CS(OS) 154.08 Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision : 12.05.2009 % CS(OS) No. 154/2008 M/S. SUNRISE CONSTRUCTION ..... Plaintiff Through: Mr. Dinesh Kumar Garg, Advocate. versus MS. VEENA WAHI ..... Defendant Through: Mr. Davinder Singh, Sr. Advocate with Mr. Jasmeet Singh, Advocate. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? No 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes VIPIN SANGHI, J. (Oral) 1. The plaintiff has filed the present suit to seek a decree for specific performance in respect of the defendant‟s 1/5th undivided share in property bearing no. D-8, South Extension Part-II, New Delhi. The case of the plaintiff as set out in the plaint is that one Dr. Desh Raj Kehar was the owner of built up property No. D-8, N.D.S.E., Part-II, New Delhi admeasuring 1080 Sq. Yds. He died in the year 1967 leaving behind eight legal heirs. Smt. Durga Devi, the widow of late Dr. Desh Raj Kehar disposed off a part of the property admeasuring 330 Sq. Yds. CS(OS) 154.08 Page 2 of 35 situated at the rear side and after such sale, the area left with the said legal heirs of late Sh. Desh Raj Kehar was 764 Sq. Yds (herein referred to as the “said property”). Smt. Durga Devi, also died on 03.03.1993 leaving behind five legal heirs namely Dr. Prem C. Kehar (son), Mahinder Kumar Kehar (son), Mrs. Swaran Kapoor (daughter), Veena Wahi (daughter), Dr. Mrs. Jagjeet Moorti (daughter). 2. The aforesaid five legal heirs inherited the said property admeasuring 764 Sq. Yds. in equal share i.e. 1/5th undivided share each. Three of the aforesaid legal heirs namely Dr. Prem C. Kehar, Dr. Mrs. Jagjeet Moorti and the legal heirs of Mrs. Swaran Kapoor sold their 1/5th undivided share by way of three sale deeds executed on 28.04.2006, 28.04.2006 and 25.05.2006 respectively in favour of the plaintiff. 3. It is the case of the plaintiff that the defendant, owner of 1/5th undivided share of the said property, (herein referred to as the suit property), who also claimed to be in actual physical possession of one room, one kitchen and the right to use the terrace in common in the said property, had entered into an oral agreement with the plaintiff on 18.09.2007 to sell all her rights, titles and interest in the suit property to the plaintiff for a total consideration of Rs. 1,60,00,000/- (One Crore Sixty Lacs Only). The plaintiff further states that after having entered into the oral agreement the plaintiff had paid, and the defendant had received a part of the sale consideration of Rs. 25,50,000/- from the plaintiff. Of the said amount, Rs. 50,000/- was paid by cash and Rs. CS(OS) 154.08 Page 3 of 35 25,00,000/- was tendered by cheque bearing no. 261087 dated 18.09.2007 drawn on Dena Bank, South Extension Branch, New Delhi. The balance consideration of Rs. 1,34,50,000/- was agreed to be paid on or before 31.12.2007 at the time of execution and registration of the sale deed and handing over of the possession of the portion in the defendant‟s possession. Receipt for Rs. 25,50,000/- was executed, acknowledging the receipt of the said amount, and also containing the essential terms of the agreement. The receipt cum agreement was written in hand by the son-in-law of the defendant, signed by the defendant, and the daughter of the defendant was a witness thereto. 4. The plaintiff further states that before 31.12.2007, the plaintiff approached the defendant with a request to perform her part of the obligations to convey her undivided share in the suit property as the plaintiff was ready and willing to perform its part of the contract. The plaintiff states that it did not receive any positive response from the defendant to complete the sale and purchase transaction, and was convinced that the defendant was intentionally and deliberately delaying the matter with malafide intentions to avoid the performance of her part of the obligations as the real estate value had appreciated considerably in the meanwhile. The plaintiff states that it served a legal notice dated 17.12.2007 upon the defendant calling upon her to perform her part of the obligations. Along with the notice the plaintiff also sent photocopy of pay order bearing no. 579548 dated 15.12.2007 issued by the Dena Bank, South Extension Branch, New Delhi for the CS(OS) 154.08 Page 4 of 35 entire balance sale consideration of Rs. 1,34,50,000/- with a stipulation that the original pay order would be handed over to the defendant at the time of execution and registration of sale deed and handing over of possession. The said notice was duly received by the defendant. However, she neither replied nor complied with the terms thereof. Plaintiff states that it has always been ready and willing to perform its part of the contract. 5. Upon summons being issued and served, the defendant has filed her written statement. The defence of the defendant is primarily contained in para 10 of the written statement. The same reads as follows: “10. That the contents of para 10 of the plaint are wrong, misconceived and vehemently denied. In response it is submitted that the plaintiff called the defendant several times to meet him regarding some important matters. The defendant in good faith went to the plaintiff‟s office, where the plaintiff insisted that she should sell her share in the suit property i.e. D-8 New Delhi Extension Part II, New Delhi. The plaintiff told the defendant that the value of the entire property i.e. D-8 New Delhi South Extension Part II, New Delhi is approximately Rs. 35,00,00,000/- (Thirty Five Crores) and if the defendant sells her share i.e. 1/5th in the suit property, the plaintiff would give her Rs. 6,50,00,000/-. In addition to giving Rs. 6,50,00,000/- against the sale of the 1/5th share of the defendant, plaintiff would also give the defendant 400 sq. ft. piece of land in the same property on Ground Floor, D-8 New Delhi South Extension Part II, New Delhi so that the defendant could run a boutique therefrom to earn her livelihood. That the defendant is a widow having no earnings from many years and is financially dependent on her daughter. The said proposal gave her rays of hope to live CS(OS) 154.08 Page 5 of 35 in her own home having some earnings and self-respect in life. The plaintiff insisted that he did not have this much money to pay to the defendant at that time and neither can get into any agreement to transfer the right of the land (400 sq. ft.) exclusively on the name of the defendant since he did not have 100% right on the complete property yet. The plaintiff also insisted that he had already bought 3/5th of the share of the said property and if defendant can get him a receipt then it would help him to raise loan from the bank after which he would get into proper agreement with the defendant. That the daughter of the defendant and son-in-law joined the defendant during this meeting. On good faith, defendant asked her son-in-law to write what the plaintiff mentioned, thus he wrote what the plaintiff wanted. Before signing the paper, defendant objected on the value mentioned on the paper and also on the point where it was mentioned that defendant was receiving Rs. 50,000/- plus Rs. 25,00,000/- cheque since she was not given either of it (neither cash nor cheque). But plaintiff insisted that this document was not an agreement but was required only for raising a loan. Also the reason he mentioned for quoting smaller value on the paper (which is Rs. 1.6 crore) is that he wanted to save upon stamp duty at the time of registration in future. Thus in good faith, defendant signed this paper. Thereafter, defendant had neither got any oral nor any written communication from the plaintiff, until in January, 2008 whereas defendant received a couple of calls asking her to hand over the possession of a room and kitchen in lieu of Rs. 1.60 crores, else plaintiff would file a case against the defendant. This was a shock to the defendant and defendant refused him since the agreed/committed deal by him was Rs. 6.50 crores plus 400 sq. ft. of land on the main road towards the sale of her 1/5th share in property i.e. D-8 New Delhi South Extension Part II, New Delhi. After this also defendant received some more threatening/pressurizing calls regarding the same. As far as plaintiff claimed that he had sent the legal notice/written communication to CS(OS) 154.08 Page 6 of 35 the defendant, however, defendant has not received any written communication from the plaintiff. This claim of the plaintiff is also plotted against the defendant since the matter of fact is that that plaintiff has possession of one room in premises bearing No. D-8 New Delhi South Extension Part II, New Delhi, which is the first room from the main gate where he is maintaining an office where his people sit from morning to evening and it is presumed that someone from the staff of the plaintiff has received the same (Registered AD) to be used against the defendant in Court of law.” 6. The appearance of the defendant was mandated vide order dated 03.02.2009. The defendant appeared in court on 17.02.2009 when her statement was recorded by the court. The said statement reads as follows: “The document Ex. D-1 bears my signatures and signatures of my daughter at points „A‟ and „B‟ respectively. The document is in the hand writing of my son-in-law Sh. Jeetinder Suneja. I am graduate. The document was signed at office of Mr. Ashok Chaudhary at Sant Nagar, Delhi. I had gone there alone. While I was in the office, I received a telephone call from my daughter asking me where I was? Then I was sitting in the office of Mr. Ashok Chaudhary. After I informed her, she came there alongwith her husband. I have very good relations with my daughter and son-in-law. My daughter is M.Sc. and MBA. My son-in-law is also MBA. I had read the document before I signed it. My daughter had not read it. My son-in-law had written this document at the instance of Mr. Ashok Chaudhary. Mr. Ashok Chaudhary had told my son-in-law in my presence what is to be recorded in the document. Whatever is written in the document is not correct. I signed a wrong CS(OS) 154.08 Page 7 of 35 document in the presence of my daughter and son-in-law in good faith of Mr. Chaudhary. “ 7. The court on the same date put the defendant to notice that the matter would be heard on the next date on the aspect of passing of a decree for specific performance under Order 12 Rule 6 CPC. That is how the matter has been heard today and after hearing the parties and having considered their respective submissions and the judgment cited by them, I am proceeding to decree the suit. 8. Apart from the aforesaid defence on merits, the defendant has raised the following preliminary objections: 1. The present suit is not maintainable in law and on facts of the case. 2. The suit is not properly valued for the purpose of court fees and hence the same is liable to be dismissed. 3. The alleged receipts which are the basis of the present suit are neither registered nor are properly stamped documents. The suit is not maintainable on the basis of these documents. 4. The suit for specific performance on the basis of the alleged agreement is not maintainable in view of Section 17 of the Registration Act, 1908. 5. The receipt relied upon by the plaintiff is without consideration. No amount whatsoever has even been paid by the plaintiff to the defendant, hence there is no question of any agreement between the parties. 6. The plaintiff has not come to the court with clean hands and has suppressed the material facts. 9. Of the above preliminary objections, preliminary objection no. CS(OS) 154.08 Page 8 of 35 1, 5 and 6 stem out of the defence of the defendant on merits and, therefore, would stand decided with the decision on merits. The objection to the valuation for purpose of court fee is vague and non- specific. However, at the time of argument, Mr. Davinder Singh, learned Senior Counsel for the defendant submitted that the said objection has been taken as, according to the defendant, the sale consideration agreed between the parties for the defendant‟s 1/5th share in the suit property was Rs. 6.50 crores and not Rs. 1.60 crores. This issue would also, therefore, depend on the decision of the court on merits of the defendant‟s defence. 10. So far as the preliminary issue nos. 3 and 4 are concerned, a perusal of the receipt dated 18.09.2007 exhibit P-1 shows that the same has been executed on stamp paper of Rs. 50/- purchased on 18.09.2007 vide Serial No. 42294 in the name of the plaintiff. The same is sufficiently stamped and this is evident from a plain reading of the new revised Schedule 1A substituted by the Indian Stamp (Delhi Amendment) Act, 2001 to the Indian Stamp Act, and in particular to entry at Serial No. 5 (c) “Agreement or Memorandum of an agreement- (c) if not otherwise provided for” read with the entry at Serial No.53 “Receipt”, exemption (a), and Section 6 of the Indian Stamp Act. An agreement to sell does not by itself convey any right in an immovable property. It is not the case of either of the parties that the same was accompanied with delivery of possession. Consequently, there is no merit in the submission of the defendant that the same was required to CS(OS) 154.08 Page 9 of 35 be registered under Section 17 of the Registration Act. Therefore there is no merit in preliminary objection nos. 3 and 4 raised by the defendant and they are rejected. 11. The submission of the learned Senior Counsel for the defendant is that the defence set up by the defendant as extracted hereinabove in para 10 of the written statement is that the defendant had executed the receipt exhibit P-1 in good faith. The said receipt does not reflect the actual transaction between the parties. The transaction as initially entered into between the parties was that the plaintiff would pay to the defendant Rs. 6.50 crores in addition to giving her 400 Sq. ft. built up area on the ground floor so that she could run a boutique therefrom. Her defence also is that the plaintiff did not have the money readily available to pay to her the amount of Rs. 6.50 crores and the plaintiff also stated that he could not make a commitment to transfer rights in her favour in respect of 400 Sq.ft on the ground floor of the property since he did not have 100% rights in the complete property. The plaintiff desired the execution of the receipt by the defendant as dictated by him, so that he could use the same to raise a loan from the bank, after which he would get a proper agreement executed with the defendant. The defence is that the agreement was executed in good faith and upon the plaintiff‟s assurance that the document was not to be used as an agreement, but was required only for raising a loan. It is also stated by the defendant that the smaller amount of Rs. 1.60 crores was written on CS(OS) 154.08 Page 10 of 35 exhibit P-1 as the plaintiff wanted to save the stamp duty at the time of registration in future. 12. Mr. Singh submits that these aspects require a trial. He also submits that there is no unambiguous and clear admission by the defendant of the transaction set up by the plaintiff. He submits that in these circumstances it is not permissible for the court to pass a decree under Order 12 Rule 6 CPC. This provision can be invoked only in the case of a clear and unambiguous admission by the defendant in favour of the plaintiff. He submits that the entire defence of the defendant is to be taken and read as a whole and a part of it cannot be read in isolation. Mr. Singh has also relied upon the following decisions in support of his aforesaid submission: 1. AIR 1986 SC 1509 Doodhnath Pandey Vs. Suresh Chand Bhattasali wherein the Hon‟ble Supreme Court held that if the court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the rest. 2. 129 (2006) DLT 755 (DB) Raj Kumar Chawla Vs. Lucas Indian Services wherein the Division Bench of this court held that if there is no unambiguous, specific and clear admission by the defendant of his liability towards the plaintiff, much less of any definite claim as stated in the plaint, in the written statement and large factual and legal controversies have CS(OS) 154.08 Page 11 of 35 been raised which require determination by the court of competent jurisdiction, a decree could not be passed by invoking Order 12 Rule 6 CPC. 3. 2007 VII AD (DELHI) 266 Vijay Gupta and Ors (Mrs.) Vs. Sh. Ashok Kumar Gupta, wherein the Division Bench held that to pass a decree under Order 12 Rule 6 C.P.C there should be unambiguous and clear admission which alone can form the basis for passing such decree. 4. 149 (2008) DLT 303 Daljit Singh Anand Vs. Harjinder Singh Anand wherein the court held that in case the defendant in no uncertain terms disclaims the genuineness and veracity of the transaction pleaded by the plaintiff, and the averments indicate fraud was allegedly played upon by him and his father, and the averments also are to the effect that the defendant executed certain documents under a mistaken belief, the Court has to keep these in mind and cannot ignore the effect of such pleadings, merely with a view to give effect to provisions of Order 12 Rule 6 C.P.C. 13. Mr. Singh, therefore, submits that no decree under Order 12 Rule 6 C.P.C can be passed in the facts and circumstances of the present case. 14. Mr. Garg on the other hand submits that it is not permissible for the defendant to set up a defense, as set up by her in the written CS(OS) 154.08 Page 12 of 35 statement, by virtue of Sections 91 and 92 of the Evidence Act and in the face of admitted document i.e. Exhibit P-1. The defence set up by the defendant is contrary to the terms of the admitted document. 15. He submits that the first defence set up by the defendant is that the agreed sale consideration was Rs. 6.50 crores, in addition to the defendant being given 400 Sq.ft. area on the ground floor to run a boutique. He submits that this defence is contrary to the express term of the receipt-cum-agreement which state that the consideration for the sale of the defendant‟s 1/5th undivided share in the suit property is Rs. 1.60 crores. There is no mention of the defendant being given any area on the ground floor. In contra distinction, there is a specific mention of the terrace remaining common for all. 16. The second defence of the defendant is that the plaintiff had stated that he did not have the means to pay the amount of Rs. 6.50 crores and therefore, requested the defendant to execute the receipt Ex.P-1 so that the plaintiff could obtain a loan from the bank by using the receipt. This stand of the defendant is unintelligible. It does not stand to reason that if the market value of the defendant‟s share was indeed Rs.6.50 crores, as claimed by her, why should the plaintiff ask the defendant/her son-in-law to record the total consideration as Rs.1.60 crores, if the purpose of the execution of Ex.P-1 was to obtain a loan from the bank. The stand of the defendant is also contrary to the terms of the document Ex. P-1, inasmuch as, the receipt Ex.P-1 does not purport to be a document created to enable the plaintiff to CS(OS) 154.08 Page 13 of 35 obtain the loan. Ex.P-1 very clearly sets out the transaction entered into between the parties, viz. namely that the defendant has agreed to sell her 1/5th undivided share in the suit property to the plaintiff for a total consideration of Rs. 1.60 crores. 17. The third defence set up by the defendant is that the defendant has not received any consideration from the plaintiff. To this Mr. Garg submits that even this defence is not permissible since the receipt itself records the receipt of Rs. 50,000/- in cash and Rs. 25,00,000/- by cheque. It is not open to the defendant to contend otherwise. He submits that if the defendant chose not to encash the cheque, the same was at her own peril. She cannot deny the receipt of Rs. 50,000/- in cash. She also cannot deny the factum of having received the cheque for Rs. 25,00,000/-. She admitted receipt thereof at the time of execution of the receipt Ex.P-1. 18. Having considered the submissions of Mr. Garg, I am inclined to agree with him. 19. Sections 91 and 92 of the Evidence Act are relevant and are reproduced herein below: “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of CS(OS) 154.08 Page 14 of 35 property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exception 1. - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. - Wills [admitted to probate in [India]] may be proved by the probate. Explanation 1. - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation. 2. - Where there are more originals than one, one original only need be proved. Explanation 3. - The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. 92. Exclusion of evidence of oral agreement.—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party [want or CS(OS) 154.08 Page 15 of 35 failure] of consideration, or mistake in fact or