IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA No.473/2004
Judgment delivered on: 13.01.2011
SHRI HANS RAJ GOEL ..... Appellant
Through: Mr. J.K.Nayyar, Advocate.
Versus
SHRI RAM NIWAS AND ANR. ..... Respondents
Through: Mr. Murari Tiwari with
Ms.Priyanka Nayak,
Advocates.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
KAILASH GAMBHIR, J. Oral:
RFA No.473/2004 Page 1 of 14
1. By this appeal filed under Section 96 of the Code of
Civil Procedure, 1908, the appellant seeks to challenge the
judgment and decree dated 15.04.2004, whereby the suit filed
by the appellant for declaration, permanent injunction,
possession and damages in respect of the property bearing
No.C-9/3, Wazirpur Industrial Area, Delhi was dismissed.
2. Brief facts of the case, as per the appellant and relevant
for deciding the present appeal are that the appellant was the
owner of the property bearing no. C/93 Wazirpur Industrial
Area, Delhi and had entered into a commission agreement
with the respondents with regard to half the portion of the
said property on 5.10.1985. That vide agreement to sell dated
10.5.95 the appellant sold the said portion of the property to
the respondents for a sum of 3 lakhs and an amount of
Rs. 2,75,000 was received by the appellant through the
Banker’s cheque dated 9.5.1995 on that day and the balance
of Rs.25,000 was to be paid by the respondents within two or
three days. That the respondents failed to pay the balance
amount and the appellant served a legal notice dated
RFA No.473/2004 Page 2 of 14
27.10.1997, which was not replied to by the respondents.
Thereafter the appellant cancelled the Will and the General
Power Of Attorney executed in favour of the respondent no.1
and 2 respectively on 8.10.1997 and sent a notice of the same
on 14.10.1997 which was not replied to by the respondents.
Consequently, the appellant filed a suit for declaration,
permanent injunction, possession of the suit property and
damages which vide judgment and decree dated 15.4.2004
was dismissed. Feeling aggrieved with the same, the
appellant has preferred the present appeal.
3. Assailing the judgment and decree passed by the
learned trial court, counsel for the appellant submits that the
entire sale consideration amount was not paid by the
respondent and in fact only an amount of Rs.2,75,000/- was
paid by the respondent, leaving a balance amount of
Rs.25,000/- still to be paid by the respondent. Inviting
attention of this court to the clause of agreement to sell
which states that any dues demands etc. of sales tax,
RFA No.473/2004 Page 3 of 14
income tax charges in the name of M/s. Delhi Wire and
General Mills up the date hereto shall be paid by the first
party and thereafter shall be paid by the second party, the
counsel contended that the house tax dues were not
included in the said clause and the learned trial court
wrongly observed that the said clause also took care of the
house tax dues. Counsel further submits that the respondent
had approached the House Tax Authorities with mala fide
intention to seek mutation of the property without even
making the payment of the balance sale consideration amount
of Rs.25,000/-. The contention of counsel for the appellant is
that the respondent had no competence or authority to
approach the House Tax Authorities to seek mutation of the
said property under sale, once the respondent had failed to
fulfill his part of obligation in terms of the agreement to sell.
Counsel also submits that the learned trial court wrongly
referred to the reply sent by the respondent as a notice and
has returned a wrong finding on this aspect and therefore the
impugned judgment deserves to be set aside.
RFA No.473/2004 Page 4 of 14
4. Refuting the submissions of counsel for the
appellant, Mr.Murari Tiwari, the counsel appearing for the
respondents submits that in terms of the above referred
clause of the agreement to sell, the appellant had clearly
agreed that any demands which were due relating to the
property in question upto the date of execution of the
agreement to sell shall be the liability of the appellant and
thereafter that of the respondents. Counsel further submits
that the appellant had failed to clear the outstanding dues of
the house tax and when the respondents had approached the
office of the M.C.D to seek mutation of the said property in
their favour, it was learnt by the respondents that the demand
raised by the M.C.D for a sum of Rs.2,06,696/- upto the year
1994-95 for the entire property was still outstanding. Counsel
further submits that after having learnt about the said
demand from the office of the M.C.D, the respondents had
approached the appellant to pay the said amount, but on
refusal by the appellant, the respondents had paid an amount
of Rs.1,03,348/- in respect of the half share of the said
RFA No.473/2004 Page 5 of 14
property which was purchased by the respondents. Counsel
thus submits that with the payment of said demand of house
tax, it is the appellant who is liable to pay the balance amount
to the respondents instead of raising a false claim of non-
payment of the alleged balance sale consideration amount of
Rs.25,000/-. Counsel thus submits that the appellant illegally
and mala fidely cancelled the sale documents and had also
filed various cases against the respondents with ulterior
motive.
5. I have heard learned counsel for the parties at
considerable length and gone through the records.
6. The respondent was in occupation of the half
portion of the factory in question by virtue of agreement
dated 05.10.1985 proved on record as Ex.DW-1/P-1 and
thereafter on 10.05.1995 the appellant had agreed to sell the
said half portion in favour of the respondents for a total sale
consideration amount of Rs.3 lacs vide agreement to sell
dated 10.05.1995 proved on record as Ex.PW-1/D-6. Out of
the sale consideration amount of Rs.3 lacs, a sum of
RFA No.473/2004 Page 6 of 14
Rs.2,75,000/- was paid by the respondents to the appellant
vide banker’s cheque dated 09.05.1995. Various other
documents were also executed by the appellant towards sale
of the said property such as indemnity bond, receipt, affidavit,
special power of attorney, general power of attorney and all
these documents were proved on record by the appellant. It is
also not in dispute that the said property in question was also
mutated in the house tax records in the name of the
respondents.
7. The main emphasis of argument of counsel for the
appellant is that the respondents had failed to pay the balance
sale consideration amount of Rs.25,000/- which, as per the
appellant, the respondents were required to pay within a
period of two or three days from the date of execution of the
agreement to sell, otherwise the advance amount of
Rs.2,75,000/- paid by the respondents to the appellant was to
be forfeited. Counsel for the appellant also submitted that the
appellant had cancelled the Will and General Power of
Attorney on 8.10.97. The stand of the respondents on the
RFA No.473/2004 Page 7 of 14
other hand is that the appellant had received the amount of
Rs.2,75,000/- as full and final consideration towards the sale
of the said property and the balance amount of Rs.25,000/-
was kept by the respondents as reserve amount towards
outstanding dues, if any, left to be paid by the appellant, be
towards property tax, income tax or sale tax etc. The
respondents have also taken a stand that in fact the
respondents had already paid an amount of Rs.1,03,348/- to
clear their liability towards the house tax dues.
8. Before carrying any further discussion on this
contentious issue, it would be apt to reproduce the following
terms of the agreement to sell :-
“…………And whereas the first party agreed to sell the said property
with the present construction with all fittings and fixtures along the
lease hold rights of the land attached thereto measuring 309 sq. yds.
(31′. 4″x88′. 9”) i.e. southern portion for a sum of Rs.3,00,000/-
(Rs. Three lacs only) from the second party being the full and final
price of the said property and the receipt of which the first party
hereby acknowledge through separate receipt duly signed at Delhi by
a Banker’s cheque only.
That the first party assures the second party that the first party is
the rightful owner of the said property being owner of the said firm
M/s. DELHI WIRE AND GENERAL MILLS and the said portion of the
said property is absolutely free from all kinds of encumbrances, such
as sales, mortgage, gift, liens, surety, guarantee, attachment in the
decree of any court etc. and if it is proved otherwise then the first
party shall be liable and responsible for the same to indemnify the
second party of all losses, costs and expenses thus suffered by the
second party in this connection.
RFA No.473/2004 Page 8 of 14
Thus any dues, demands etc. of Sales Tax, Income Tax charges in
the name of M/s.DELHI WIRE AND GENERAL MILLS upto the date
hereto shall be paid by the first party and thereafter shall be paid by
the second party.
That after obtaining the necessary permission to sell the said
property the first party assures shall execute a sale deed in favour of
the second party or nominee/s, failing which the second party is
entitled to get the same registered through the court of law under
specific performance of the contract at the cost and expenses of the
first party……….”
9. The aforesaid terms of the agreement to sell
unequivocally disclose that the appellant had acknowledged
the receipt of the total sale consideration amount of Rs.3 lacs
from the respondents. No doubt, the said covenant of receipt
of Rs.3 lacs by the appellant is not in conformity with the
receipt which was separately executed by the appellant
wherein the appellant had acknowledged receipt of a sum of
Rs.2,75,000/- vide banker’s cheque drawn on Bank of India,
Ashok Vihar, Delhi, but in this receipt also, the appellant has
again stated that the said payment of Rs.2,75,000/- is full and
final payment of the sale price in respect of the southern
portion of the property being sold in favour of the
respondents. Nowhere in the agreement to sell or in the
RFA No.473/2004 Page 9 of 14
receipt or in any other documents there is any stipulation
which can show that the respondents had agreed to pay the
balance sale consideration amount of Rs.25,000/- to the
appellant. Counsel for the appellant failed to point out as to in
which document the respondents can be shown to have
agreed to pay the balance sale consideration amount of
Rs.25,000/- within a day or two, the plea which was taken by
the appellant before the learned trial court. Once the
appellant himself had agreed that the receipt of Rs.2,75,000/-
would be the total sale consideration amount of the said
property in terms of receipt proved on record as PW1/D1,
coupled with the fact that in the agreement to sell the
appellant has gone to the extent of stating the receipt of Rs.3
lacs i.e. the entire amount towards the sale consideration of
the subject property then how come the appellant can still
agitate that a balance amount of Rs.25,000/- was yet to be
paid by the respondent.
10. In the face of these two very documents, it is
totally incongruous on the part of the appellant to
RFA No.473/2004 Page 10 of 14
subsequently take a plea in the court that the balance sale
consideration amount of Rs.25,000/- was still left to be paid by
the respondents. In the absence of any such stipulation in the
agreement to sell or in any other document, no other evidence
can be looked into in view of Section 91 and 92 of the Indian
Evidence Act, 1872. So far the contention of counsel for the
appellant that the respondents themselves had admitted the
fact that an amount of Rs.25,000/- was not paid by the
respondents and that the admission on the part of the
respondents by itself would prove the case of the appellant is
concerned, this argument is equally devoid of any force.
Counsel for the appellant has not denied the fact that the
respondents had paid an amount of Rs.1,03,348/- towards the
house tax liability of the appellant and that the said liability
was for the period before the date of execution of agreement
to sell. Although specifically house tax dues were not
mentioned in the agreement to sell, but it was the moral and
legal obligation of the appellant to have disclosed the liability
of the house tax dues standing on the said property as on the
RFA No.473/2004 Page 11 of 14
date of execution of agreement to sell. There was a clear
suppression on the part of the appellant in not disclosing the
said arrears of house tax dues standing on the said property.
The learned trial court has rightly observed that the words
“any dues, demands etc.”, including the demand towards
property tax contained in the agreement to sell might not be
happily worded, but in the given facts the words “any dues,
demands etc.” can be taken to have included the demand of
the house tax as well. The respondents have proved on record
that the payment of Rs.1,03,348/- was paid by them towards
house tax liability and with the said payment having been
made by the respondents, the appellant cannot be seen to
take a stand that the said amount of Rs.25,000/- was not
meant for liquidating the liability of the appellant towards
house tax dues. The respondents had even called upon the
appellant to return the additional amount of Rs.78,348/- vide
legal notice dated 03.01.2001 proved on record as Ex.DW-1/G.
It is quite intriguing to find that instead of the appellant
disclosing his liability towards the arrears of house tax, all
RFA No.473/2004 Page 12 of 14
illegal steps in cancelling the sale documents and then filing
the suit in question were taken by the appellant.
11. So far the argument of counsel for the appellant
that the respondents had no right to seek mutation of the said
property in the house tax records is concerned, this argument
of counsel for the appellant is also totally unfounded. Once
the appellant had sold the said property in favour of the
respondents then nothing could come in the way of the
respondents to seek mutation of the same in the house tax
records. With regard to the last limb of the argument of
counsel for the appellant that the learned trial court wrongly
held that the appellant dragged the respondents in court after
having received the legal notice dated 03.01.2001, this plea of
the counsel for the appellant also lacks merit, as filing of the
suit either prior to the receipt of legal notice dated
03.01.2001 or thereafter is hardly of any consequence, as the
suit filed by the appellant was patently false and untenable in
law.
RFA No.473/2004 Page 13 of 14
12. In view of the above discussion, this Court does not
find any illegality or perversity in the impugned judgment and
decree passed by the learned trial court and the same is
upheld.
13. There is no merit in the present appeal and the
same is hereby dismissed.
January 13, 2011 KAILASH GAMBHIR, J
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RFA No.473/2004 Page 14 of 14