Radhey Shyam Gupta Vs. RahisuddIn and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1126618
CourtDelhi High Court
Decided OnFeb-11-2014
JudgeVALMIKI J. MEHTA
AppellantRadhey Shyam Gupta
RespondentRahisuddIn and anr.
Excerpt:
* in the high court of delhi at new delhi + rsa no.47/2014 11th february, 2014 % radhey shyam gupta through: ......appellant mr. ram niwas, advocate. versus rahisuddin & anr. ...... respondents through: coram: hon’ble mr. justice valmiki j.mehta to be referred to the reporter or not?. valmiki j.mehta, j (oral) c.m. no.2709/2014 (exemption) 1. exemption allowed subject to just exceptions. c.m. stands disposed of. + rsa no.47/2014 2. this regular second appeal under section 100 of code of civil procedure, 1908 (cpc) impugns the concurrent judgments of the courts below; of the trial court dated 2.3.2006 and the first appellate court dated 15.10.2013; by which the suit filed by the appellant/plaintiff for cancellation of the documents dated 20.8.1998 was dismissed. by the documents dated 20.8.1998, the appellant/plaintiff transferred to the respondents/defendants his rights in the suit property bearing no.48-b, janta flat, ashok vihar-iii, delhi. the appellant/plaintiff claimed cancellation of the documentation on the ground that the consideration which was alleged to have been paid under the same was actually not paid to the appellant/plaintiff.3. the courts below have given the following conclusions to reject the case as set up by the appellant/plaintiff:(i) the agreement to sell in question (ex.pw1/d5) mentioned the aspect of payment of consideration of rs.49,000/- to the appellant/plaintiff by means of a pay order bearing no.058278 dated 21.8.1998 of nagrik sehkari bank ltd, subzi mandi, clock tower, delhi. (ii) the aforesaid pay order was no doubt prepared by one sh. jai bhagwan but it was on behalf of the respondents/defendants, and, the case of the appellant/plaintiff having received a loan of rs.49,000/- from sh. jai bhagwan by means of the said pay order was false. (iii) the case set up by the appellant/plaintiff that pay order in question issued by sh. jai bhagwan was towards giving of loan to the appellant is false because such a case was not set up in the plaint in spite of the fact that in reply to the legal notice issued by the appellant/plaintiff to the respondents/defendants, the respondents/defendants had specifically mentioned about the subject pay order towards payment of consideration for transferring of the suit property to the respondents/defendants by the appellant/plaintiff. (iv) sh. jai bhagwan was a witness (pw-3) to the documentation dated 20.8.1998 and he would have objected if the pay orders mentioned in the documents as consideration was allegedly of loan from sh. jai bhagwan to the appellant/plaintiff, but was written as consideration payable for transfer of suit property. (v) the case set up of loan given by sh. jai bhagwan to the appellant/plaintiff by the subject pay order and its repayment by the appellant/plaintiff to sh. jai bhagwan is false because the statement of account which was relied upon by the appellant/plaintiff for repayment of the loan to sh. jai bhagwan shows the entry of alleged repayment as dated 5.11.1999 i.e after the appellant/plaintiff received the reply ex.pw1/11 to the legal notice given by the respondents/defendants in which the factum of pay order being towards consideration was mentioned. (vi) courts below also held that the case of the appellant/plaintiff lacks credibility inasmuch as without receipt of consideration, appellant/plaintiff would never have transferred possession of the suit property, much less given the entire chain of title documents. to the above conclusion, i must add that if really the case of the appellant/plaintiff was correct that he did not receive any sale consideration, then, the appellant/plaintiff would not have waited for more than one year after execution of the documents in august, 1998 to file the subject suit in october, 1999.4. in my opinion, the aforesaid findings and conclusions of the courts below are clearly unimpeachable and no substantial question of law arises under section 100 cpc for this appeal to be entertained. 5(i) two arguments were urged by the appellant/plaintiff before this court. first argument was that there was difference in the font in the blank portion filled in the documents in which originally blanks were left, and therefore this showed that the documents, namely the agreement to sell (ex.pw1/d5), general power of attorney (ex.pw1/d1), special power of attorney (ex.pw1/d3), affidavit (ex.pw1/d2), receipt (ex.pw1/d4) and will (ex.pw1/d6) were not valid documents executed on 20.8.1998 when the same are said to have been executed and in fact the documents were to be executed on 21.8.1998 before the sub-registrar on the next date. (ii) in my opinion, this argument urged on behalf of the appellant is misconceived because the argument is really like making a mountain out of a molehill and this i say so because it is a routine that the documents are printed out first by leaving the blanks with respect to the portions which have to contain the details of payment etc. the blanks which are left are thereafter filled in by means of a manual typewriter, and which is so as was done in this case and therefore nothing turns upon the fact that the documents had blanks which are filled in by means of a typing instrument containing a different font. i may also note that i do not find any such argument was urged before the first appellate court or even before the trial court, as admitted before me by the counsel for the appellant. 6(i) the second argument urged before this court was that the documents in question not having been stamped and registered would not transfer rights in the suit property. (ii) once again, this argument was never urged before the courts below and even no issue was framed before the trial court. therefore, this argument cannot be urged for the first time in the second appeal. in any case, the argument is also misconceived on merits because the documents in question are of the year 1998 which is before amendment of section 53a of the transfer of property act, 1882 by act 48a of the year 2001 w.e.f 24.9.2001 and before which amendment came in there was no requirement of stamping and registration of the agreement to sell, power of attorney etc.7. in view of the above, there is no merit in the appeal and no substantial question of law arises under section 100 cpc. appeal is therefore dismissed, leaving the parties to bear their own costs. february11 2014 ne rsa no.47/2014
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.47/2014 11th February, 2014 % RADHEY SHYAM GUPTA Through: ......Appellant Mr. Ram Niwas, Advocate. VERSUS RAHISUDDIN & ANR. ...... Respondents Through: CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.

MEHTA, J (ORAL) C.M. No.2709/2014 (exemption) 1. Exemption allowed subject to just exceptions. C.M. stands disposed of. + RSA No.47/2014 2. This Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) impugns the concurrent judgments of the Courts below; of the trial Court dated 2.3.2006 and the first appellate Court dated 15.10.2013; by which the suit filed by the appellant/plaintiff for cancellation of the documents dated 20.8.1998 was dismissed. By the documents dated 20.8.1998, the appellant/plaintiff transferred to the respondents/defendants his rights in the suit property bearing No.48-B, Janta Flat, Ashok Vihar-III, Delhi. The appellant/plaintiff claimed cancellation of the documentation on the ground that the consideration which was alleged to have been paid under the same was actually not paid to the appellant/plaintiff.

3. The Courts below have given the following conclusions to reject the case as set up by the appellant/plaintiff:(i) The agreement to sell in question (Ex.PW1/D5) mentioned the aspect of payment of consideration of Rs.49,000/- to the appellant/plaintiff by means of a pay order bearing No.058278 dated 21.8.1998 of Nagrik Sehkari Bank Ltd, Subzi Mandi, Clock Tower, Delhi. (ii) The aforesaid pay order was no doubt prepared by one Sh. Jai Bhagwan but it was on behalf of the respondents/defendants, and, the case of the appellant/plaintiff having received a loan of Rs.49,000/- from Sh. Jai Bhagwan by means of the said pay order was false. (iii) The case set up by the appellant/plaintiff that pay order in question issued by Sh. Jai Bhagwan was towards giving of loan to the appellant is false because such a case was not set up in the plaint in spite of the fact that in reply to the legal notice issued by the appellant/plaintiff to the respondents/defendants, the respondents/defendants had specifically mentioned about the subject pay order towards payment of consideration for transferring of the suit property to the respondents/defendants by the appellant/plaintiff. (iv) Sh. Jai Bhagwan was a witness (PW-3) to the documentation dated 20.8.1998 and he would have objected if the pay orders mentioned in the documents as consideration was allegedly of loan from Sh. Jai Bhagwan to the appellant/plaintiff, but was written as consideration payable for transfer of suit property. (v) The case set up of loan given by Sh. Jai Bhagwan to the appellant/plaintiff by the subject pay order and its repayment by the appellant/plaintiff to Sh. Jai Bhagwan is false because the statement of account which was relied upon by the appellant/plaintiff for repayment of the loan to Sh. Jai Bhagwan shows the entry of alleged repayment as dated 5.11.1999 i.e after the appellant/plaintiff received the reply Ex.PW1/11 to the legal notice given by the respondents/defendants in which the factum of pay order being towards consideration was mentioned. (vi) Courts below also held that the case of the appellant/plaintiff lacks credibility inasmuch as without receipt of consideration, appellant/plaintiff would never have transferred possession of the suit property, much less given the entire chain of title documents. To the above conclusion, I must add that if really the case of the appellant/plaintiff was correct that he did not receive any sale consideration, then, the appellant/plaintiff would not have waited for more than one year after execution of the documents in August, 1998 to file the subject suit in October, 1999.

4. In my opinion, the aforesaid findings and conclusions of the Courts below are clearly unimpeachable and no substantial question of law arises under Section 100 CPC for this appeal to be entertained. 5(i) Two arguments were urged by the appellant/plaintiff before this Court. First argument was that there was difference in the font in the blank portion filled in the documents in which originally blanks were left, and therefore this showed that the documents, namely the agreement to sell (Ex.PW1/D5), general power of attorney (Ex.PW1/D1), special power of attorney (Ex.PW1/D3), affidavit (Ex.PW1/D2), receipt (Ex.PW1/D4) and Will (Ex.PW1/D6) were not valid documents executed on 20.8.1998 when the same are said to have been executed and in fact the documents were to be executed on 21.8.1998 before the sub-Registrar on the next date. (ii) In my opinion, this argument urged on behalf of the appellant is misconceived because the argument is really like making a mountain out of a molehill and this I say so because it is a routine that the documents are printed out first by leaving the blanks with respect to the portions which have to contain the details of payment etc. The blanks which are left are thereafter filled in by means of a manual typewriter, and which is so as was done in this case and therefore nothing turns upon the fact that the documents had blanks which are filled in by means of a typing instrument containing a different font. I may also note that I do not find any such argument was urged before the first appellate Court or even before the trial Court, as admitted before me by the counsel for the appellant. 6(i) The second argument urged before this Court was that the documents in question not having been stamped and registered would not transfer rights in the suit property. (ii) Once again, this argument was never urged before the Courts below and even no issue was framed before the trial Court. Therefore, this argument cannot be urged for the first time in the second appeal. In any case, the argument is also misconceived on merits because the documents in question are of the year 1998 which is before amendment of Section 53A of the Transfer of Property Act, 1882 by Act 48A of the year 2001 w.e.f 24.9.2001 and before which amendment came in there was no requirement of stamping and registration of the agreement to sell, power of attorney etc.

7. In view of the above, there is no merit in the appeal and no substantial question of law arises under Section 100 CPC. Appeal is therefore dismissed, leaving the parties to bear their own costs. FEBRUARY11 2014 Ne RSA No.47/2014