Amit Khera v. Ashwani Kumar Gupta & Anr

1. The learned counsel for the applicant submits that the suit is not maintainable because (i) no cause of action arose in Delhi; (ii) the suit property is situated outside the territory of Delhi; (iii) there are a number of triable issues such as the signatures of defendant Nos.[1] & 2 on the Agreement to Sell executed on 17.01.2008 is denied by the said defendants;

(iv) the defendants have not taken any money as mentioned in the alleged

Agreement to Sell; (v) the Agreement to Sell has not been executed on proper stamp paper; (vi) the Agreement to Sell has not been attested or registered before any authority hence it lacks authenticity in the eyes of law and cannot be relied upon and accepted in evidence; (vii) the said document is forged and fabricated and inadmissible in evidence, therefore, the suit 2015:DHC:10543 should be rejected, and (viii) the plaintiff would have to establish admissibility of the documents, which in turn would require leading of evidence, hence the leave to defend should be allowed.

2. The learned counsel for the applicant further submits that, no case is made out for grant of a decree under Order XXXVII of the CPC as the plaint is contradictory in parts: the Agreement to Sell, which forms the basis of this suit, cannot be relied upon because it was allegedly witnessed on 16.01.2008 although it was executed on 17.1.2008; that there can be no witness to a document or an act unless the document has been executed in the presence of the witness, therefore, the attestation of the signature of the witness on the Agreement to Sell is itself contradictory; the veracity of documents would need to be established in trial. Furthermore, he submits that the Agreement to Sell mentions two sellers, i.e. defendant Nos.[1] & 2, whereas the plaintiff has recognised only defendant No.1 as the owner of the property; that the documents which have been filed by the plaintiff show that the NOIDA Authority records the ownership of the property in the name of three companies, viz., (a) Two Brothers, (b) Two Brothers Polymers Private Limited and Two Brothers Filaments Private Limited. He submits that therefore, the Agreement to Sell could not have been entered into by private parties unless it is recorded that they have due authority on behalf of those entities whose names are mutated or recognised by NOIDA Authority to be the owners of the said properties. He further submits that neither the plaint nor any document show as to how the amount of Rs.60 lacs was paid to the defendants; that the document filed as ‘Receipt’ purporting to evidence receipt of monies by the defendants too is doubtful because it does not bear a Revenue Stamp; that according to the documents filed by the plaintiff the suit property was already mortgaged with the NOIDA Authority, hence, it could not have been dealt with in the manner clarified by the plaintiff and that the necessary parties such as the NOIDA Authority has not been impleaded although the documents of the said Authority are sought to be relied upon.

3. In reply the learned counsel for the plaintiff submits that the suit seeks refund of the monies paid to the defendants and it does not seek specific performance of the Agreement to Sell; therefore all that the plaintiff needs to show is whether the monies paid the plaintiff and received by the defendants were pursuant to the Agreement to Sell. He relies upon an Agreement to Sell and a Receipt filed by the plaintiff clearly evidences the signature of defendant No.1 acknowledging that Rs.15.00 lacs was received by him on 27.6.2009 as part payment of Rs.60.00 lacs against the purchase made on 17.1.2008. The learned counsel submits that this document is good enough for the suit to be decreed. Additionally, he submits that the defendants have tried to mislead the Court by a bald denial of the existence of the Agreement although they had written a letter to the Regional Manager, UPFC on 12.11.2007 wherein they have acknowledged that the plaintiff was the purchaser of the suit property and they wanted to settle the mortgage with the UPFC. However, the said document is not on record. The learned counsel for the plaintiff has handed over a copy of the same to the Court. He submits that there is no specific denial of the document. Instead the receipt acknowledges the acceptance of monies by the defendants, therefore the suit ought to be decreed. He relies upon a judgement of this Court in M/s. Delhi Book Store v. K.S. Subramaniam AIR 2006 Delhi 206, which inter alia, held:

4. In this case, the learned counsel for the defendants denies the veracity of the aforesaid letter. He contends that if the plaintiffs, by their own averment, have accepted defendant No.1 to be the absolute owner of the property, as mentioned in para 3 of the alleged Agreement to Sell, then there was no requirement for the signature of defendant No.2. In reply, the learned counsel for the plaintiff submits that the same could well be attributed to extreme caution so as to obviate any likelihood of disputes between the partners of the partnership firm and shareholders of the three companies; he further submits that if defendant No.2 had nothing to sell, then his signature on the document would be of no consequence and he could not have legitimately received the money for transfer of property and hence he ought to return it. The learned counsel relies upon the dicta of the Supreme Court in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation AIR 1977 SC 577 where the principles applicable to cases covered by Order 37 CPC were enumerated, it reads as under: “(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend. (b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment (sic) and the Defendant is entitled to unconditional leave to defend.

(c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend. (e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plaintiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to prove a defence.”

5. The learned counsel for the applicant states that his case falls within the ambit of clauses a & b of the aforesaid judgement. The learned counsel further submits that the plaintiff has failed to show as to how the amount of Rs.15.00 lacs was paid to them in June, 2008 especially given the fact that defendant No.1 was himself under severe financial constraints.

6. On a query put to the learned counsel for the applicant/defendant on whether there is a specific denial of the receipt dated 27.6.2008 which records that an amount of Rs.15 lacs was paid in advance for purchase of the suit property, the learned counsel answers in the negative. However, he submits that there is a denial of the same in the rejoinder. There is no averment to this effect in the leave to defend.