Ajay Narain v. Arti Singh & Kanwar Raj Singh

3. Briefly stated, Smt. Kanso Devi, during her life time acquired the Suit Property bearing No.110, Jor Bagh, New Delhi vide Lease Deed dated 24.12.1960, executed in her favour by Land & Development Officer, New Delhi. The house was built by her from her own funds.

4. Smt. Kanso Devi and her husband Late Sh. Prem Narain adopted the Plaintiff in 1955 vide a Registered Deed of Adoption dated 27.05.1964. Smt. Kanso Devi executed a Will dated 21.06.1954, in respect of the suit property, thereby bequeathing it to her husband Sh. Prem Narain and after his demise to the Plaintiff. However, Sh. Prem Narain pre-deceased Smt. Kanso Devi, who died on 28.04.1986 after which the Plaintiff became the absolute owner of the suit property and he along with his family, has been residing on the Ground Floor since May, 1974.

5. The Plaintiff has explained that the First and Second Floor of the suit property was always given on rent to different tenants from time to time. In the year 1986 on the request of Defendant No.1/Aarti Singh, she was inducted as a tenant on Second Floor (barsati floor) of the suit property. At that time she was working as an Air Hostess with British Airways.

6. With the passage of time, because defendant No.1 was alone in Delhi, the plaintiff and his family started treating her like a family member. Somewhere in 1988-89, she gave up her job with the British Airways and became a Buying Agent for a Garment Importer from USA by the name of Razzle Dazzle International and opened her own office in the name of Razzle Dazzle India.

7. The First Floor of the property fell vacant in 1990 and Defendant No.1/Aarti Singh took the First Floor also on rent. She then married Defendant No.2/Sh. Kanwar Raj Singh (though now divorced) in December,

1991. The plaintiff and his family participated in all the marriage ceremonies which were performed on the Ground Floor of the suit property, where the plaintiff and his family have been residing. Their Lease Deeds in respect of First and Second Floor were also renewed from time to time by mutual consent of the parties.

8. Owing to the close association, various monetary transactions took place between them. In January, 1996, the Plaintiff gave an interest free loan of Rs.1.[5] lakhs to the Company owned by Defendant No.1 and 2, though, no written record was executed because of their friendly relations.

9. In the latter half of 1996, the plaintiff planned to venture into new business avenues regarding manufacture and export of jewellery, garments, etc. for which he needed large investments to the tune of 50-60 lakhs. The Plaintiff thus, requested for return of Rs.1.[5] lakhs from defendant No.1 and 2 and also asked them to clear the outstanding rent since June, 1996. During the discussions, the plaintiff disclosed about his intention to expand the business for which he needed money. Defendant No.1 and 2 readily agreed to give the loan to the plaintiff at a interest rate of 16% per annum.

10. However, Defendant No.1 and 2 insisted that the plaintiff must give some kind of security since the amount involved was very large. They refused to accept the documents of the commercial property situated in Kasturba Gandhi Marg, New Delhi, owned by the Plaintiff, and they insisted that the documents of the First and the Second Floor of the suit property be handed over to them.

11. The Plaintiff tried to explain that the suit property was encumbered as he has given it as a collateral to the Bankers for obtaining Packing Credit Limit for his Export Business. However, they stated that the encumbrances on the property would not make any difference as the documents would be returned as soon as the loan given by Defendant No.1 and 2, was cleared. Also, they stated that these property documents to be executed were only for security and not for purchase of the Suit property.

12. Thus, the plaintiff on account of mutual faith and trust and the family relations between them, agreed to document the transaction of Loan as desired by Defendant No.1 and 2.

13. Initially in December, 1996, plaintiff wanted a loan of Rs.15 lakhs. The defendant No.1 and 2 accordingly, got prepared the first set of documents two General Power of Attorney and other related documents like Agreement to Sell, etc. which they asked the plaintiff to sign. The Plaintiff enquired as to why General Power of Attorney, Agreement to Sell had been prepared instead equitable mortgage, on which he was told that since the mortgage already exists in regard to the property in favour of the bank, the transaction can be documented only by execution of Agreement to Sell and related documents. The plaintiff blindly signed these documents and gave them to Defendant No.1 and 2, on 06.12.1996.

14. The Defendant No.1 in return, gave three cheques totalling to Rs.[8] lakhs dated 09.12.1996. The Defendant No. 2 gave a Bank Draft of Rs.[5] lakhs on 11.12.1996 and thus, a total sum of Rs.13 lakhs was given. On 12.12.1996, all the documents were got registered by the parties.

15. In September, 1997 owing to the expanding business plans, plaintiff again requested defendant No.1 and 2 for more money as loan, on the basis of already executed documents. However, they insisted that on execution of fresh set of documents, they would return the old set.

16. Accordingly, defendant No.1 gave a cheque of Rs. 32 lakhs to the plaintiff on 07.10.1997 and also returned the earlier two General Power of Attorneys dated 06.12.1996 and 09.12.1996. However, in regard to the Agreement to Sells dated 11.12.1996, defendants stated that they have gotten misplaced and would be returned as soon as they would be traced.

17. On this occasion, the second set of documents was executed. The plaintiff gave one General Power of Attorney in favour of defendant No.1 in respect of second floor and other General Power of Attorney for first floor in favour of defendant No.2/Sh. Kanwar Raj Singh and his sister Ms. Deepa Kaushik/Defendant No. 3. When the plaintiff inquired about the inclusion of the name of defendant No.3, the defendant No.2 stated that since he is a frequent flyer and was not available most of the times, it would be necessary that someone is available for facilitation of reversal of the transaction upon the loan being paid by the plaintiff. The Agreement to Sell dated 07.10.1997, in favour defendant No.1, in addition to other related documents, were also executed. The Supplementary ATS dated 07.10.1997 for the second floor was also executed in favour of Defendant no. 2. These second set of documents executed on 07.10.1997, were again registered on the same day in the office of the Sub-Registrar.

18. The Plaintiff has further asserted that he started working on his business plans and travelled extensively to Calcutta and Lucknow in the month of December, 1997. The plaintiff was to travel to Lucknow on 25.12.1997 but his son met with an unfortunate accident on the night of 24.12.1997 in which one person lost his life while the other was seriously injured. Because of this major calamity, plaintiff had to shelve all his business plans and run from pillar to post for obtaining bail, attending to injured, etc. which resulted in an immense trauma to the plaintiff and his family.

19. Defendant No. 2 approached the plaintiff on 30th or 31st December, 1997 that some personnel from NDMC were harassing him since he had built a Porta Cabin on the barsati floor and requested the plaintiff to sign certain documents and printed forms of the NDMC to seek regularization of structure; three or four blank letter heads for necessary communication with NDMC were also got signed. Because of the pre-occupation of the plaintiff with his son’s accident, he hurriedly signed the documents including the blank Letter Heads and gave them to defendant No.2. The plaintiff in fact, was extremely obliged to defendant No.1 and 2 who had been extremely helpful and cooperative to the plaintiff in his difficult time and did not perceive any harm in giving blank signed Letter Heads.

20. In the month of February, 1998 the circumstances normalized and the plaintiff started attending his office. He revived his business expansion plans and requested defendant No.1 and 2 to provide further loan as per the original understanding. The defendant No.1 and 2 agreed to provide further assistance but again insisted on execution of fresh set of documents. On the query of the plaintiff that he had already executed earlier two sets of similar documents, he was informed that defendant No.1 and 2 were unable to trace the Agreements to Sell and since these documents were only taken as a security for the loan transaction, it would really not make any difference if a third set of similar documents was executed.

21. On 30.03.1998 the third set of documents were created which was signed by the plaintiff and was got registered in the office of the Subwas handed over by Defendant No. 2 to the Plaintiff.

22. On 24.04.1998 an employee of NDMC came to the residence of the plaintiff and handed over an envelope to the wife of the plaintiff which was addressed to Defendant No.2/Ajay Narain through Aarti Singh, Power of Attorney. The envelope contained Plans for construction which had come back from NDMC, without being sanctioned. The circumstances made the plaintiff suspicious about the acts of the defendants as it seemed that the blank Letter Heads and the other documents had been used by defendant No.1 and 2, for getting the construction plans sanctioned.

23. Thus, on 30.04.1998, the plaintiff along with Mr. Manmohan Kapoor and Mr. Viram Seth went to Defendant No.1 and 2 and returned the loan amount of Rs.45 lakhs out of sixty lacs. However, since the outstanding amount of Rs. 15 lacs was admittedly remaining, the defendants refused to hand over the three sets of documents and undertook to return them only after the remaining small balance loan of Rs.15 lakhs was paid by the plaintiff. The plaintiff insisted that the defendants must give a written acknowledgement that the documents had been executed only by way of security for the loan taken by the plaintiff and would be entitled to return of the documents on clearing the entire loan. Thus, defendant No.1 and 2 gave a Receipt of conformation acknowledging the repayment of Rs.45 lakhs and also recorded the understanding between the parties.

24. The Plaintiff left Delhi on account of his business on 04.05.1998. In his absence, his wife started receiving anonymous threatening calls which created immense trauma for him as well as his wife. The plaintiff’s wife lodged a Complaint dated 21.05.1998 with Police Station Lodhi Road.

25. In the meantime, on 12.06.1998, the servant of Defendant No.1 and 2 told the servant of the plaintiff, that the defendants were talking about having become the owners of the First and the Second Floor. On confrontation by his wife, they confirmed in unequivocal terms that the property stood sold to them and they have become the owners thereof. They even threatened the plaintiff’s wife that she should immediately hand over the documents relating to conversion of the property to freehold and if she failed to do so, the plaintiff and his family would face dire consequences.

26. The plaintiff has asserted that he had executed the documents only to secure the loan transaction. Had he intended to sell the property, there was no reason for him to undervalue it for a meagre sum of Rs.60 lakhs, when the market value of the property is in crores.

27. The Plaintiff then executed Revocation Deeds dated 23.06.1998, whereby he revoked all the General Power of Attorneys, Agreement to Sells and other related documents which were executed in favour of the defendants. He made a fresh Will bequeathing the suit property to his wife and two sons in equal share. He also issued a Public Notice in Newspaper “The Statesman” on 26.06.1998 announcing that he has revoked GPAs, Agreement to Sell and other documents in respect of the suit property.

28. The Plaintiff thus, filed the present Suit for Declaration to declare all the three-sets of documents, may not be enforced before 31.12.1999 in the event plaintiff is unable to pay the remaining amount; and Declare the blank Letter Heads signed by him, as null and void. He further sought Permanent Injunction for restraining the defendants from creating third party rights in the suit property and also from acting upon the said documents.

29. The Defendant No.1 and 2 in their Written Statement took the Preliminary Objections that the Suit does not disclose any cause of action; that it is undervalued and the plaint is not sufficiently stamped.

30. On merits, it was not denied that Defendant No.1 initially came in the year 1990 as a tenant of the Barsati Floor and subsequently got married to Defendant No.2.

31. However, it was claimed that the plaintiff had sold the First and Second Floor of the suit property to defendant No.1 and 2 by executing the relevant documents and after accepting the entire sale consideration of Rs.

60 Lakhs i.e. Rs. 40 lacs for the first floor and Rs. 20 Lacs for the Second floor. It is vehemently denied that the documents had been executed only for the purpose of security against repayment of loan. In fact, the defendants have claimed that they had been deceived into purchasing the suit property which stood mortgaged with a Bank as this fact was never disclosed to them.

32. The defendants have explained the nature of actual transactions which took place between the parties. In is asserted that the plaintiff entered into Agreement to Sell dated 11.12.1996 in favour of defendant No.1 for the First Floor and the General Power of Attorney in favour of defendant No.2. Rs. 8 lakhs had been accepted by the plaintiff as advance consideration for sale of First Floor of the suit property vide Receipt dated 11.12.1996.

33. Likewise, the plaintiff executed the Agreement to Sell dated 11.12.1996 in respect of Second (barsati) Floor in favour of Defendant No.2 Sh. Kanwar Raj Singh and GPA dated 09.12.1996 in favour of defendant No.1. Rs. 5 lakhs towards sale consideration for Second Floor was accepted vide Receipt dated 11.12.1996 by the plaintiff. The Sale documents were agreed to be executed once the suit property was made freehold. These documents were duly registered in the office of Sub-Registrar on 12.12.1996, which would not have been done had they not been for a sale transaction.

34. It is further explained that on defendant No.1 paid the balance amount of Rs. 32 lakhs in regard to the sale consideration of the First Floor on 07.10.1997. The second Agreement to Sell dated 07.10.1997 was executed in respect of first Floor to correct the error in recording the consideration amount in the Agreement to Sell executed in 1996 wherein erroneously, the initial payment was reflected as Rs. 5 lacs instead of Rs. 8 lacs and to further record payment of entire balance Sale amount of Rs. 32 lacs paid by defendant No.1. With this payment, the entire sale consideration for the First Floor stood paid.

35. Along with this Agreement to Sell, a Will dated 07.10.1997 was also made as by oversight, it had not been executed in December, 1996. By virtue of this Will, the First Floor was bequeathed to defendant No.1. A fresh General Power of Attorney was executed because defendant No.2 wanted his sister Defendant No.3/Deepa Pratap to be joined a Attorney for management of the First Floor of the suit property.

36. Likewise, other General Power of Attorney relating to Second Floor was executed on 07.10.1997 only to correct misdescription of the suit property as First Floor instead of the Second Floor, in the earlier Power of Attorney dated 06.12.1996. The second Supplementary Agreement to Sell in respect of Second Floor was executed by the plaintiff on 30.12.1997 in order to extend the period of completion of sale transaction by three months i.e. from 31.12.1997 to 31.03.1998 and it was also duly registered.

37. The third set of documents, were executed in respect of Second Floor on 30.03.1998, once the final full and final payment of remaining Rs.15 lakhs got paid.

38. It was denied that Defendant No.2/Kanwar Raj Singh ever got blank Letter Heads, forms or documents or other communication to NDMC, signed from the plaintiff. In fact, on 26.02.1998, the plaintiff executed an Indemnity Bond and an Affidavit to be submitted to NDMC. There is no question of any blank documents being signed by the plaintiff or not understanding the contents thereof.

39. The defendant No.1 and 2 further stated that the communication received from NDMC was addressed jointly to the plaintiff and defendant No.1 and it was in response to the Application which was also signed by the plaintiff, for permission of Municipal sanction for addition and alteration on the First and Second Floor.

40. It is vehemently denied that the amount of Rs.45 lakhs were ever returned by the plaintiff as alleged by him; rather the alleged Receipts of acknowledgment of payment produced by the plaintiff, are forged and fabricated and do not bear the signatures of the defendants. It is claimed that there is no question of accepting Rs.45 lakhs or demanding of balance amount of Rs.15 lakhs as it was not the loan, but the sale consideration for purchase of the two floors.

41. The defendant No.1 and 2 have asserted that in fact, they were cheated by the plaintiff who sold them the property which was already mortgaged to Central Bank of India, Jor Bagh, New Delhi. They came to know about such act of the plaintiff subsequently and made the complaints to the Police Authorities. The plaintiff has been harassing them in peaceful enjoyment of the property by disconnecting electricity and water supply frequently which prompted them to make complaints to the Police Authorities. They even sent Notice dated 15.07.1998 to the plaintiff in this regard but received no reply.

42. The defendants have claimed that the property has been sold to them, the entire sale consideration has been paid and they are already in possession of the suit property. Thus, the documents recording the sale including Power of Attorney cannot be revoked and the Plaintiff cannot bequeath the suit property to his wife and sons by way of a Will as he is no longer the owner thereof. All other averments made in the plaint are denied and it is asserted that the suit is liable to be dismissed.

43. The Plaintiff in the Replication in the lead suit reiterated the stand as taken in the plaint. It is contended that the Plaintiff has always remained the owner of the suit property and the Defendants were the tenants, who are now attempting to establish themselves as owners of the suit property by projecting a pure Loan transaction as a Sale transaction. Thus, the Suit discloses a definite cause of action against the Defendants and the Suit has been properly valued on which requisite Court fees has also been paid, which is liable to be Decreed.

44. In their Cross suit, the defendants while narrating the aforesaid facts as stated in detail in their Written Statement in the lead Suit, have further asserted that subsequent to ATS dated 11.12.1996, the Plaintiff executed the Agreement to Sell dated 07.10.1997 in respect of the First Floor, recording the receipt of total 40 lacs as sale consideration and therein it was admitted that the vendor (plaintiff) had handed over the symbolic possession of the suit property in part performance of the Contract as contemplated under Section 53(A) of Transfer of Property Act, 1872. The plaintiff authorized defendant No.1 to use the Unit in any manner as deemed fit, to construct the servant quarter of the First Floor and to reconstruct the entire First Floor or to assign the rights to the third party. It was also claimed that the irrevocable GPA and all other ancillary documents was executed in favour of defendant No.2.

45. It was further claimed that the plaintiff agreed to get the leasehold rights converted into freehold on the condition that the charges shall be borne proportionately by both the parties. The plaintiff also undertook to apply for all the permission, sanctions and clearances within 30 days for conversion of suit property from leasehold to freehold. The plaintiff also undertook to execute the Sale Deed in favour of the defendant No.1, failing which the defendants shall be entitled to seek specific performance of the Agreement.

46. For the second floor, the Plaintiff executed a Supplementary ATS dated 30.12.1997 in favour of the Defendant No. 2, whereby it was recorded that he had entered into the previous ATS dated 11.12.1996 by which he had agreed to sell the second floor of the suit property, for a total sale consideration of Rs. 20 lacs, to the Defendant no. 2. It was further agreed that the plaintiff would not be left with any right, claim, title or interest in the suit property and he would execute the sale deed/conveyance deed in respect of the second floor in favour of the Defendant no. 2. Subsequently, the Plaintiff executed another ATS dated 30.03.1998 on the receipt of total sale consideration of 20 lakhs, for the second floor, in favour of Defendant no. 2. It was also recorded that the plaintiff had handed over the symbolic possession of the suit property in part performance of the Contract. It was further claimed that the irrevocable GPAs and all other ancillary documents was executed in favour of Defendant No. 1.

47. Thus, after receiving the entire sale consideration of Rs. 40 lacs and Rs. 20 lacs, in respect of the first floor and second floor with terrace and roof rights with proportionate lease hold rights, the plaintiff was contractually obliged to obtain the necessary permissions, clearances/No objections from the concerned authorities required for the execution and registration of the sale deed and after obtaining the same to execute the sale deeds in respect of first floor and second floor together with terrace and roof rights etc. in favour of the Defendant No. 1 and 2.

48. However, the defendants claimed that a false, malicious and fraudulent suit bearing CS (OS) 1336/1998 (the lead suit herein) had been filed against them which is evident from the fact that the Application under Order XXXIX Rule 1 and 2 CPC filed by the plaintiff, was dismissed by the Single Judge on 31.05.2000 and this Order was upheld by the Division Bench while the Application under Order XXXIX Rule 4 CPC of the defendants to vacate the Interim Stay, was allowed.

49. The defendants have thus, sought Specific Performance of the Agreements to Sell dated 11.12.1996, Agreement to Sell dated 07.10.1997 for the First Floor and also Agreements to Sell dated 11.12.1996, Supplementary Agreement to Sell dated 30.12.1997 and Agreement to Sell dated 30.03.1998 for the second Floor of the suit property. Further, in case separate Sale Deeds cannot be executed, one composite Sale Deed be executed with the shares of the respective parties defined in the Sale Deed. Permanent Injunction was also sought for restraining the plaintiff from creating third party rights.

50. The Plaintiff had filed the Written Statement in the cross suit whereby he had taken the same stand as narrated in the lead Civil Suit NO. 1336/1998 filed by the plaintiff.

51. In the Rejoinder of the Defendants, similar stand as narrated in their cross-suit for Specific Performance, were reiterated.

52. Issues in CS (OS)1336/1998 (Lead Suit) were framed on 25.04.2006 as under: “1. Were the agreements to sell, General Powers of Attorney, Special Powers of Attorney, Receipts, Wills, Declaration-cum-Undertaking and the affidavits were executed by the plaintiffs by way of security for a loan as alleged by the plaintiffs? If so to what effect?

2. Has the plaintiffs returned a sum of Rs.45 lakhs to defendant on 30.04.1998? If so to what effect?

3. Whether the suit is correctly valued for the purpose of court fee and jurisdiction?

4. Relief, if any.”

53. The issues in CS No.2273/2000 (Cross Suit) were framed on 25.04.2006 as under:

54. Vide Order dated 25.04.2006, it was held that the two Suits relate to the same subject matter and thus, the CS (OS) No.1336/1998 (filed by the plaintiff) was taken as the lead suit and the Evidence was directed to be recorded in this Suit.

55. The PW[1] Plaintiff /Sh. Ajay Narain tendered his Affidavit Ex.PW1/A in support of his assertions in the plaint.

56. PW2/Sh. Jagdish Nagar, Officer from Central Bank of India produced a certified copy of the Statement of Account of Saving Account Ex.PW2/A in the name of Shri Ajay Narain and Shri Madhav Narain.

57. PW3/Pt. Ashok Kashyap Handwriting Expert submitted his Report as Ex.PW3/1 and Ex.PW3/2 in regard to the disputed and specimen signature of Sh. Kanwar R. Singh and Ms. Arti Singh.

58. The DW[1] Defendant No.2/Sh. Kanwar Raj Singh tendered his evidence by way of affidavit Ex.DW1/A and his additional affidavit is Ex.DW1/C.

59. DW[2] Defendant No.1/Aarti Singh tendered her evidence by way of affidavit as DW2/X and her Supplementary affidavit as DW2/Y.

60. DW3/Sh. Dilawar Singh, Chief Manager, Central Bank of India, Khan Market, New Delhi, deposed that the summoned record being more than 10 year old, were not available with the Bank.

61. DW4/S.I. Sanjeev Mandal, P.S. Lodhi Road, deposed that the Complaints dated 10.06.1998 made by Kanwar Raj Singh and Complaint dated 05.08.1998 and 06.08.1998 made by Arti Singh have been destroyed as per the Administrative Order Ex.DW4/1.

62. DW5/Dr. D.R. Handa, Head of Department, Sr. Scientific Officer, Grade-I, CFSL has proved the Handwriting Expert Report EX.DW1/1 being the Assistant of T.R. Nehra, the Handwriting Expert, who had superannuated in December, 2003.

63. DW6/Sh. Lal Sahib Mishra from Standard Chartered Bank deposed that the summoned record could not be produced since it was an old record which was destroyed pursuant to Order dated 24.03.2014 Ex.PW6/1.

64. DW7/Sh. Amrik Singh brought the covering letter by Kanwar Singh Walia along with the enclosures Ex.DW7/1. The Approval Letter dated 14.12.1998 from RBI to Kanwar Raj Singh Ex.DW7/2. The letter dated 28.07.2011 is Ex.DW7/3 and the letter dated 08.08.2011 is Ex.DW7/4.

65. DW8/Sh. Sanjay Kumar Ojha, SJA, Delhi High court produced the certified copy of FAO (OS) No.248/99, which is Ex.DW8/1 collectively. He further deposed that the original records had been weeded out.

66. DW9/Sh. Narain Singh, Watchman, Architect Department, NDMC had brought the summoned record (running into 33 pages), the copy of which is Ex.DW9/1.

67. DW10/Sh. Santosh Ghansela, though his Affidavit was filed but was not examined.

68. DW11/Sh. Sumit Khaneja, witness to Supplementary Agreement to Sell dated 30.12.1997, tendered his Affidavit in Evidence as DW11/A, who identified his signatures on the said documents which is already Ex. D11 (In suit No.1336 of 1998) and Ex.P[7] (In suit No.2273 of 2000).

69. In the Brief Written Submissions filed by the Plaintiff/ Ajay Narain, the arguments raised in the Plaint are re-agitated. It is vehemently argued that because of close friendly relationship with the defendants, who were the tenants in the suit property, the plaintiff had taken loans from time to time for his business expansion and only on the insistence of the defendants and their assurances, had executed and signed the documents in absolute trust and faith, believing them to be the loan documents. The loan was duly returned as was duly witnessed by the two Receipts duly signed by the defendants. The genuineness of their signatures has been duly proved by thee handwriting Expert PW3/Pt. Ashok Kashyap in his reports Ex. PW3/1 and PW3/2.

70. It is further argued that no Agreements to Sell were ever intended to be executed which is supported by the conduct of the defendants as no steps were taken by them to seek specific Performance till the year 2000 and that too has been filed, after the Suit was filed by the Plaintiff. It is therefore, contended that Suit of the defendants is liable to be dismissed.

71. The plaintiff has placed reliance upon Indira Kaur Vs. Sheo Lal Kapoor (1988) 2 SCC 488; Murhir Mohd. Khan Vs. Sajeda Bano (2000) 3 SCC 536; Jayakanatham Vs. Abaykumar (2017) 5 SCC 178; Sardar Singh Vs. Krishna Devi (Sm.) & ors. (1994) 4 SCC 18; N.P. Thirugnanam (dead) by Lrs Vs. Dr. R. Jagan Mohan Rao & Ors. (1995) 5 SCC 115; Karendera Vs. Riviera Apartments (P) Ltd. (1999) 5 SCC 77; A.C. Arulappan Vs. Ahalya Naik (Smt.) (2001) 6 SCC 600; Kamal Kumar Vs. Premlata Joshi (2019) 3 SCC 704; Sarabjeet Singh Vs. Anup Sharma & Ors. 2016 SCC OnLine Del 3140; Aniglase Yohannan Vs. Ramlatha & Ors. (2005) 7 SCC 534; K.S. Vaidyanandam & Ors. Vs. Vairavan (1997) 3 SCC 1; Vimaleshwar Nagappa Shet Vs. Noor Ahmed Shariff & Ors. (2011) 12 SCC 658; Shridhar Bajaj Vs. Gyanesh Chaudhary 2023 SCC OnLine Del 2068; and Saradamani Kandappan Vs. S. Rajalakshmi & ors (2011) 12 SCC 18.

72. The Ld. Counsel for the Defendant No. 1 and 2 has argued on similar lines as his defence and referred to the various documents that were admittedly executed by the plaintiff in agreement to sell the two floors to the defendants. It is argued that the contents of the Written documents cannot be overlooked or claimed to be loan documents, as falsely asserted by the plaintiff. The conduct of the plaintiff also does not support his contentions, as he never took any steps since the execution of the first set of documents in December, 1996. The Two receipts allegedly, acknowledging the repayment of Rs.45 lacs have been proved to be false from the Report of Handwriting Expert from CFSL. The conclusions of the Handwriting Expert PW-3 /Pt. Ashok Kashyap examined by the plaintiff, in fact also prove the Receipts to be forged and fabricated.

73. The Defendants have relied upon UOI Vs. Ibrahim Uddin & Anr. (2012) SCC 148; Ram Saran & Anr. Vs. Ganga Devi (1973) 2 SCC 60; Silvey & Ors. Vs. Arun Varghese & Ors. (2008) 11 SCC and Rakesh Kumar Jain Vs. Devender Singh Mehta 2000 (52) DRJ to buttress their arguments.

74. Record and the evidence perused. Submissions Heard and written submissions perused. The Issue wise Findings are as under: Issue No. 1 (in CS(OS) NO.1336/1998): Were the agreements to sell, General Powers of Attorney, Special Powers of Attorney, Receipts, Wills, Declaration-cum-Undertaking and the affidavits were executed by the plaintiffs by way of security for a loan as alleged by the plaintiffs? If so to what effect? Issue No. 1 (in CS(OS) NO.2273/2000): Is there an agreement to sell in respect of the suit property in favour of the plaintiffs?

75. Admittedly, Late Smt. Kanso Devi acquired the Suit Property vide Lease Deed dated 24.12.1960, Ex.PW-1/2, executed in her favour, by L&DO. Smt. Kanso Devi and Mr. Prem Narain, her husband adopted the Plaintiff, Mr. Ajay Narain vide registered Adoption Deed dated 27.05.1964, Ex.PW-1/1. Smt. Kanso Devi executed a Will dated 21.06.1954, Ex.PW-1/3 whereby she bequeathed the Suit Property to her husband, Mr. Prem Narain and desired that after the demise of her husband, the said property shall devolve upon the Plaintiff. It was further indicated that in case the husband, Mr. Prem Narain pre-deceased Smt. Kanso Devi, then the property shall stand bequeathed to Mr. Ajay Narain. Smt. Kanso Devi died on 28.04.1986 and since Sh. Prem Narain predeceased Smt. Kanso Devi and after her demise, Mr. Ajay Narain became the exclusive owner of the Suit Property.

76. As per the testimony of PW-1/Sh. Ajay Narain, he along with his family, has been residing on the ground floor of the Suit Property ever since May, 1974. The first floor and the second floor of the Suit Property, had been given on rent to different tenants, from time to time.

77. Admittedly, Defendant No. 1, Ms. Arti Singh, who working as an Air Hostess with the British Airways, took the second floor (barsati floor) on rent in the year 1986. With the passage of time and due to her friendly behaviour, became like a family member with the family of Mr. Ajay Narain.

78. It is further not in dispute that in the year 1990, when the first floor of the property was vacated by the tenant, on the request of the Defendant NO. 1 and also because of the family relationship and mutual trust and faith, the Plaintiff gave her the first floor as well, on rent. The tenancy in respect of the barsati floor as well as the first floor, were renewed from time to time.

79. The Defendant No. 1 got married to the Defendant No. 2, Mr. Kanwar Raj Singh in December, 1991.

80. The Plaintiff in order to explain the nature of transactions inter se the parties, has deposed that because of their close association, they entered into various monetary transactions. Sometime in latter half of 1996, he intended to venture out into new business avenues regarding manufacture and export of jewellery, garment etc., for which he needed huge investment to the tune of Rs.50-60 Lacs, which Defendant Nos. 1 and 2 agreed to give him at 16% p.a. interest.

81. Thus, the Plaintiff in the first instance, sought a sum of Rs.15,00,000/in the first week of December, 1996, which the Defendant Nos. 1 and 2 agreed to give him only after the documents were signed by him. On their insistence, Mr. Ajay Narain executed First set of documents namely, two General Power of Attorneys and other documents like two Agreement to Sell and Receipts etc, dated 11.12.1996 in respect of the first and Barsati floor in favour of Defendant Nos. 1 and 2 respectively, which was already in their possession, and were registered Office in the sub-Registrar Office on 12.12.1996. In return, Defendant No.1 Arti Singh gave three cheques totalling to Rs.8,00,000/- dated 09.12.1996 and the Defendant No. 2/Raj Singh Kanwar gave a Bank Draft of Rs.5,00,000/- on 11.12.1996, thereby a total sum of Rs.13,00,000/- was given to him. According to the two Agreements to Sell dated 11.12.1996, Ex.D[2] and Ex. PW1/D[1], the entire sale consideration was to be paid and the sales were to be concluded by 31.12.1997.

82. Admittedly, in regard to the First Floor, Plaintiff received cheque of Rs. 32,00,000/- on 07.10.1997 from Defendant No. 1 and he signed a fresh second set of documents which were duly registered in the Office of Sub-Registrar, Delhi on 07.10.1997. These documents pertaining to the First Floor, contained Agreements to Sell and the Will dated 07.10.1997, Ex. D[8] and Ex. D10 in favour of Defendant No. 1 in respect of the first Floor and also a General Power of Attorney dated 07.10.1997, Ex. D[9] in favour of D[2] and D[3]. The contents of these documents clearly states that the First Floor of suit property was agreed to be sold to defendant no.1 for Rs.40 lacs and the balance Sale consideration of Rs.32 lacs was duly received.

83. Thus, from the contents of the Second set of documents executed in 1997 coupled with the admission of the Plaintiff that he has received the sum of 32 lakhs, clearly proves that the entire sale consideration was paid for the first floor in November 1997 and the sale got completed.

84. The sale transaction of first Floor in favour of defendant No.1 got concluded on 07.10.1997.

85. However, the timeline for the payment of balance consideration for the Second Floor was extended till 30.03.1998 vide the Supplementary Agreement to Sell dated 30.12.1997/Ex. D-11.

86. The sale transaction for the second floor got completed in March- April, 1998 when admittedly, plaintiff received Rs.15,00,000/-from the Defendant No.2 vide cheque no. 732252 dated 27.03.1998 drawn on ANZ Grindlays Bank, CP, Delhi in March 1998. The Receipt dated 30.03.1998/Ex. D12, recorded the payment of balance Sale consideration of Rs.15,00,000/- to the Plaintiff and that he has received the entire sum of Rs. 20 lacs from Defendant No. 2/ Kanwar Raj Singh towards full and final settlement of total sale price in respect of Second Floor of the suit property in terms of the Agreement to Sell dated 30.03.1998.

87. Thus, the third Agreement to Sell dated 30.03.1998/Ex.D13 was executed by Plaintiff in favour of the Defendant No. 2, recording the receipt of entire sale consideration of Rs.20,00,000/- in respect of the second/barsati floor. It further recorded that liability to pay the monthly rental of Aarti Singh has come to an end and the symbolic possession has been handover to the Defendant No. 2/ Kanwar Raj Singh in part performance of the contract as per Section 53 A of the Transfer of property Act 1872. It was further agreed that the plaintiff shall execute the document for conveying and transferring the title of the said property by way of a proper Sale Deed and the charges of registration/stamping shall be borne by the Defendant No. 2/ Kanwar Raj Singh.

88. This was supported by the Will dated 30.03.1998/Ex.D15, whereby the Plaintiff bequeathed the Second Floor of the suit property to the Defendant No. 2/ Kanwar Raj Singh. The General Power of Attorney dated 30.03.1998/Ex.D14, was also executed in favour of Ms. Aarti Singh/Defendant No. 1 with respect to the Second Floor of the suit property, authorizing her to even sell, mortgage or take consideration for the suit property of even execute conveyance documents for the same.

89. In addition to the above, the Plaintiff has also executed, four Special Power of Attorneys dated 30.03.1998/Ex.D16 to Ex.D19 in favour of the Defendant No. 2/Mr. Kanwar Raj Singh, in respect of the second floor of the Suit Property. Vide these documents, the Defendant No. 2/Kanwar Raj Singh was granted full powers to represent before the office of the New Delhi Municipal Corporation /Municipal Corporation of Delhi or any other competent or appellate authority for the purpose of House Tax, to get the said property assessed/re assessed for House Tax, in respect of the property. He was authorized to apply for electric/ water/sewer connection and other services/amenities in the said property and was even authorized to power to sell, transfer, mortgage, exchange, convey, the said property to any person, to realise rent and to issue rent receipts in respect of the said property, to execute the sale deed, lease deed, mortgage deed, conveyance deed, transfer deed, admit its execution, transfer the possession, receive the consideration amount in his own name or in the name of any other person and get the same duly regd. before the Sub Registrar, Delhi and to get the lease-hold rights converted to free-hold rights.

90. Pertinently, the Declaration-cum-Undertaking/Ex.D20 was also executed by the Plaintiff wherein he recorded that he has agreed to sell the entire second floor to the Defendant No. 2/Mr. Kanwar Raj Singh and the total sale consideration of Rs. 20 lacs stood paid.

91. This was also supported by other documents such the Indemnity Bond/Ex.D21, three Affidavits/Ex.D22, Ex.D[3] and Ex.D[6] and wherein he reaffirmed that the has agreed to sell the entire second floor to Defendant No. 2.

92. Thus, from a perusal of this set of documents, it is evident that the sale transaction for the second floor stood completed on 30.03.1998 and full consideration got paid in favour of Defendant No. 2/ Kanwar Raj Singh.

93. The Evidence on record coupled with the proven documents establishes that the two floors got sold to defendant no. 1 &2 respectively, and entire sale consideration was duly received by the Plaintiff. Had it been only a Loan transaction, then Receipt itself would have sufficed. However, the very fact that the entire set of sale documents were executed and GPA was even registered, disproves the case of the plaintiff of having taken the Loan, completely.

94. The defence raised by the Plaintiff is that there was never and intention of effecting any sale transaction of the suit property and these documents namely, the Agreements to Sell/GPAs/Wills were not intended to convey any right, title or interest in favour of the defendants in respect of the first and second floor of the Suit Property. These were executed only as a security for a total loan of Rs. 60 Lacs, taken by him from the Defendant Nos. 1 and 2. Hence, the Defendants cannot seek Specific Performance to these documents.

95. The first most significant and revealing aspect is the contents of the documents thereof. Section 91 of Evidence Act, 1872, encapsulates that the best evidence about the contents of the document is the document itself. The language employed in the documents under dispute is itself proof of the nature of the document and the nature of transaction/agreement which had taken place between the parties. Section 92 excludes evidence of Oral agreements where the terms of the documents stand proved by production of relevant documents.

96. Now, the contents of the documents reflect the chain of events in consonance with the case of the defendants that the plaintiff sold the two floors to the defendants.

97. The detailed analysis of the three sets of documents chronicles the event as they happened over a period of more than one year. It is evident that three set of repeat documents were not created at different times, but the some documents had to be re-drafted to make the correction of the typographical errors and to record the further events. In all the three sets of documents, it has been categorically recorded about the ATS and payment of sale consideration and nowhere was there any mention of loan advancement to the Plaintiff against the said Property, as has been claimed by the plaintiff.

98. The contents of the Agreement to Sell coupled with General Power of Attorneys, Special Power of Attorneys, Wills and declaration-cumundertakings, as already discussed above, clearly and unambiguously establish that these documents were executed for sale of first and second floor of the Suit Property for which the entire Sale consideration stands paid in November, 1997 and March 1998 respectively. Undeniably, the Plaintiff was well aware of the nature and contents of the documents at the time of signing them. He himself has stated that while signing these documents, he had questioned as to why the Agreement to Sell etc., was being executed rather than mortgage documents, which demolish his explanation that he accepted the representations of defendants that the documents were intended to secure the loans. Plaintiff as per his own showing was not an illiterate person but was doing business and cannot claim to be so naïve to not understand the documents that he was signing. He cannot plead mutual trust and faith, only to wriggle out of the legal obligations created by him by executing these documents.

99. The second aspect which emerges is that the plaintiff claimed that he needed loan of Rs.50-60 Lacs in 1996 for his business expansion, but pertinently, he settled only for Rs. 15 lacs in 1996 and that too, admittedly took only Rs.13 lacs. The incongruity of the case of the plaintiff is evident not only from his own assertions the money needed was Rs.50-60 Lacs but he took only Rs.13lacs.No businessman who needs Rs. 50-60 Lacs, would take the piecemeal amount of Rs.13 lacs in the first instance and then stagger it over almost one and a half years rather than taking it in one instance. Further, to secure this amount, no reasonable person would execute Sale documents and even get them registered. Neither the attending circumstances nor the documents support the claim that he had entered into a simplicitor transaction of Loan.

100. The third aspect which needs to be highlighted is the desperate attempt by the Plaintiff to try to explain the need for taking the loan in 1996. One may now consider the authenticity of the claim of the Plaintiff, Mr. Ajay Narain about taking the loan for business expansion. He had deposed that because he wanted to start the new business in the latter half of 1996, he took the loan from the Defendants in December, 1996, October, 1997 and also in March, 1998.

101. However, in his cross-examination dated 04.04.2007 and 29.05.2007, he has admitted that no such new business or venture was commenced by him, which demolishes his explanation for having allegedly taken loan from the Defendants from time to time, as has been asserted by him. He has further admitted that the money that he got as loan, was never utilised by him for any business purpose. It establishes that there was no reason for him to avail another loan amount of 32 lakhs and 15 lakhs in the years 1997 and 1998, if the initial amount of 13 lakhs given to him in 1996 was not utilized.

102. Furthermore, the Plaintiff in his cross-examination dated 29.05.2007, explained that he had taken Packing Credit Limit from the Bank against the entire property at Jor Bagh as a security, about which he had informed the Defendants. He further explained that the first Packing Credit Limit which was around Rs.8,00,000/- to Rs.9,00,000/- was cleared somewhere in the year 1997; while the second Packing Credit Limit of around Rs.12,00,000/was repaid sometime in the year 1998. Pertinently, the amount of Rs.13,00,000/- was taken way back in December, 1996, which could have been utilized to clear his Major Packing Credit Limit. The Plaintiff was evasive in stating whether the Second Packing Credit Limit had been taken before or after the execution of the set of the documents in favour of Ms. Aarti Singh but the second packing credit limit was immediately after the execution of the first set. The admissions of the plaintiff, himself bely his claim that he had taken money as loan for Business expansion as the money so taken from the defendants was not utilized for the said purpose.

103. Lastly, though the plaintiff had claimed that the loan was given to him at an interest of 16% p.a. but he volunteered that the rate of interest was decided as 15% p.a. Pertinently, this is incorrect as in the Receipts Ex. PW1/4 and PW1/5 dated 30.04.1998 relied by him, the rate of interest has been stated as 16%.

104. Even otherwise, he has failed to prove that why he availed a loan at such a high interest rate, when he could have availed it from any Bank at a much lower rate. Moreover, he claimed that he did pay the interest to the Defendants which should be reflected in his Books of Accounts but was unable to give the details of when the first payment towards the interest was made and at what rate and in what exact amount. He further deposed that the interest, if any, must have been paid by cheque periodically every three months or so but was unable to state when it was paid. The onus was on the Plaintiff to have established that there was any Agreement of payment of interest on the alleged loan amount taken by him which according to his own testimony, was being reflected in his Statement of Account but pertinently, he failed to produce any document in support of the return of the loan amount or the alleged interest. He also is unable to either specify the dates of alleged return of loan or interest or to give any such detail.

105. In light of the above discussion, it is established that the Plaintiff has miserably failed to prove his claim of Loan transaction or that the documents were executed as security towards the re-payment of the same.

106. That it was a genuine sale transaction entered into plaintiff, is also evident from his own admissions that the Plaintiff had signed certain documents for necessary communication to NDMC in February, 1998 as proved by DW9/Mr. Narain Singh from NDMC. His explanation that he was made to sign these documents on 30/31.12.1997 under stress without understanding the import of these documents because he was pre-occupied with the serious condition of his son, who had met with an accident, falls flat in the light of these documents having been signed in February, 1998 when admittedly his business had picked up and he was looking for expansion.

107. Rather, the documents coupled with his admission of having received the total amount of Rs. 60 lakhs corresponds towards the sale consideration as mentioned in the documents, clearly establishes that he had entered into valid sale transactions in favour of the Defendant Nos. 1 and 2 respectively.

108. The Issue No.1 in CS(OS) 1336/1998 is decided against the Plaintiff.

109. Issue No.1 In CS(OS) 2273/2000 is answered in favour of the Defendant No. 1 and 2 and against the Plaintiff. Issue No. 2 (In CS(OS) NO.1336/1998): Has the Plaintiff returned the sum of Rs, 45 lakhs to the defendants on 30.04.1998? If so to what effect? Issue No. 3 (In CS(OS) NO. 2273/2000): Has the Defendant returned the sum of Rs. 45 lakhs and therefore, has no obligation under the alleged Agreement to Sell?

110. The Plaintiff in order to wriggle out of the obligations under these Agreements to Sell, has set up a defence that on 24.04.1998, an employee of NDMC came to his residence and handed over an envelope to his wife, which was addressed to the Plaintiff/Mr. Ajay Narain through Ms. Arti Singh, Power of Attorney. The envelope contained certain Plans for construction, which have been returned without sanction by NDMC.

111. The Plaintiff thus, became suspicious that the Defendant Nos. 1 and 2 have utilised his blank signed Letter Heads, Forms and other documents obtained from him in December, 1997 for the purpose of getting the construction plan sanctioned. The Plaintiff further deposed that immediately this Letter put him to caution and impelled him to return the loan amount of Rs. 45 lakhs.

112. At the outset, it may be observed that the plaintiff has claimed that he came to know about the malafide intents of the defendants when his wife received the letter dated 24.04.1998 from NDMC that was addressed to him through his attorney, Ms. Aarti Singh. First and foremost, had there been any ill-intent of fraud intended by the Defendants, they would have ensured that the Letter would not have been written in the name of the plaintiff and would have ensured that it does not reach them. Rather, the Letter being addressed to the Plaintiff, reflects the genuineness of the Transaction.

113. Thus, he approached the Defendant Nos. 1 and 2 on 30.04.1998, along with Mr. Manmohan Kapoor and Mr. Vikram Seth and returned the amount of Rs.45,00,000/- to the Defendant Nos. 1 and 2, which was acknowledged by them vide Return Receipt of Rs.45,00,000/- dated 30.04.1998, Ex.PW-1/4 and Ex.PW-1/5 respectively, acknowledging the loan transaction and the return of the alleged amount of 45 lakhs. The Plaintiff request for return of documents since only a small amount of Rs.15,00,000/- remained outstanding, was not heeded by the Defendants.

114. The Defendants have denied the execution of these two Receipts and have claimed that these are forged and fabricated documents.

115. To explain the first aspect i.e. availability of cash in hand to the tune of 45 lakhs, he deposed that he had withdrawn the money over a period of 2 to 3 months, from time to time since 1997 till April, 1998, which was reflected as withdrawal entries as per his Bank Statement, Ex.PW-1/6 in his Central Bank of India Account. Pertinently, he had deposed that the amount had been withdrawn over two-three months for business purpose. He further volunteered that there was no question of repayment to Ms. Aarti Singh, at that point of time as these were the withdrawals made for the business purpose. The plaintiff was unable to tell if the money withdrawn from his account had been spent in business. It is unlikely for any business person to withdraw the amounts from his account and keep it in cash to meet his business exigencies. The evasive replies and contradictory statements of the Plaintiff in his cross-examination, fails to establish that he had Rs. 45 lakhs as in–hand cash, which could be used to repay the loan.

116. The Plaintiff also relied upon the Income-tax Return for the year 1997 in which he had shown this amount of Rs.45,00,000/- as cash in hand. Pertinently, his Income-tax Return, Ex.PW-1/7 reflected an amount of Rs.53,55,269. He further admitted that the cash withdrawals in Ex.PW-2/A between October 1997 to April, 1998, may not total to Rs.53,55,269.90/-; thus, contradicting his own stand that the withdrawal was of 45 lakhs. Moreover, if he had the cash in his account, then where was the question of taking the alleged Loan of Rs. 32 Lacs in October, 1997 or Rs. 15 lacs in March, 1998. When asked what was the need for taking the loan when so much cash was in his hand, he stated that the cash in hand was generated from the loan amount itself. The inherent contradictions in the testimony of the Plaintiff make the falsity of his defence, even more blatant.

117. Significantly, the Letters dated 26.06.1998 Ex. PW-1/21 to Ex.PW1/23 sent by the Plaintiff to the Defendants, finds no mention of return of Rs.45,00,000/-. Even the Revocation deeds dated 1998, Ex.PW-1/9 to Ex.PW-1/18 do not mention that the sum of Rs. 45,00,000/- had been ever refunded to the Defendants.

118. This makes it pertinent to consider whether the two Receipts Ex.PW-1/4 and PW-1/5 had been executed by the Defendant Nos. 1 and 2 respectively.

119. The contents of Receipt Ex.PW-1/4 dated 30.04.1998 which was allegedly signed by Defendant No.1are as under:- “I have read the contents of the letter dated 30.04.1998 written by my husband to you. I confirm that the contents thereof are fully acceptable to me namely: You had taken a loan of Rs.60,00,000/- (Rupees Sixty lacs only) from us which was to bear interest @16% p.a. You were requested by us to execute certain documents in respect of first and second floor of property No. 110 Jor Bagh, New Delhi and also some other blank papers, IOUs etc. We had not agreed for creation of a mortgage of the said property since you had already raised some funds against it from the Bank. In the event of your paying the entire money, all the original documents, IOUs and blank signed papers would be returned to you by us and we would have no further interest in the property. In case you do not pay the entire money before 31.12.1999, we would have right to sell the property or part thereof to recover our dues and to pay the balance to you. The fact of receiving Rs.45,00,000/- (Rupees Forty-five Lacs only) in cash is also confirmed which would be adjusted against the due amounts. The over due rent with respect to the property which we have to pay to you would also be adjusted towards the due amounts. I assure you that I would honour the understanding as stated hereinabove.”

120. The contents of Receipt Ex.PW-1/5 30.04.1998 Ex. PW1/5 which was allegedly signed by Defendant No.2 are as under:- “This is to confirm that you had taken a loan of Rs.60,00,000/- (Rupees Sixty lacs only) from me and my wife – Rs.13,00,000/- (Rupees thirteen lacs only) on 06.12.1996, Rs.32,00,000/- (Rupees Thirty-two lacs only) on 07.10.1997 and Rs.15,00,000/- (Rupees Fifteen lacs only) on 31.03.1998. The loan was to bear an interest @16% p.a. To secure the said loans, we had requested you to execute certain documents in respect of Ist an IInd floor of property No. 110, Jor Bagh, New Delhi and also some other blank papers, IOUs etc. We had not agreed to accept mortgage of the said property since you had already raised some funds against it from a Bank. I hereby assure you, on my behalf, on behalf of my wife and on behalf of my sister-in-law that once our entire money is paid, we shall return the original documents, IOU‟s and blank signed papers and shall reverse the transaction and would have no further interest in the property. If you fail to make the payment by or before 31st December, 1999 we would have full right to use the documents and sell the property or part thereof to recover the due amounts and to pay the balance to you. I confirm that we have received today Rs.45,00,000/- (Rupees Forty-five lacs only) in cash which would be adjusted against the due amounts. I also confirm that the rent due from us shall also be adjusted towards the due amounts from you. I hope that this communication would give you the desired comfort level.”

121. According to the Plaintiff, as admitted in his cross-examination dated 10.07.2007, he was handed over the Receipts, Ex.PW-1/4 and Ex.PW-1/5, on the staircase and the disputed signatures at Point Q[1] and Q[2] in the Receipts were not put in his presence.

122. To prove these two Receipts, the plaintiff had examined PW-3/Mr. Ashok Kashyap, the hand-writing expert, who had given his detailed Report, Ex.PW-3/1 and Juxtaposition Chart, Ex. PW3/2. He deposed that he examined the admitted and disputed and specimen signatures of Sh. Kanwar

2. The disputed signature marked Q-2 on the Letter dated 30-04-1998 has been written by the author of standard signatures marked A & S-series i.e. “a. singh”.

3. Both the disputed signatures Q-1 & Q-2 have been written consciously probably with a view to subsequent denial.”

123. PW-3/Mr. Ashok Kashyap, was cross-examined at length by the Defendants and he asserted that the Receipts had the signatures of the Defendant Nos. 1 and 2, who purposely tried to disguise it to be able to deny the signatures, if questioned subsequently.

124. Firstly, the Report Ex. PW-3/1 itself contradicts his own stand as it records that he found variation in the alleged signatures of the Defendants, on the two Receipts, thought he has attempted to cover it up by saying that it was a deliberate distortion by the Defendant Nos. 1 and 2. Rather, his Report also reflects that the signatures on the Receipts were not of the Defendants.

125. The Second most significant piece of evidence is the Handwriting Expert Report from CFSL. This Court vide Order dated 26.10.1998 had directed these two documents dated 30.04.1998 to be examined by CFSL, Lodhi Road, New Delhi. In compliance thereof, the Report Ex.DW-1/1 was submitted by Mr. T.R. Nehra, Principal Scientific Officer (Document)-cum- Asstt. Chemical Examiner to the Govt. of India, CFSL, CBI, New Delhi, who gave his conclusion “that the signatures on the two receipts marked Q[1] and Q[2] were forged signatures.” The detailed analysis of the Report has been given by the handwriting expert in his Report.

126. Since T.R. Nehra had expired, his successor DW-5/D. R. Handa, Senior Scientific Officer (Grade-I) testified and duly identified the signature of T. R. Nehra at points X, XI, X[2] and X[3] on Report/ Ex. DW1/1. He further deposed the record maintained by CFSL of the report qua the disputed and the admitted signatures of Ms. Aarti Singh and Mr. Kanwar Raj Singh contains the blow ups of the standard and the disputed signatures of the aforesaid. He has examined the signatures and seen the Report/Ex. DW1/1 and corroborated the opinion of T.R. Nehra. He was cross-examined at length by the Plaintiff, but nothing material came out to create a doubt about the report of the CFSL.

127. To conclude, the handwriting expert though examined by the Plaintiff, but his opinion also corresponds to the CFSL Report, Ex.DW1/1, which establishes that the signatures on the two Receipts, were forged and fabricated.

128. The Plaintiff to prove the alleged return of the money, named Mr. Vikram Seth and Mr. Manmohan Kapoor as the persons in whose presence the money had been returned. These two material witnesses were cited as witnesses in his List of witnesses specifically stating therein that they are being called "To prove the factum of making the repayment of Rs. 45,00,000/- by the Plaintiff to Defendants No. 1 and 2", though in his crossexamination he deposed that he never intended to examine them.

129. The reason for not examining them as witnesses by the plaintiff is evident as a Criminal FIR No. 130/2004 dated 02.06.2004 under Section 420/468 of the Indian Penal Code, 1860 (hereinafter referred to as „IPC) had been registered at Police Station Lodhi Colony. During the investigation, the statements of Mr. Vikram Seth and Mr. Manmohan Kapoor, were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as „Cr.P.C.‟) wherein they denied having any knowledge of this transaction between the Plaintiff and the Defendants and also denied that any money was returned in their presence.

130. The plaintiff when questioned on this aspect, admitted in his crossexamination as under: I am aware that after the filing of this suit, Mr. Manmohan Kapoor and Mr. Vikram Seth have given their statement to the police that money had not been handed over in their presence but I do not know if they have stated even the absence of knowledge of this fact also. Mr. Manmohan Kapoor had left the house by the time documents Ex.PW-1/4 & 5 were delivered to me by defendant no. 2 in the stairs case but Mr. Vikram Seth was present downstairs in the house.

131. This explains the reason for not producing these two witnesses, in his support.

132. In this regard, relevant excerpts from the cross examination dated 10.07.2007 of PW1/Plaintiff-Ajay Narain be also referred to. He deposed as under: “Before 30.04.1998, me or my wife had not specifically told either Mr. Manmohan Kapoor or Mr. Vikram Seth about the transactions with defendant No.1 and 2. They might be aware of this transaction from the casual talks. While taking Mr. Manmohan Kapoor and Mr. Vikram Seth to the upper floor I had told them that I was going to return the money to the defendants 1 & 2 and they said since they were there, they would come with me to meet defendants 1 & 2. They were not aware as to how much money and that too whether in cash or by cheque I was going to return. I had handed over the money to defendant no. 2 (vol. But not in the presence of Mr. Manmohan Kapoor or Mr. Vikram Sethi). Defendant no. 1 was not present at that point of time when I handed over money to defendant no. 2. When I handed over the money I asked defendant no. 2 to give me a receipt for that amount signed by both defendants no. 1 & 2 and defendant no. 2 told me that he would provide me receipt by next day but I insisted to give me receipt on that occasion itself since the defendants had their office on the second floor and thereafter, after handing over the money in the bed room we came out and sat for a few minutes in the drawing room and then me, Manmohan Kapoor and Vikram Seth came down stairs and after around twenty minutes or so defendant no. 2 called me and handed over me the receipt in the stairs case. That receipt is Ex.PW-1/4. Document Ex.PW-1/5 was also handed over along with document Ex.PW-1/4. Signatures appearing at point Q-1 and Q-2 on exhibits PW-1/4 & 5 respectively were not put in my presence. When I handed over money to defendant no. 2, defendant no. 1 was present in the drawing room and Manmohan Kapoor and Vikram Seth were there in the drawing room. After I came to the drawing room I did not speak to defendant no. 1 that I had handed over money to defendant no. 2 as there was no discussion on that point. It was not my case when filed that when I handed over the money to defendant no. 2 it was in the presence of Mr. Manmohan Kapoor and Mr. Vikram Seth. (vol. But it has been pleaded in the plaint that they had accompanied me to upstairs). I had never intended to examine Mr. Manmohan Kapoor and Mr. Vikram Seth in proof of the fact of handing over the money to defendants.”

133. It is clearly discernible from the above deposition that having become aware of Mr. Vikram Seth and Mr. Manmohan Kapoor are not supporting him, he tried to improve his case of not having given money in the presence of two persons, Mr. Vikram Seth and Mr. Manmohan Kapoor, by deposing that they were not aware as to how much money and whether in cash or by cheque, was to be returned by the Plaintiff. He further tried to wriggle out of his own defence by stating in the cross-examination, that when he handed over money to the Defendant No. 2, the Defendant No. 1 was present in the Drawing Room along with Mr. Manmohan Kapoor and Mr. Vikram Seth. After he came to the Drawing Room, he did not speak to the Defendant NO. 1 about having handed over the money to the Defendant No. 2 as there was no discussion on this point.

134. Pertinently, he states that Mr. Manmohan Kapoor had already left the house by the time, the documents, Ex.PW-1/4 and Ex.PW-1/5 were delivered to him by the Defendant No. 2, in the staircase but Mr. Vikram Seth was present downstairs in the house. He deposed that he had handed over the money to the Defendant No. 2 though not in the presence of Mr. Vikram Seth and Mr. Manmohan Kapoor, which is in stark contradiction to his stand taken in the Plaint.

135. The cross-examination of the Plaintiff, clearly brings out his desperate attempt to explain why Mr. Vikram Seth and Mr. Manmohan Kapoor, were unable to support his contentions of the money having been paid in their presence.

136. Thus, the contrary explanations sought to be given by the Plaintiff, in the cross-examination, coupled with the Report of CFSL Ex.--- clearly proves that no money whatsoever had been returned on 30.04.1998, as has been asserted by him. No refund of Rs.45,00,000/- as claimed by the Plaintiff, is established on record.

137. Issues are decided accordingly in favour of the defendants and against the Plaintiff. Issue No. 2 (In CS(OS) NO.2273/2000) – Are the plaintiff entitled to a decree of specific performance?

138. To evaluate this issue, the other important aspect becomes the Revocation of the Agreement to Sell, General Power of Attorney etc. vide Revocation Deed, Ex.PW-1/9 to Ex.PW-1/18.

139. The Plaintiff has deposed that in his absence, his wife received certain anonymous threatening calls, which caused her immense trauma. On 21.05.1998, he returned to Delhi, for a day and the same threatening calls were again received in the morning. He came under the tremendous mental pressure but did not talk about it to his wife. He lodged a complaint at Lodhi Road Police Station on 21.05.1998, which was recorded vide DD Report on 21.05.1998, Ex.PW-1/A.

140. He again left Delhi on 22.05.1998. In the meantime on 12.06.1998, the servant working with the Defendant Nos. 1 and 2, informed his servant that the Defendant Nos. 1 and 2 were talking about having become owners of the first and second floors of the Suit Property. When his wife was informed by their servant, she immediately confronted the Defendant Nos. 1 and 2, who told his wife in no unequivocal terms, that the first and second floors of the property, have been sold to them and they have become the owners.

141. As a matter of fact, the Defendant Nos. 1 and 2 threatened his wife that she should immediately hand over the documents relating to conversion of the property from leasehold to freehold and if she failed to do so, the other family members would also face dire consequences. She informed him on 16.06.1998 and he immediately returned back to Delhi on 17.06.1998.

142. In light of these circumstances he then sought legal help in executing Revocation Deeds dated 23.06.1998, Ex.PW-1/9 to Ex.PW-1/18 respectively. He also executed a fresh Will dated 23.06.1998, Ex.PW-1/19 bequeathing the entire property to his wife and two sons. He also issued a public notice dated 26.06.1998 in the ‘Statesman’, Ex.PW-1/20. He also sent a letter dated 26.06.1998 to the Defendant No. 1, as well as, separately to the Defendant No. 2, through registered A.D. post and the copies of the letters along with the postal receipts are Ex.PW-1/21 to PW-1/28.

143. The defendants have stated that no money was ever returned to the Defendants herein, and the entire sale consideration has been paid. There remained nothing to be performed on their behalf and thus, as the Defendant/seller cannot unilaterally resile from performing the agreement now.

144. To evaluate the validity of a unilateral rescission of a contract, it would be apposite to refer to the judgment of the Madras High Court in Raja Rajeswara Dorai alias Muthu v. A.L.A.R.R.M. Arunachellan Chettiar, 1913 SCC OnLine Mad 276 where it was observed that a unilateral expression of rescission of a contract by one of the parties to the contact cannot be held to relieve him from his obligation to have the contract rescinded by Court under the substantive law and within the time allowed by statutory law if he wants as a plaintiff the assistance of the Court in obtaining certain reliefs on the basis that the contract has ceased to exist. It was observed that repudiation of a contract by one party alone cannot get the party any relief except as consequent of getting a declaration and a rescission by the Court. Thus, a contract can be properly rescinded without the intervention of a Court only by the act of both parties or if the original contract or Deed itself by Clauses of forfeiture or similar clauses, puts an end to the contract or transaction. However, even the latter case has to be determined by both the parties and only then the aid of the Court is not required. Therefore, even though a contract or transaction may be voidable at the instance of one party, its rescission is effectuated not by the mere repudiation of one party, but by the decree of Declaration of this Court.

145. It has been further explained by Punjab and Haryana High Court in the case of Brahm Dutt v. Sarabjit Singh, 2017 SCC OnLine P&H 5489 that unilateral cancellation of Agreement to Sell by one party, is not permissible in law except where the agreement is determinable in terms of Section 14 of this Specific Relief Act, 1963 and such cancellation cannot be raised as a defence in a suit for Specific Performance. If any such plea of cancellation/termination is raised by the defendant, the Court can just ignore the same and the plaintiff is also not required to challenge such a cancellation or revocation. It was further observed that if such unilateral cancellation of non-determinable agreements is permitted as a defence, then virtually every suit for specific performance can be frustrated by the defendant. On the contrary, if the defendant so claimed that he had valid reasons to terminate the contract or rescind the contract, then he ought to have sought a Declaration from the competent Court, as required under Sections 27 and 31 of Specific Relief Act, 1963.

146. Thus, once a party claims the right of revocation or rescission of the Agreement, then such party is required to seek a Declaration from the Court regarding the validity of revocation or rescission, as the case may be.

147. At the outset, it is observed that no such prayer of Declaration that the Revocation Deeds are valid has been sought by the Plaintiff.

148. Another crucial aspect is that the Defendant Nos. 1 and 2, have been initially inducted as a tenant in the Suit Property, but in the Agreement to Sell etc, that were executed in he favour, it was clearly indicated that the symbolic possession pursuant to the Agreement to Sell, had been handed over to them. The possession in the hands of the Defendant No. 1, thus changed its status from that of a tenant to the owner.

149. In the case of Shri Ramesh Chand vs. Suresh Chand & Anr, 188 (2012) DLT 538 and Hardip Kaur vs. Kailash & Anr., (SP) 193 (2012) DLT 168, it was held that even if the Defendant No. 1 is held to be not to be a classical owner as would be in the case of Registered Sale Deed, however, they would have certain rights and entitlement over the property. They have been in actual possession, which builds a strong case in their favour.

150. In the case of Rakesh Kumar Jain vs. Mr. Devender Singh Mehta, 2000 (52) DRJ 616, after making a reference to these Judgments, it was observed that the transfer of rights in an immovable property by a contract i.e. the same is a bilateral act and such bilateral contracts, cannot be cancelled unilaterally i.e. by unilateral cancellation of documents by which rights in immovable property are transferred by the transferer to the transferee.

151. In the case of Shri Ramesh Chand vs. Suresh Chand, 188 (2012) DLT 538, it was held that the documents, which are in accordance with the amended Section 53A of the Transfer of Property Act and executed prior to 24.09.2001, when the Act 48 of 2001, Section 53 of the Transfer of Property Act, 1882 (hereinafter referred to as „TPA Act‟), was amended to require compulsory stamping and registration of an Agreement to Sell, then such documents executed prior to 24.09.2001, are valid documents because the Amendment to Section 53 of the TPA Act, is prospective in nature.

152. Also, the Hon’ble Supreme Court of India in the Case of Suraj Lamp & Industries (P) Ltd. Tr. Dir vs. State of Haryana & Anr, 183 (2011) DLT 1 (SC) held that these Agreement to Sell, Power of Attorney and will, which are in accordance with Section 53A of the TPA Act, Section 202 of the Indian Contract Act, 1872 and the relevant provision of the Indian Succession Act, 1925, would continue to be valid and the possession of the Defendant, shall be protected especially when the documents show that the Plaintiff has received the entire sale consideration.

153. In the present case, the facts involved are para materia. It is fully established in the present case that the entire sale consideration stood paid by the Defendants and that there were valid documents of sale executed in their favour.

154. The alleged return of part-sale consideration has not been proved on record. The defendants had completed their end of the bargain and thus, this alleged unilateral revocation of the sale documents, is not recognised as valid in law.

155. It is, therefore, held that neither the Plaintiff returned the part-sale consideration nor was there any revocation of the Agreement to Sell and the ancillary documents.

156. Now, coming to the aspect of specific performance, it has been well – settled in Kamal Kumar (Supra) that before granting the discretionary relief of specific performance, the material questions that require consideration are:a) Whether there exists a valid and concluded contract between the parties for sale/purchase of property b) Whether the party seeking performance has been ready and willing to perform his part of the contract; and the extent of such partperformance and whether the performance was in conformity with the terms of the Contract. c) Whether it will be equitable to grant such relief of specific performance; d) Or in the alternative, the party seeking performance is entitled to any refund of the amount or earnest money etc.

157. An objection was raised by the Plaintiff in his Written submissions that it is not uncommon to execute Agreements to Sell instead of, Mortgage/loan documents with respect to an immovable property, as it is a tactic to bring pressure on the mortgagor to return the loan amount. However, in the present case, the burden was on the plaintiff to prove that the nature of transaction was that of processing a loan and not of sale for the suit property. The contents of the documents and the surrounding circumstances completely belie the stand of the plaintiff.

158. Another ground of challenge was raised by the Plaintiff that the Suit for Specific Performance ought to be outrightly rejected when the performance of the contract involves some hardship to the plaintiff when he did not foresee the consequences and the non-performance would not materially impact the defendants.

159. This plea holds no water in light of the present circumstances as this suit has been pending since 1998 which is more than 23 years now. Despite completing their end of the bargain, it is the defendants who have been dragged in this litigation for years. If any hardship is now caused to the plaintiff he himself is to be blamed and none other should have suffered his misdeeds.

160. It has also been pressed by the Plaintiff that there was no reason for him to have undervalued his property for a meagre value of Rs.60,00,000/only than the current market value of the property is in crores. Furthermore, he would have also made necessary Applications for grant of permissions under the Income-Tax Act. Since the transaction was not intended to be a sale transaction, no such steps were taken by the Plaintiff. This plea is also not tenable as there is nothing to prove on record that the actual value of the property was not as reflected in the Agreements to Sell, in the year 1996. There may have been exponential cost escalation in real estate, but bthere is no evidence whatsoever, that the Sale Consideration was much below that of the prevailing market value in 1996, when the parties entered into the Sale transactions.

161. In the present case, it has already been established that there are valid Agreements to sell between the parties. Further, the entire amount of consideration has been admittedly paid and thus, no question of readiness and willingness on part of the defendants subsists.

162. In the light of the findings, it is hereby held that the Defendants are entitled to a decree of Specific performance of Agreements to Sell, in respect of the first and second floor of the Suit Property bearing No.110, Jor Bagh, New Delhi, in their favour.

163. The Issue No 2. of CS(OS) 2273/2000 is decided accordingly. Issue No. 3. (In CS(OS) 1336/1998): Whether the suit has been properly valued for the purpose of Court Fee and Jurisdiction?

164. The present Suit was filed by the Plaintiff on 09.07.1998, when he had valued the suit property as under:- “That the Plaintiff values the suit for the decree permanent injunction in respect of restraining the Defendants from acting upon or using the documents in question at Rs.5,01,000/- upon which an ad valoram Court Fee of Rs.7,280/- is being affixed. The Plaintiff values the suit for the decree of permanent injunction in respect of restraining the Defendants from alienating or creating any third party interest in the property in question at Rs.130/- upon which a fixed court fee of Rs.l3/- is being affixed. The Plaintiff further values the suit for the purpose of relief of declarations at Rs.200/- each for which a fixed Court fee of Rs.40/- is being affixed.”

165. However, the pecuniary jurisdiction of the Delhi High Court was enhanced from 20 lakhs to 2 crores by Delhi High Court (Amendment) Act, 2015 and thus, this Suit being less than the valuation of 2 Crores, the present matter along with CS(OS) 2273/2000 was transferred and the parties are directed to appear before the Court of Ld. District & Session Judge (New Delhi District), Patiala House Courts, Delhi and the same was renumbered as CS. No. 158/2016.

166. Subsequently, while the Suit was at the stage of Final Arguments, the Plaintiff moved an Application under Or. 6 Rule 17 of the CPC, 1908 seeking amendment of the suit qua enhancement of the valuation thereof for the purpose of jurisdiction and court fees. This Application of the Plaintiff was allowed by Ld. ADJ -03/Patiala House Courts vide Order dated 05.04.2017, and the plaintiff was allowed to value the suit property at Rs.5.25 Crores and pay Court fees thereof.

167. Thus, after carefully examining and deciding this issue qua Valuation of the Suit and Court Fees already stands decided vide the order dated 05.04.2019 and only after allowing the amendment in valuation clause, was the Suit rightly transferred back to this Court vide Order dated 10.08.2017, as the valuation of the two Suits was enhanced to Rs. 5.25 Crores. The case was consequently, transferred back to this court.

168. The requisite Court Fees thus, stands paid.

169. Issue No. 3. of CS(OS) 1336/1998 is decided accordingly. Issue no. 4: Relief in CS (OS) 1336/1998: -

170. The plaintiff has miserably failed to establish that it was only a loan transaction entered into inter se the parties, which has been converted into a sale transaction, which was never executed. He has further not been able to prove that any amount of consideration was ever re-paid to the defendants. Thus, he is not entitled to any relief of Declaration or Injunction as sought CS. OS 1336/1998.

171. The Suit is dismissed along with pending application(s), if any. Parties to bear their own Costs. Decree Sheet be prepared. Relief in CS (OS) 2273/2000: -

172. The defendantNo.1 is held entitled to Specific performance of the Agreement to Sell dated 07.10.1997/Ex.D-8, in respect of First Floor of the suit property bearing No. 110 Jor Bagh, New Delhi.

173. Likewise, defendant No.2 is held entitled to Specific performance of the Agreement to Sell dated 31.03.1998 Ex. D-13 (Agreement to Sell dated 11.12.1996/ Ex. PW1/D[1] and 30.12.1997/Ex, D11) in respect of Second Floor of the suit property bearing No. 110 Jor Bagh, New Delhi.

174. The Plaintiff is hereby directed to execute the Sale Deed, in respect of the first floor and the second floor, in favour of the Defendant Nos. 1 and 2 respectively, within 60 days from the date of Judgment.

175. In case, the Plaintiff fails to do so, the Defendants shall be at liberty to seek the relief through an Execution Petition.

176. The Suit is hereby decreed. Parties to bear their own Costs. Decree Sheet be prepared.

JUDGE DECEMBER 02, 2024 va/RS