* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 223/2011
Reserved on: 2nd November, 2011
% Pronounced on: 11th November, 2011
SH. HARVINDER SINGH ..... Appellant
Through : Ms. Ashu Arora, Advocate.
versus
SH. SURESH KUMAR TEHRI ..... Respondent
Through : Mr. R.P. Shukla, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under
Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment of the trial Court dated 18.3.2011. By the impugned judgment, the
trial Court decreed the suit for specific performance filed by the
respondent/plaintiff with respect to the subject/suit property being flat No.J-
2/100A, DDA Flats, Kalkaji, New Delhi (hereinafter referred to as the
“suit/subject property”).
2. The facts of the case are that an agreement to sell and purchase
was executed on 27.9.2004 between the parties, the respondent/plaintiff
RFA No.223/2011 Page 1
being the prospective purchaser and the appellant/defendant being the
prospective seller. The total sale consideration fixed for sale of the suit
property was Rs. 6 lacs and out of which a sum of Rs.1,15,000/- was paid to
the appellant/defendant as advance money. The balance sale consideration
of Rs.4,85,000/- was agreed to be paid on or before 31.3.2005 at the time of
execution of the sale deed and handing over possession of the suit property.
The appellant/defendant gave the title deeds of the suit property to the
respondent/plaintiff. The respondent/plaintiff further paid a sum of
Rs.60,000/- to the appellant/defendant on 1.10.2004. When the
respondent/plaintiff approached the appellant/defendant on 30.3.2005 to
execute the sale deed, the appellant/defendant requested for one month
time to arrange an alternative accommodation for shifting from the suit
premises. When the respondent/plaintiff again asked the
appellant/defendant to execute the Sale Deed on 30.4.2005, again the
appellant/defendant asked for time. A second agreement/document was
entered into between the parties on 25.5.2005. On account of the failure of
the appellant/defendant to execute the sale deed, the respondent/plaintiff
filed a police complaint and on registering of an FIR, the appellant was
arrested and thereafter released on bail. Ultimately as the
appellant/defendant failed to execute the sale deed the subject suit for
specific performance came to be filed.
3. The defence of the appellant/defendant was that the RFA No.223/2011 Page 2
respondent/plaintiff agreed to get the property of the appellant/defendant
exchanged for some other property and therefore the appellant/defendant
executed certain blank papers, including blank signed receipts over stamps
and handed them to the respondent/plaintiff. For the same purpose the
appellant/defendant also handed over the title documents of the property to
the respondent/plaintiff. It was also alleged that the appellant/defendant
handed over three cheques to the respondent/plaintiff amounting to
Rs.50,000/- (two) and Rs.60,000/- (one). It was stated that if the deal is not
finalized the respondent/plaintiff will return the cheques.
4. After pleadings were complete, the trial Court framed the
following issues:-
“1. Whether documents stated to be advance receipt cum
agreement to sell and purchase dated 27.09.2004, receipt dated
1.10.2007, another receipt 30.03.2005 and affidavit in the name of
Sh. Harvinder Singh dated 15.10.05 are forged and fabricated
documents? OPD
2. Whether plaintiff is entitled for a decree of specific
performance for agreement to sell as claimed in this case? OPP
3. Relief.”
5. The main issue was issue No.1 and which has been dealt with by
the trial Court as under:-
“13. ISSUE NO.1: It is sworn on oath by the plaintiff (PW1), in
his affidavit (Ex.PW1/A) that defendant entered into an agreement
to sell with him on 27.09.04, with respect to the suit property. An
agreement was written on a stamp paper of Rs.50/- which is
Ex.PW1/1. Defendant signed it on each and every page. The
latter received a sum of Rs.1,50,000/- as advance money. On the
request of defendant, he paid Rs.60,000/- to the former on
1.10.04. Receipt in this regard is Ex.PW1/2, which was witnessesRFA No.223/2011 Page 3
by the wife of defendant. A sum of Rs.80,000/- was again paid to
the defendant on 30.03.05, receipt in this regard is Ex.PW1/3. The
defendant gave undertaking on the back side of first page of the
agreement dated 27.09.04. Defendant executed further
agreement on 25.05.05 stating that he would not seek further
extension of time, it was also witnesses by his wife. After being
released on bail in case FIR No.1033/2005, PS Kalkaji, the
defendant gave an undertaking on 15.05.05, to hand over the
possession of the suit property to the plaintiff, after receiving
balance amount.
14. In his affidavit (Ex.DW1/A), the defendant denied having
entered into any agreement to sell, the suit property with the
plaintiff for a consideration of Rs.6 Lakhs or having received any
amount like Rs.60,000/- on 1.10.04 or Rs.80,000/- on 30.03.05.
DW1, during his cross examination admitted to have signed some
documents but claimed that these were blank papers. After
seeing documents Ex.DW1/D1, Ex.DW1/D2 and Ex.DW1/D3, the
defendant identified his signatures on these documents. He also
admitted having received a sum of Rs.2,10,000/- from the plaintiff
between 2004-2006 but clarified that same was loan amount.
DW1/5 is copy of receipt.
15. Even, at the time of deliberations, it is not disputed that said
documents were signed by the defendant. It is not proved on the
record that any of these documents was blank, when was signed
by the defendant or the latter was induced by the plaintiff to sign
any of these documents or the same were forged and fabricated
documents. This issue is therefore decided against the
defendant.” (underlining added)
6. I agree with the findings and conclusions of the trial Court. My
detailed reasons, I am giving in the later portion of this judgment after
setting out the arguments as advanced by the counsel for the
appellant/defendant.
7. Before this Court, the counsel for the appellant/defendant once
again reiterated that documents which were signed by the
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appellant/defendant were blank and were in fact executed by the appellant
so that the property of the appellant/defendant could be exchanged for
another property which was to be found out by the respondent/plaintiff. It is
argued that document being the second agreement dated 25.5.2005 would
have to be a blank document inasmuch as the said agreement does not talk
of the earlier receipts which were executed by the appellant/defendant in
favour of the respondent/plaintiff. It is also argued that the police complaint
which was filed by the respondent/plaintiff made no mention of the second
agreement dated 25.5.2005. It was also urged on behalf of the
appellant/defendant by her counsel that the contents of the documents show
that the documents were signed in blank.
8. The main issue therefore would be whether the various
documents which are stated to have been executed by the
appellant/defendant in favour of the respondent/plaintiff were blank and
signed only for the purpose of getting in exchange another property. The
following documents have been proved and exhibited before the trial Court
as having been executed by the appellant/defendant:-
(i) Agreement to sell dated 27.9.2004 Ex.PW1/1. Behind the back of
the first page of the agreement to sell there is endorsement bearing the
signatures of the appellant/defendant that the last date for full and final
payment will be 30.4.2005, and which is an endorsement made subsequent
to the agreement Ex.PW1/1. This endorsement is Ex.DW1/D1.
RFA No.223/2011 Page 5
(ii) The receipt for Rs.60,000/- dated 1.10.2004 Ex.PW1/2
(Ex.DW1/D4).
(iii) Receipt dated 30.3.2005 showing payment of Rs.80,000/-
Ex.PW1/3(Ex.DW1/D5)
(iv) Undertaking on non-judicial stamp papers dated 15.10.2005 of
the appellant/defendant to hand over vacant possession of the suit property
by 5.11.2005 and receive the balance consideration, Ex.PW1/5.
9. In my opinion, the argument raised on behalf of the
appellant/defendant that he signed blank documents for getting his property
exchanged with another property which was to be found out by the
respondent/plaintiff is quite clearly a false and dishonest argument for the
following reasons:-
(i) It is not possible in today’s circumstances for a person to have
signed not one but as many as five documents allegedly in blank, especially
inasmuch as it is not as if there was such great closeness between the
parties for handing over of blank signed documents, more so documents
which include signatures across the revenue stamps. Such convenient stand
have a more ring of falsehood in it than anything else.
(ii) The back of the stamp paper of the agreement to sell Ex.PW1/1
shows that the stamp paper was purchased in the name of the
appellant/defendant and that too for an agreement to sell.
(iii) The endorsement signed bearing the signatures of the
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appellant/defendant made at the back of the first page of the agreement to
sell viz. Ex.DW1/D1 shows that there is a subsequent acceptance of the
original agreement to sell.
(iv) The very fact that original title documents are in possession of
the respondent/plaintiff is a very strong factor to hold that there was an
agreement to sell and not that the appellant/defendant had signed
documents in blank for getting his property exchanged with another
property. Title documents of a property are very vital documents and the
same are handed over only when ownership in the same is sought to be
transferred. It is inconceivable for any person to hand over all the original
title documents of his property to a third person allegedly because he
wanted to get his property exchanged for some another property.
(v) The second agreement to sell dated 25.5.2005 is witnessed by
the wife of the appellant/defendant. Though the appellant/defendant has
sought to conveniently deny the signatures of his wife, however, no
affirmative evidence has been led to show that if the signatures appearing
on this agreement dated 25.5.2005 are not the signatures of the wife of the
appellant/defendant, then, what are the real signatures of the wife of the
appellant/defendant.
(vi) All the documents executed by the appellant/defendant in favour
of the respondent/plaintiff are witnessed by one Mr. M.R. Behl, who is a
resident of the locality and in the cross-examination the appellant/defendant
RFA No.223/2011 Page 7
has admitted that he has no disputes with Mr. M.R. Behl. Sh. M.R. Behl, the
witness therefore, is an independent and neutral witness, whose testimony
with respect to execution of documents by the appellant/defendant in favour
of the respondent/plaintiff needs to be accepted.
10. In addition to the above reasons, there are two clinching
evidences which show that an agreement to sell was executed between the
parties and it was not as if that the appellant/defendant had given blank
signed papers for getting his property exchanged. These reasons are:-
(i) The case of the appellant/defendant was that he signed all the
documents together in one go in blank. This is proved to be ex facie false
because the undertaking Ex.PW1/5 is on a non-judicial stamp paper of
15.10.2005. Obviously stamp papers of 15.10.2005 could not have come
into existence earlier on 27.9.2004 when the agreement to sell Ex.PW1/1
was executed. This undertaking was executed after the appellant/defendant
was arrested and then released on bail. The appellant/defendant backing
out of this undertaking shows the height of dishonesty to which
appellant/defendant will resort to. The language of this undertaking is
relevant and the same is reproduced as under:-
“I, Harvinder Singh Arora son of Late Sardar Milkha Singh Resident
of J-2/100A, D.D.A. Flats, Kalkaji, New Delhi-110019, do hereby
undertake as under:-
1. That I had entered into a Agreement to Sell and Purchase
dated 27th day of September, 2004 with a Purchaser Shri Suresh
Kumar Tehri Son of Late Shri Ram Parkash Tehri resident of J-2/51
AB, D.D.A. Flats, Kalkaji, New Delhi-110019 for the sale of my
RFA No.223/2011 Page 8
property bearing no.J-2/100 A, Ground Floor, D.D.A. Flats, Kalkaji,
New Delhi-110019.
2. That I did not give the possession of the aforesaid flat to the
purchaser on or before the agreed date of 31.3.2005.
3. That the purchaser subsequently lodged a complaint with
the Kalkaji Police Station on 29.5.2005 and a case was filed by the
Purchaser in the Court of Hon’ble Judge Shri S.K. Aggarwal in
Patiala House Courts, New Delhi.
4. That I have been directed by the Hon’ble Judge, to reach a
settlement with the purchaser for handing over the possession of
the flat to the purchaser.
5. That I hereby undertake that I shall deliver the vacant and
peaceful possession of the aforesaid flat to the purchaser on or
before 5th day of November, 2005 and I shall receive the balance
full and final payment as stated in the aforesaid advance
Agreement to Sell and Purchase dated 27th day of September,
2004.
IN WITNESS WHEREOF I, the executants have put my hands on the
day, month and year herein mentioned below in the presence of
the following witnesses:-
PLACE: NEW DELHI
DATE: 15TH DAY OF OCTOBER, 2005
WITNESSES:- (HARVINDER SINGH ARORA)
EXECUTANT"
A reading of the aforesaid undertaking shows that the
documents being agreement to sell and the subsequent receipts could never
have been signed in blank alongwith this particular document which is dated
15.10.2005. The contents of the same also show that the same cannot be a
document which could have been signed in blank inasmuch as on 27.9.2004
it could not have been known that a police complaint would be filed by the
respondent/plaintiff against the appellant/defendant in June, 2005 and that a
specific Judge S.K.Aggarwal would deal with the criminal case. In fact, the
first witness who has signed on this undertaking is the brother of the
RFA No.223/2011 Page 9
appellant/defendant. Therefore this undertaking Ex.PW1/5 lays bare the
falsity of the case of the appellant/defendant.
(ii) The second clinching document which I found from the
record, though the same is not referred to by the Court below is the first
page of the bail application filed by the appellant/defendant. In para 3 of this
bail application, the appellant/defendant in categorical terms admits that he
was always ready and willing to return the earnest amount received by him.
This categorical admission made in judicial proceedings shows that the
appellant/defendant had received monies from the respondent/plaintiff and
that also as an earnest amount.
I may hasten to add that this argument is only an additional
independent argument, and which I am stating inasmuch as the bail
application is not exhibited in the trial Court, however, the said application
would clearly be an admitted document and therefore I am referring to the
same.
11. During the course of hearing of this appeal, this case was
adjourned on two occasions in order to enable the appellant/defendant to
arrive at a compromise, however, after two adjournments it was stated that
compromise was not possible and thereafter this case was argued.
12. A resume of the above facts shows that there is no merit in the
appeal and the appellant/defendant having received the substantial amounts
over different dates and agreeing to execute the sale deed, failed to do so by
RFA No.223/2011 Page 10
using the false and dishonest defence. A person such as the
appellant/defendant therefore is not entitled to any relief from the Court of
law. I may also state that handing over of original title documents of a
property is a near conclusive factor for holding that in fact ownership in the
suit property was sought to be transferred by the appellant/defendant to
respondent/plaintiff. Any doubt on this aspect is removed by execution of
the undertaking dated 15.10.2005 Ex.PW1/5 by the appellant/defendant in
favour of the respondent/plaintiff. The arguments raised on behalf of the
appellant by his counsel in this court have no substance in view of the
reasoning given by me above. Also a complaint to a police is not like a plaint
in a suit for specific performance where all facts and all executed documents
have to be referred to and hence the argument of the appellant that the
police complaint does not refer to receipts executed does not take the case
of appellant further.
13. No other point was urged or argued before this Court by any of
the parties.
14. In view of the above, there is no merit in the appeal. The same
is therefore dismissed, leaving the parties to bear their own costs. Trial
Court record be sent back.
VALMIKI J. MEHTA, J
NOVEMBER 11, 2011
Ne
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