TMI Blog2020 (5) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... k drafts from the accounts of persons / companies, i.e., Arun Dagariya, A.R. Infrastructure Ansal Housing and Construction Ltd., with whom there was no agreement by the plaintiff to provide consideration amount. Those persons were not examined in the Court. Such sequence of facts suggest that the plaintiff with ulterior motive described himself differently to act as a front man / name lender for the collateral purpose to benefit them. Finding of the trial Court that only for the purpose of agreement to sell (exhibit P/9), the plaintiff used the name of Satish Kumar Khandelwal, resident of 216, Banshi Trade Centre, Indore as prior thereto the documents placed on record admitted by plaintiff himself describe him as Satish Sharma resident of 78A Parshanand Nagar, RTO Road, Indore M.P., cannot be faulted. Whether, the agreement to sell dated 27/04/2005 is vague, uncertain and not capable of execution? - The land falling in survey no.219/2 total area 1.40 acres of land has been jointly recorded in the names of Rajendra Jain, Rachna Jain, Palak and Subham Jain (exhibit P/94). Land falling in survey Nos.221/2 208/12 are recorded in the name of Shantilal (exhibit P/96 P/99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) of the Act, the same cannot be termed genuine transaction. Benami transaction defined in section 2(a) of the Act shall not only include transaction in which property is transferred to one person but, also agreement to transfer the property to one person as the intendment of the legislature is to prohibit benami transaction. Sale and agreement to sale defined under section 54 of the Transfer of Property Act being part of the Indian Contract Act, as contemplated under section 4 of the Transfer of Property Act are subject to prohibition contained thereunder. If an agreement to sale suffers from the vice of benami transaction within the meaning of section 2(a) of the Act, the same falls in the category of contracts forbidden by law as contemplated under section 23 of the Indian Contract Act, the object whereof is unlawful. Hence, inexecutable in an action for specific performance. Whether the plaintiff was ready and willing to perform his part of the agreement? - Plaintiff could not be said to be ready and willing to perform his part of the contract. Due to default of payment schedule as agreed to, the agreement stands rescinded on its own. The subsequent conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al consideration amount was ₹ 1,68,50,000/- at the rate of ₹ 14.00 lakhs per acre. Consideration amount was payable in installments and the last installment was payable on or before 27/03/2006. Thereafter, the sale deed to be executed in favour of plaintiff or any other person, plaintiff would suggest. Schedule of payment agreed to was as under: (a) 27/04/2005 : ₹ 18.00 lakhs : Cash (b) 16/05/2005 : ₹ 30.00 lakhs : Cash (c) 27/10/2005 : ₹ 50.00 lakhs : Cash (d)Remaining amount of ₹ 14.00 lakhs to be paid prior to 27/03/2006 in cash. A public notice was to be issued by defendants, two months prior to the date of sale but, in any case not before 27/01/2006 with the permission of plaintiff. However, total amount of ₹ 66.00 lakhs only was paid by the plaintiff to the defendants No.1 and 2; breakup is as under: Sl.No. Amount (Rs.) Date Details (a) 18.00 lakhs 27/04/2005 Cash (b) 03.00 lakhs 29/04/2005 Cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rship of defendants No.1 and 2. The defendants No.1 and 2 have half share of the land falling in survey Nos.213/1, 213/238 and 216/4. However, they have agreed to purchase the remaining half share from Surendra Dilliwal Sudha Dilliwal (defendants No.4 5). In turn, shall sell four acres of land to the plaintiff. However, defendants No.4 and 5 are not party to the agreement. Since beginning of March, 2006 the plaintiff was willing and ready to pay the remaining amount of consideration. On 25/03/2006, the plaintiff got prepared bank drafts in the names of following persons : (i) Rachna Jain : ₹ 11.00 lakhs; (ii) Subham Jain : ₹ 02.50 lakhs; (iii) Rajendra Jain : ₹ 43.00 lakhs (₹ 2.50 + 17.50 + 12.50 + 10.50 lakhs each) total; ₹ 65.50 lakhs (iv) Besides; cash of ₹ 37,22,500/- was available in his savings bank account. The defendants were bound to execute the sale deed on or before the cut off date, 27/03/2006. Therefore, the plaintiff sent a telegram on 26/03/2006 to the defendants to remain present at the office of Registrar for registration of sale deed but, they failed to appear. On 27/03/2006, again the plaintiff sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 15.00 lakhs but, denied receipt of cash. On enquiry, broker Sisodiya told them that the plaintiff's name is imaginary (fictitious) and not real person (benami). The sale deed shall be executed in the name of different person on strength of terms of the said agreement. It is also pleaded that upon further enquiry after 26/05/2006, it has come to knowledge of defendants that though Satish Kumar Khandelwal is a fictitious person but, the agreement was actually signed by one Satish Kumar Sharma who was an employee of A.R. Infrastructure. That apart, the aforesaid suspicion also got precipitated as later on, it has come to the knowledge of defendants No.1 and 2 that pay orders handed over to them were not prepared from the account of plaintiff, Satish Kumar Khandelwal (fictitious person) but from the accounts of different persons/institutions indicating A.R.Infrastrcutre. Therefore, the instant suit is not maintainable and deserves to be dismissed for the reason that the agreement was entered in the name of a fictitious person and is sought to be enforced through judicial intervention. It is denied that the agreement for sale of 8 acres of land and that of 04 acres of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to pay ₹ 35.00 lakhs upto the extended period of 05/11/2005. Therefore, the agreement stands repudiated by itself due to non-compliance of clauses thereof. Besides, it is also contended that the plaintiff did not have financial capacity to purchase the suit land. The alleged pay orders and bank drafts were not prepared from the account of the plaintiff. The plaintiff was called upon by defendants to produce details of preparation of pay orders and name of bank and surrender thereof as well as the income tax returns to reflect the said amount. No such details have been furnished. In Bank of Rajasthan, an account was opened in the name of plaintiff Satish Kumar Khanelwal on 27/03/2006. In fact, Satish Kuamr Sharma is an ordinary employee and has no financial resources to enter into an agreement to purchase the suit land by payment of consideration of more than 01.00 crore. None of the pay orders or bank drafts were prepared from the account of Satish Sharma / Satish Khandelwal. It is denied that defendants were not ready and willing to perform their part of agreement / contract. In fact, the funds were not available with the plaintiff at any time, muchless; on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself. Hence, no relief whatsoever can be granted to the plaintiff against the land transferred in favour of defendants No.6 and 7 falling in survey No.208/12. 6. Defendant No.8 had also filed separate written statement and denied plaint averments. It is contended that the land admeasuring 0.405 hectare falling in survey No.216/4 has been transferred in her name by defendants No.1 and 2 defendants No.4 and 5 by registered sale deed for a consideration of ₹ 4,80,000/-. Defendant No.8 had no knowledge or notice of such agreement dated 27/04/2005. Besides, the land purchased by her is not part of the agreement to sell. She is a bona fide purchaser. There was no agreement between the plaintiff and the defendants No.4 5 for sale of the land. The alleged agreement was without consent and knowledge of defendants No.4 and 5. The suit deserves to be dismissed. 7. On the aforesaid pleadings, trial Court framed as many as 20 issues and allowed parties to lead evidence. Upon critical evaluation of the entire evidence on record returned the following findings: (i) agreement to sale dated 27/04/2005 (exhibit P/9) was entered between the plaintiff and defendants No.1 and 2 in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount was advanced for consultancy service he had rendered with A.R. Infrastructure and M/s Ansal Housing and Construction Limited. But, there was no documentary evidence that such consultancy service was rendered by the plaintiff; (ix) the bank drafts were prepared by U.T.I.Bank from account of Ansal Housing and Construction Limited as per request received on 23/03/2006 for preparation of 09 demand drafts against a cheque for total amount of ₹ 71.00 lakhs as is evident from the statement of P.W.7 Sumit Sani; Bank manager (exhibit P/83). Accordingly, the bank had prepared and released drafts on 25/03/2006. Besides, on 02/05/2006, the aforesaid company had filed an application for cancellation of 09 drafts prepared on 23/03/2006 (exhibit P/84). The demand drafts were cancelled and credited in the account of Ansal Housing and Construction Limited. The certified copies of originals filed as exhibits P/85 to P/93. As such, the entire amount of ₹ 65.50 lakhs in the form of demand drafts were not prepared from the account of the plaintiff. That apart, Ansal Housing and Construction Limited is not party to the agreement. Ansal Housing and Construction Limited did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff is a fictitious person? (a) In the agreement to sell dated 27/04/2005 (exhibit P/9), the second party is described as under: Shri Satish Kumar Khandelwal Son of Shri Shankarlal Ji Khandelwal Resident: 216, Banshi Trade Centre, Indore (M.P.) (b) whereas the plaintiff in the plaint is described as under: Satish Kumar Khandelwal S/o Shri Shankarlal Khandelwal Aged about 42 years Occupation: Businessman Resident of 78A Parshanand Nagar, RTO Road, Indore M.P. As such, there is mark difference in the description of the second party. 10. Shri A.K.Sethi, learned senior counsel contends that Satish Kumar Khandelwal and Satish Kumar Sharma are one and the same person. 'Khandelwal' surname is also used by 'Brahmins'. Hence, no exception thereto can be taken with the description of 'Khadelwal' in the agreement to sell and plaint, nevertheless; no motive can be attributed thereto. Moreover, the plaintiff and the second party in the agreement are found to be same person by the Court itself while ordering for refund of an amount of ₹ 66.00 lakhs to the plaintiff granting alternate relief. 11. Per contra, Shri Bagad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2007 and admitted his signature thereon as Satish Sharma; (e) in his affidavit under Order 18 rule 4 CPC his name is written as Satish Kumar; (f) however, in the bank account opened on 27/03/2006 (exhibit P/30) with the Bank of Rajasthan Limited, his name mentioned as Satish Shankarlal Khandelwal which is the only document; (g) besides, the plaintiff admitted his signature as Statish Sharma mentioning his address as 79 Parshanand Nagar in exhibit D/1 sale deed dated 03/09/2005 executed by A.R. Infrastructure; exhbit D/2 sale deed and map attached therewith dated 23/04/1999 executed by Panchwati Sahkari Grih Nirman Sanstha in favour of Satish Sharma, exhibit D/3, a power of attorney executed by Satish Sharma on 03/05/2006 in favour of Manoharlal Dixit mentioning his address as 70 Lodhi Mohalla, Halmukam 78-A Parshanand Colony; (h) exhibit D/4, motorcycle bearing registration No.MP09 LL 2484 dated 27.10.2005 is also in the name of Satish Sharma; (i) further, during trial the plaintiff was given a notice on 29/05/2006 calling upon to produce the income tax return, PAN card, driving licence and Voter ID. But, he chose not to produce the aforesaid documents except Voter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of facts suggest that the plaintiff with ulterior motive described himself differently to act as a front man / name lender for the collateral purpose to benefit them. In view of the aforesaid, the finding of the trial Court that only for the purpose of agreement to sell (exhibit P/9), the plaintiff used the name of Satish Kumar Khandelwal, resident of 216, Banshi Trade Centre, Indore as prior thereto the documents placed on record admitted by plaintiff himself describe him as Satish Sharma resident of 78A Parshanand Nagar, RTO Road, Indore M.P., cannot be faulted. 12. Question (ii): Whether, the agreement to sell dated 27/04/2005 is vague, uncertain and not capable of execution? Shri Sethi, learned senior counsel for the appellant would contend that the defendant No.1 in his deposition has clearly admitted that out of the above referred survey numbers, 08 acres of land was available. Hence, even if the details of survey numbers, details of sale deeds, location, dimensions and map of 08 acres of land are not attached thereto, that by itself; shall not render the agreement as uncertain and not capable of execution. In any case, the amendment application allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no mention of the details of the person in whose favour the sale deeds have already been executed with specific areas, dimensions and boundaries; (f) there is no map attached with the agreement indicating either 8 acres or 4 acres of land in terms of clauses (i) and (ii) of the agreement; (g) in the legal notice dated 31/03/2006 (exhibit P/34), Jahir Suchana dated 17/04/2006 (exhibits P/44 and P/45) and in the plaint as originally filed, the plaintiff had claimed to have entered into an agreement for purchase of 08 acres of land plus 04 acres of land falling in aforesaid 10 survey numbers. the details of sale deeds have been left blank and even the area, dimension and location of individual survey numbers have not been mentioned in the agreement. However, in the amendment application dated 19/05/2007, the plaintiff sought to improve upon clauses of the agreement to contend that 08 acres of land compraised in survey Nos.208/9, 214, 219/2, 220 and 221/1 as evident from paragraph 79 of the statement of plaintiff (P.W.1). (h) the aforesaid objections were specifically raised in the written statement dated 08/08/2006 by the defendants No.1 and 2; (i) the trial Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d but a plan was to be a part thereof. We have indicated hereinbefore that the parties intended to annex a plan with the agreement only because the description of the properties was inadequate. It is with a view to make the description of the subject matter of sale definite, the plan was to be attached. The plan was not even prepared. It has not been found that the sketch of map annexed to the plaint conformed to the plan which was to be made a part of the agreement for sale. The agreement for sale, therefore, being uncertain could not be given effect to. This Court in the case of Laxman Singh s/o Meharban Singh Vs. Jagannath s/o Mansaram, 2000(1) MPLJ 79, it has been held as under: 10. The purpose of Order 7 Rule 3 of the Code, is that unless the plaintiff indicates the identity of the property claimed by him either by means of boundaries or by means of map as required by Order 7, Rule 3 of the Code, it would be difficult for the Court to find whether the plaintiff has title to the property claimed and whether any encroachment or dispossession has been made by the defendant. Thus the duty of the party is to give description sufficient to identify the property in dispute. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed otherwise than by writing itself. Section 91 of the Evidence Act prohibits proving of contents of a document. The Hon ble Supreme Court in the case of Roop Kumar Vs. Mohan Thedani, AIR 2003 SC 2418, it has been held as under: It is likewise a general and most inflexible rule that wherever written instruments are appointment, either by the requirement of law or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded form being used either as a substitute for such instruments, or to contradict or alter them. This is a matter of both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men s rights depended, were liable to be impeached by loose collateral evidence. The Hon ble Supreme Court in the case of Manawanti Vs. Kaushalya Devi (1990) 3 SCC 1, it has been held as under: 19. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... real intention of the parties needs to be looked into before declaring any transaction as benami transaction. Learned senior counsel relying upon the judgment of Hon'ble Supreme Court in the case of Pawan Kumar Gupta Vs. Rochiram Nagdeo, 1999 AIR SCW 1420 (paragraphs 29 30) contends that the word provided in section 2(a) of the Act cannot be construed in relation to the source or sources which the real transferee made funds available for paying the sale consideration. The words paid or provided are disjunctively employed in the clause and each has to be understood with the word consideration. Therefore, if the sale consideration has been provided by different sources, the same shall not render the transaction of sale under the agreement to sell as benami transaction within the meaning of section 2(a) of the Act. Per contra, Shri Bagadia, learned senior counsel for the contesting defendants referred to paragraphs 48 and 49 of the judgment of the trial Court to contend that the plaintiff was an employee of A.R. Infrastructure M/s Aditya Marcon Pvt. Limited with a meager monthly salary with an aggregate amount of ₹ 3.00 lakh to ₹ 5.00 lakhs per annum. The pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction, a question of proving consideration would arise. In some cases of sale transaction ready payment of consideration might not have been effected then provision would be made for consideration. Therefore, the word provided as used in section 2(a) of the Act has to be read in that context. Any other interpretation shall harm the interest of persons involved in genuine transaction, i.e., if a purchaser availed himself of loan facility from bank to make up purchase money, such sale cannot be said to be a benami transaction as the bank has provided the consideration. The aforesaid proposition of law in the context of the word provided used in section 2(a) of the Act is certainly beyond cavil of doubt. Nevertheless; its applicability shall depend upon the nature of transaction and facts and circumstances of each case to ascertain the genuineness of the transaction. Otherwise, the very purpose of the enactment shall frustrate. The facts in hand as discussed above unambiguously and unequivocally lead to a conclusion that the plaintiff was not a bona fide purchaser with no financial capacity whatsoever. Besides, the plaintiff also failed to prove genuineness of the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd drafts of each ₹ 5.00 lakhs (total ₹ 35.00 lakhs) were prepared from the account of A.R. Infrastructure and handed over to the plaintiff by Arun Dagariya. It is to be noted that these pay orders and bank drafts were in the names of defendants No.1 and 2 and not in the name of plaintiff. There is no privity of contract between defendants No.1 2 either with Arun Dagariya or A. R. Infrastructure or Ansal Housing and Construction Limited, there is also no document on record that loan agreement was entered between the plaintiff and these persons. There is no provision under the agreement (exhibit P/9) contemplating payment of consideration to defendants No.1 and 2 by any person other than the plaintiff. That apart, ₹ 51.00 lakhs cash was already paid on different dates between 27/04/2005 to 31/10/2005 but not withdrawn from the account of plaintiff as there is no evidence on record. The plaintiff failed to establish the source of cash flow of ₹ 51.00 lakhs. Besides, 05 drafts for an amount of ₹ 65.50 lakhs were prepared from the account of Ansal Housing and Construction Limited, Delhi in the names of defendants No.1 and 2. The above discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Act, 1872 (9 of 1872). ... 5. Transfer of Property defined.- In the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons; and to transfer property is to perform such act. 54. Sale defined.' Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Contract for sale.- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. The Indian Contract Act, 1872: Section 23: What consideration and objects are lawful, and what not.- The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or . ...; or the Court regards it as immoral, or opposed to public policy. In case of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Contract Act, as contemplated under section 4 of the Transfer of Property Act are subject to prohibition contained thereunder. If an agreement to sale suffers from the vice of benami transaction within the meaning of section 2(a) of the Act, the same falls in the category of contracts forbidden by law as contemplated under section 23 of the Indian Contract Act, the object whereof is unlawful. Hence, inexecutable in an action for specific performance. 14. Question (iv): Whether the plaintiff was ready and willing to perform his part of the agreement? Shri Sethi, learned senior counsel contends that the plaintiff/appellant was always ready and willing to perform and has offered the entire consideration as per schedule of payment of agreement but, the defendants No.1 and 2 failed to adhere to the same as a result committed breach of agreement. Therefore, there is perversity of approach by the trial Court in recording the finding that plaintiff was not ready and willing to perform his part of agreement. Hence, the impugned judgment and decree be set aside by allowing the appeal. Per contra, Shri Bagadia, learned senior counsel contends that the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cres of land. The plaintiff has failed to adhere to the aforesaid terms and conditions of payment. The details whereof are as under: (i) 27/04/2005 : ₹ 18.00 lakhs Cash (ii) 29/04/2005 : ₹ 03.00 lakhs Cash (iii)07/05/2005 : ₹ 09.00 lakhs Cash (iv)16/05/2005 : ₹ 06.00 lakhs Cash ₹ 15.00 lakhs Pay Orders (v) 30.10.2005 : ₹ 15.00 lakhs Cash Total :: ₹ 66.00 lakhs The payments made are not as per the schedule of payment agreed by the parties. Besides, though upto 27/10/2005, ₹ 98.00 lakhs was to be paid whereas upto 30/10/2005, ₹ 66.00 lakhs was paid. In fact, on 27/10/2005, ₹ 50.00 lakhs was to be paid but, only ₹ 15.00 lakhs was paid. The period for payment was extended upto 05/11/2005. Though, it is alleged that ₹ 35.00 lakhs was offered in the form of pay orders but, the same was not agreed to by defendants No.1 and 2 as in terms of the agreement, only cash was to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of defendants No.1 and 2 on 27/03/2006 for registration of sale deed whereas neither he had purchased the stamp paper nor handed over the draft sale deed to defendants No.1 and 2. Therefore, the plaintiff found to have not made the payment of consideration as agreed to between the parties and on the contrary, has made a factual incorrect statement discussed above regarding cash payment of ₹ 35.00 lakhs before 05/11/2005. Law is well settled that the plaintiff has to plead and prove each and every condition of the agreement right from the date of the agreement upto the date of decree (N.P.Thirugnanam Vs. Dr. R.Jagan, AIR 1996 SC 116, referred to). 15. Question (v): Whether the defendants No.4 and 5 are entitled for cost? Originally the suit was filed in the year 2006 but, the defendants No.4 and 5 were not party to the suit. It was only by way of amendment allowed on 19/05/2007, they were made as party to the suit. Even otherwise, the agreement to sell dated 27/04/2005 (exibit P/9) itself suggest that the plaintiff shall pay an amount of ₹ 35.00 lakhs to the defendants No.1 and 2 on or before 16/05/2005 who in turn purchase 04 acres of land or obtain c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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