one Sh. Joginder Pal who is a property dealer. He running business under the name and style of jagga Properties. It is wrong to suggest that I acted as a mediathr for selling the suit property to Shri Joginder Pal of Jagg'a Properties by the defendant. Yes, it is correct that jogindr Pal made the payment of the loan amount of the defendaipt to Central Bank of IndIa in my presence. Vol. I neither got the property nor the payment. I had not taken action against the defendant after , payment of loan by Sh. Joginder Pal to the Central Bank as I was being promised by the defendant that she will execute tIe document in my favour. I am not related to Sh. Joginder. It is wrong to suggest that second floor is in occupation of riy relative since 2002 and it is in my knowledge." 5. PW-2, Sh. Gopal Krishan Arora deposed in his examination-in-chif as under: "I know both the parties. I have been shown agreement to sell, Ex.PW-1/1 and it was executed in my presence andlit bears my signatures at point A. Agreement was also signed by both the parties in my presence. Tilak Raj is elder son of Laxmi Devi and he also singed as attesting witness." I RFA No.48012010 Page 6 bf 21 In his cross-examination by couns& for appeHant, PW-2 depos as under: • "I had signed Ex,PW-1/1 at 13/221, Geeta Colony, Delhi 6t Second floor. Said portior was with Laxhii Dcvi and her son • Tilak Raj. It is wrong to suggest that Laxmi Devi nevr signed Ex.PW-1/1 in my presence. I cannot tell asto wt10 whether Laxmi Devi or Inder Pal signed first on such agreement. It is wrong to suggest that signature of Laxri • Dcvi on agreement to sell are forged and fabricatei. Documents were typed in my presence. There is one typit with the name of Grover in Block No.13 and there onlyit was typed out. Typing was not done in the presence Laxmi Dcvi. It is correct that since Laxmi Devi was not • present, it can be said that whatever was typed was not As per her instructions (Vol. However, her son Tilak Raj ws present and typing was done in hi presence). Stamp papr was purchased by Inder Pal and it was purchased from same Sh. Grover. I cannot say whether Tilak Raj had signed befoe me or after me. It is wrong to suggest that I am deposing falsely at the instance of plaintiff." DW1- Smt. Laxmi Devi stated in her evidence by way of affida\4it as under: "That no agreement to sell was ever entered by tle Deponent with the Plaintiff as alleged and the signatures f the Deponent on the alleged agreement to se!I are forged. That as a matter of fact, the Plaintiff is a property dealer ard acted as a middle man for the sale of the property by tIe Defendant to Shri Joginder Pal on 1/9/2001 and no Agreement to Sell was ever entered by the Deponent with the Plaintiff. That no earnest money was ever paid by the plaintiff to te deponent and hence the deponent is not liable to return tIie same along with the any penalty as alleged; That the Agreement to Sell dated 7/4101 is a forged document forged by the plaintiff for ulterior and maiafiie RFA No.48012010 Page 7 of 21 C-'V • motive to harass the deponent in this old age as the plainti :f himself acted as a middle man for the sale of the property." 8 In her crosexamination, DW4, Smt Laxmi Devi deposed as nr 0 have good relations with my son Tilak Raj. Tilak Raj cannot come to depose (Vol. He is in jail.) I can, howeve, identify my signatures. Witness has reaffirmed her signatures on her affidavit Ex.D- 1. Witness has also identified her signatures on written statement at points A. Witness has admitted her signaturs as appearing in red in Ex.PW1/1. She has denied her signatures in blue in agreement Ex.PW1/i. Witness hs denied her signatures on vakalatnarna which has now beeh • encircled and has given number at points A. Witness hds again being confronted with her signatures in red in Ex.PW1/1 and now she has claimed that signatures in red Ex.PW1/1 are not her signatures. She has admitted her signatures on affidavit in support of her written statement at points A. I had mortgaged my property with the bank and availdd loan. I do not remember or know whether there was ar jy agreement to sell the suit property. Again said I have not entered into any such agreement and I am not sure in ths regard whether my children had entered into such agreement or not. I have not entered into any agreemet with plaintiff. It is wrong to suggest that plaintiff has given me a sum of Rs.21acs in presence of my son Tilak Raj. It lis wrong to suggest that I had entered into an agreement wi ç h the plaintiff and I had also handed over the possession o the plaintiff. It is wrong to suggest that I had sold tI1e property to someone else and that plaintiff had been dispossessed. It is wrong to suggest that I am liable to pay the double of the earnest amount to the plaintiff as pr agreement. It is wrong to suggest that I am deposing falsely." RFA No.48012010 . • Page8f21 V 9. After considering the entire evidence on record, the learned trial • court decreed the suit in favour of the respondent in the sum F 4 YO 1 1 'fl :c1c; 5 @% pr anpym fQm Q7042QQ1 till its realization This has led to filing of the present appeal • 10. At the outset, counselfor appellant submitsthat Agreement Sell is a forged and fabricated document as no Agreement to Sell was entered into between the appellant and the respondeflt • that any earnest money was ever received by the appellant frohi the respondent. It is further submitted by counsel for the appellant that respondent is a property dealer who acted as a middleman for the sale of the suit property to one Shri Jogind r Pal on 1.09.2001 and it is only with an ulterior motive to harass the appellant that the respondent has filed a false suit against the • appeItant • 11. Mr. Aggarwal, counsel for appellant, contends that the trial COL rt has erred in' holding that the suit is not barred.by limitation w4n admittedly the court fees was affixed on 0804.2004 as pr endorsement on the file while the limitation period expired 6n 6.04.2004. The counsel further contends though the suit was fil on 06,04.2004, but it was improperly instituted with an inhere'nt defect of deficient court fees and any statement of a court clrk RFA No.48012010 Page 9 bf 21 that court fees was properly affixed on 08.04.2004 is of n consequence and the suit deserved dismissal. The counsel for appellant submits that the learned trial court has failed to appreciate the fact that the suit for recovery s misconceived since the respondent himself has alleged that was put in possession of the second floor of the suit property i furtherance of the Agreement to Sell dated 07.04.2001 andh could only file a suit for specific performance of the sai Agreement to Sell and that he was supposed to protect ft possession The counsel for appellant next submits that the said Agreement Sell is forged and fabricated and that the learne.d trial court ha misinterpreted the CFSL Report. It is further submitted byth counsel that the appellant had denied his signatures on the. sai Agreement to Sell and the CFSL report is also not in the favour the 'respondent as the report simply states that it is not possible t express any opinion regarding authorship of the signatures due t non-familiarity of Gurmukhi script: The counsel contends that th trial court ought to have referred the signatures to another CFS expert before passing the impugned judgment. It is furth submitted that the respondent has failed to prove the payment H earnest money of Rs. 2 lakhs as no receipt has, been placed o RFA No.48012010 ' . Pagel0o 21 record nor has the respondent mentioned as to how he made the alleged payment of the earnest money to the appellant. Lastly, it has been contended by counsel for appellant that learned trial court has lost sight of the fact that the witnesses w appeared on behalf of the respondent have made contradicto statements on oath giving an irresistible conclusion that the su initiated by respondent is false. Pointing out the discrepancies, th counsel urged that while. PW-1, Sh. Inder Pal Dua deposed in hi cross-examination that the stamp paper was purchased by lila Raj; PW-2, Sh. Gopal Krishan Arora deposed in his cros examination that the stamp paper was purchased by PW-1, S inder Pal Dua. Further in his cross-examination, PW-2 has als deposed that the said Agreement to Sell exhibited as Ex. PW-1/ was not typed in the presence of appellant Smt Laxmi Devi an that whatever was typed was not.as per her instructions. The counsel for respondent contends that there is no infirmity i the judgment of the learned trial court and the suit has bee decreed after duly appreciating the evidence led by both th parties. it is further submitted by counsel for respondent that th suit was within the period of limitation as it was filed o 06.04.2004 along with an application for extension of time to fil RFA No.48012010 Pagell 0421 court fee and the court fees was duly affixed on 08.04.2004 as is evident from the order of the learned trial court dated 08.04.200 It is next submitted by counset.for respondent that the responde has duly proved the Agreement to Sell dated 07.04.2001 whi was executed in the presence of Gopal Krishna Arora (PW-2), a independent witness, and Tilak Raj Dhawan, the son of th appellant. It is further submitted that respondent has also prove the receipt of the earnest money of Rs. 2 lakhs paid by th respondent to the appellant as well as his complaint to the polic authorities which is exhibited as Ex. PW-1/2. As far as the authorship of the signatures in questior H concerned, placing reliance on Section 73 of the Indian Evidenc Act counsel for respondent submits that it can be. easily seen fro the naked eye that signatures in dispute and the admitte signatures of the appellant are by one and the same person. I have heard the counsel for the parties and have perused th entire evidence on record. PW-1 Inder Pal Dua, the responde herein, in his evidence has deposed that as per the terms of th said Agreement to Sell, the total sale consideration was fixed a Rs.10.5 lakhs and a sum. of Rs. 2 lakhs was paid to the appelFan as the earnest money which was duly received by the appellan and she also acknowledged the receipt of the same. He furtherLi RFA No.48012010 Page 1,2 of deposed that at the time of execution of the said Agreement Sell, the appellant had handed over the physical possession oft second floor of the suit property to the respondent and that th said agreementwas executed in the presence of PW2 Sh Gop4l Krishna Arora and Sh. Tilak Raj Dhawan who is the son of th appellant. It was further deposed by PW4 that the appellant ha obtained a loan from Central Bank of India, Karol Bagh Branc against the suit property and it was clearly stipulated that th possession of the remaining portion of the suit property and th balance sale consideration amount would be paid after th appellant clears the loan and obtains a clearance letter/settlemen letter along with an NOC from the Bank. But on 29.09.2003 .whe the respondent went to the suit premises, he was shocked to lea / that the property is in possession of some third person who wa raising construction on the same. The belongings of th respondent were missing and upon inquiries it was revealed tha the appellant has transferred the property to a third person. It I further stated by PW-1 that respondent was always willing to pay the balance sale consideration amount of Rs. 8.5 lakhs but the appellant has illegally dispossessed the respondent from the suit property and has usurped his belongings. RFA No.48012010 Page 13 of4 y In his cross-examination, PW-1 has deposed that he came contact with the appellant Laxrni Dcvi through PW-2 S. Gopl Krishna @BaIi and that the said Agreement to Sell was signed, i his presence at the residence of the appellant. The •sai Agreement was also signed by Sh. Tilak Raj who is the son of th appellant. It has been admitted by PW-1 that there is no receipt o the earnest money paid but the Agreement.to Sell itself show that it was paid in cash and the same was counted by Tilak Raj i the presence of appellant. He has further admitted that joginde Pal made the payment of loan amount of the appellant, to th Bank in his presence but has negatedthe suggestion that he acted as a mediator for selling the suit property to Joginder Pal. He further negated the suggestion that the signatures of appellant on fl( / the said Agreement to Sell are forged and fabricated or that he has filed a false. case. The evidence of the respondent (plaintiff) was remained unshaken during the cross-examination. I find that the statement of PW-1. Sh. Inder Pal is duly corroborated by the evidence of PW-2, Sh. Gopal Krishna Arora who has signed the said Agreement to Sell as an attesting witness. In his examination-in-chief, PW-2 deposed that he knows both the parties and the said Agreement to Sell was executed in his presence. Corroborating the stand of PW-i, PW-2 states that RFA No.48012010 Page 14 of 21 the said Agreement was signed by both the parties in his presene and that Tilak Raj, who is the elder son of the appellant, had al signed the said Agreement as an attesting witness. In his cros- examination, he has reiterated that the said Agreement ws signed at the residence of the appellant and has further negate the• suggestion that the signatures of appellant On the sai Agreement to Sell are forged and fabricated. He has als conceded that since Laxmi Devi