Delhi District Court
Manish Kumar Jha vs Binita Gupta on 23 December, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
CS DJ ADJ 15351/2016
CNR No. DLSW010002172016
INTHE MATTER OF:
Manish Kumar Jha
S/o Gopal Jha A-405-B
Gali No. 12, Mahavir Enclave-11,
New Delhi-110059 ...............Plaintiff
Versus
1. Binita Gupta
W/o Shiv Kumar Gupta
R/o A-362, Gali No. 11
Mahavir Enclave, Part-II
New Delhi-110059
2. Shiv Kumar Gupta
S/o Ram Parkash Gupta
R/o A-362, Gali No. 11,
Mahavir Enclave, Part-II,
New Delhi-110059 ..............Defendants
Date of Institution : 16.02.2016
Date of arguments : 18.11.2024
Date of judgment : 23.12.2024
Digitally
signed by
SHILPI SHILPI
JAIN
M
M Date:
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16:33:18
CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 1 of 53 +0530
SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO
SELL AND PURCHASE EXECUTED BETWEEN THE
PLAINTIFF AND THE DEFENDANTS AND FOR PERMANENT
INJUNCTION
JUDGMENT
INDEX
FACTUAL BACKGROUND ……………….4
ISSUES ……………….9
EVIDENCE GIVEN BY PARTIES ……………….10
SUBMISSIONS OF THE PARTIES ……………..14
ISSUEWISE ANALYSIS & FINDINGS ……………..16
– Burden of Proof ……………..17
– Testimony of Interested Witness ……………..19
– Relevancy, Admissibility and
Appreciation of Expert Evidence ……………..33
– International Admissibility Rules:
Daubert Standards ……………..34
– Indian courts on Daubert Standards ……………..35
– Prohibition u/s 269SS of the Income Tax
Act ……………..39
– Law on Specific Performance before and
after amendment of 2018 ……………..40
– Whether 2018 amendment applicable
Retrospectively or Prospectively? ……………..49
– Readiness and Willingness ……………..50
CONCLUSION ……………..54
Digitally
signed by
SHILPI SHILPI
JAIN
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1. Present suit for specific performance of agreement to sell and
purchase executed between the plaintiff and defendants for permanent
injunction filed by the plaintiffs against defendants with the following
relief:
a) A decree for specific performance of the agreement to sell and
purchase dated 17/08/2015 executed between the plaintiff and
the defendant may kindly be passed in favour of the plaintiff and
against the defendant and thereby the defendant be directed to
execute the sale deed/title documents pursuant to the agreement
dated 17/08/2015 after receiving the balance of Rs. 3,00,000/-
(Rupees Three Lakhs Only) w.r.t. the suit property i.e. L- TYPE
SHOP ON GROUND FLOOR WITHOUT ROOF RIGHTS ON
BUILT UP PROPERTY BEARING NO. A-362, AREA
MEASURING 9′ X 9′ SQ. FEET APPROX., KHASARA NO. 7/3,
SITUATED IN THE AREA OF VILLAGE MIRZAPUR, DELHI
ESTATE DELHI, ABADI KNOWN AS MAHAVIR ENCLAVE,
PART-II, GALI NO. 11, NEW DELHI-59 in the favor of the
plaintiff;
b) Pass a decree of permanent injunction in favour of the Plaintiffs
and against the Defendant thereby restraining the Defendant,
her heirs, successors, Assignees, attorneys, representatives from
creating any kind of third party interest whatsoever w.r.t. the suit
property in favour of anybody, except the Plaintiffs;
c) A decree for permanent injunction may kindly be passed in
favour of the plaintiff and against the defendant including their
agents, assignees, attorney, successors, heirs, etc thereby
directing them not to disposes the plaintiff from the suit property
forcibly and otherwise bay way of putting locks upon the shutters
of the suit property;
d) It is further prayed that in the alternative to the prayer 1) if the
said relief for any reason is not granted and without prejudice to
the same a decree for Rs.8,00,000/- with interest thereon at the
rate of 18% per annum from the date of the suit till payment may
kindly be passed in favour of the plaintiff and against the
defendant;
Digitally
signed by
SHILPI SHILPI
JAIN
M
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e) This suit may kindly be decreed in favour of the plaintiff and
against the defendants as aforesaid with costs and compensation
as this court deems fit and proper in the facts and circumstances
of the case.
f) May kindly pass such or other further order(s) as the hon’ble
Court may deem fit in the interest of justice and in light of facts
and circumstances of the present case.
FACTUAL BACKGROUND:
2. It is averred that, in the month of July 2015, the defendants
have approached to the plaintiff and have expressed the need of money for
the construction/repair work for their property i.e. BUILT UP
PROPERTY BEARING NO. A-362, AREA MEASURING 9′ X 9′ SQ.
FEET APPROX., KHASARA NO. 7/3, SITUATED IN THE AREA OF
VILLAGE MIRZAPUR, DELHI ESTATE DELHI, ABADI KNOWN AS
MAHAVIR ENCLAVE, PART-II, GALI NO. 11, NEW DELHI- 59,
(hereinafter referred to as the “said property”). Defendants further offered
the plaintiff for the purchase of one shop in the said property so that
defendants could arrange amount for the construction work. It is further
averred that, the defendants being neighbors and known to the plaintiff for
last many years, the plaintiff agreed upon the offer the defendants and
agreed to purchase the aforesaid property/shop for a sum of Rs.
11,00,000/- and defendants had entered into an agreement to sell and
purchase vide “Bayana Receipts” dated 01/07/2015 for L-TYPE SHOP
ON GROUND FLOOR WITHOUT ROOF RIGHTS ON BUILT UP
PROPERTY BEARING NO. A-362, AREA MEASURING 9′ X 9′ SQ.
FEET APPROX., KHASARA NO. 7/3, SITUATED IN THE AREA OF
VILLAGE MIRZAPUR, DELHI ESTATE DELHI, ABADI KNOWN AS
MAHAVIR ENCLAVE, PART-II, GALI NO. 11, NEW DELHI- 59,
Digitally
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SHILPI SHILPI M
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(hereinafter referred to as the “suit property”), for a total consideration of
Rs. 11,00,000/- (Rupees eleven lakhs only).
3. It is further averred that, against said sale consideration, the
plaintiff has paid to the defendants a sum of Rs. 3,00,000/- (Rupees three
lakhs only) as earnest money on 01.07.2015. It is further averred that, date
of execution of the documents was scheduled to be on or before
15.01.2016 but, in the meanwhile, defendants further asked for some more
payment as the same was stated to be needed for the construction of the
floors upon the plot of aforesaid property. It is further averred that, on
repetitive request by both defendants, the plaintiff further made a payment
to the tune of Rs. 5,00,000/- to the defendants on 17.08.2015 and after
getting this part payment, the defendants further executed one Agreement
to Sell dated 17.08.2015 by which the defendants no. 2 acknowledged the
receipt of the total sum of Rs. 8,00,000/- from the plaintiff and agreed to
execute the documents of title/sale deed in favour of the plaintiff on
getting the remaining sum of Rs. 3,00,000/- from the plaintiff on or before
15.01.2016. It is further averred that, on getting this amount, the
defendants also handed over possession of the aforesaid shop/property to
the plaintiff as almost 75% of the consideration amount has been obtained
by the defendants from the plaintiff and that on 17.08.2015, the plaintiff
taken the possession of the suit property and put his locks over the
property.
4. It is further averred that, on 06/01/2016, son of the defendants
were found trying to remove the locks of the plaintiff from the aforesaid
shop/property without any authority and permission from the plaintiff and
when the plaintiff objected to the same, the son of the defendants startedDigitally
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SHILPI SHILPI M
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quarreling with the plaintiff which reflected malafide intention of the
defendants behind the aforesaid transaction w.r.t. the suit property. It is
further averred that, such unexpected behavior from the defendants
created doubts in the mind of the plaintiff. It is further averred that, the
defendant has received a total sum of Rs. 8,00,000/- (Rupees Eight Lakhs
Only) against the agreement to sell of the suit property to the plaintiff but
the defendant failed to come forward for executing the sale deed and also
failed to hand over the original documents of the suit property to the
plaintiff and had not come for the said purpose despite the fact that the
plaintiff was ready to perform his part of the agreement.
5. It is further averred that, in such circumstances, the plaintiff
has sent a legal notice dated 07.01.2016 to the defendant through his
Advocate on 08.01.2016 and the said notice duly served upon the
defendant. However, despite the receipt of the legal notice, the defendants
failed to turn for the execution of the title documents w.r.t. the suit property
in favour of the plaintiff. It is further averred that, when the plaintiff asked
the reason for not executing the sale deed/title documents the defendant
no. 1 categorically told the plaintiff that the price of suit property has
increased manifold and as such she has decided not to sell the property at
the agreed amount and that is why she is exploring the possibility to sell
the said property at a higher amount to somebody else. It is further averred
that, in such circumstances the plaintiff was apprehending that the
defendants may sell the said property or create third party interest on the
same and may cause irreparable loss to the plaintiff which cannot be
retrieved at all.
SHILPI
M JAIN
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by SHILPI M JAIN
Date: 2024.12.23
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6. It is further averred that, it is provided in the agreement to
sell that if the defendant fails to perform his part of the agreement the
defendant shall be liable to pay the double amount of the deposit made by
the plaintiff, that is Rs. 16,00,000/- with interest thereon, but this remedy
is to be invoked only if the transaction could not be completed through
court of law by filing the suit for specific performance and such a suit etc.
will be at the cost and risk of the defendant, thus the right available with
the plaintiff is in addition to the relief of specific performance as regards
compensation for the breach of the agreement by the defendant.
7. In his WS, defendants stated that the plaintiff has no locus-
standi to file the present suit against the defendants, therefore the Plaintiff
is not entitled to get any discretionary relief from this Court. It is further
stated that the suit of the plaintiff is not maintainable against the
defendants as the defendants has never made or signed the documents filed
by the plaintiff along with the plaint from page no. 13 to17 and that these
documents are forged and fabricated only made with the ulterior motive
to grab the property of the defendants. It is further stated that the
defendants have never ever made or sign any property bayana receipt or
never entered to the agreement to sale/bayana with the plaintiff and
plaintiff may be prosecuted under the proper law for preparing forged
documents against the defendants. It is further stated that, Plaintiff has not
come to this court with clean hands and has suppressed material facts, to
file the present suit malafidely with the intention to harass, humiliate or
torture the Defendants with the sole motive to grab the property of the
defendants. It is further stated that the plaintiff along with his father who
is a property dealer and other fellows of Land Mafia have many times tried
to attack on the defendants and their children with the sole motive to grab
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the suit property and many complaints have been filed against them by the
defendants and their children. Therefore, the suit of the Plaintiff is liable
to be dismissed.
8. It is further stated that, defendant no. 1 is the legal, lawful
and exclusive owner and in possession of the suit property and there is no
right title or interest of the plaintiff on the suit property. It is submitted that
the defendants have never ever signed any bayana receipts and never
agreed to sale any property to the plaintiff and have never entered to any
sale agreement or never received any consideration amount thereto. It is
denied on behalf of defendants that in furtherance of the sale transaction,
the defendants have received a sum of Rs. 3,00,000/- as bayana/advance/
earnest money from the plaintiff against the “Bayana Receipt” dated
01.07.2015 duly signed by the defendant no.2 in presence of common
known witnesses. By this agreement defendants were agreed to sell the
aforesaid /suit property /shop for a sum of Rs. 11,00,000/- to the plaintiff
and the date of execution of the documents was scheduled to be or before
15.01.2016. It is submitted that defendants have never entered in any
agreement nor signed any bayana receipt and the defendants have prepared
the forged false and frivolous documents. It is further submitted that, the
defendants have never ever talked about the sale of the said shop then
question of handed over the possession of the shop/property or to pay the
75% of the consideration amount does not arise.
9. It is further stated that, the notice of the plaintiff has been
properly replied by the defendants through their counsel thereby
requesting the plaintiff to withdraw the legal notice which is based on the
cooked up story, but inspite of that the plaintiff has filed the suit to fulfill
Digitally
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his illegal desire. It is further submitted that, the plaintiff has no locus
standi and cause of action to file the present suit and that the cause of
action has never been arisen in the favour of plaintiff and against the
defendants. It is further stated that, the plaintiff is not entitled to any relief
as the suit of the plaintiff is based on the false, fabricated and concocted
story and based on forged documents.
10. No replication to the written statement of defendant was filed
on behalf of the plaintiff.
ISSUES
11. On the basis of pleadings of parties, following issues were
framed by Ld. Predecessor of this Court vide order dated 12.05.2016 :-
i. Whether the documents filed by the plaintiff in support of his plaint
are forged and fabricated? OPD
ii. Whether the plaintiff is entitled to decree of specific performance
on the basis of Agreement to Sell and Purchase dated 17.08.2015?
OPP
iii. Whether the plaintiff is entitled to decree of permanent injunction
with regard to L Type shop, without roof rights at the ground floor
on built up property bearing no.A-362, Area measuring 9’x9′ Sq. ft.
khasra no.7/3, situated in the area of village Mirzaur, Delhi Estate
Delhi, abadi known as Mahavir Enclave, Part-II, Gali no.11, New
Delhi-59, (hereinafter referred to as the suit property)? OPP
iv. Whether the plaintiff is entitled to a decree of Rs.8 lacs with interest
thereon? OPP
v. Relief.
Digitally
signed by
SHILPI M
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EVIDENCE GIVEN BY PARTIES
12. In support of its case, plaintiff examined six witnesses. PW1
Sh. Manish Kumar Jha, s/o Sh. Gopal Jha, R/o A-405B Gali no.12,
Mahavir Enclave, New Delhi-59 tendered his evidence by way of affidavit
Ex.PW 1/A and relied upon the following documents:
Sl. Particulars of Documents Exhibits/Mark
No.
1. Original Bayana Receipt dated Ex.PW1/A
01.07.2015
2. Original agreement to sell dated Ex.PW1/B
17.08.2015
3. Office copy of legal notice dated Ex.PW1/C
07.01.2016
4. Original Postal receipts Ex. PW1/D
(colly)
5. Original attendance slip at Sub Registrar Ex. PW1/E
Office-IX (Kapashera)PW1 was cross-examined by Ld. Counsel for defendants at
length and discharged.
13. PW-2 Sh. Ram Punit Jha S/o Sh. Mahadev Jha, Rio. R-92,
Chanakya Place, Part-II, New Delhi-110059 tendered his evidence by way
of affidavit Ex. PW2/A. He relied upon the documents already Ex. PW1/A
and Ex.PW1/B. PW2 was cross-examined by Ld. Counsel for defendants
and discharged.
14. PW-3 Sh. Anil Kumar Jha, S/o Gunakant Jha r/o E-566 Gali
no. 79 Mahavir Enclave Part-3, D K. Mohan Garden, Delhi-59 tendered
Digitally
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his evidence by way of affidavit Ex. PW3/A. He relied upon the
documents already Ex. PW1/A and Ex.PW1/B. PW3 was cross-examined
by Ld. Counsel for defendants and discharged. The court has observed
during the cross-examination of DW3 that the Ld. Counsel for the
defendants was taking too much time in asking the question and he was
directed to ask the question without taking too much time.
15. PW-4 Sh. Jaipal Singh S/o Sh. Bharat Singh r/o A-449 A
Block Gali no. 12, Mahavir Enclave Part II Delhi-59 tendered his evidence
by way of affidavit Ex. PW4/A. He relied upon the documents already
exhibited/proved in the deposition of PW1. PW4 was cross-examined by
Ld. Counsel for defendants. The court has observed during the cross-
examination of DW4 that the Ld. Counsel for the defendants was taking
too much time in asking one question and he was warned to ask the
question without taking any unnecessary long time between one question
and another but, as Ld. Counsel for defendants did not change his
demeanour, high right to cross-examine the witness (PW4) was closed.
However, after allowing the application under Order XVIII Rule 17 CPC
moved by defendants for recalling the PW4, which was closed vide order
dated 08.08.2017, one opportunity was granted to defendants to further
cross-examine PW4. Thereafter, PW4 was further cross-examined by Ld.
Counsel for defendants and discharged.
16. PW-5 Sh. Gopal Jha S/o Sh. Ram Swaroop Jha age about 58
yrs r/o A-405 B Gali no.12, Mahavir Enclave, Part II, Delhi tendered his
evidence by way of affidavit Ex. PW5/A. He relied upon the documents
already exhibited/proved in the deposition of PW1. PW5 was not cross-
examined by Ld. Counsel for defendants despite opportunity. However,
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after allowing the application under Order XVIII Rule 17 CPC moved by
defendants for recalling the PW5, which was closed vide order dated
08.08.2017, one opportunity was granted to defendants to further cross-
examine PW5. Thereafter, PW5 was cross-examined by Ld. Counsel for
defendants and discharged.
17. PW-6 Sh. Rajesh Verma S/o Late Sh R.N. Verma, R/o. D-2,
Jansatta Apartments, Sector-9, Vasundhara, Ghaziabad (Handwriting
Expert) tendered his evidence by way of affidavit Ex. PW6/A. He relied
upon his Handwriting/ Signature Examination Report, which bears his
signatures on each page at points ‘X’ and was exhibited as Ex. PW6/1 (13
pages). PW6 was cross-examined by Ld. Counsel for defendants at length
and discharged.
18. Thereafter, plaintiff closed its evidence and the matter was
listed for defendant’s evidence.
19. Four witnesses were examined on behalf of defendant in
support of his defense. DW1 Sh. Shiv Kumar Gupta, S/o Sh. Ram Prakash
Gupta, R/o A-362, Gali No. 11, Mahavir Enclave, Part-II, New Delhi-59
tendered his affidavit dt. 24.04.2018 Ex.DW1/A and he relied upon the
reply sent by him to the legal notice of the plaintiff which is marked as
Mark A. DW1 was cross-examined by Ld. Counsel for defendants at
length and discharged.
20. DW2 Smt. Vinita Gupta W/o. Sh. Shiv Kr. Gupta, R/o. A-
362, Gall No.11, Mahavir Enclave, Part-ll, New Delhi tendered her
Digitally
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evidence by way of affidavit Ex.DW2/A and also relied upon following
documents:
Sl. Particulars of Documents Exhibits/Mark
No.
1. Documents i.e. GPA, Gift deed, Ex. DW2/1
Affidavit, all dated 10.08.2015 (Colly) (OSR)
2. Reply to legal notice . Mark A
DW2 was cross-examined by Ld. Counsel for plaintiff and
discharged.
21. DW3 Sh. B N Srivastava, S/o Late Sh. Hriday Narayan, age
77 years, R/o 1-114, Vikas Puri, New Delhi-110018 tendered her evidence
by way of affidavit Ex.DW3/A and also relied upon following document:
Sl. Particulars of Documents Exhibits/Mark
No.
1. Handwriting expert report dt. 28.01.2019 Ex. DW3/1
along with photographs and CD (Colly)
(Objected to by the Ld. Counsel for defendant as no certificate u/s
65 B of Indian Evidence Act filed in support of above exhibited
documents)
22. DW3 was cross-examined by Ld. Counsel for plaintiff and
discharged. DW4 Ms. R. Veeramani, JA/Ahlmad in the court of Ms.
Vaishali Singh, Ld. JMFC, Mahila Court-05. Dwarka Courts (SW), New
Delhi was summoned witness and has brought the judicial file of case
State Vs. Shiv Kumar, FIR no. 192/16, PS Dabri u/s 354/325/506/509/34
IPC. The copy of same is Ex.DW4/1 (colly.) running in 8 pages. DW4 was
cross-examined by Ld. Counsel for plaintiff and discharged.
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23. Thereafter, DE was closed and matter was listed for final
arguments.
SUBMISSIONS OF THE PARTIES
24. Ld. Counsel for plaintiff submitted that, defendants have
already taken Rs. 8 lacs out of total sale consideration of Rs. 11 lacs qua
the suit property hence, decree of specific performance may be passed in
favour of the plaintiff for execution of sale deed on payment of remaining
amount of Rs. 3 lacs. It is also submitted that, as per the agreement to sell
dt. 17.08.2015 final sale deed was to be executed on 15.01.2016 but
defendant forcefully took possession of the suit property on 06.01.2016
and present suit is filed without any delay on 16.02.2016. It is also
submitted that, plaintiff was always ready and willing to finalize the sale
transaction between the parties and it is defendant’s intention which turned
bad and they declined to execute the agreement to sell rather, forged and
fabricated the documents to deprive the plaintiff from his valid right. It is
also submitted that, only defense of defendant in the entire suit is that
Ex.PW1/B i.e. agreement to sell dt. 17.08.2015 is forged and fabricated
which was first time pointed out in the WS only. It is further submitted
that, the plaintiff has already examined all the witnesses to agreement to
sell and receipt and there is no suggestion by the defendant to PW1 w.r.t.
the non payment qua the agreement to sell.
25. Per contra, Ld. Counsel for defendant disputed the claim
made by the plaintiff. It is stated that Ex.PW1/A as well as Ex.PW1/B i.e.
receipt and agreement to sell are forged and fabricated having no
evidentiary value in the eye of law. It is also submitted that, Ex.PW1/E
Digitally
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i.e. receipt has no relevance as same is for the purpose of inspection only.
It is also submitted that, defendant duly replied to the legal notice i.e.
Ex.PW1/C wherein dispute was raised. It is also submitted that, PW1
failed to prove his case rather, in his entire testimony deposed that his
father is in the knowledge of actual fact, not him. It is further submitted
that, on the other side PW5 i.e. father of plaintiff specifically made
submission in criminal case 10030/2017 that defendant has taken loan. Ld.
Counsel for defendants submits that, contention of plaintiff is
contradictory and cannot be relied upon. It is also submitted that, even
otherwise relief for specific performance cannot be granted as cash
transaction is an unaccounted transaction and in violation of Sec. 269SS
IT Act. It is further submitted that, neither there is any valid agreement to
sell nor plaintiff was having any willingness and readiness to perform the
contract. Hence, present suit is to be dismissed. Lastly, it is submitted that,
none of the witness could prove the claim of the plaintiff hence, cannot be
relied upon. It is further submitted that, no bank statement is produced
before the court to show the plaintiff’s capacity. It is also submitted that,
in case of possession, an ATS has to be registered which is not a case over
here. It is also submitted that, expert witness i.e. DW3 already disprove
the signature of defendant. It is also submitted that, opinion of expert
witness i.e. PW3 is based on copy, not on original hence, cannot be relied
upon. It is also submitted that, father of plaintiff in criminal case no.
10030/2017 specifically deposed that there was some loan transaction
only. Lastly, it is submitted that, plaintiff has also examined independent
witness and testimony of the same is duly corroborated with the version
of plaintiff. Ld. Counsel for defendant relied upon the following
judgments in support of his contentions:
Digitally
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SHILPI SHILPI
JAIN
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a) I.S. Sikandar (Dead) by LRs vs. K. Subramani & Ors. (2013) 15
SCC 27;
b) Dilbagh Kaur Chandok Through LRs Daljeet vs. State & Anr. Crl.
L.P. 231/2017 dt. 06.02.2019;
c) Shenbagam & Ors. vs. K K Rathnavel Civil Appeal No. 150/2022
d) U N Krishnamurty (since deceased) Thr. LRs vs. A M
Krishnamurthy 2022 SCC OnLIne SC 840;
e) N P Thirugnanam (D) by LRs vs. Dr. R Jagan Mohan Rao & Ors.
AIR 1996 SC 116;
26. In rebuttal, it is submitted by Ld. Counsel for plaintiff that
the defendant never challenged financial capacity of plaintiff and same is
beyond the pleading. It is also submitted that, none of the PWs was
impeached by the defendants and only defense of the defendants is
mentioning of inspection in Ex.PW1/E. It is further submitted that,
defendant duly admitted his practice of signing in English as well as in
Hindi. Lastly, it is submitted that, plaintiff has also examined independent
witness and testimony of the same is duly corroborated with the version
of plaintiff.
27. Submission heard. Record pursued.
ISSUEWISE ANALYSIS & FINDING
ISSUE NO. 1: Whether the documents filed by the plaintiff in support of
his plaint are forged and fabricated? OPD
28. In present matter, entire claim of plaintiff is based upon Ex.
PW1/A and Ex. PW1/B i.e. Bayana Receipt dated 01.07.2015 and
Digitally
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agreement to sell dated 17.08.2015. It is submitted that, plaintiff paid Rs.
8,00,000/- out of 11,00,000/- as earnest money and part payment to the
defendant but, defendants breached the same and refused to execute sale
deed on due date. While, on the other side, defendants disputed the
execution of above documents. It is submitted that, Ex.PW1/A as well as
Ex.PW1/B i.e. receipt and agreement to sell are forged and fabricated
having no evidentiary value in the eye of law. Onus of this issue is upon
defendants.
BURDEN OF PROOF:
29. In Anil Rishi v. Gurbaksh Singh1 Hon’ble Supreme Court of
India discussed law on onus and burden of proof in following terms:
“8. The initial burden of proof would be on the plaintiff in
view of Section 101 of the Evidence Act, which reads as
under:
“101. Burden of proof. Whoever desires any court to
give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove
that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that
person.”
9. In terms of the said provision, the burden of proving the
fact rests on the party who substantially asserts the
affirmative issues and not the party who denies it. The
said rule may not be universal in its application and
there may be an exception thereto. The learned trial
court and the High Court proceeded on the basis that the
defendant was in a dominating position and there had
1
(2006) 5 SCC 558
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been a fiduciary relationship between the parties. The
appellant in his written statement denied and disputed
the said averments made in the plaint.
XXXXXX
15. Section 111 of the Evidence Act will apply when the bona
fides of a transaction is in question but not when the real
nature thereof is in question. The words “active
confidence” indicate that the relationship between the
parties must be such that one is bound to protect the
interests of the other.
XXXXXXX
19. There is another aspect of the matter which should be
borne in mind. A distinction exists between burden of
proof and onus of proof. The right to begin follows onus
probandi. It assumes importance in the early stage of a
case. The question of onus of proof has greater force,
where the question is, which party is to begin. Burden of
proof is used in three ways: (i) to indicate the duty of
bringing forward evidence in support of a proposition at
the beginning or later, (ii) to make that of establishing a
proposition as against all counter-evidence; and (iii) an
indiscriminate use in which it may mean either or both
of the others. The elementary rule in Section 101 is
inflexible. In terms of Section 102 the initial onus is
always on the plaintiff and if he discharges that onus and
makes out a case which entitles him to a relief, the onus
shifts to the defendant to prove those circumstances, if
any, which would disentitle the plaintiff to the same.”
30. In view of settled law as laid down by Hon’ble Supreme
Court India, since plaintiff is claiming relief of specific performance on
the basis of Exh. Pw1/A and Exh. Pw1/B, he must prove that said
documents/agreement exist. If he discharges that onus and makes out aDigitally
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case which entitles him to a relief, the onus shifts to the defendant to prove
those circumstances, if any, which would disentitle the plaintiff to the
same.
31. To discharge his onus Plaintiff examined one witness of Ex.
PW1/A and both witnesses of Exh. PW1/B as PW2 and PW3. Plaintiff
further examined PW6 as expert witness to testify signature of defendant
on Ex. PW1/A and EX. PW1/B.
TESTIMONY OF INTERESTED WITNESS:
32. In his deposition, PW2 duly confirmed the execution of
PW1/A and PW1/B in his presence and other witness. During the course
of arguments, Ld. counsel for defendant submitted that, testimony of PW2
can’t be relied upon as he is son in law of Sh. Gopal Jha i.e. father of
plaintiff. But, this court is not inclined to accept the plea taken by Ld.
Counsel for defendant. No doubt, in law, an interested witness refers
to someone who has a stake or interest in the outcome of a legal
proceeding. This interest could be financial, personal, or related to their
relationship with one of the parties involved in the case but, merely closed
relationship with the plaintiff can’t be sole ground to discredit the
testimony. Some, material has to be brought on record to show that, he has
some interest in the subject matter. Reliance is placed upon Laltu Ghosh
vs The State Of West Bengal2
12. As regards the contention that the eyewitnesses are close
relatives of the deceased, it is by now well settled that a
related witness cannot be said to be an ‘interested’ witness2
AIR 2019 SUPREME COURT 1058Digitally
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merely by virtue of being a relative of the victim. This
Court has elucidated the difference between ‘interested’
and ‘related’ witnesses in a plethora of cases, stating that
a witness may be called interested only when he or she
derives some benefit from the result of a litigation, which
in the context of a criminal case would mean that the
witness has a direct or indirect interest in seeing the
accused punished due to prior enmity or other reasons,
and thus has a motive to falsely implicate the accused (for
instance, see State of Rajasthan v. Kalki, (1981) 2 SCC
752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107;
and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15
SCC 298). Recently, this difference was reiterated
in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in
the following terms, by referring to the three Judge bench
decision in State of Rajasthan v. Kalki (supra):
“14. “Related” is not equivalent to “interested”. A witness
may be called “interested” only when he or she derives
some benefit from the result of a litigation; in the decree in
a civil case, or in seeing an accused person punished. A
witness who is a natural one and is the only possible eye
witness in the circumstances of a case cannot be said to be
“interested”…”
XXXX
14. In case of a related witness, the Court may not treat his or
her testimony as inherently tainted, and needs to ensure
only that the evidence is inherently reliable, probable,
cogent and consistent. We may refer to the observations of
this Court in Jayabalan v. Union Territory of Pondicherry,
(2010) 1 SCC 199:
“23. We are of the considered view that in cases where the
Court is called upon to deal with the evidence of the
interested witnesses, the approach of the Court while
appreciating the evidence of such witnesses must not beDigitally
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pedantic. The Court must be cautious in appreciating and
accepting the evidence given by the interested witnesses
but the Court must not be suspicious of such evidence. The
primary endeavour of the Court must be to look for
consistency. The evidence of a witness cannot be ignored
or thrown out solely because it comes from the mouth of a
person who is closely related to the victim.”
(emphasis is mine)
33. Further, PW3 also confirm the execution of PW1/A and Exh.
PW1/B in his presence. He specifically deposed that, he was called by
defendant No. 1 and 2 at the time of execution of above agreements and
plaintiff paid Rs. 8,00,000/- to the defendants. No suggestion to dispute
the said fact made by defendants during cross examination rather, Ld.
predecessor of this court observed that, counsel for the defendants was
taking too much time in asking the question.
34. On Careful consideration of the testimony and cross
examination of PW2 and PW3 , this court find the same, consistent and
reliable, and therefore reject the contention of the defendants that the
testimony of PW2 must be disbelieved because he is close relative of the
plaintiff and hence interested witnesses.
35. Plaintiff further examined, PW6 as expert witness to testify
the disputed signature of defendants on Ex. PW1/A and PW1/B. For the
purpose of clarification, examination in chief is reproduced herein:
‘1. That the I have been engaged for more than 22 years in the
profession of examining the disputed Handwritings, FingerDigitally
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Prints, Voice identification, Video and rendering his opinion
to his clients as an Expert.
2. That I initially trained under my father Late RN Verma who
had educated himself and had successfully completed a course
from Institute of Applied Sciences Chicago, USA, from where
he Graduated. The course under taken by him covered exami-
nation of Hand Writings, Finger Prints. Questioned Docu-
ment, Police Photography and Investigation. That the Depo-
nent trained himself under late Sh.R.N.Verma between 1991 to
1994 on theory as well as practical courses and in 1995 I com-
pleted one year course from The College of Questioned Docu-
ments Examiners, Shimla, which was a Course in Hand Writ-
ing Finger Print and Ink Examination. I became Member of
International Association for Identification (IAI) in 2000 and
appointed as Member of Voice Identification and Acoustic
Analysis Committee (VIAS) at IAI, This committee was in-
volved in Development of Acoustic Analysis Development Pro-
cedure. Deponent Got Trained on Computer Systems, Net-
work, Audio Video During 1994 to 2001 through various
Courses and constantly upgrading. With Above said Qualifi-
cation and Experience I Qualify to submit report on the sub-
jects with reference to India Evidence Act Section 45 and I
have given opinion in more than 400 cases.
3. That in this matter I was engaged to Examine Questioned Doc-
ument which is Property Bayana Receipt (प्रॉपटीर् बयाना रसीद)
dated 01.07.2015 Ex PW1/A bearing purported signatures of
Shri Shiv Kumar signed as “िशव कुमार in hindi it has been
marked as A1 and Smt Vineeta Gupta signed as “िवनीला गुप्ता
signed as A2 in Hindi. Questioned Document two is “Agree-
ment to Sell/ Biana” dated dated 107.80.2015 Signed Signa-
ture “िशव कुमार” in Hindi marked B, B1, B2 and B3 I have been
provided Original Document for Examination. Standard
Digitally
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Documents of Shri Shiv Kumar are “SS” and of Smt. Vinita
Gup are “VS” when combined detail given in report.
OPINION 1
The Questioned SQ and Standard SS Signatures Signed as िशव
कुमार when compared on Technical points and Formation it is
found that these are same in right formed and left formed and
proved that are Genuine signatures It means signatures on
Property Bayana Raceipt (प्रॉपटीर् बयाना रसीद) dated 01.07 2015
Ex PW1/A and Agreement to Sell / Biana” dated dated 07 80
2015 as mentioned in para one are genuine Signature of Shri
Shiv Kumar beyond doubt.
OPINION 2:
The Questioned VQ and Standard VS Signatures Signed as
िवनीता गुप्ता when compared on Technical points and For-
mation it is found that these are same in right formed and left
formed and proved that are Genuine signatures. It means sig-
natures on Property Bayana Raceipt (प्रॉपटीर् बयाना रसीद) dated
01.07.2015 Ex PW1/A as mentioned in para one is genuine
Signature of Smt Vinita Gupta beyond doubt.
4. That the detail of reasons and observation on the basis of
which I have formed my above mention opinion are mentioned
in my report dated 16.12.2017, which is correct, signed by me
and be taken as part of this affidavit, I had also the above men-
tioned signatures from the above referred door also exposed
the above mentioned signature from the above referred docu-
ments and got prepared their enlarged photographs which
were developed and printed under my instructions and are free
from any retouching or alteration, hence are the true produc-
tion of the signatures under examination, which fact can be
Digitally
signed by
SHILPI M
SHILPI JAIN
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and are established by comparing them their counterpart orig-
inal documents and are collectively Exhibit No. Ex.PW6/1′
36. PW6 was cross examined at length. For the purpose of
clarification, relevant cross examination of PW6 is reproduced herein:
‘It is wrong to suggest that the report Ex. PW6/1 filed by me is
false and fabricated and the same was prepared at the instance
of the plaintiff. It is wrong to suggest that the Marks S1 and S2
in my report have not been taken from the written statement
filed by the defendants. At this stage, witness is being
confronted from the written statement and the report filed by
him, it was found that the admitted signatures S1 and S2 have
not been taken from the written statement. Voltr. The same have
been taken from the ordersheet dated 12.05.2016 of this Court
in the present suit. It is correct that the admitted signature
Mark S3 has not been taken from the Vakalatnama of the
defendant filed in the present suit. Voltr. The same has been
taken from the application u/O. 18 Rule 17 CPC filed by the
defendant in the present suit. It is wrong to suggest that the
report Ex. PW6/1 has not been prepared carefully and the same
has been prepared at the instance of the plaintiff.
I have obtained a Certificate in Questioned Document
Examination from the college of Questioned Document
Examination and Ink Examination, Shimla. I have done no
course in Forensic Science. However, I have undergone a
training in Forensic Science for three years under my father. I
have not filed any document on record qua undergone training
in Forensic Science, although, I have brought the original
documents with me today. I have not received any certificate
of practical training/project from any government department.
I have appeared approximately in 200 cases in Delhi Courts
including NCR as an Handwriting and Finger Print Expert.
Digitally
signed by
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I have not checked the degree of Enlargement of Photographs
submitted by me in the court. Voltr. Photographs have been
taken from the 13 megapixel camera. It is correct that
volunteer portion is not mentioned in my report Ex. PW6/1. I
have examined four disputed of the defendant Shiv Kumar i.e.
on “Mark B, B-1, B-2 and B-3”. I have compared these four
disputed signatures with the admitted signatures of the
defendant on “Mark S- 1and Mark SP-1”. I have examined the
standard signatures inter-se, however, the same is not
mentioned in my report. It is correct that there is consistency
in the standard signatures of the defendant. “No attempt at
disguise’ is found in the specimen signatures. I have examined
the speed and skill of the disputed signatures of the defendant
Shiv Kumar. It is incorrect that the speed and skill of the
disputed signatures of the defendant Shiv Kumar is superior to
that of standard signatures. Voltr. Speed cannot be superior or
inferior, it can be written as slow, medium and fast. It is
incorrect that the pictorial appearance of the disputed
signatures is different from the standard signatures. It is
incorrect that the formation of individual letters is apparently
different in disputed and standard signatures. It is incorrect
that the body part of letter ‘Sh’ of Shiv Kumar, which is now
marked as Mark X1 on documents marked as Mark B, B-1, B-
2 and B-3” is elongated and big in disputed signatures whereas
it is small and round in standard signatures and the same are
marked as Mark-X2 on documents Mark-S1 and Mark SP-1
and in the Mark SP-1 letter ‘Sh’ is marked as X-2 (colly). Voltr.
It is in same range.
It is correct that in the disputed signatures which are marked
as Mark B, B-1, B-2 and B-3, of defendant Shiv Kumar shows
curvature in letter ‘Va’, however, it is straight in all the
standard signatures marked as S-1 and SP-1. Voltr. However
all the questioned signatures have variations in the curves. The
said fact is not mentioned in my report particularly, however,
the same is covered when it is stated that there is natural
Digitally
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variations in the signatures of the defendant Shiv Kumar and
that the body part of letter ‘Va’ of Shiv Kumar, which is now
marked as Mark X1/A on documents marked as Mark B, B-1,
B-2 and B-3″, the same are marked as Mark-X2/B on
documents Mark-S1 and Mark SP-1 and in the Mark SP-1
letter ‘Va’ is marked as X-2/B (colly).
It is incorrect that in the disputed signatures which are marked
as Mark B, B-1, B-2 and B-3, of defendant Shiv Kumar, letter
‘Ka’ is readable as letter ‘Ma’ whereas in standard signatures,
it is clearly readable as ‘Ka’. That the body part of letter ‘Ka’
of Shiv Kumar, which is now marked as Mark X1/B on
documents marked as Mark B, B-1, B-2 and B-3″, the same are
marked as Mark-X2/C on documents Mark-S1 and Mark SP-1
and in the Mark SP-1 letter ‘Ka’ is marked as X-2/C (colly).
Ques: Is it correct that the letter (matra) ‘Oo’ is written in
continuation with the ending of vertical stroke in letter ‘Ka’ in
disputed signatures but it is separate in standard signatures of
defendant Shiv Kumar in documents marked as Mark B, B-1,
B-2 and B-3″?
Ans: It is in continuation in documents marked as Mark B, B-
1and B-2, but it is separate in B-3. However, it is separate in
all the standard signatures of the defendant Shiv Kumar
marked as S-1 and SP-1.
It is correct that the said fact is nowhere been recorded in my
report Ex. PW6/1.
That the body part of letter ‘Oo’ of Shiv Kumar, which is now
marked as Mark X1/C on documents marked as Mark B, B-1,
B-2 and B-3″, the same are marked as Mark-X2/D on
documents Mark-S1 and Mark SP-1 and in the Mark SP-1
letter ‘Oo’ is marked as X-2/D (colly).
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Ques: Is it correct that letter ‘Ma’ has been written in one
operation of pen in disputed signatures marked as Mark B, B-
1, B-2 and B-3″ but in two operations in the standard
signatures marked as Mark S-1 and SP-1?
Ans: There is only pen lift and pen pause variations.
It is incorrect that the said fact is nowhere recorded in my
report.
That the body part of letter ‘Ma’ of Shiv Kumar, which is now
marked as Mark X1/D on documents marked as Mark B, B-1,
B-2 and B-3″, the same are marked as Mark-X2/E on
documents Mark-S1 and Mark SP-1 and in the Mark SP-1
letter ‘Ma’ is marked as X-2/E (colly).
Ques: Is it correct that there is either closed or open loop in
the etter ‘Ra’ in the standard signatures marked as Mark S-1
and SP-1 but there is no loop in the letter ‘Ra’ found in the
disputed signatures of the defendant Shiv Kumar marked as
Mark B, B-1, B-2 and B-3″?
Ans: There are small loops found in the disputed signatures as
well. However, there are loops in standard signatures.
That the body part of letter ‘Ra’ of Shiv Kumar, which is now
marked as Mark X1/E on documents marked as Mark B, B-1,
B- 2 and B-3″, the same are marked as Mark-X2/F on
documents Mark- S1 and Mark SP-1 and in the Mark SP-1
letter ‘Ra’ is marked as X- 2/F (colly).
XXXXXXXX
It is correct that letter ‘RA’ in the signature of Shiv Kumar
Gupta has diagonal ending in disputed signature but curved
ending in standard signature. That the body part of letter ‘RA’
of Shiv Kumar, which is now marked as Mark X1/F on
documents marked as Mark B, B-1, B-2 and B-3″, the same areDigitally
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marked as Mark-X2/G on documents Mark-S1 and Mark SP-1
and in the Mark SP-1 letter ‘RA’ is marked as X-2/G (colly).
I have examined one disputed, two standard and rest of the
specimen signatures of the defendant Binita Gupta. It is wrong
to suggest that retouching is observed in the cup part of ‘VA’ of
the partial signature of defendant Binita Gupta in letter ‘Vinita’
which is marked as X3/A in disputed signatures. Voltr. It has
been signed on the stamp therefore, some variation is there in
the formation. It is wrong to suggest that I am deposing falsely
in this regard.
It is wrong to suggest that retouching is observed in the partial
signature of defendant Binita Gupta in letter ‘Vinita’ which is
marked as X3/A in disputed signatures in the letters ‘NA’, ‘TA’,
‘GA’. Voltr. It has been signed on the stamp therefore, some
variation is there in the formation. It is wrong to suggest that I
am deposing falsely in this regard. It is wrong to suggest that
formation of cup of letter ‘VA’ is different in disputed signature
marked as A-2 and standard signature marked as S2 and SP2.
It is wrong to suggest that the upper part of matra ‘EE’ of letter
‘VA’ is angular in disputed signature marked as A-2 and round
in standard signature marked as S2 and SP2. It is wrong to
suggest that I am deposing falsely in this regard. It is wrong to
suggest that initial part ‘NA’ joins the vertical stroke nearly at
the top in the standard signature marked as S2 and SP2 and in
the middle in the disputed signature marked as A2. It is wrong
to suggest that I am deposing falsely in this regard.
The letter ‘TA’ is round in standard signature marked as 52 and
SP2 whereas it is angular in disputed signature marked as
Mark A2. The partial signature of the defendant Binita Gupta,
the letter “Vinita’ in the standard signature is marked as S2 is
marked as X4 and the standard signature marked as SP2 is
now marked as X4/A (colly).
Digitally
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It is correct that the base of initial stroke in letter ‘GA’ as round
big loop in disputed signature marked as A2 whereas it is
written differently in the standard signature marked as S2 and
SP2. Again said. Both the loops of letter ‘GA’ in disputed
signature marked as A2 as well as standard signature marked
as S2 and SP2 are same.
It is correct that half letter ‘PA’ is in angular stroke in disputed
signature marked as A2. It is wrong to suggest that there is
bold formation in the half letter ‘PA’ is found in standard
signatures marked as S2 and SP2. All the signatures are having
angular formation of half letter ‘PA’. It is wrong to suggest that
I am deposing falsely in this regard. It is correct that the initial
part of letter ‘TA’ is represented by a small curved stroke but it
is incorrect that the same is closed to the bottom of the vertical
stroke in disputed signature marked as A2. It is correct that in
the standard signature marked as S2 and SP2, the initial part
of letter ‘TA’ is represented in big angular stroke. It is incorrect
to suggest that there are fundamental differences in respect of
the writing characteristics, however, there are variations found
in the individual formations of the letters in disputed as well
as standard signatures. It is wrong to suggest that I am
deposing falsely and the report filed by me is prepared at the
behest of the plaintiff.’
37. Careful perusal of above testimony reveals that, same is
consistent to the plea taken by plaintiff. However, in entire cross-
examination defendant nowhere disputed admitted signature of defendant
on S1, S2 and S3.
38. Ld. counsel for defendant vehemently disputed the signature
of defendants on Exh. PW1/A and Ex. PW1/B. He also examined DW3 as
expert witness to disprove signature of Defendants. Examination of Chief
Digitally
signed by
SHILPI M
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as well as Cross examination of DW3 is reproduced herein for sake of
clarification:
‘1. That I am working as Handwriting and Fingerprints Expert
of over 45 years and have received training in this science
from an Expert of Delhi late Mr. M.K.Mehta, during year
1967-68. I have also done one year Certificate Course in Fo-
rensic Science from University of Delhi, in year 1970. I have
so far given opinion/evidence in around 4000 cases in differ-
ent courts of law in States of U.P., Punjab, Haryana, Delhi.
2. That in the present case, I have examined the disputed signa-
tures of Binita Gupta in Hindi on photocopy and original of
Biyana Receipt dt. 01.7.15, Εx. PW1/1 and compared the
same with the comparative/specimen signatures of Binita
Gupta, detailed in enclosed report of dt. 28.01.19. The dis-
puted signatures have been marked as Q-1 & Q-2 and com-
parative/specimen as A-1 to A-5 and Y-1 to Y-10 on the pho-
tographic enlargements. I have also examined the disputed
signature of Shiv Kumar, original Biyana Receipt dt.1.7.15
and on pages of Agreement to Sell and compared the same
with the specimen of Shiv Kumar taken in court. The disputed
signatures have been marked as D- 1, D-2 to D-5 and the
specimen as S-1 to 8-13 on the photographic enlargements.
3. That in my opinion the disputed signatures of Binita Gupta,
marked as Q-1 & Q-2 are FORGED by method of imitation
forgery and have not been written by the writer of the com-
parative signatures, marked as A-1 to A-5 and Y-1 to Y-10. I
am also of the opinion that the disputed signatures of Shiv
Kumar, marked as D-1, D-2 to D-5 have not been written by
the writer of the specimen signatures marked as S-1 to S-13.
The disputed and the comparative signatures have been writ-
ten writers. by DIFFERENT writers.
Digitally
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4. The reasons for my opinion have been given in my report dt.
28.01.19, Ex. DW/1, which bears my signature on each page
and is correct. The photographs have been marked as Ex. DW
/2 to Ex.DW / ,The markings photographs are in my hand.
done on the photographs are in my hand.
5. That I took the photographs of the above mentioned (disputed
and the comparative/specimen signatures) with Cannon dig-
ital camera and copied the files, on C.D. Ex. DW / from
properly maintained computer and are restored in computer.
I got photographs prepared from a Colour Lab. under my su-
pervision. That the computer out put containing the infor-
mation mentioned in my affidavit, was produced by my com-
puter during the period over which, the Computer was used
by me and I was having lawful control over the use of com-
puter and the information contained in the electronic record
reproduced from information fed into the computer in the or-
dinary course of its operations and nothing material has been
concealed.’
CROSS EXAMINATION OF DW3
‘I do not have any license to practice as a examiner. (vol.
There is no provision for registration of Handwriting Expert.
The evidence of the handwriting expert is done u/s 45 of
Indian Evidence Act.) I cannot tell the exact date, month of
year when defendant approached me for the purpose of
examination.
At this stage, witness is referred to point no. A to A Ex.DW3/1
(colly.).
Q1. Do you have any document or proof to show that you
were present in court on 17.11.2017?
Ans. I need to go through the court record.
At this stage, court record is referred to DW-3 and on perusal
of the same, his answer is as follows:
Digitally
signed by
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Ans. I have taken photographs of specimen signature from the
court record. However, I do not remember the exact date.
I do not know whether I was present in the court on
17.11.2017 or not. I do not remember about the same.
Q2. I put it to you that you were not present in the court on
17.11.2017?
Ans. I cannot say.
Q3. Have you taken any leave before taking specimen from
the court record?
Ans. I have not taken. (vol. Advocate may have taken).
It is wrong to suggest that I do not bear qualification as
mentioned in Ex.DW3/1 (colly.). It is correct that I have not
seen defendant while signing any document. It is wrong to
suggest that Ex.DW3/1 (colly.) is false and without any basis
and prepared at the instance of defendants. It is wrong to
suggest that there is no imitation or forgery or pen-lifting,
retouching, tremors, pen pause, slow and drawn movement
as mentioned in Ex.DW3/1 (colly.). It is wrong to suggest that
the signatures in Bayana Receipt dt. 01.07.2015 and
agreement to sell dt. 17.08.2015 are similar. It is wrong to
suggest that Ex.DW3/1 (colly.) is prepared without verifying
the originals. It is wrong to suggest that the details of
equipments from which the photographs are taken are not
given in the evidence by way of affidavit as well as in
Ex.DW3/1 (colly.). It is wrong to suggest that the contents of
the Ex.DW3/A are false and fabricated and given at the
instance of defendants. It is wrong to suggest that I am
deposing falsely.’
39. At this stage, it is imperative to discuss Relevancy,
admissibility and appreciation of Expert Evidence.
RELEVANCY, ADMISSIBILITY AND APPRECIATION OF
EXPERT EVIDENCE:
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40. An expert witness is a person with specialized knowledge or
experience in a particular field who is called upon to provide their
expertise in legal proceedings. They are used to help the court understand
complex technical or scientific issues.
41. In 1993, the US Supreme Court, in its landmark judgment
Daubert v. Merrell Dow Pharmaceuticals, Inc.3 had identified four non-
definitive and non-exhaustive factors that were thought to be illustrative
of characteristics of reliable scientific knowledge. They are –
• testability or falsifiability,
• peer review,
• a known or potential error rate, and
• general acceptance within the scientific community.
42. Section 45 of the Indian Evidence Act, 18724 specifies,
relevancy of expert witnesses’ opinions. Although, the standard of proof
that is applied to the admission of scientific evidence and expert testimony
is similar in civil and criminal matter but, requisite degree of proof may
differ. Section 47 of the IEA5 states that the evidence pertaining to
3
509 U.S. 579 (1993)
4
Section 39(1) of Bhartiya Sakshya Adhiniyam, 2023
Opinions of experts
(1) When the Court has to form an opinion upon a point of foreign law or of science or art, or any other
field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons
specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of
handwriting or finger impressions are relevant facts and such persons are called experts.
5
Section 41(1) of Bhartiya Sakshya Adhiniyam, 2023
Opinion as to handwriting and signature, when relevant.
(1) When the Court has to form an opinion as to the person by whom any document was written or
signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed
to be written or signed that it was or was not written or signed by that person, is a relevant fact.
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handwriting may be admissible from anyone who is not professionally
trained, provided that they are acquainted with the handwriting in
question.
43. The evidentiary value of the opinion of an expert depends on
the facts upon which it is based and also the validity of the process by
which the conclusion is reached. Mere assertion without mentioning the
data or basis is not evidence, even if it comes from an expert. Where the
experts give no real data in support of their opinion, the evidence even
though admissible, may be excluded from consideration as affording no
assistance in arriving at the correct value.
INTERNATIONAL ADMISSIBILITY RULES: DAUBERT
STANDARDS
44. Essentially, Daubert requires that the judge shall delve into
the scientific field concerned and examine its reliability, assessing
‘whether the reasoning or scientific methodology underlying the
testimony is scientifically valid and whether that reasoning or
methodology can be properly applied to the facts in issue.’
45. In Kumho Tire Co. v. Carmichael6, it was held that Daubert
applies not only to scientific knowledge but also testimony based on
Explanation.–A person is said to be acquainted with the handwriting of another person when he has
seen that person write, or when he has received documents purporting to be written by that person in
answer to documents written by himself or under his authority and addressed to that person, or when,
in the ordinary course of business, documents purporting to be written by that person have been
habitually submitted to him.
6
526 U.S. 137
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“technical” and other specialized knowledge, such as engineering,
blacksmith, etc. The three rulings together are referred to as Daubert
trilogy. The “intellectual rigor” test enunciated in Kumho means that
an expert’s outstanding qualifications will not make the expert’s
opinion admissible unless the expert has a valid basis for how and
why a conclusion was reached. Experts must be prepared to establish
that their conclusions were reached by methods that are consistent
with how their colleagues in the relevant field or discipline would
proceed to establish a proposition if they were presented with the
same facts and issues.
INDIAN COURTS ON DAUBERT STANDARDS:
46. Often, Indian courts have taken help of legal transplants and
international precedents from other jurisdictions, most predominantly,
Daubert, to define admissibility criteria within Indian jurisprudence.
Daubert itself emphasizes that the factors listed to assist judges in
determining ‘whether the reasoning or methodology underlying the
testimony is scientifically valid’ were neither exclusive nor decisive.
47. In Ramesh Chandra v. Regency Hospital7, the Supreme
Court categorically laid out the conditions that govern the admissibility of
expert evidence as Expert must be heard, Area of expertise must be a
recognised one; The evidence must be based on reliable principles; He
must be qualified in the area of specialisation, either by education or by
way of experience.
7
AIR 2010 SUPREME COURT 806
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48. It is settled law that, an expert is not a witness of fact. His
evidence is really of an advisory character. The duty of an expert witness
is to furnish the Judge with the necessary scientific criteria for testing the
accuracy of the conclusions so as to enable the Judge to form his
independent judgment by the application of this criteria to the facts proved
by the evidence of the case. The scientific opinion evidence, if intelligible,
convincing and tested becomes a factor and often an important factor for
consideration along with the other evidence of the case. The credibility of
such a witness depends on the reasons stated in support of his conclusions
and the data and material furnished which form the basis of his
conclusions.
49. Section 73 of the Indian Evidence Act8 further empowers a
court to compare the disputed signatures with the admitted signatures but
the same cannot be done on a casual perusal or a mere glance, particularly
without even recording an analysis of the characteristics of the admitted
signatures as compared to those of the disputed one.
8
Section 72 of Bhartiya Sakshaya Adhiniyam, 2023
Comparison of signature, writing or seal with others admitted or proved.
(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to
have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the
Court to have been written or made by that person may be compared with the one which is to be proved,
although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of
enabling the Court to compare the words or figures so written with any words or figures alleged to have
been written by such person.
(3) This section applies also, with any necessary modifications, to finger impressions
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50. Hon’ble Supreme Court of India in its Full bench judgment
in Chennadi Jalapathi Reddy vs Baddam Pratapa Reddy (Dead)
Through LRs9 laid down that:
8. By now, it is wellsettled that the Court must be cautious while
evaluating expert evidence, which is a weak type of evidence
and not substantive in nature. It is also settled that it may not
be safe to solely rely upon such evidence, and the Court may
seek independent and reliable corroboration in the facts of
a given case. Generally, mere expert evidence as to a fact is
not regarded as conclusive proof of it. In this respect,
reference may be made to a long line of precedents that
includes Ram Chandra and Ram Bharosey v. State of Uttar
Pradesh, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh
Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State
of Punjab, (1977) 2 SCC 210, and S. Gopal Reddy v. State of
Andhra Pradesh, (1996) 4 SCC 596.
We may particularly refer to the decision of the Constitution
Bench of this Court in Shashi Kumar Banerjee (supra), where
it was observed that the evidence of a handwriting expert can
rarely be given precedence over substantive evidence. In the
said case, the Court chose to disregard the testimony of the
handwriting expert as to the disputed signature of the testator
of a Will, finding such evidence to be inconclusive. The Court
instead relied on the clear testimony of the two attesting
witnesses as well as the circumstances surrounding the
execution of the Will.
9. On the other hand, in Murari Lal v. State of Madhya Pradesh,
(1980) 1 SCC 704, this Court emphasised that reliance on
expert testimony cannot be precluded merely because it is not
corroborated by independent evidence, though the Court must
still approach such evidence with caution and determine its
9
AIRONLINE 2019 SC 970
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creditworthiness after considering all other relevant evidence.
After examining the decisions referred to supra, the Court was
of the opinion that these decisions merely laid down a rule of
caution, and there is no legal rule that mandates
corroboration of the opinion evidence of a handwriting expert.
At the same time, the Court noted that Section 46 of the Indian
Evidence Act, 1872 (hereinafter “the Evidence Act“) expressly
makes opinion evidence open to challenge on facts.
In Alamgir v. State (NCT, Delhi), (2003) 1 SCC 21, without
referring to Section 46 of the Evidence Act, this Court
reiterated the observations in Murari Lal (supra) and stressed
that the Court must exercise due care and caution while
determining the creditworthiness of expert evidence.
10. In our considered opinion, the decisions in Murari Lal (supra)
and Alamgir (supra) strengthen the proposition that it is the
duty of the Court to approach opinion evidence cautiously
while determining its reliability and that the Court may
seek independent corroboration of such evidence as a general
rule of prudence. Clearly, these observations in Murari
Lal (supra) and Alamgir (supra) do not go against the
proposition stated in Shashi Kumar Banerjee (supra) that the
evidence of a handwriting expert should rarely be given
precedence over substantive evidence.
51. Careful perusal of testimony of expert witnesses as well as
other witness to Exhb. PW1/A and Ex. PW1/B and material available on
record, this court is of the opinion that, Exhb. PW1/A and Ex. PW1/B are
genuine.
Prohibition u/s 269SS of The Income Tax Act
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52. It is well settled law that, Section 269SS prohibits any person
from taking or accepting from any other person any loan or deposit other
than by an account payee check or by account payee bank draft, if the
amount or aggregate amount referred to in clause (a) together with the
amount or aggregate amount referred to in clause (b) is twenty thousand
rupees or more. But, If person violates Section 269SS, then he is liable to
a penalty under Section 271D of the Income Tax Act. As such, defendant
can’t take plea against cash receipt/payment of part sale consideration.
53. Another point of argument pressed upon by defendant is
about statement in criminal case 10030/2017. But, this court also doesn’t
find any merit in the submission made by defendant that, in Cr. Case
10030/2017, father of plaintiff specifically deposed that, ‘one property
case is pending against the accused persons which as been filed by me.
The case is on the issue that accused persons has taken loan from my son
Manish Kumar’ as firstly, testimony of father of plaintiff in Cr. Case
10030/2017 is non specific w.r.t. dispute and transaction. Secondly, father
of plaintiff was examined as PW5 in present proceeding but, no such
conformation is made with this respect. Thirdly, nature of criminal
proceedings is unclear. Hence, Issue No. 1 decided in favour of plaintiff
and against the defendant.
ISSUE NO. 2: Whether the plaintiff is entitled to decree of specific
performance on the basis of Agreement to Sell and
Purchase dated 17.08.2015? OPP
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54. Before going ahead, it is imperative to discuss the Law on
specific performance before 2018 amendment and its applicability on the
fact of present matter.
LAW ON SPECIFIC PERFORMANCE BEFORE AND AFTER
AMENDMENT OF 2018
55. To highlight the change some of the provisions of the Act,
1963 and the Amendment Act, 2018 are contrasted hereinbelow:
Secti Act of 1963 Act as amended, effective
on on 01.10.2018Secti 10. Cases in which specific 10. Specific performance
on 10 performance of contract in respect of contracts.
enforceable-
The specific performance of
Except as otherwise provided in a contract shall be
this Chapter, the specific enforced by the court
performance of any contract may, subject to the provisions
in the discretion of the court, be contained in subsection (2)
enforced- of section 11, section 14
and section 16.
(a) when there exists no standard
for ascertaining actual damage
caused by the non-performance of
the act agreed to be done; or
(b) when the act agreed to be done
is such that compensation in
money for its non-performance
would not afford adequate relief.
Explanation: Unless and until the
contrary is proved, the court shall
presume-
(i) that the breach of a contract to
transfer immovable property
cannot be adequately relieved by
compensation in money; and
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(ii) that the breach of a contract to
transfer movable property can be
so relieved except in the following
cases:
(a) where the property is not an
ordinary article of commerce, or
is of special value or interest to the
plaintiff, or consists of goods
which are not easily obtainable in
the market;
(b) where the property is held by
the defendant as the agent or
trustee of the plaintiff.
Secti 14. Contracts not specifically 14. Contracts not
on 14 enforceable.- specifically enforceable.-
(1) The following contracts cannot The following contracts
be specifically enforced, namely,- cannot be specifically
enforced, namely:–
(a) a contract for the non-
performance of which (a) where a party to the
compensation is an adequate contract has obtained
relief; substituted performance of
contract in accordance with
(b) a contract which runs into such
the provisions of section
minute or numerous details or
20;
which is so dependent on the
personal qualifications or volition (b) a contract, the
of the parties, or otherwise from performance of which
its nature is such, that the court involves the performance of
cannot enforce specific a continuous duty which the
performance of its material terms; court cannot supervise;
(c) a contract which is in its nature (c) a contract which is so
determinable; dependent on the personal
qualifications of the parties
(d) a contract the performance of
that the court cannot
which involves the performance of
enforce specific
a continuous duty which the court
performance of its material
cannot supervise.
terms; and
(2) Save as provided by
the Arbitration Act, 1940, no
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contract to refer present or future (d) a contract which is in its
differences to arbitration shall be nature determinable.
specifically enforced; but if any
person who has made such a
contract (other than arbitration
agreement to which the provisions
of the said Act apply) and has
refused to perform it, sues in
respect of any subject which he
has contracted to refer, the
existence of such contract shall
bar the suit.
(3) Notwithstanding anything
contained in clause (a) or clause
(c) or clause (d) of sub-section (1),
the court may enforce specific
performance in the following
cases:
(a) where the suit is for the
enforcement of a contract,-
(i) to execute a mortgage or
furnish any other security for
securing the repayment of any
loan which the borrower is not
willing to repay at once:
PROVIDED that where only a
part of the loan has been advanced
the vendor is willing to advance
the remaining part of the loan in
terms of the contract; or
(ii) to take up and pay for any
debentures of a company;
(b) where the suit is for,-
(i) the execution of a formal deed
of partnership, the parties having
commenced to carry on the
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(ii) the purchase of a share of a
partner in a firm;
(c) where the suit is for the
enforcement of a contract for the
construction of any building or the
execution of any other work on
land:
PROVIDED that the following
conditions are fulfilled, namely,-
(i) the building or other work is
described in the contract in terms
sufficiently precise to enable the
court to determine the exact
nature of the building or work;
(ii) the plaintiff has a substantial
interest in the performance of the
contract and the interest is of such
a nature that compensation in
money for non-performance of the
contract is not an adequate relief;
and
(iii) the defendant has, in
pursuance of the contract,
obtained possession of the whole
or any part of the land on which
the building is to be constructed or
other work is to be executed.
Secti 16. Personal bars to relief.- 16. Personal bars to relief.-
on 16
Specific performance of a Specific performance of a
contract cannot be enforced in contract cannot be
favor of a person- enforced in favour of a
person-
(a) who would not be entitled to
recover compensation for its (a) who has obtained
breach; or substituted performance of
contract under section 20;
(b) who has become incapable of
or
performing, or violates any
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essential term of, the contract that (b) who has become
on his part remains to be incapable of performing, or
performed, or acts in fraud of the violates any essential term
contract, or willfully acts at of, the contract that on his
variance with, or in subversion of, part remains to be
the relation intended to be performed, or acts in fraud
established by the contract; or of the contract, or wilfully
acts at variance with, or in
(c) who fails to aver and prove that
subversion of, the relation
he has performed or has always
intended to be established
been ready and willing to perform
by the contract; or
the essential terms of the contract
which are to be performed by him, (c) who fails to prove that
other than terms of the he has performed or has
performance of which has been always been ready and
prevented or waived by the willing to perform the
defendant. essential terms of the
contract which are to be
Explanation: For the purposes of
performed by him, other
clause (c),-
than terms of the (i) where a contract involves the performance of which has payment of money, it is not been prevented or waived essential for the plaintiff to by the defendant. actually tender to the defendant or Explanation.-For the to deposit in court any money purposes of clause (c),- except when so directed by the court; (i) where a contract involves the payment of (ii) the plaintiff must aver money, it is not essential for performance of, or readiness and the plaintiff to actually willingness to perform, the tender to the defendant or contract according to its true to deposit in court any construction. money except when so directed by the court; (ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction. Digitally signed by SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 44 of 53 SHILPI JAIN M JAIN Date: 2024.12.23 16:41:25 +0530 Secti 20. Discretion as to decreeing 20. Substituted on 20 specific performance.- performance of contract.- (1) The jurisdiction to decree (1) Without prejudice to the specific performance is generality of the provisions discretionary, and the court is not contained in the Indian bound to grant such relief merely Contract Act, 1872 (9 of because it is lawful to do so; but 1872), and, except as the discretion of the court is not otherwise agreed upon by arbitrary but sound and the parties, where the reasonable, guided by judicial contract is broken due to principles and capable of non-performance of correction by a court of appeal. promise by any party, the party who suffers by such (2) The following are cases in breach shall have the which the court may properly option of substituted exercise discretion not to decree performance through a specific performance: third party or by his own (a) where the terms of the contract agency, and, recover the or the conduct of the parties at the expenses and other costs time of entering into the contract actually incurred, spent or or the other circumstances under suffered by him, from the which the contract was entered party committing such into are such that the contract, breach. though not voidable, gives the (2) No substituted plaintiff an unfair advantage over performance of contract the defendant; or under sub-section (1) shall (b) where the performance of the be undertaken unless the contract would involve some party who suffers such hardship on the defendant which breach has given a notice in he did not foresee, whereas its writing, of not less than non-performance would involve thirty days, to the party in no such hardship on the plaintiff; breach calling upon him to or perform the contract within (c) where the defendant entered such time as specified in the into the contract under notice, and on his refusal or circumstances which though not failure to do so, he may get rendering the contract voidable, the same performed by a makes it inequitable to enforce third party or by his own specific performance. agency : Provided that the party who suffers such Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 45 of 53 SHILPI M SHILPI JAIN M JAIN Date: 2024.12.23 16:41:33 +0530 Explanation 1: Mere inadequacy breach shall not be entitled of consideration, or the mere fact to recover the expenses and that the contract is onerous to the costs under subsection (1) defendant or improvident in its unless he has got the nature, shall not be deemed to contract performed through constitute an unfair advantage a third party or by his own within the meaning of clause (a) or agency. hardship within the meaning of (3) Where the party clause (b). suffering breach of contract Explanation 2: The question has got the contract whether the performance of a performed through a third contract would involve hardship party or by his own agency on the defendant within the after giving notice under meaning of clause (b) shall, except sub-section (1), he shall not in cases where the hardship has be entitled to claim relief of resulted from any act of the specific performance plaintiff subsequent to the against the party in breach. contract, be determined with (4) Nothing in this section reference to the circumstances shall prevent the party who
existing at the time of the contract.
has suffered breach of
(3) The court may properly contract from claiming
exercise discretion to decree compensation from the
specific performance in any case party in breach.
where the plaintiff has done
substantial acts or suffered losses
in consequence of a contract
capable of specific performance.
(4) The court shall not refuse to
any party specific performance of
a contract merely on the ground
that the contract is not
enforceable at the instance of the
party.
Secti 21. Power to award compensation 21. Power to award
on 21 in certain cases- compensation in certain
cases.-
(1) In a suit for a specific
performance of a contract, the (1) In a suit for specific
plaintiff may also claim performance of a contract,
compensation for its breach, the plaintiff may also claim
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either in addition to, or in compensation for its
substitution of, such performance. breach in addition to such
performance.
(2) If, in any such suit, the court
decides that specific performance (2) If, in any such suit, the
ought not to be granted, but that court decides that specific
there is a contract between the performance ought not to
parties which has been broken by be granted, but that there is
the defendant, and that the a contract between the
plaintiff is entitled to parties which has been
compensation for that breach, it broken by the defendant,
shall award him such and that the plaintiff is
compensation accordingly. entitled to compensation for
that breach, it shall award
(3) If, in any such suit, the court
him such compensation
decides that specific performance
accordingly.
ought to be granted, but that it is
not sufficient to satisfy the justice (3) If, in any such suit, the
of the case, and that some court decides that specific
compensation for breach of the performance ought to be
contract should also be made to granted, but that it is not
the plaintiff, it shall award him sufficient to satisfy the
such compensation accordingly. justice of the case, and that
some compensation for
(4) In determining the amount of
breach of the contract
any compensation awarded under
should also be made to the
this section, the court shall be
plaintiff, it shall award him
guided by the principles specified
such compensation
in section 73 of the Indian
accordingly.
(4) In determining the
(5) No compensation shall be
amount of any
awarded under this section unless
compensation awarded
the plaintiff has claimed such
under this section, the court
compensation in his plaint:
shall be guided by the
PROVIDED that where the principles specified in
plaintiff has not claimed any such section 73 of the Indian
compensation in the plaint, the Contract Act, 1872 (9 of
court shall, at any stage of the 1872).
proceeding, allow him to amend
(5) No compensation shall
the plaint on such terms as may be
be awarded under this
just, for including a claim for such
section unless the plaintiff
compensation.
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Explanation: The circumstance has claimed such
that the contract has become compensation in his plaint:
incapable of specific performance
Provided that where the
does not preclude the court from
plaintiff has not claimed
exercising the jurisdiction
any such compensation in
conferred by this section.
the plaint, the court shall, at
any stage of the proceeding,
allow him to amend the
plaint on such terms as may
be just, for including a
claim for such
compensation.
Explanation.-The
circumstances that the
contract has become
incapable of specific
performance does not
preclude the court from
exercising the jurisdiction
conferred by this section.
56. In the matter of Global Music Junction Pvt. Ltd V.
Shatrughan Kumar Aka Khesari Lal Yadav & ORS10, Hon’ble High
Court of Delhi discussed in detail the scope of Specific Performance
before and after amendment as follows:
‘This Court is of the view that the Amendment Act, 2018
introduces a paradigm shift in law regarding contractual
enforcement in India. A glaring instance of the legislative
shift is the amendment of Section 14 of Act, 1963 which
deletes the earlier sub-clause (a) which prescribed that the
contracts for the non-performance of which compensation
in money was an adequate relief would not be specifically
enforced, meaning thereby that the plea that a party could
be compensated in monetary terms as damages for breach10
FAO(OS) (COMM) 7/2023Digitally
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of the contract and resultant refusal of interim injunction
on the said ground, is no longer a ground to refuse specific
performance of the contract. Consequently, the
Amendment Act, 2018 does away with the primacy given
to damages as a relief over specific performance. It shifts
the focus from the previous default remedy of award of
damages for breach of contract to enforcing specific
performance of contracts.’WHETHER 2018 AMENDMENT APPLICABLE
RETROSPECTIVELY OR PROSPECTIVELY?
57. Recently, in M/s Siddamsetty Infra Projects Pvt. Ltd. Versus
Katta Sujatha Reddy & Ors11 as decided on November 08, 2024, Hon’ble
Supreme Court of India recalled its 2022 judgment which held that
the 2018 amendment to the Specific Relief Act, 1963, will apply only
prospectively to transactions effected after the date when the amendment
came into force (01.10.2018). Meaning thereby, 2018 Amendment shall
be applicable retrospectively.
58. The next issue is whether the plaintiff is entitled to a decree
for specific performance for PW1/A and PW1/B.
READINESS AND WILLINGNESS:
59. Readiness and willingness broadly refer to the capacity and
preparedness of a party to a lis to perform his part of the contract. The
aforesaid requirement is one of the essential ingredients under Section 16
of the Specific Relief Act, 1963. It is clear that in order to prove readiness
11
Review Petition (C) No. 1565 of 2022 in C.A. No. 5822 of 2022
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and willingness, the burden is on the purchaser to prove that he was always
ready and it is only the vendor who refused to perform the contract for
extraneous consideration. Readiness insofar as a purchaser/plaintiff is
concerned boils down to the question whether he was possessed of the
necessary funds to pay the sale consideration. It must be shown that the
readiness and willingness on the part of the plaintiff is continuous, right
from the date of contract till the decree. Readiness and willingness is a
matter to be established from the overall conduct of the plaintiff and not a
rhetoric of assertion. The compliance of readiness and willingness has to
be in spirit and substance; and not in letter and form. To test whether a
party has performed his obligations, one has to see the pith and substance
of his plea.
60. The legal position has been succinctly laid down by the Hon’ble
Supreme Court in Aniglase Yohannan v. Ramlatha & others12 as follows:
‘It is thus clear that an averment of readiness and willingness
in the plaint is not a mathematical formula which should only
be in specific words. If the averments in the plaint as a whole
do clearly indicate the readiness and willingness of the plaintiff
to fulfil his part of the obligations under the contract which is
the subject-matter of the suit, the fact that they are differently
worded will not militate against the readiness and willingness
of the plaintiff in a suit for specific performance of contract for
sale.
Lord Campbell in Cork v. Ambergate etc. and Railway Co.,
(1851) 117 ER 1229 observed that in common sense the
meaning of such an averment of readiness and willingness must
be that the non-completion of the contract was not the fault of12
(2005) 7 SCC 534Digitally
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the plaintiffs, and that they were disposed and able to complete
it had it not been renounced by the defendant.
The basic principle behind Section 16(c) read with Explanation
(ii) is that any person seeking benefit of the specific
performance of contract must manifest that his conduct has
been blemishless throughout entitling him to the specific relief.
The provision imposes a personal bar. The Court is to grant
relief on the basis of the conduct of the person seeking relief. If
the pleadings manifest that the conduct of the plaintiff entitles
him to get the relief on perusal of the plaint he should not be
denied the relief.
Section 16(c) of the Act mandates the plaintiff to aver in the
plaint and establish as the fact by evidence aliunde that he has
always been ready and willing to perform his part of the
contract. On considering almost identical fact situation it was
held by this Court in Surya Narain Upadhyaya v. Ram Roop
Pandey and Ors., AIR (1994) SC 105 that the plaintiff had
substantiated his plea.’
61. Coming to the facts, this court noticed that the plaintiff had
specifically pleaded that he was and is ready and willing to perform his
part of the contract. This case will first consider the ‘readiness’ of the
plaintiff, which essentially refers to his financial capacity, as referred
earlier. More importantly, out of Total 11,00,000/-, plaintiff already paid
Rs. 8,00,000/- to the defendant and issued legal notice as early as 07th Jan
2016 i.e. before the scheduled date of execution of final Sale Deed.
Perusal of said legal notice (Exh. PW1/ C) reveals that, plaintiff requested
defendants to appear before the office of Sub registrar on schedule date of
execution of sale Deed i.e. 15.01.2016. Ex. PW1/E reveals that, plaintiff
was duly present at the sub registrar office on 15.01.2016 which further
confirms the fact of readiness and willingness in favour of plaintiff.
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62. Another point of argument addressed by Ld. Counsel of
defendants is that, it is defendant no. 1 who is exclusive owner of suit
property by virtue of Exh. DW2/A (Colly). Admittedly, no title document
of defendant no. 1 produced by any of the party. Thus, court had not gone
into validity of said title documents as no declaratory relief sought by
plaintiff. The following observation of the Hon’ble Supreme Court in
Anathula Sudhakar v. P.Buchi Reddy (Dead) By Lrs & Ors13, is apposite
in this context:
“29. …….No amount of evidence or arguments can be looked
into or considered in the absence of pleadings and issues, is a
proposition that is too well settled.”
63. Thus, considering overall facts and circumstances of present
matter this court is of the opinion that, in absence of title deed in favour
of defendant no. 2, relief of specific performance cannot be granted. But,
since, genuinity of Ex.PW1/A and Ex.PW1/B and readiness and
willingness of plaintiff is established plaintiff shall be held entitle for full
refund of Rs. 8,00,000/- alongwith simple interest @8% per annum from
date payment till date of actual realization. The aforesaid conclusion is
also bolstered by the fact that specific performance can only be granted
when title is not disputed and essential terms of contract are fully
established. Issue No. 2 stands disposed off accordingly.
ISSUE NO. 3: Whether the plaintiff is entitled to decree of permanent
injunction with regard to L Type shop, without roof rights at the ground
floor on built up property bearing no.A-362, Area measuring 9’x9′ Sq. ft.
khasra no.7/3, situated in the area of village Mirzaur, Delhi Estate Delhi,
13
(2008) 4 SCC 594
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abadi known as Mahavir Enclave, Part-II, Gali no.11, New Delhi-59,
(hereinafter referred to as the suit property)? OPP
64. In terms of above discussion, this issue is strike off as become
infructuous.
ISSUE NO. 4: Whether the plaintiff is entitled to a decree of Rs.8 lacs
with interest thereon? OPP
65. As already discussed in detail in issue no. 2, this issue is
decided in favour of plaintiff. Plaintiff shall be held entitled for full refund
of Rs. 8,00,000/- alongwith simple interest @8% per annum from date
payment till date of actual realization.
ISSUE NO. 5: Relief.
66. Decree of Rs. 8,00,000/- passed in favour of plaintiff and
against the defendants. Plaintiff shall also be entitled for simple interest
@8% per annum from date payment till date of actual realization.
67. No order as to cost.
68. Decree sheet be prepared accordingly.
Announced in open court
Digitally signed
by SHILPI M
SHILPI JAIN
on 23.12.2024
Date:
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District Judge-05, South West District
Dwarka Courts, New DelhiCS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 53 of 53
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