TMI Blog2014 (3) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... cancellation of the sale deed dated 01.11.2011 registered on 02.12.2011, in respect of the suit property, or to seek the execution of a fresh sale deed in favour of the defendant by the plaintiff. No cause of action has arisen to require the plaintiffs to return all the original chain of documents in respect of the suit property to the defendant under any circumstance. In view of the aforesaid discussion, both the aforesaid applications of the plaintiffs are allowed. The suit is decreed in respect of the relief of possession in respect of the suit property in favour of the plaintiffs and against the defendant. - CS (OS) 1633/2012, CC 18/2013 and I.A. Nos. 10623 and 16134/2012 - - - Dated:- 26-3-2014 - HON BLE MR. JUSTICE VIPIN SANGH For the Appellant: Mr. Neeraj Kishan Kaul, Senior Advocate, Ms. Anu Bagai and Mr. Bhuvan Mishra, Advocates For the Respondent: Mr. Sunil K. Mittal, Mr. Kshitij Mittal and Mr. Anshul Mittal, Advocates and Party-in Person JUDGMENT Vipin Sanghi, J. I.A. Nos. 1111/2013 (under Order VII Rule 11 CPC for rejection of counter-claim filed by the defendant) and 1112/2013 (under Order XII Rule 6 CPC for passing a decree on admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and unencumbered possession of the suit property. The plaintiffs state that on 28.04.2012, the defendant met the plaintiffs and agreed to resolve the matter amicably. On the same day, the defendant handed over vacant, unencumbered and physical possession of the suit property to the plaintiffs against a possession slip. The plaintiffs state that they took possession of the suit property on 28.04.2012 and also shifted some furniture and crockery into the suit property. They had scheduled a ―Greh Pravesh‖ on the next date, i.e. 29.04.2012, which was a Sunday. 5. The plaintiffs narrate how, on the next date, i.e. 29.04.2012, the defendant allegedly forcibly took back the possession of the suit property. The plaintiffs called up the police station and also made a complaint by dialing number 100. The plaintiffs state that they were forced to leave the suit property under duress, and without consent. The plaintiffs state that they have filed a separate complaint for criminal trespass and criminal intimidation, which is pending investigation. The plaintiffs state that the suit property is lying vacant under the lock of the defendant, who is the resident of the adjoining pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady willing to pay the entire loan amount along with interest, including costs and charges incurred in execution of sale deed to the plaintiffs. The defendant also denies delivery of possession of the suit property to the plaintiffs on 28.04.2012, or its re- possession by the defendant on 29.04.2012. The defendant denies all allegations made by the plaintiffs of threat and, intimidation and violence by the defendant. 9. In his counter-claim, the defendant seeks cancellation of the sale deed dated 01.11.2011 registered on 02.12.2011 in respect of the suit property, and/ or execution of a fresh sale deed in favour of the defendant on the receipt, by the plaintiffs, of the entire loan amount. The defendant also seeks a direction to the plaintiffs to return to him the original chain of documents in respect of the suit property, after receipt of the entire loan amount. The plaintiffs have filed the replication along with written statement to the counter-claim. The plaintiffs have denied the case of the defendant and reasserted their case, as stated in the plaint. 10. The plaintiffs have preferred the aforesaid two applications. I.A. No.1111/2013 has been preferred by the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1963 deals with the aspect as to when cancellation of an instrument may be ordered. Section 31(1) states that any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument - if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable. Therefore, the written instrument has to be void or voidable against the party who seeks cancellation of the same. Mr. Kaul submits that the duly executed and registered sale deed in favour of the plaintiffs is neither void, nor voidable, as the defendant has failed to disclose any basis for any such claim. 14. On the other hand, the submission of Mr. Sunil K. Mittal, learned counsel for the defendant, is that the circumstances surrounding the execution of the sale deed render the said sale deed suspect, and support the defendant s contention that the real transaction between the parties was one of loan, and not of sale of the suit property. Mr. Mittal submits that the sale deed records that the consideration has been paid between February to November 2011. However, there is no recital in the sale deed, as to when the parties agreed that the suit propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 9,00,000/- 13. Received through cheque as No. 002841 dated 28.10.2011 Rs. 9,00,000/- 14. Received through cheque as No. 002842 dated 29.10.2011 Rs. 9,00,000/- 15. Received through cheque as No. 002846 dated 31.10.2011 Rs. 9,90,000/- 16. Received through cheque as No. 549577 dated 13.10.2011 Rs. 4,00,000/- 17. Received through cheque as No. 549578 dated 14.10.2011 Rs. 4,00,000/- 18. Received through cheque as No. 549579 dated 15.10.2011 Rs. 3,00,000/- 19. Received through cheque as No. 469239 dated 18.10.2011 Rs. 4,00,000/- 20. Received through cheque as No. 018542 dated 29.10.2011 Rs. 4,50,000/- 21. Received through cheque as No. 949896 dated 29.10.2011 Rs. 9,50,000/- 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. Mr. Mittal submits that bar of Section 91 92 of the Indian Evidence Act is not applicable in the present case, since the contentions raised in the counter claim of the defendant are covered under Provisos 1 to 3 to Section 92, and the explanation 3 to Section 91. 19. Mr. Mittal has placed reliance on several decisions in support of his submissions, which shall be referred to a little later. Mr. Mittal submits that the defendant is only seeking to prove the actual transaction between the parties. He, thus, seeks dismissal of both the applications of the plaintiffs, as aforesaid. 20. In my view, the decision of both the aforesaid applications depends upon the determination of the issue, whether the defence set up by the defendant is tenable in law, or not. If the said defence is tenable, obviously, at this stage this Court would not pass a partial decree for possession of the suit property in favour of the plaintiffs. At the same time, if the said defence is tenable, the counter-claim would not be rejected under Order VII Rule 11 CPC, as the said defence forms the very basis of the counter-claim. 21. Sections 91 92 of the Indian Evidence Act, 1872 read as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). - The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4). - The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5) - Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved. Provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract. Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts. [ emphasis supplied ] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h all construction for construction of further floors in the same as their own property without any hindrance, claim or demand whatsoever from the Vendor . [emphasis supplied ] 24. Therefore, the terms of the sale deed clearly show that the nature of the transaction that the said instrument records is an absolute conveyance of property i.e. the sale of the suit property. By no stretch of reasoning it can be described as a transaction of loan, coupled with a transaction to create a security for repayment of loan with interest and costs and subsequent retransfer of the suit property by the plaintiffs to the defendant. 25. The terms on which the suit property was conveyed by the defendant to the plaintiffs having been set out in the sale deed itself, in view of the bar contained in Section 91, it is not open to the defendant to claim that the conveyance was made only by way of security. The terms of the instrument of sale completely rule out the so-called understanding between the parties, that the suit property was to remain a security for the repayment of the so- called loan, and was to be re-conveyed to the defendant upon repayment of the so-called loan of Rs.1.65 Crores w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 27. Section 92 of the Evidence Act, inter alia, provides that where the terms of a grant or other disposition of property have been proved according to Section 91 - and in this case the execution and registration of the instrument of sale is not disputed by the defendant, no evidence of any oral agreement, or statement shall be admitted, as between the parties to such instrument, for the purpose of contracting, varying, adding to or subtracting from its terms. 28. By setting up the defence as noticed hereinabove, the defendant is seeking to do precisely this. The defendant is setting up a defence/ case which clearly contradicts and varies the terms of the duly executed and registered instrument of sale. The defendant is seeking to urge that the amount of Rs.1.65 Crores received by him was by way of loan, and not by way of consideration for the sale of the suit property to the plaintiffs. This is completely contradictory to, and at variance with the above extracted recitals and clauses of the sale deed. 29. The defendant is also seeking to urge that the transaction between the parties was the loan transaction, which is completely at variance with and contradicted by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he is unlettered or illiterate or that he did not read, or could not read the instrument in question. He does not claim that the sale deed was executed in an intoxicated or unsound state, or under duress or coercion exercised by the plaintiffs, or anyone else. The defendant knew the fact that he was executing an instrument of sale. When he has executed the sale deed in question, it is not open to the defendant to claim that the instrument of sale is hit by fraud, because, according to the defendant, the intention or understanding of the parties was to create a security in favour of the plaintiffs for the alleged loan granted to the defendant. The spirit and purpose of enacting Section 91 and 92 of the Indian Evidence Act, 1872 is to render the written contract, grant or other disposition the sole repository of the terms contained therein. If the intention of the parties was, as is claimed by the defendant, then that intention/objective/purpose should have been so spelled out in the instrument. Unfortunately for the defendant, that is not the case. 32. In Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595, the Supreme Court commented on section 91 of the Evidence Act by observing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alter them. This is a matter 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. (See Starkie on Evidence, p. 648.) . (emphasis supplied) 34. Reliance has been placed by the defendant on para 22 of the judgment in Roop Kumar (supra). In my view, the same is of no avail. The Supreme Court in para 22 of Roop Kumar (supra) observed: 22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 : AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434 : AIR 2000 SC 426] with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. In the light of the above discussion, I reject the reliance placed by the defendant on the Ist proviso to Section 92 of the Evidence Act. 39. Proviso 2 to Section 92 permits the proof of execution of a separate oral agreement as to any matter on which the document is silent , and which is not inconsistent with its terms. The defence/ case of the defendant- that there was a separate oral agreement of loan with security; of payment of interest in cash without receipt; of reconveyance of the suit property by the plaintiffs to the defendant-on the terms narrated by the defendant, cannot be set up, since the said case/ defence relates to matters on which the document is not silent. Rather, it is speaking , and such defence is inconsistent with the terms of the instrument of sale. The instrument of sale contradicts each of the claims of the defendant. I have already dealt with the terms of the instrument of sale in paras 22 to 25 above. 40. Proviso 3 to Section 92 permits the proof of existence of a separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property. Pertinently, the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties . The Supreme Court rejected this argument by observing that: This argument is noticed only to be rejected. It is not disputed that the sale deed is a registered document and, therefore, no oral evidence could be adduced to show that no title passed on to the respondent under the sale deed . This judgment applies on all fours to the present case. 44. In Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun through Its Secretary Vs. Bipin Kumar Another, (2004) 2 SCC 283 - a case relating to land acquisition, the respondent disputed the reliance placed by the land acquisition officer on the rate/price disclosed in a sale deed by which the respondent purchased a portion of the acquired land. While rejecting this submission of the respondent, the Supreme Court observed: Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document. It was, therefore, not open to the respondent to urge that, even though his sale deed showed a price of Rs 15.40 per sq yard the real market value was Rs 120 per sq yard. To permit a party to so urge would be to give a premium to dishonesty. Parties who undervalue their docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question - whether the court should allow its time to be wasted when the plaintiff had not produced material documents and had not given any explanation for their non-production. The court answered the said question in the negative. The court observed that, The Court will not allow its time to be wasted for trial of suits which are bound to abort (reference in this regard may be made to T. Arvindandam Vs. T.V. Satyapal AIR 1997 SC 2421, Liverpool London S.P. and I. Association Ltd. Vs. M.V. Sea Success I (2004) 9 SCC 512 ITC Ltd. Vs. Debts Recovery Appellate Tribunal (1998) 2 SCC 70.‖ 48. The monetary claim of Rs.25 lacs made by the plaintiff was also rejected as being barred on the principles of in pari delicto. The court observed that it would not allow its process to be used in enforcement of a transaction which steeps in illegality. Betting in cricket, or for that matter in any sport, is illegal and no claim before a court of law for loss suffered, or made to suffer on that account, would lie. In para 12 of the said judgment, the court observed as follows:- 12. The principle of public policy is, ex dolo malo non-oritur action i.e. no court will lend its aid to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in order to evade the payment of taxes. It was held that no Court can countenance a deliberate evasion of tax laws of the country and to lend the aid of the court for recovering an amount which had been deliberately kept concealed by the parties in order to evade payment of taxes due thereon. It was further held that if the courts were to do so, it would amount to aiding and abetting evasion of the laws by the court itself. It was further held that since the object of the parties was found to be that the profits will be earned in such a way or retained in such a manner as to evade the payment of taxes which was forbidden by law and which defeats the provision of the tax laws, therefore the object of the agreement was forbidden by law and is opposed to public policy. The agreement between the parties to earn concealed profits being void, it was held that the court could not enforce the agreement by directing an inquiry into that amount or the destination of the concealed profits in order to enforce the recovery of the share therein of one party from another. Reference may also be made to the Full Bench decision in Ghulam Ahmed v. Mohd. Iqbal AIR 1970 J K 165 where a partnership w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctober 2011 by 24 different cheques. Secondly, the defendant claims that though the sale deed itself records the delivery of possession of the suit property to the plaintiff, as a matter of fact, the same was not so delivered. Thirdly, the defendant claims that the plaintiff waited for about five months to claim possession after the execution and registration of the sale deed (the sale deed was registered on 02.12.2011 and the plaintiff claims to have taken possession for a day on 28.04.2012), which shows that the intention of the parties was not to transfer the suit property to the plaintiff by way of a sale. Fourthly, the defendant claims that the suit property has not been separated as EC-4 and EC-5 share a common driveway and lounge. 52. The defendant is barred in law by virtue of Section 91 and 92 from claiming that the amounts received by him were towards loan, and not towards sale consideration as already noticed above. In my view neither of these circumstances, in any way, detract from the title of the plaintiffs in the suit property by virtue of the instrument of sale registered on 02.12.2011. The sale deed itself records as to when, and in what manner, the entire sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essory rights in the suit property. 54. The non delivery of possession by the defendant to the plaintiffs does not by itself, or cumulatively with the other factors pointed out by the defendant, lead to the conclusion that the transaction between the parties was not a sale of the suit property, but was a mere loan transaction. So also the fact that the plaintiffs waited for about five months to claim possession of the suit property from the defendant has no bearing on the plaintiffs‟ title to the suit property, or their right to claim possession. 55. In Sanjay Gupta v. Cottage Industries Exposition Ltd., 2008 (102) DRJ 304, I had the occasion to deal with sections 91 and 92 of the Evidence Act. The parties had entered into a registered lease deed. The plaintiff claimed that the lease was for residential purpose and that the defendant misused the leased premises for commercial purpose. The defendant claimed that the lease was for commercial purpose. This led to disputes between the parties. The defendant stopped payment of rent on the ground that the plaintiff had obstructed the use of the leased premises for commercial and office purpose. To determine the purpose of let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. V. Muttamalla Narasamma Anr., AIR 2009 NOC 580 (A.P). From the head note, it appears that the plaintiff claimed to have executed the sale deed as security for loan availed of by her. The plaintiff was in possession of the property. The court held that in such a case, neither section 91 nor section 92 would disable the plaintiff from adducing oral evidence to explain the transaction covered under the sale deed. 57. Firstly, without the complete report of the judgment, it is difficult for this court to appreciate in what context the same has been rendered. Secondly, oral evidence can be lead only on the basis of the pleadings. The pleading of the defendant of the so-called loan transaction is highly deficient, apart from being patently contradictory to the terms of the registered instrument of sale. 58. Reliance is also placed by learned counsel for the defendant on the decision of the Madras High Court in Jayalakshmi Trading Co. Vs. Krishnamurthy and Others, AIR 2006 Mad 179. In this case, the Court observed that Section 91 of the Evidence Act prohibits oral evidence only regarding the terms of the contract or other evidence relating to the terms of the contract. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Chandrika Prasad and Others, (2006) 8 SCC 322, by learned counsel for the defendant is also of no avail. In this case the document was described as a sale deed. However, the terms contained in the deed provided that if the entire consideration is repaid by a particular date, the purchaser will reconvey the property and deliver possession thereof. The Supreme Court held that the sale would become absolute only when the transferee failed to pay the amount within the stipulated period. The conduct of the parties, namely that the transferors did not get their names mutated and that the stamp duty was paid by the transferor and not by the transferee, as in a sale, were also taken note of by the Supreme Court to conclude that the transaction was a mortgage with conditional sale. The aforesaid conditions found in the document of sale- dealt with by the Supreme Court, is in stark contrast with the terms conditions of the sale in question, which have already been dealt with hereinabove. 62. The Supreme Court commented on Section 91 of the Evidence Act by observing that the same forbids proving of the contents of a writing, otherwise than by the writing itself. The said section mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said plea was belied by the terms of the lease deed, the execution of which had been unequivocally admitted by the appellant. Reliance was placed on Parivar Seva Sansthan v. Dr (Mrs.) Veena Kalra Ors., 2000 (54) DRJ (DB). In para 20, the Court, inter alia, held as follows: 20. To conclude, in the instant case the execution of the lease deed has been unequivocally admitted by the appellant. Once the execution of the document has been admitted, Sections 91 and 92 of the Evidence Act, come into play. Section 91 lays down that when the terms of a contract or of any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract or other disposition of property, except the document itself. Section 92 further lays down that when the terms of any such contract or other disposition of property have been proved according to the last Section, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting therefrom. Thus, quite obviously, the pleas raised by the appellant against the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the contents of the documents only for delaying trial being barred by the section 91 and 92 of Evidence Act or other statutory provisions, can be ignored. These principles are well settled by catena of decisions. Reference in this regard be made to the decisions in Dudh Nath Pandey (dead by L.R's) Vs. Suresh Chandra Bhattasali (dead by L.R's) MANU/SC/0382/1986 : AIR1986SC1509 ; Atma Ram Properties Pvt. Ltd. Vs Air India MANU/DE/1151/1996 : 65(1997)DLT533 ; Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. 1997 2 AD (Del) 518; Abdul Hamid Vs. Charanjit Lal Ors. 1998 2 DLT 476 and Lakshmikant Shreekant Vs. M N Dastur Co. MANU/DE/0524/1998 : 71(1998)DLT564 . 67. On the aspect - what constitutes a clear and unequivocal demand, the Division Bench observed as follows: 10. ..... ..... ..... ..... ..... Learned counsel for the appellant, next argued that there was no clear and unequivocal admission in the written statements and no finding on the issues framed could be recorded without trial. Reiterating the above principles in a recent decision, the Supreme Court in Balraj Taneja Anr. Vs Sunil Madan Anr. MANU/SC/0551/1999 : AIR1999SC3381, while c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench held that a decree can be passed by the court under Order 12 Rule 6 CPC when admissions are clear and unambiguous and no other interpretation is possible. The power to pass a decree on admission is discretionary, and not mandatory under Order 12 Rule 6 CPC. The Court observed that it may not be safe and correct to pass a judgement under Order XII Rule 6 CPC when a case involves disputed questions of fact and law which require adjudication and decision. Even when a party has made an admission, the Court need not act on the same. There can be no quarrel with the aforesaid proposition laid down in para 10 of Pariva Seva Sansthan (supra) and Express Towers P. Ltd. (supra). However, where the relief sought by the plaintiff is squarely made out in view of unstatable/ untenable defence, it is equally well-settled, that the Court shall not unnecessarily drag the action for a pointless trial. In the present case, the defendant is precluded, in law, from pleading, much less proving his defence. 69. The admitted position is that the defendant executed the sale deed in favour of the plaintiffs in respect of the suit property. This admission with regard to the execution and registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the defendant by the plaintiff. No cause of action has arisen to require the plaintiffs to return all the original chain of documents in respect of the suit property to the defendant under any circumstance. 74. In Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137, the Supreme Court observed - by placing reliance on I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70, that the basic question to be decided while dealing with an application filed under Order VII Rule 11 CPC is whether a real cause of action has been set out in the plaint or something partially illusionary has been stated with a view to get out of Order VII Rule 11 CPC of the Court. The Trial Court must remember that if on a meaningful - and not formal, reading of the plaint it is manifestly, vexatious and meritless in the sense of not disclosing a clear right to sue, at the exercise the power under Order VII Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clear drafting has created an illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the parties searchingly under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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