Kamal Kumar vs Amrita Singh and Others

Valmiki J Mehta, J.—The challenge by means of the present Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 16.7.2001 whereby the suit of the Appellant/Plaintiff for specific performance or in the alternative for a money decree of Rs. 1,55,000/- was dismissed.

The facts of the case are that the Appellant/Plaintiff claimed to have entered into an agreement on 5.1.1984 with late Brig. Hari Pal Singh who was an allottee of flat No. 122, S.F.S., DDA, East of Kailash, New Delhi for purchase of the allotment rights from the said Brig. Hari Pal Singh for a total sale consideration of Rs. 1,05,000/-. It was the case of the Appellant/Plaintiff that a sum of Rs. 5,000/- was paid on 5.1.1984 and subsequently four amounts were paid in cash of Rs. 20,000/- on 16.1.1984, Rs. 40,000/- on 16.2.1984, Rs. 20,000/- on 12.3.1984 and Rs. 20,000/- on 29.6.1984. Brig. Hari Pal Singh expired on 17.9.1984 leaving behind the Defendants/ Respondents as his legal heirs. The Appellant/Plaintiff sent a legal notice dated 17.3.1987 to the Respondents for specific performance and on failure of the Defendants/Respondents to sell the said flat, the subject suit came to be filed. The Respondents/Defendants contested the suit, however, after the case was transferred from the original side of this Court to the District Court, the Defendants failed to appear and were proceeded exparte. The Plaintiff led evidence by way of an affidavit. The trial Court has disbelieved the case of the Appellant/Plaintiff and dismissed the suit.

From the pleadings of the parties, the trial Court framed the following issues:

Whether late Brig. Hari Pal Singh entered into an agreement dated 5th January, 1984 with the Plaintiff in respect of flat No. 12, Self Financing Scheme, DDA, East of Kailash, New Delhi?

Whether a sum of Rs. 1,05,000/- was paid by the Plaintiff to late Brig. Haripal Singh?

Whether Plaintiff is entitled to decree of specific performance or damages in the alternative?

Relief.

In this regard the trial Court has given the following findings:

(i) There is no certainty as to the name of the buyer because the receipts which are relied upon by the Appellant/Plaintiff only refer to one Kumar without any parentage or the address.

(ii) There was no reason why a Brig. would receive the amount in cash, more so by means of receipts which are pieces of different note books or pads.

(iii) The Appellant/Plaintiff failed to prove the handwriting by calling the handwriting expert that the receipts contained the signatures of late Brig. Hari Pal Singh.

(iv) The last receipt instead of being a full and final payment receipt talks of receipt of a part payment of Rs. 20,000/-.

(v) The handwriting expert talks of the disputed signature being of Smt. Amrita Pal Singh and not of late Brig. Hari Pal Singh.

I may note that specific performance is a discretionary relief. Even if there is proved that a contract was entered into between the parties, the facts of the case must justify the grant of relief of specific performance. Relief of specific performance is ordinarily not granted on the basis of doubtful documentation, especially when they are mere slips of paper which do not even contain the complete names of the buyers. Payment in cash is also frowned upon by the Courts, especially, when the transaction is not between illiterate persons or in a village and is between literate persons.

During the course of arguments, I put it to the counsel for the Appellant that if really there was an Agreement to Sell between the Appellant/Plaintiff and the late Brig. Hari Pal Singh on 5.1.1984, did the Appellant/Plaintiff file an income tax return for the financial year 1983-84 of having entered into an Agreement to Sell and having paid the amounts of Rs. 5,000/- on 5.1.1984, Rs. 20,000/- on 16.1.1984, Rs. 40,000/- on 16.2.1984 and Rs. 20,000/- on 12.3.1984. The counsel for the Appellant admitted that no such income tax return was filed. If really the transaction between the parties was a genuine transaction, the Appellant/Plaintiff would have filed an income tax return not only showing the existence of the Agreement to Sell but also having paid amounts to late Brig. Hari Pal Singh in the financial year 1983-84, and which admittedly was not done. Further, even for the financial year 1984-85, no income tax return was filed to show the alleged payment of Rs. 20,000/- on 29.6.1984 and the fact that there was an Agreement to Sell for which the said amount was paid. Quite clearly in such facts and circumstances, the trial Court was justified in refusing to grant the relief of specific performance. I may add that possibly the Appellant may have pleaded a case confined to return of the amounts paid by him to late Brig. Hari Pal Singh, especially because the receipts which are stated to be in the handwriting of late Brig. Hari Pal Singh and which handwriting could well have been proved from the government records inasmuch as Brig. Hari Pal Singh was a member of the armed forces, however, no evidence was led on behalf of the Appellant/Plaintiff i.e. no evidence was summoned from the government records or admitted records to show the handwriting being of Brig. Hari Pal Singh on the alleged receipts dated 5.1.1984, 16.1.1984, 16.2.1984, 12.3.1984 and 29.6.1984.

This Court is entitled to interfere with the findings and conclusions of the trial Court only if the said findings are illegal and perverse. I do not find any illegality or perversity in the findings and conclusions of the trial Court. Merely because two views are possible, this Court is not entitled to interfere with one plausible view which has been taken by the trial Court.

In view of the above, there is no merit in the appeal, which is therefore dismissed, leaving the parties to bear their own costs. Interim orders are vacated. Trial Court record be sent back.