CS(OS) No. 652/1997 Page 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) NO. 652 OF 1997 % Date of Decision : 22ND September, 2008. SNEH LATA GULLIYA .... Plaintiff. Through Mr. Ashok Bhasin, Sr. Advocate with Mr.Saurabh Chauhan, Advocate along with the plaintiff in person. VERSUS R.K. GUPTA & ORS. .... Defendants. Through Mr. Vijay Gupta & Ms. Geeta Goel, Advocates along with the defendant No. 1 in person. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J: 1. The plaintiff, Ms. Sneh Lata Gulliya, seeks specific performance of purported agreement to sell dated 26th January, 1996 marked Exhibit PW1/1 in respect of flat No. S-2, constructed on plot No. AC-8 (New No. R-8), Nehru Enclave, Kalkaji, New Delhi (hereinafter referred to as the property, for short). The defendants Mr. R.K. Gupta, Ms. Sunita Gupta and M/s R.K. Gupta and Sons (HUF), dispute and deny the agreement to sell Exhibit PW1/1 and CS(OS) No. 652/1997 Page 2 have stated that their signatures on the said agreement are forged and fabricated. 2. By order dated 7th December, 2000, the following issues were framed:- (1) Whether the plaintiff proves that the agreement to sell dated 26.1.1996 is executed in favour of the plaintiff by the defendants and thereby agreed to sell the immoveable property bearing No. S-2, R-8, Nehru Enclave, Kalkaji, New Delhi for the amount of Rs.22 lakhs? (2) Whether the plaintiff proves that the defendants pursuant to the aforesaid agreement to sell received Rs.3 lakhs by way of earnest money from the plaintiff and passed receipt dated 26.1.1996? (3) Whether the plaintiff proves that he was and he is ready and willing to perform his part of the agreement? (4) To what relief, if any, the plaintiff is entitled to? (5) What orders and decree? ISSUE NOS. 1 AND 2 3. Issue Nos. 1 and 2 are the core issues and being inter- connected, are being decided together. 4. The present case is of parties, who were once acquaintance if not friends but have now become foes. The plot in question on which the property exists, was purchased by the plaintiff vide sale CS(OS) No. 652/1997 Page 3 deed dated 30th September, 1986. Thereafter, she constructed nine flats on the property and “sold” the same to seven different parties while retaining rights in respect of two flats. “Sales” were made by executing general power of attorney, agreement to sell, etc. 5. There is evidence that the parties were known to each other and were on visiting terms before the defendants purchased the property from the plaintiff. Both parties were non residents. The defendants had visited and had stayed with the plaintiff, her husband and children in Texas, U.S.A. The defendants had made payments for purchase of the flat of Rs.8,25,000/- by cheques during the period 1989-1991. The plaintiff has not disputed payment of sale consideration by cheques and the fact that documents like agreement to sell, affidavit, power of attorney were executed in September, 1991. These documents have been marked as Exhibits PW-1/X-1 to X-5 (see in this regard cross-examination of plaintiff, PW-1 on 6th April, 2004, 2nd September, 2004 and 4th September, 2004 and cross- examination of Ms.Sunita Gupta, DW-2 on 13th November, 2007 by the counsel for the plaintiff, wherein it is admitted that the defendants had stayed in the house of the plaintiff in U.S.A. in 1986). 6. It is also admitted case of the parties that the defendants were/are in possession of the flat and had also resided in the said flat. It is the case of the plaintiff that the defendants vacated the flat and shifted out in end of December, 1996, while the case of the CS(OS) No. 652/1997 Page 4 defendants is that they shifted out in middle of 1994. 7. The relationship between the parties turned sour and they became bitter foes, is established and evidenced by the following facts:- (i) There were series of police complaints inter se parties 1994 onwards. The factum of police complaints stands proved in the testimony of the plaintiff, PW-1. Complaints made by the plaintiff and her husband have been marked Exhibits P1/X7 to P1/X14. (ii) The plaintiff had cancelled and revoked power of attorney in favour of the defendants in respect of the flat by telegram dated 5th August, 1994. (See paragraph 6 of the plaint). (iii) The plaintiff thereafter in August, 1994 had filed a civil suit for permanent injunction before Civil Judge, Delhi, inter alia, stating that the defendants cannot sell, dispose off or part with the possession or deal with the flat. The suit was contested by the defendants. The plaint has been placed on record and marked Exhibit P1/X6. The civil suit was dismissed in default on 10th November, 1998. 8. With the above background of facts, I proceed to examine the question of genuineness of the agreement to sell dated 26th January, 1996 Exhibit PW-1/1. The agreement to sell is a typed document in form of a receipt and reads as under:- CS(OS) No. 652/1997 Page 5 “RECEIPT We, Mrs. Sunita Gupta, w/o Sh. R.K. Gupta, R/o Flat No. S-2, R-8, Nehru Enclave, New Delhi- 110019 and R.K. Gupta, S/o Sh. R.M. Gupta, R/o Flat No. S-2, R-8, Nehru Enclave, New Delhi- 110019 for self and as Karta of R.K. Gupta & Sons (HUF) have agreed to sell our Dining and front lawn situated at R-8, Nehru Enclave, New Delhi-110019 for a total consideration of Rs.22,00,000/- (Rupees twenty two lacs only) to Mrs. Sneh Lata Guliya from whom the said Flat was taken on G.P.A., out of which we have received Rs.3,00,000/- (Rupees three lacs only) in cash and have signed this receipt in token of having received the same, in the presence of witnesses, who have signed on the receipt. We have also agreed to receive the balance consideration of Rs.19,00,000/- (Rupees Nineteen lacs only) within 8 months from today i.e. 26.1.96 and after the said payment is made, the possession of the said Flat No. S-2 shall be handed over to Mrs.Sneh Lata Guliya. WITNESSES EXECUTANTS 1. Sh. BRAHAM DUTT FLAT : S-8, R-8 NEHRU ENCLAVE, (R.K. GUPTA) NEW DELHI-19 2. SHri DEEPAK SAHANI (Mrs. Sunita Gupta) FLAT No. S-9 R-8, NEHRU ENCLAVE NEW DELHI-19 R.K. GUPTA & SONS(HUF) Karta” 9. A bare perusal of the above agreement discloses some striking features. Firstly, the agreement is in form of a typed receipt and not hand written, even the name of the witnesses are typed. Secondly, the alleged payment of Rs.3,00,000/- is in cash and not by CS(OS) No. 652/1997 Page 6 cheque. It is admitted case of the parties that payments of Rs.8,25,000/- by the defendants to the plaintiff for purchase of the property were by cheques. Nothing was paid in cash. Thirdly, the agreement is not signed by the plaintiff herself but is purportedly signed by the defendants. Lastly, the agreement/receipt Exhibit PW- 1/1, as is clear from the language, is drafted by a legal person. This fact stands also proved and established in the cross-examination of the plaintiff, PW-1 on 25th September, 2004 in which she has stated as under:- “Q. When it was communicated to you on 23.01.1996 that the defendants are ready to sell the property in suit to you, did you convey it to your lawyers to consult them for making a legally binding agreement? A. I consulted my lawyers about making of the receipt and the Agreement was to be prepared at the time of making the complete payment. Q. When was this receipt for Rs.3 lacs prepared? A. It was prepared one day prior to signing of the receipt by my lawyer Mr. Jagdish Vatsa. Vol. He gave it time saying that if the deal goes through then you can get it signed. Q. Can you tell where this receipt was prepared. A. I have no idea where Mr. Vatsa got it prepared. Q. You went to the office of Mr. Vatsa to collect the receipt as prepared by him. Is it correct. A. No. He sent it to me through one of his employees. Q. I am showing you the original receipt placed by you on the record of the present suit EX PW1/1. Please see and confirm if this is the receipt referred to by you in your previous CS(OS) No. 652/1997 Page 7 answer. LC (The exhibit mark has been made today even though it has been exhibited in the affidavit of the witness dated 25.11.2003) A. Yes, it is correct. Q. This receipt was sent to you by Shri Jagdish Vatsa through his employee only in its original form and not in any draft form or with any extra copies. Is it correct. A. It is correct. Q. When you told Shri Jagdish Vatsa, Advocate about the transaction in suit, were you accompanied by any other person or you went alone to him? A. I did not go to him but I had a discussion with him on the telephone. Q. To your knowledge nobody other than yourself had a discussion with your lawyer about the transaction relating to the property in suit or about any details, relating thereto. Is it correct. A. It is correct. Nobody else discussed about this with my lawyer. Q. When was the decision taken as to the persons who would be signing the receipt Ex. PW-1/1, as witnesses? A. It was done a day prior to signing of the receipt. Vol. Mr. Brahm Dutt was involved in the transaction and he was also the President and Mr. Deepak Sahni was the Secretary of R-8, Residents is (sic)Welfare Association, at that time. Q. Did you tell Mr. Vatsa that Mr. Brahm Dutt and mr. Deepak Sahni would be signing the receipt as witness? A. Yes, it is correct. I made a suggestion to my lawyer that as they were the President and Secretary we should keep their names as witnesses and he agreed to the same.” 10. Exhibit PW-1/1, the agreement, however, was never relied and filed before the civil court where the suit for permanent injunction filed by the plaintiff was pending. In the cross examination, the CS(OS) No. 652/1997 Page 8 plaintiff has admitted that the same advocate, who had drafted the agreement, was also appearing for the plaintiff and conducting the civil suit. The original file of the civil suit is available and was examined at the time of arguments. It is not understandable and defies logic why agreement to sell marked Exhibit PW-1/1 dated 26th January, 1996, was not filed and produced by the plaintiff before the civil court immediately after its execution or within reasonable time. The plaintiff, PW-1 in her cross-examination on 21st September, 2004 has admitted that she was constantly in touch with her advocate during the pendency of the suit in the civil court. Similarly, the plaintiff in her cross-examination on 28th September, 2004 has admitted that the alleged agreement to sell Exhibit PW-1/1 was not filed and brought to the notice of the civil court. While answering the question put to her that with execution of the agreement to sell Exhibit PW-1/1, the civil suit had become meaningless and there was no point in pursuing the said case, the plaintiff has stated that it was for both parties to inform the Court about the deal and agreement to repurchase. However, the said answer belies logic and does not answer and explain why the plaintiff did not file and rely upon the agreement to sell Exhibit PW-1/1 and why no application was filed by the plaintiff to place on record copy of the said agreement for re- purchase. The agreement to sell Exhibit PW-1/1 is a document in favour of the plaintiff and had the effect of CS(OS) No. 652/1997 Page 9 bringing the said litigation to an end. Admittedly, agreement to sell Exhibit PW-1/1 was important document as per the plaintiff‟s own case. In this regard, I may refer to averments made by the plaintiff in her affidavit by way of evidence in chief in which she has stated as under:- “7. That Shri R.K. Gupta and Ms. Sunita Gupta after contesting the suit for a considerable period started try to settle the matter with her……………………” 11. Thus, as per the plaintiff‟s own case, the agreement to sell Exhb. PW-1/1 was connected with the civil suit. 12. In the plaint, it is alleged that agreement to sell Exhibit PW-1/1 was signed and executed on 26th January, 1996 by defendant No. 2, Ms. Sunita Gupta, who also received cash payment of Rs.3,00,000/- and thereafter the original receipt was taken away by Ms. Sunita Gupta, the defendant No. 2 to be signed by her husband Mr. R.K. Gupta, defendant no.1 and the same was returned back by defendant No. 2 to the plaintiff after 3/4 days. In paragraph 10 of the plaint, it is stated as under:- “That consequent thereto, the plaintiff withdrew Rs.5,00,000/- (Rupees Five lacs only) in cash from her bank on 25.1.1996 and out of that amount paid Rs.3,00,000/- (Rupees three lacs only) in cash to the defendant No.2 in the presence of Shri Braham Dutt and Shri Deepak and the defendant No.2 after receiving Rs.3,00,000/- (Rupees three lacs only) in cash executed receipt/agreement which was also witnessed by Shri Braham Dutt and Shri Deepak Sahany. The said CS(OS) No. 652/1997 Page 10 amount had been accepted by the defendant No.2 as part of sale consideration of Rs.22,00,000/- (Rupees twenty two lacs) flat No.S-2, R-8, Nehru Enclave, Kalkaji, New Delhi comprising of 3 bed rooms, drawing cum-dining, kitchen and 3 bath rooms on the Ground Floor and a store and open lawn infront thereof. The flat in question is shown in red in the plan filed with the plaint. The defendant No.2 executed the receipt/agreement and thereafter took the same with her for having it signed by defendant No.1 and the same after being signed had been returned to the plaintiff by the defendant No.2 after ¾ days.” 13. It is also the case of the plaintiff that the original agreement to sell Exhibit PW-1/1 was signed in the flat of the plaintiff in the plot in question. Absence of defendant No. 1 on the important occasion, keeping in mind inter se litigation between the parties including police complaints, is rather intriguing and supports the case of the defendants that the agreement to sell Exhibit PW-1/1 is a forged and fabricated document. It is now case of both parties that signatures of defendant No. 1 on the said agreement to sell Exhibit PW-1/1 are not genuine. Given the strained relationship between the parties till then, it is difficult to accept the version of the plaintiff that the original agreement to sell dated 26th January, 1996 Exhibit PW-1/1 was handed over and taken away by the defendant No. 2 to be signed by the defendant No. 1, her husband and returned back after 3/4 days. The said averments made in the plaint were repeated by the plaintiff in her examination-in-chief as well as in her cross-examination. The CS(OS) No. 652/1997 Page 11 version of the plaintiff, if believed, would mean that in spite of all acrimony, litigation and police complaints, the plaintiff had paid a sum of Rs.3,00,000/- in cash and thereupon the defendant No. 2 had executed and signed the agreement to sell Exhibit PW-1/1 and was allowed to take away the same for being signed by defendant No. 1 and was returned after 3/4 days. The plaintiff in her cross- examination on 25th September, 2004 has stated as under:- “Q. Neither you nor your husband have chosen to sign the receipt Ex.PW-1/1 by way of confirmation of your intention to buy the property in suit. Is it correct. A. It is correct. Q. The receipt Ex. PW-1/1 was according to you, signed in only one set which has been placed by you on the record of the present suit. Is it correct. A. It is correct. Only one set has been prepared and signed and filed on the court record. Q. Therefore, it is also correct that you did not give any acknowledgement under your signatures to Smt. Sunita Gupta regarding you having obtained the receipt Ex. PW-1/1 from her. A. It is correct. I did not give any such acknowledgment to her. Q. According to you after Sunita Gupta received an amount of Rs.3 lacs from you and she signed the receipt Ex. PW-1/1 and the witnesses also signed the same at points „C‟ and „D‟, please tell what happened thereafter? A. I asked her that the receipt is not signed by your husband to which she said that as he was bed ridden and he cannot come, she will take her receipt with her, get it signed from him and will send it back after 2/3 days. It was given to her in good faith. Q. You did not ask Sunita Gupta to give you a written confirmation that she is taking CS(OS) No. 652/1997 Page 12 away the receipt and would it to you after it has been signed by her husband. A. The property dealing is done on good faith and every detail is not put in writing. Q. Can you tell the exact date and time when the receipt Ex. PW-1/1 came back to you. A. I do not remember the exact date and time. But it came back to me after 3/4 days. Q. Who brought this receipt back to you. A. Smt. Sunita Gupta herself brought back the receipt. Q. Therefore, is it correct that between 26.01.1996 when according to you Smt. Sunita Gupta took away the receipt Ex. PW- 1/1 with her and the date 3/4 days later, you were not in possession of any document or written confirmation to the effect that the defendants have agreed to sell the property in suit to you. A. It is correct. Q. As soon as the payment of Rs.3 lacs was made by you to Smt. Sunita Gupta and the receipt Ex. PW-1/1 was signed, you conveyed the information to your lawyer Shri Jagdish Vatsa, Advocate. Is it correct? A. Yes, it is correct.” 14. Given the past history of litigation and complaints to police, it is difficult to accept the version of the plaintiff that in good faith she had handed over the agreement to sell Exhibit PW-1/1 without retaining any proof or confirmation for having made payment of Rs.3,00,000/- in cash. It is not the case of the plaintiff that two copies of agreement Exhb.PW-1/1 were prepared. I may also note here that as per the version and case of the plaintiff, the defendants including defendant No. 2 had continued to reside and live in the flat in question till the end of 1996 (see cross-examination of the plaintiff, PW-1 on 4th CS(OS) No. 652/1997 Page 13 September, 2004, wherein she has stated that the defendants, were there in the property till the end of 1996). Thus as per the case of the plaintiff, the defendant no.1 was residing in the flat on the same plot, when the agreement to sell Exhb. PW-1/1 was executed. 15. It is not the case of the plaintiff that the relationship between the parties had improved and the differences were sorted out before execution of the agreement to sell Exhibit PW-1/1 on 26th January, 1996. On the other hand, it is the case of the plaintiff that negotiations between the defendants and the plaintiff were not direct and the parties never met or talked to each other before 26th January, 1996. In her cross-examination, PW1 has stated that one Mr. Brahm Dutt, who had also purchased a different flat on the said plot, had interacted on her behalf with the defendants and on or about 23rd January, 1996 terms of the agreement were finalized. In the cross- examination of the plaintiff on 23rd September, 2004, the plaintiff has stated as under:- “Q. Is it correct that either R.K. Gupta, defendant No. 1 or Sunita Gupta, defendant No. 2 never personally approached you with an offer to sell the suit property to you. A. We were not on talking terms with them at that time so they did not approach me directly.” 16. It is difficult to conceive and accept the contention of the plaintiff that they had developed complete faith in one day i.e. 26th January, 1996 and defendant no.2 was given the original agreement without CS(OS) No. 652/1997 Page 14 receipt, for signatures thereon by defendant No. 1 and the plaintiff did not deem it necessary to keep even a copy of the agreement signed by defendant No. 2 in her presence. Even if it is presumed that defendant No. 1 was not well or bed ridden, as a prudent and reasonable person the plaintiff would have taken precaution of visiting defendant No. 1 and getting the receipt signed in her presence. Admittedly, the plaintiff had access to legal advice in view of the pending litigation between the parties. Even the plea of the plaintiff that defendant No. 1 was unwell and confined to bed and, therefore, he was not personally present when the transaction took place on 26th January, 1996, is difficult to accept. Defendant No. 1 is no doubt suffering from Malignant Rheumatoid Arthritis but had appeared in the witness box and was cross-examined. He has also been regularly coming to Court. It cannot be said that defendant No. 1 is a crippled or a bed ridden person. Reliance placed by the counsel for the plaintiff on some letters written by the defendants to the telephone department being Exhibits DW-1/3, 1/5 and 1/6 have to be read and understood in the context in which the said letters were written, as the plaintiff wanted to shift the telephone from the flat in question to their new residence. The statements made in the said letters have to be read and understood in that context and the purpose for which these letters were written. Admission can be explained. CS(OS) No. 652/1997 Page 15 17. Mr. Brahm Dutt, who as per the plaintiff had negotiated the deal on behalf of the plaintiff with the defendants and is also one of the witnesses to the agreement to sell Exhibit PW-1/1did not enter the witness box. Neither did the second witness to the agreement to sell Exhibit PW-1/1, Mr. Deepak Sahani. Affidavit by way of evidence of the plaintiff, PW1 is silent and does not give any reason why the two, Mr. Brahm Dutt and Mr. Deepak Sahani were not ready and willing to appear as witnesses before the Court. It is not stated in the affidavit that the plaintiff had made any request to the said witnesses but they had refused to appear. No reasons have been given and propounded. The plaintiff also did not summon the two witnesses to the agreement to sell Exhibit PW-1/1 relied upon by the plaintiff. Learned counsel for the plaintiff during the course of arguments submitted that the plaintiff has filed a criminal contempt petition against the plaintiff, Mr. Brahm Dutt and Mr. Deepak Sahani and, therefore, they had refused to appear as witnesses. He in this regard referred to cross-examination and questions put by him to defendant Nos. 1 and 2. This plea of the plaintiff is liable to be rejected as there is no such averment made by the plaintiff in her evidence and secondly the said witnesses were not summoned by the plaintiff through the process of Court. Thirdly, both Mr. Brahm Dutt and Mr. Deepak Sahani had nothing to lose by appearing before the Court as witnesses and support the case of the plaintiff and prove CS(OS) No. 652/1997 Page 16 execution of Exhibit PW-1/1. Both of them have replied to the criminal contempt petition and had,