HIGH COURT OF DELHI: NEW DELHI
RFA No. 540/2005
Judgment reserved on: 11.11.2009
Judgment pronounced on: 16.12.2009
J.C. DEY ...... APPELLANT
Through: Mr. P.K. Mitra, Adv.
Versus
D.C. BANERJEE ...... RESPONDENT
Through: Ms. Indrani Ghosh, Adv.
CORAM:
HON’BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest or not?
Yes
S.L. BHAYANA, J
The present appeal has arisen out of the judgment passed by the
Additional District Judge, Delhi in Suit No. 174/03/98 on 22.1.2005,
wherein the learned ADJ has dismissed the suit of the
plaintiff/appellant with costs of Rs.50,000/-
2. The brief facts of the case as submitted by the appellant are that
the respondent/defendant has entered into an agreement to sell the
suit property bearing no. E.960, Chittaranjan Park, New Delhi to the
plaintiff/appellant on 11.7.1995 for consideration of Rs.55 lacs. The
appellant paid a sum of Rs.3 lacs as advance amount to the defendant
vide cheque nos. 036737 dated 11.1.1996, 03642 dated 06.2.1996 and
036745 dated 02.3.1996 for Rs.1 lac each. It is also urged on behalf
of the appellant that a sum of Rs.15 lacs in cash was also paid by the
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plaintiff to the defendant on different occasions vide proper receipts
duly signed by the defendant.
3. It is further the case of the appellant that he deposited a sum of
Rs.24,974/- vide pay order no. 180206 dated 24.7.1996 of Punjab
National Bank, Alaknanda, Kalkaji, New Delhi with L&DO, a competent
authority for converting the suit property from lease hold to free hold.
It is further submitted that after entering into agreement to sell with
the respondent, the appellant further entered into another agreement
to sell with one Vinod Chawla, son of Mr. B.R. Chawla, r/o 177, Golf
Links, New Delhi on 13.9.1996 whereby he agreed to sell the suit
property to Sh. Vinod Chawla.
4. It is also the case of the appellant that he cancelled the
agreement to sell with Sh. Vinod Chawla vide cancellation deed dated
24.2.1997. After cancellation of agreement to sell and purchase the
property dated 11.7.1995, the appellant introduced Sh. Vinod Chawla
to the respondent and the respondent entered into fresh agreement to
sell the suit property with Sh. Vinod Chawla. It is further submitted
that a sum of Rs.3 lacs which the respondent received from the
appellant as advance amount on 11.7.1995 was adjusted against the
cheque no. 097192 dated 13.9.1996. It is further submitted on behalf
of the appellant that he paid a sum of Rs.18,24,974/- to the respondent
and out of that amount of Rs.18,24,974/- only Rs.3 lacs was adjusted
by the respondent and therefore the respondent was liable to pay back
a sum of Rs.15,24,794/- to the appellant but the respondent has failed
to make payment inspite of repeated demands made by the appellant.
Ultimately, the appellant served a legal notice on the respondent on
18.5.1997 calling upon him to make payment of Rs.15,24,794/-. But
the respondent has again failed to make payment despite a legal
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notice and therefore the appellant filed the suit against the
respondent/defendant and prayed in the suit that a decree for a sum of
Rs.15,24,794/- with costs and interest be passed in favour of the
appellant/plaintiff and against the respondent/defendant.
5. In the written statement filed by the respondent/defendant, the
respondent/defendant admitted that he entered into an agreement to
sell the suit property with the plaintiff for a consideration of Rs.55 lacs.
He has further admitted that he received only a sum of Rs.3 lacs from
the appellant/plaintiff against three cheques of Rs.1 lac each. But the
respondent/defendant denied that he received a sum of Rs.15 lacs in
cash from the appellant/plaintiff at any point of time. He also denied
that he was liable to pay an amount of Rs.24,974/- deposited by the
plaintiff with L&DO for converting the suit property from lease hold to
free hold. It is the case of the respondent/defendant that the
appellant/plaintiff has already received the said amount from Sh. Vinod
Chawla prior to cancellation of agreement to sell dated 11.7.1995.
6. It is further the case of the respondent that the appellant has
entered into an agreement to sell the suit property with Sh. Vinod
Chawla on 13.9.1996 for higher amount of Rs.76 lacs and that the
appellant made a huge profit of Rs.22 lacs by signing the agreement to
sell of suit property in favour of Sh. Vinod Chawla. The respondent has
further stated that the agreement to sell between the parties was
cancelled on 24.2.1997. He further admitted that the agreement to
sell between the appellant and Sh. Vinod Chawla was also cancelled on
the same date.
7. It is further a case of the respondent that the appellant has
received a profit of Rs.22 lacs from this transaction with Sh. Vinod
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Chawla and after receiving the profit, the appellant cancelled the
agreement to sell with Sh. Vinod Chawla. It is also the case of the
respondent that the appellant being a property dealer would never
have cancelled the agreement with the respondent without receiving
the amount, if any, due from the respondent and would not sign „no
lien‟ agreement against the suit property if any amount was due from
the respondent. It is further submitted on behalf of the respondent
that since in the Cancellation Deed it is categorically mentioned that
the second party/appellant has no lien against the suit property and no
claim whatsoever from the first party/respondent against the suit
property, so the question of payment of Rs.15 lacs, which was never
paid by the appellant to the respondent does not arise.
8. From the pleadings of both the parties, the learned ADJ framed
following issues:
i. “Whether the plaintiff paid a sum of Rs.15 lacs to the defendant
in cash, as alleged in para no. 4 of the plaint? OPP
ii. Whether the plaintiff made a profit of Rs.22 lacs as alleged in
preliminary objection no. 4 in the Written Statement, if so, to
what effect? OPD
iii. To what amount if any is the plaintiff entitled from the
defendant? OPP
iv. Relief.”
9. Both the parties filed their affidavits by way of evidence and
cross-examined their witnesses in support of the case. The affidavit
filed by the plaintiff/appellant by way of evidence is Ex. PW-1 wherein
he has stated that out of Rs.18,24,974/-, Rs.3 lacs was paid by him
against three cheques each and Rs.15 lacs was paid by him to the
respondent in cash on different occasions against duly signed receipts.
But the appellant has failed to produce even a single receipt showing
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that a sum of Rs.15 lacs was paid by him to the respondent nor
produced any other proof for the same. The appellant admitted in his
cross-examination that he has not shown the payment made in cash in
his income-tax returns. The appellant further admitted that Rs.3 lacs
which was paid by way of cheques to the respondent stood adjusted
with the respondent when he entered into an agreement to sell with
Sh. Vinod Chawla. It was also admitted that Rs.24,974/- was deposited
by him with L&DO for conversion of suit property from lease hold to
free hold and this fact was also mentioned in the agreement to sell
between the parties. He further admitted that he has taken Rs.17 lacs
in cash from Sh. Vinod Chawla and executed the receipt (Ex. PW-1/3).
10. The respondent/defendant was also cross-examined as DW-1 and
filed his affidavit by way of affidavit wherein he has admitted receiving
of Rs.3 lacs as advance payment from the appellant/plaintiff by way of
post dated cheques of Rs.1 lac each. He deposed that Rs.3 lacs which
was paid by way of three cheques to the respondent stood adjusted
with the respondent when he entered into an agreement to sell with
Sh. Vinod Chawla. He further deposed that Sh. Vinod Chawla paid
Rs.22 lacs in cash to the appellant/plaintiff but he handed over a
receipt of payment only for Rs.17 lacs, which is also admitted by the
appellant/plaintiff. He has further deposed that Sh. Vinod Chawla paid
Rs.22 lacs in cash to the appellant/plaintiff in his presence. The
respondent/defendant has denied the fact that the appellant/plaintiff
paid Rs.15 lacs in cash to him at any point of time. Learned counsel
for the respondent hence denies that the appellant is entitled for any
recovery of Rs.15 lacs from the respondent.
11. I have heard the arguments from learned counsels for both the
parties and perused the records carefully. I have also gone through
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the affidavit filed by the appellant as Ex.PW-1 by way of evidence
before the Trial Court and also his cross-examination. The appellant in
his cross-examination has conceded that Rs.3 lacs paid by him to the
respondent by way of three cheques stood adjusted when the
respondent entered into an agreement to sell the suit property with Sh.
Vinod Chawla and those Rs.3 lacs are no more payble by the
respondent to the appellant. The appellant has also admitted in his
cross-examination that he cannot produce any cash receipts duly
signed by the respondent to prove that Rs.15 lacs was paid by him to
the respondent. He has also admitted in his cross-examination that he
has not shown the said payment of Rs.15 lacs in his income-tax
returns. It has also been admitted by the appellant in his cross-
examination that he has no other documents to prove that Rs.15 lacs
was paid by him to the respondent. The appellant further admitted in
his cross-examination that he entered into an agreement to sell the
suit property with Sh. Vinod Chawla for a consideration amount of
Rs.76 lacs and that he took Rs.17 lacs in cash from him and executed
the receipt as Ex.PW-1/D-3 and rest of the amount was paid by way of
cheques. He has also admitted that he had cancelled the agreement
to sell the suit property with Sh. Vinod Chawla but he earned a profit of
Rs.17 lacs through this deal from Sh. Vinod Chawla.
12. The appellant has further conceded in his cross-examination that
the agreement to sell the suit property between the appellant and the
respondent stood cancelled on 24.2.1997 vide Deed of Cancellation Ex.
PW1/D-4 and in the said cancellation deed, he has agreed that he
would have no lien/claim of any kind whatsoever in the suit property
and assured the respondent that he is free to execute any agreement
to sell or any other agreement of the property in question with any
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person whom he desires. The relevant clause appeared in the
cancellation deed is given as under:
“Whereas the Second Party and the First Party could not
follow and fulfill the terms of the said agreement, mutually
agreed to cancel this agreement to sell and purchase on this
day February, 1997. Hereafter the second party has no lien
claim of any kind whatsoever on the said property assured
to the first party, that he is free to execute any agreement
to sale or any other agreement of the property No. E-960,
C.R. Park, New Delhi with any person/persons, who he wish.”
13. In the said Cancellation Deed Ex. PW1/D-4, it is also mentioned
that the amount of Rs.3 lacs was paid by the appellant to the
respondent in advance stand adjusted, which finds mention in the
cancellation deed at the relevant para as under:
“Whereas the second party introduced a new purchaser Mr.
Vinod Chawla, S/o Late Sh. B.R. Chawla, R/o 177, Golf
Links, New Delhi and requested to the first party to enter
an agreement to sell with Sh. Vinod Chawla and adjust the
advance of Rs.3,00,000/- paid by him vide Ch. No. 097142
dt. 13.9.96 in sale consideration agreed with Sh. Vinod
Chawla.”
14. I have gone through the Cancellation Deed Ex. PW1/D-4 and from
this deed of cancellation, it is clear that Rs.3 lacs paid in advance by
the appellant to the respondent stood adjusted. It is also clear in the
cancellation deed that the appellant had categorically mentioned that
he had no lien/claim of any kind whatsoever against the property and
he declared the respondent free to enter into an agreement to sell the
suit property with any third person or a person of his choice, which
means that all the claims against the said property stood resolved and
satisfied so far as the appellant is concerned. The appellant has
willingly abandoned all his claims against the respondent qua the suit
property by signing the deed of cancellation and even the amount of
Rs.15 lacs which was paid by him to the respondent in cash has not
been proved by any cogent evidence produced by the appellant. So
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far as the claim of the appellant with regard to sum of Rs.24,974/- is
concerned, this claim also comes to an end because he has signed the
deed of cancellation in which he has mentioned no lien/claim of any
kind whatsoever against the suit property.
15. I have gone through the agreement to sell entered into and
appellant and the respondent dated. 11.7.1995 Ex. PW1/D-1 and the
said agreement finds mention that Sh. J.C. Dey, appellant (second
party) will bear all expenses on executions and registration of
documents, stamp duty, court fee, municipal taxes, registration fees
etc. and charges for conversion of the property from lease hold to free
hold. The same finds mention in para 3 of Agreement to Sell dated
11.7.1995 Ex. PW1/D-1, which reads as under:
“However it is specifically agreed between the parties
hereto that all the expenses on executions and registered
of the said deeds/documents i.e. stamp duty, court fee,
municipal taxes, registration fee etc., and charges for
conversion of the said property from lease hold to free hold
shall be borne and paid by the second party.”
16. In the said agreement, the appellant had explicitly stated that he
will bear all expenses/charges for conversion of suit property from
lease hold to free hold. He has also admitted in his evidence that the
amount of Rs.24,974/- was deposited by him L&DO for converting the
suit property from lease hold to free hold. In view of the agreement to
sell between the parties and in view of the clause 3 of Agreement to
Sell dated 11.7.1995, the appellant had deposited the amount of
Rs.24,974/- with L&DO and not with the respondent as claimed by the
appellant in this appeal. Moreover, the appellant has relinquished all
his liens/claims of any kind whatsoever against the suit property while
signing the Cancellation Deed dated 24.2.1997.
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17. Keeping in view the discussions made above, I find no merit in
the present appeal and the same is therefore dismissed.
18. No order as to costs.
S.L.BHAYANA, J
December 16, 2009
KA
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