Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Order: 4 December, 2008
+ RFA 50/2008
SHIVAJI SINDHU ..... Appellant
versus
DAULAT RAM DEEPANI & ANR .....Respondents
RFA 51/2008
ASHOK SINDHU ..... Appellant
versus
VERSHA DEEPANI & ANR ..... Respondent
RFA 52/2008
SHIVAJI SINDHU ..... Appellant
versus
DAULAT RAM DEEPANI ..... Respondent
RFA 53/2008
ASHOK SINDHU ..... Appellant
versus
VERSHA DEEPANI ..... Respondent
Present : Mr.Sunil Malhotra, Advocate and
Ms.Sonali Malhotra, Advocate for
the appellants.
Mr.O.P.Aggarwal, Advocate for
the respondents.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether reporters of local papers may be allowed
to see the judgment?
Page 1 of 6
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. The two appeals arise out of two suits having counter
claims.
3. Suits filed by the appellants Shivaji Sindhu and Ashok
Sindhu have been dismissed. Counter claim of the respective
defendants in the two suits have been allowed.
4. The two suits sought enforcement of two agreements
to sell both proved as Ex.PW-1/2 in each suit, as per which the
defendant(s) of the two suits agreed to sell the two flats, one
each forming subject matter of the two agreements to sell,
being Flat No.45-C (SF), Block No.BW, Category-2, Shalimar
Bagh, Delhi and Flat No.48-C (SF), Block No.BW, Category-2,
Shalimar Bagh, Delhi.
5. The two agreements to sell record that the agreed
sale price of the two flats is Rs.3,20,000/- (Rupees Three Lac
Twenty Thousand) and Rs.3,60,000/- (Rupees Three Lac Sixty
Thousand) respectively. In both agreements to sell it has been
recorded that the entire sale consideration has been tendered
and received vide pay order issued by SBI, Azad Market, Delhi
and that possession of the respective flat has been handed over
to the buyers.
Page 2 of 6
6. The two agreements to sell have been registered
before the Sub-Registrar. A general power of attorney
pertaining to both flats, being Ex.PW-1/5 (two documents) as
also a separate receipt evidencing receipt of the pay order
proved as Ex.PW-1/3, in both the suits as also a registered will
executed by the seller in favour of the buyer being Ex.PW-1/4,
was proved in each suit.
7. The defence taken by the defendants in both the
th
suits was identical. They stated that on 14 July, 2003, the date
on which the afore-noted documents were executed before the
Sub-Registrar, they reached the office of the Sub-Registrar and
were shown two pay orders. They executed the documents but
that the pay orders were not handed over to them as the sellers
stated that they would send the pay orders by post. They
pleaded that the possession of the flat was with them and that
said fact evidenced a false recital in the agreements to sell of
possession being delivered.
8. Since original title documents were handed over to
the buyers, counter claims were filed praying that a mandatory
order be passed directing the return of their original title
documents.
9. At the trial, the plaintiff(s) of the two suits stated that
in the agreements to sell as also in the plaint it was
inadvertently recorded that the respective payments were
Page 3 of 6
tendered by the pay orders. The plaintiffs said that actually two
cheques in sum of Rs.3,20,000/- and Rs.3,60,000/- respectively
were handed over and that the sellers, with a mala fide intent
did not encash the cheques.
10. On behalf of the plaintiff, evidence was led by their
constituted attorney.
11. The suits seeking specific performance of the
agreements to sell have been dismissed. Counter claims have
been allowed.
12. Two reasons have been given by the learned Trial
Judge to do so.
13. The first reason is that the evidence of the plaintiffs
has to be ignored because the constituted attorney could not
depose facts on behalf of the plaintiffs. The second is that the
agreement(s) to sell records payment by means of a pay-
order(s) which was also the claim in the plaint but ultimately the
plaintiff conceded that no pay orders were tendered but sought
to prove payment being tendered by means of two cheques
which were found unencashed. Learned Trial Judge has
accordingly held that it stands established that nothing flowed
from the coffers of the plaintiffs of the two suits to the
defendants of the two suits.
14. We concur with the first submission made by learned
counsel for the appellant that the evidence of the attorney of
Page 4 of 6
the plaintiff could not be wished away, for the reason the
attorney deposed of being present when the transaction was
transacted; he spoke from personal knowledge.
15. We would like to clarify a misconception which we
notice is repeatedly emanating in judicial pronouncements. The
rule that a general attorney cannot depose to a fact is limited to
facts which would be in the personal knowledge of the principal
but does not relate to personal knowledge of the facts within the
knowledge (personal) of the general attorney.
16. But, we do not agree with the second contention
urged by learned counsel for the appellants, viz., that in the
agreement(s) to sell and in the plaint it inadvertently got
recorded that the payment was made by pay orders; as a matter
of fact payment was made by two cheques.
17. The principal factor which has weighed with us to
disagree with the submissions made by learned counsel for the
appellants is the fact that if indeed, payments were made by
cheques, the two cheques would have been tendered on
14.7.2003; the date of execution of the two agreements to sell.
The suit has been filed in the month of January 2004. No
evidence has been led that the plaintiffs have questioned the
defendants as to why have the cheques have not been
encashed. Further, if full payment was tendered by the buyers
and flats were in possession of the sellers normal human
Page 5 of 6
conduct would require the buyers to insist upon possession
being delivered. It be noted that the cheques allegedly given
were never encashed.
18. We note that the agreement(s) to sell record that
possession has been handed over to the buyer(s), a fact which is
admittedly incorrect.
19. We find no infirmity with the view taken by the
learned Trial Judge that the suit for specific performance has to
be dismissed. The corollary thereof would be the
entitlement of the defendants to a return of the original title
documents which they handed over to the plaintiffs.
20. Finding of the learned Trial Judge pertaining to the
counter claims is affirmed.
21. All appeals are dismissed.
22. There shall be no order as to costs.
23. At this stage, we note the statement made by
learned counsel for the appellants that the title documents have
been deposited by the appellants in this Court. If be so, we
direct the Registry to return the title documents to the sellers
i.e. the defendants of the two suits.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
DECEMBER 04, 2008
Dharmender
Page 6 of 6
th
% Date of Order: 4 December, 2008
+ RFA 50/2008
SHIVAJI SINDHU ..... Appellant
versus
DAULAT RAM DEEPANI & ANR .....Respondents
RFA 51/2008
ASHOK SINDHU ..... Appellant
versus
VERSHA DEEPANI & ANR ..... Respondent
RFA 52/2008
SHIVAJI SINDHU ..... Appellant
versus
DAULAT RAM DEEPANI ..... Respondent
RFA 53/2008
ASHOK SINDHU ..... Appellant
versus
VERSHA DEEPANI ..... Respondent
Present : Mr.Sunil Malhotra, Advocate and
Ms.Sonali Malhotra, Advocate for
the appellants.
Mr.O.P.Aggarwal, Advocate for
the respondents.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether reporters of local papers may be allowed
to see the judgment?
Page 1 of 6
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. The two appeals arise out of two suits having counter
claims.
3. Suits filed by the appellants Shivaji Sindhu and Ashok
Sindhu have been dismissed. Counter claim of the respective
defendants in the two suits have been allowed.
4. The two suits sought enforcement of two agreements
to sell both proved as Ex.PW-1/2 in each suit, as per which the
defendant(s) of the two suits agreed to sell the two flats, one
each forming subject matter of the two agreements to sell,
being Flat No.45-C (SF), Block No.BW, Category-2, Shalimar
Bagh, Delhi and Flat No.48-C (SF), Block No.BW, Category-2,
Shalimar Bagh, Delhi.
5. The two agreements to sell record that the agreed
sale price of the two flats is Rs.3,20,000/- (Rupees Three Lac
Twenty Thousand) and Rs.3,60,000/- (Rupees Three Lac Sixty
Thousand) respectively. In both agreements to sell it has been
recorded that the entire sale consideration has been tendered
and received vide pay order issued by SBI, Azad Market, Delhi
and that possession of the respective flat has been handed over
to the buyers.
Page 2 of 6
6. The two agreements to sell have been registered
before the Sub-Registrar. A general power of attorney
pertaining to both flats, being Ex.PW-1/5 (two documents) as
also a separate receipt evidencing receipt of the pay order
proved as Ex.PW-1/3, in both the suits as also a registered will
executed by the seller in favour of the buyer being Ex.PW-1/4,
was proved in each suit.
7. The defence taken by the defendants in both the
th
suits was identical. They stated that on 14 July, 2003, the date
on which the afore-noted documents were executed before the
Sub-Registrar, they reached the office of the Sub-Registrar and
were shown two pay orders. They executed the documents but
that the pay orders were not handed over to them as the sellers
stated that they would send the pay orders by post. They
pleaded that the possession of the flat was with them and that
said fact evidenced a false recital in the agreements to sell of
possession being delivered.
8. Since original title documents were handed over to
the buyers, counter claims were filed praying that a mandatory
order be passed directing the return of their original title
documents.
9. At the trial, the plaintiff(s) of the two suits stated that
in the agreements to sell as also in the plaint it was
inadvertently recorded that the respective payments were
Page 3 of 6
tendered by the pay orders. The plaintiffs said that actually two
cheques in sum of Rs.3,20,000/- and Rs.3,60,000/- respectively
were handed over and that the sellers, with a mala fide intent
did not encash the cheques.
10. On behalf of the plaintiff, evidence was led by their
constituted attorney.
11. The suits seeking specific performance of the
agreements to sell have been dismissed. Counter claims have
been allowed.
12. Two reasons have been given by the learned Trial
Judge to do so.
13. The first reason is that the evidence of the plaintiffs
has to be ignored because the constituted attorney could not
depose facts on behalf of the plaintiffs. The second is that the
agreement(s) to sell records payment by means of a pay-
order(s) which was also the claim in the plaint but ultimately the
plaintiff conceded that no pay orders were tendered but sought
to prove payment being tendered by means of two cheques
which were found unencashed. Learned Trial Judge has
accordingly held that it stands established that nothing flowed
from the coffers of the plaintiffs of the two suits to the
defendants of the two suits.
14. We concur with the first submission made by learned
counsel for the appellant that the evidence of the attorney of
Page 4 of 6
the plaintiff could not be wished away, for the reason the
attorney deposed of being present when the transaction was
transacted; he spoke from personal knowledge.
15. We would like to clarify a misconception which we
notice is repeatedly emanating in judicial pronouncements. The
rule that a general attorney cannot depose to a fact is limited to
facts which would be in the personal knowledge of the principal
but does not relate to personal knowledge of the facts within the
knowledge (personal) of the general attorney.
16. But, we do not agree with the second contention
urged by learned counsel for the appellants, viz., that in the
agreement(s) to sell and in the plaint it inadvertently got
recorded that the payment was made by pay orders; as a matter
of fact payment was made by two cheques.
17. The principal factor which has weighed with us to
disagree with the submissions made by learned counsel for the
appellants is the fact that if indeed, payments were made by
cheques, the two cheques would have been tendered on
14.7.2003; the date of execution of the two agreements to sell.
The suit has been filed in the month of January 2004. No
evidence has been led that the plaintiffs have questioned the
defendants as to why have the cheques have not been
encashed. Further, if full payment was tendered by the buyers
and flats were in possession of the sellers normal human
Page 5 of 6
conduct would require the buyers to insist upon possession
being delivered. It be noted that the cheques allegedly given
were never encashed.
18. We note that the agreement(s) to sell record that
possession has been handed over to the buyer(s), a fact which is
admittedly incorrect.
19. We find no infirmity with the view taken by the
learned Trial Judge that the suit for specific performance has to
be dismissed. The corollary thereof would be the
entitlement of the defendants to a return of the original title
documents which they handed over to the plaintiffs.
20. Finding of the learned Trial Judge pertaining to the
counter claims is affirmed.
21. All appeals are dismissed.
22. There shall be no order as to costs.
23. At this stage, we note the statement made by
learned counsel for the appellants that the title documents have
been deposited by the appellants in this Court. If be so, we
direct the Registry to return the title documents to the sellers
i.e. the defendants of the two suits.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
DECEMBER 04, 2008
Dharmender
Page 6 of 6