IN THE HIGH COURT OF DELHI
CS (OS) 1633/2012, CC 18/2013 and I.A. Nos. 10623 and 16134/2012
Decided On: 26.03.2014
Karan Madaan and Others
Hon'ble Judges/Coram:Vipin Sanghi, J.
Order 7 Rule 11, Order 12 Rule 6 - Evidence Act, 1872 - Section 91, 92 - Possession - Sale deed - Title - Rejection of counter-claim - Decree on admission - By way of a registered sale deed defendant transferred the suit property to the plaintiffs - Total consideration of Rs. 1,65,00,000 was paid - Sale deed was registered in the office of the Sub-Registrar - Right of possession of plaintiffs was recognized in the sale deed - Despite the receipt of the entire consideration and execution of the sale deed, the defendant has failed to handover the physical vacant possession of the suit property - Defendant claimed that the amounts received by him were towards loan, and not towards sale consideration - Defendant has not produced any document to show that amounts were received by way of loan - Defense set up by the defendant is barred under section 91 and 92 of the Evidence Act - Since the title of the plaintiffs in respect of the suit property stands established, suit of the plaintiff for possession has to succeed - Defendant has failed to establish any right or title in the suit Property - Defendant may have occupied the suit property as a licensee - License stands terminated - Cause of action pleaded by the defendant in the counter claim is the so-called oral agreement that the plaintiffs shall re-transfer - No cause of action has arisen to seek the cancellation of the sale deed - Counter claim of the defendant is rejected - Possession was never delivered to the plaintiff would not deprive the plaintiff to claim ownership on the basis of their title derived from the sale deed, and to claim possession of the suit property - Applications of the plaintiffs are allowed - Suit is decreed in respect of the relief of possession.
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 admission in the suit)
1. The present suit has been filed by three plaintiffs. Plaintiffs No. 1 & 2 are businessmen and plaintiff No. 3 is the mother of plaintiff No. 2. The case of the plaintiffs is that the defendant was the sole and exclusive owner of built-up property bearing No. EC-5, Inderpuri, New Delhi-110 012 admeasuring 500 sq. yds. situated in the area of village Naraina, Delhi (the suit property). The plaintiffs state that by way of a registered sale deed dated 01.11.2011, the defendant transferred the suit property to the plaintiffs for a total consideration of Rs. 1,65,00,000/-. The plaintiffs claim that the respective shares of the three plaintiffs in the suit property is as follows:
The sale deed was registered as document No. 13,180 in Book No. I Volume No. 6,205 at pages 64-74 on 02.12.2011 in the office of the Sub-Registrar No. IX, New Delhi. The plaintiffs state that their right of possession was recognized in the said sale deed, which acknowledge that "the vacant and physical possession of the abovementioned property under sale has been given to the Vendees by the Vendor, who have occupied the same.
2. The case of the plaintiffs is that despite the receipt of the entire consideration and execution of the sale deed, the defendant has failed to handover the physical vacant possession of the suit property to the plaintiffs-citing personal reasons like ill-health of the defendant's wife, and urgent work commitments. The plaintiffs state that they did not press for immediate possession of the suit property, believing the defendant's excuses. However, subsequently the plaintiffs started exerting pressure on the defendant to handover possession of the suit property. The plaintiffs state that the defendant started threatening and intimidating the plaintiffs with dire consequences every time the defendant was approached for handing over the possession. Despite having a clear title to the suit property, the plaintiffs have been deprived the actual possession of the suit property.
3. The plaintiffs state that they sent a legal notice dated 20.04.2012 to the defendant demanding vacant, physical 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 .
4. 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 property bearing No. EC-4, Inderpuri, New Delhi-110 012. The plaintiffs claim physical and vacant possession of the suit property on the basis of their title. They also claim damages on account of being out of possession of the suit property.
5. Upon issuance of summons, the defendant has filed his written statement along with counter-claim. The defence set up by the defendant in his written statement is that the plaintiffs proposed to give a loan to the defendant, and in lieu of the said loan amount, the defendant executed a sale deed of the suit property in favour of the plaintiffs, and handover the original chain of documents to the plaintiffs. The defendant states that the loan was interest bearing @ 2% per month, which was payable in cash every month, against which the defendant could not claim any receipt. The defendant states that under the loan transaction, the plaintiffs had also agreed to execute a fresh sale deed in favour of the defendant, as & when the entire money is paid along with: interest @ 2% per month; expenses incurred while registering the sale deeds; court fees, etc. to the plaintiffs by the defendant. Consequently, the defendant does not deny the factum of voluntary execution and registration of the instrument of sale deed in respect of the suit property, as claimed by the plaintiffs, but denies that the said instrument was executed to sell the suit property, as the instrument was executed to secure the 'loan' taken from the plaintiffs by the defendant.
6. The defence of the defendant is that-the fact that possession was not claimed by the plaintiffs till 28.04.2012, even though the sale deed was executed and registered on 02.12.2011, shows that the intention of the parties was not to transfer the suit property to the plaintiffs by way of sale. The defendant states that the value of the suit property is more than Rs. 15 Crores, and the defendant would not have sold the same for a petty consideration of Rs. 1.65 Crores.
7. The defendant states that the suit property is an integral part of the residence of the defendant, i.e. EC-4, Inderpuri, New Delhi-110 012. The two properties share a common driveway and common lounge. There is no partition between EC-4 and EC-5 by any wall, or gate, etc. While the defendant resides at EC-4, EC-5 is being used by him for his guests and outsiders. The defendant states that he is ready & 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 repossession 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.
8. 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.
9. The plaintiffs have preferred the aforesaid two applications. I.A. No. 1111/2013 has been preferred by the plaintiffs under Order VII Rule 11(a), (b) & (c) CPC to seek rejection of the counter-claim filed by the defendant. I.A. No. 1112/2013 has been filed by the plaintiffs to seek passing of a decree on admission.
10. Mr. Kaul, learned senior counsel for the plaintiffs has advanced more or less common submissions in support of both the applications. Mr. Kaul submits that the execution and registration of the sale deed in favour of the plaintiffs, and the receipt of the amount of Rs. 1.65 Crores by the defendant-which is recorded in the instrument of sale as the consideration therefor, are admitted facts which entitle plaintiffs to grant of relief of possession forthwith against the defendant on the basis of their title to the suit property.
11. Mr. Kaul submits that the defence set up by the defendant is that of a loan transaction between the parties. He submits that no document in support of the said defence has been produced by the defendant. The defendant has claimed that the registered sale deed dated 01.11.2011 was executed by the defendant in favour of the plaintiffs with a view to secure the so-called loan taken by the defendant from the plaintiffs. Mr. Kaul submits that such a defence is not tenable, and is barred under Sections 91 & 92 of the Evidence Act, 1872 in the face of the registered instrument of sale, admittedly executed by the defendant in favour of the plaintiffs. A written document cannot be countenanced by any oral evidence. Once a document has been admitted, Sections 91 & 92 of the Evidence Act come into play and any oral evidence to prove to the contrary cannot be accepted. Mr. Kaul submits that the defence raised by the defendant, on the face of it, is of an illegal transaction hit by Section 40(A)(3) of the Income Tax, 1961 and the same cannot be accepted as a defence in the eyes of law. He submits that this Court would not allow its process to be used for enforcement of a transaction which is steeped in illegality. In support of his submission, Mr. Kaul has placed reliance on several decisions, which shall be referred to a little later. Mr. Kaul submits that the basis of the counter-claim is also the so-called loan transaction between the parties. Since the said plea is not tenable in law, the counter-claim is also liable to fail, as not disclosing any cause of action.
12. Mr. Kaul submits that Section 31 of the Specific Relief Act, 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.
13. 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 property be sold by the defendant to the plaintiffs. No agreement to sell has been set up, even though payments have been made in installments spread over nearly ten months. He submits that since the plaintiffs have not claimed that the sale transactions was concluded in one-go, i.e. by payment of entire consideration in lumpsum, had the parties intended that the suit property be sold by the defendant to the plaintiffs, the parties would have executed an agreement contemporaneously when the initial payments were made. The plaintiffs have not produced any other document, or receipt of money, apart from the sale deed. He refers to the following clause in the sale deed, in this respect:
That in consideration of Rs. 1,65,00,000/- (Rupees One Crore and Sixty Five Lakhs only) which has been received previously by the Vendor from the Vendees as a full and final settlement, as per details given below:
And nothing remains due out of the sale price.
14. Mr. Mittal submits that in their complaint dated 30.04.2012-registered as DD 32A at at Police Station Inderpuri, New Delhi, the plaintiffs had set up the case that the defendant, after the execution of the documents and receipt of money, had stated that he has some urgent work and he would hand over the physical possession of the property the next day. He submits that this case set up by the plaintiffs is at variance with the case set up by the plaintiffs in paragraph 3 of the plaint, wherein the plaintiffs have stated that "despite the receipt of the entire consideration and the subsequent execution of the sale deed, the defendant failed to hand over the vacant physical passion of the suit property to the plaintiffs on one pretext or the other stating personal reasons like ill-health of the defendant's wife, or urgent work commitments".
15. Mr. Mittal submits that the sale deed in question is hit by fraud. He refers to the definition of fraud contained in Section 17 of the Contract Act. He submits that 'fraud' includes a promise made without any intention of performing it by a party to a contract with the intention to deceive or induce the other party to enter into a contract. He submits that where the consent of a party is obtained by fraud, the contract is voidable at the option of the party whose consent was so caused. (see Section 19 of the Contract Act)
16. Mr. Mittal submits that the plaintiffs made a promise to the defendant that they shall not misuse the aforesaid sale deed and shall execute a reverse sale deed in favour of the defendant on repayment of the loan amount. He submits that upon the filing of the present suit, the fraudulent intentions of the plaintiffs', which they entertained right from the beginning, got exposed, thus entitling the defendant to proffer the counter-claim for cancellation of the sale deed.
17. 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.
18. 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.
19. 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.
20. Sections 91 & 92 of the Indian Evidence Act, 1872 read as follows:
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1.-When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.-Wills 75[admitted to probate in 40[India] may be proved by the probate.
Explanation 1-This section applies equally to cases in which the contracts grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2--Where there are more originals than one, one original only need be proved.
Explanation 3.-The statement, in any document whatever, of a fact other then the facts referred to in this section, shall, not preclude the admission of oral evidence as to the same fact.
(emphasis supplied )92. Exclusion of evidence of oral agreement
When the terms of any such contract, grantor other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement of statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from, its terms;
Provision (1)-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 76[want or failure] of consideration, or mistake in fact or law.
Proviso (2)-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent 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.
21. Section 91, inter alia, stipulates that where the terms of a contract or of a grant or any other disposition of property have been reduced to a form of written document-as in the present case the sale deed dated 01.11.2011 has been registered on 02.12.2011, no evidence shall be given in proof of the terms of such a contract, grant or other disposition of property, except the document itself. Therefore, if there is a sale deed executed and registered in respect of an immovable property-registration whereof is compulsory under the law, neither party can claim that the terms of the sale-such as the consideration, or the nature of transaction/disposition is, in fact, different from that contained in the document itself. The sale deed in question does not contain any term, that the consideration recorded to have passed from the plaintiffs to the defendant of Rs. 1.65 crores was in respect of a loan transaction. In fact, the sale deed records that the amount of Rs. 1.65 Crores is the consideration for sale of the suit property by the defendant to the plaintiffs. The last recital in the sale deed reads as follows:
Whereas the Vendor has agreed to sell the built up entire freehold property bearing No. EC-5 constructed on freehold plot No. EC-5, measuring 500 sq. yds., with terrace roof rights, with super structure situated in the abadi of an approved colony Inderpuri, New Delhi-110012, as per plan attached herewith, for his bonafide needs and requirements,with fittings and fixtures, with water and electric connections in working order, along with separate water and electric meters, and the Vendees have agreed to purchase the same for a sum of Rs. 1,65,00,000/- (Rupees One Crore and Sixty Five Lakhs only).
22. The sale deed also records, as noticed hereinabove, that the entire consideration of Rs. 1.65 Crores for the sale of suit property by the defendant to the plaintiffs stands paid in the manner described and "nothing remains due out of the sale price". The sale deed also records that "the vendor hereby absolutely assigns, conveys and transfers to the vendees all rights of ownership, titles and of interests in the abovementioned property under sale hereby conveyed". It also provides: "The Vendees shall hereinafter hold use, enjoy as they like and to sell, mortgage, lien, let-out or make additions/alterations/re-
construct with all construction for construction of further floors in the same as their own property without any hindrance, claim or demand whatsoever from the Vendor".
23. 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.
24. 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 with interest and other charges. In fact, the sale deed contains terms authorizing the plaintiffs/vendees to get the suit property mutated in their own names in the records of MCD/DJB/DVB/NDPL/BSES/
concerned departments etc. (clause 5). It also places obligation on the plaintiffs to bear the house tax, electricity and water bill charges after the date of execution/registration of the sale deed. The aforesaid clauses militate against the defence/counter-claim set up by the defendants, which only go to show that the said defence is patently frivolous and moonshine. If the sale deed in respect of the suit property were executed only as a security-to secure the repayment of the loan, interest and other charges by the defendant to the plaintiffs, there would be no question of mutation of the property in the names of the plaintiffs, and the thrusting of the liability towards payment of house tax, electricity and water charges upon the plaintiffs from the date of execution of the sale deed. If the suit property were to be offered as a security for repayment of the so called loan, interest and other charges, a mortgage in respect of the suit property could have been created by the defendant in favour of the plaintiffs, rather than executing a sale deed for absolute and outright sale of the suit property which would entail higher stamp duty and other charges as well. Pertinently, even the stamp duty has been borne by the vendees/plaintiffs, which would not have been the case, had it been a simple loan transaction with security of immovable property.
25. Explanations 1 and 2 of Section 91 have no relevance for the present case. Explanation 3 only states that the statement of a fact in a document, "other than the facts referred to in this Section" may be proved by leading oral evidence. The "fact referred to in this Section" are the "terms of a contract, or a grant, or of any other disposition of property" which have been reduced to the form of the document. For instance, if the age or address, or paternity of a party is recorded in an instrument, it shall be open to the parties to lead evidence to establish that the same is not correctly recorded, or that the same is, in fact, different from what the instrument records. However, this explanation cannot be invoked to disprove the "terms of a contract, or of a grant, or of any other disposition of property".
26. 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.
27. 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.
28. 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 sale deed which, absolutely and forever, conveys the suit property to the plaintiffs. The defendant is seeking to foist an obligation on the plaintiffs to reconvey the suit property to him upon the repayment of the so-called loan with interest and other charges-an obligation not borne out by the instrument of sale and contrary to the express covenant that "The vendees shall hereinafter hold, use, enjoy as they like and to sell, mortgage, lien, let-out or make additions/alterations/re-
construct with all construction for construction of further floors in the same as their own property without any hindrance, claim or demand whatsoever from the Vendor". Thus, the defendant is seeking to contradict and add to terms of the registered sale deed.
29. The thrust of Mr. Mittal's submissions is premised on the provisos to Section 92. I will deal with each of the provisos relied upon by the defendant to claim that its defence/case is tenable in law. Proviso 1 to Section 92, inter alia, permits the proof of any fact which would invalidate any document such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.
30. The defence/case set up by learned counsel for the defendant in his arguments is of 'fraud', on the premise, that the plaintiffs are seeking to exploit the instrument of sale, contrary to the understanding of the parties that the sale deed was only to be used as a security for repayment of loan, interest and other charges. Pertinently, the written statement or the counter claim do not whisper about a "fraud", though the defendant repeatedly states that the plaintiffs are greedy, have turned dishonest, and are of a criminal mind. A mere mention of "fraud" in a pleading is not sufficient. A party pleading fraud is obliged, under Order VI Rule 4 CPC, to give particulars of the pleaded fraud-with dates and items, in the pleading. The pleadings of the defendant, in the written statement/counter claim do not even make out a case of fraud. In any event, the fraud, intimidation, illegality, etc referred to in proviso 1 to Section 92 relates to the execution of the instrument/document. It is not the defendant's case that when he executed the sale deed, he did not know that it is a sale deed that he was executing. It is not the defendant's case 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.
31. In Roop Kumar v. Mohan Thedani, MANU/SC/0276/2003 : (2003) 6 SCC 595, the Supreme Court commented on section 91 of the Evidence Act by observing that:
13. ...This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known sometimes as the "best-evidence rule ". It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thayer's Preliminary Law on Evidence, p. 397 and p. 398; Phipson's Evidence, 7th Edn., p. 546; Wigmore's Evidence, p. 2406.).....
32. The Court further observed that:
16............ This rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the courts to defeat this object. When persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the courts and with a disinclination to disturb the conditions of matters as embodied in them by the act of the parties. (See McKelvey's Evidence, p. 294.) As observed in Greenlear's Evidence, p. 563, one of the most common and important of the concrete rules presumed under the general notion that the best evidence must be produced and that one with which the phrase "best evidence" is now exclusively associated is the rule that when the contents of a writing are to be proved, the writing itself must be produced before the court or its absence accounted for before testimony to its contents is admitted.
17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, 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 from being used either as a substitute for such instruments, or to contradict or 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.).
33. 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 MANU/SC/0385/1981 : [(1982) 1 SCC 4: AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal MANU/SC/0747/1999 : [(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 agreement altogether, not recorded in the document, was entered into between the parties.
34. The aforesaid observations of the Supreme Court have to be read in the context. The Supreme Court in Roop Kumar (supra) in para 23 observed:
23. But the question is whether on the facts of the present case, the reasons given by the defendant-appellant in his evidence for claiming the agreement as sham document can be accepted.
35. In the present case, the only reason pleaded by the defendant (whose evidence cannot go beyond the pleadings) is the oral understanding between the parties as already set out above. However, the so-called oral understanding is completely contradicted by the terms of the registered instrument itself, and the defendant has not pleaded any other fact or circumstance to show that the parties did not intend to act upon the instrument of sale.
36. The judgment in Roop Kumar (supra) has been applied by this court in Sparsh Builders v. Maharshi Ayurveda Products Ltd., MANU/DE/2258/2009 : 163 (2009) DLT 411. The plaintiff filed the suit to claim possession as well as damages and mesne profits on the basis of the instruments executed by the defendant in its favour. The defence set up by the defendant was that the instrument/agreement had been executed only to secure an interest bearing loan of Rs. 4 crores advanced by the plaintiff to defendant, and that the lease agreement had been entered for recovering the interest. After the statement of the defendant was recorded under Order 10 Rule 2 CPC, the plaintiffs pressed for passing of a decree on admission. The court rejected the defence set up by the defendant with regard to the alleged loan transaction by observing that:
27. There is absolutely not a single phrase in any of the above documents to suggest that the sum of Rs. 4 crores was given as a loan by the defendant to the plaintiff. By no stretch of imagination, upon reading any of these documents, can such a transaction be said to be evident either directly or indirectly.
37. The court also dealt with the issue whether a party can give oral evidence concerning the intention of the parties at the time of the execution of a document, which is not reflected in such a document. In this context, Roop Kumar (supra) was relied upon. The court rejected the defence set up by the defendant which was contrary to the terms of the registered instruments. 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.
38. 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.
39. 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 defendant has not set up a defence/case that any obligation under the sale deed was dependent upon fulfillment of any condition precedent. The defendant is seeking to set up a defence/case that post the execution of the instrument of sale, the plaintiff was obliged to reconvey the suit property to the defendant. Such a defence is not tenable by resort to proviso 3 to Section 92. As noticed above, the terms of the instrument of sale convey the suit property to the plaintiffs in presenti, absolutely and forever. Therefore, there is no question of the defendant setting up an oral agreement as a "condition precedent" for performance of any obligation.
40. Proviso 4 to Section 92 permits the establishment of the existence of any "distinct, subsequent oral agreement to rescind or modify" the contract, grant or disposition of property, except in cases in which such contract, grant or disposition of property is required, by law, to be in writing, or has been registered as per the law for the time being as to registration of documents.
41. In the present case, the disposition of the suit property was required by law to be in writing and by a registered instrument, and it has been so executed in writing and registered. Proviso 4, therefore, cannot be invoked by the defendant, in any case. Moreover, the defendant is not claiming a "subsequent" oral agreement. He is claiming an oral agreement/understanding which, according to him, existed at the time of execution of the sale deed. Consequently, Proviso 4 has no application to the defence/case set up by the defendant. Provisos 5 & 6 have no application to the facts of the present case, as the defendant does not plead any custom, or any issue with regard to the language used.
42. In Ramaswamy (Dead) By LRs. Vs. M. Lobo (Dead) By LRs., : MANU/SC/1843/2001 : (2001) 10 SCC 176, the defendant/appellant was the owner of the suit property. He transferred the property in favour of the plaintiff/respondent by a registered sale deed. The property was leased on the same day to the defendant/appellant. On account of default in payment of rent, the plaintiff/respondent initiated a suit for recovery of rent. One of the defences taken by the defendant/appellant was that "the sale deed was in fact a security for the loan advanced by the respondent to the defendant/appellant and, therefore, there is no relationship of landlord and tenant between 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.
43. In Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun through Its Secretary Vs. Bipin Kumar & Another, MANU/SC/0030/2004 : (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 documents, for purpose of payment of stamp duty, cannot be allowed to then claim that their own documents do not reflect the correct market value. Therefore, as per sale instances of the comparable lands, the market value, on dates of sales, were in the region of Rs. 15.37 to Rs. 15.40 per sq yard.
44. Thus, the Supreme Court held that to permit a party to plead contrary to the terms of a sale deed-to which he is a party, would be to put premium on dishonesty. The defendant is seeking to do exactly the same thing by claiming that the parties entered into a loan transaction, and that too, which entailed the commission of an illegality, namely, the payment of interest in cash by the defendant to the plaintiff, for which no receipt was allegedly required to be issued by the plaintiffs.
45. In Abhey Dewan & Ors. V. Manoj Sethi & Ors., MANU/DE/1857/2013 : 202 (2013) DLT 392, the case of the plaintiff was that the defendant had approached the plaintiff to sell his plot of land for Rs. 13,15,000/-. The plaintiff claimed that Rs. 4 lacs were paid as earnest money/bayana to the defendant. The plaintiff also claimed that the defendant took approximately Rs. 12 lacs from the plaintiff under two other agreements cum bayana receipts for two other plots. The plaintiff claimed that the defendant failed to fulfill his obligations under the agreements despite the plaintiff being ready and willing to conclude the transactions. The plaintiff claimed that the defendant represented, that he would get the plaintiff compensated for the losses suffered by the plaintiff by betting on cricket matches. Accordingly, the plaintiff resorted to betting on cricket games on the advice of the defendant, who turned out to be a bookie. The plaintiff claimed that though, initially, he made profits, eventually he lost heavily. He claimed that he gave some jewellery to the defendant and also executed documents for transfer of property in the name of the brother-in-law of defendant no. 1 without receiving any consideration therefor. He also issued a blank cheque from the account of plaintiff No. 2. The plaintiff filed a suit to seek cancellation of documents executed and got registered by him, recovery of Rs. 25 lacs and permanent injunction to restrain the defendants from selling or alienating their properties.
46. After assessing the documents relied upon by the plaintiff, the court posed the 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 MANU/SC/0614/1997 : AIR 1997 SC 2421, Liverpool & London S.P. and I. Association Ltd. Vs. M.V. Sea Success I MANU/SC/0951/2003 : (2004) 9 SCC 512 & ITC Ltd. Vs. Debts Recovery Appellate Tribunal MANU/SC/0968/1998 : (1998) 2 SCC 70. "
47. 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 a man who founds his cause of action upon an immoral or an illegal act. If, from the litigant's own stating or otherwise, the cause of action appears to arise ex turpi causa or in transgression of a positive law of the country, the Court will refuse to render its assistance to such a litigant. The Supreme Court in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander MANU/SC/0144/1968 : AIR 1968 SC 1165 held that in a case in which a litigant must rely upon his own illegality, the Court may refuse him assistance. Similarly in Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar MANU/SC/0250/1964 : AIR 1965 SC 1364 also it was held that if the litigant seeks the assistance of the Court to effectuate an illegal transaction, the Court will refuse to assist him. In Sita Ram Vs. Radha Bai MANU/SC/0012/1967 : AIR 1968 SC 534 it was held that the principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto potior est conditio defendentis. Similarly in Kedar Nath Motani Vs. Prahlad Rai MANU/SC/0159/1959 : AIR 1960 SC 213 it was held that where a party rests its case upon an illegality, then public policy demands that it should not be allowed to take advantage of the position. Mention in this context may also be made of S.P. Chengalvaraya Naidu Vs. Jagannath MANU/SC/0192/1994 : (1994) 1 SCC 1 holding that the Courts of law are meant for imparting justice between the parties; that a person whose case is based on falsehood has no right to approach the court and can be summarily thrown out at any stage of litigation. It was also noted that the process of the court is being abused-property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. I am also tempted to refer to Ram Sewak Vs. Ram Charan MANU/UP/0260/1982 : AIR 1982 All. 177. It was a case of concealment of profits; the parties had been keeping double set of accounts for evading payment of income tax and sales tax. The Lower court reported the matter to the Taxation Authority. The High Court held that the Courts should have refused to entertain the suit on the ground of public policy, as it involved directing the recovery of an amount found to be due to either party as a share of the profits which had been deliberately concealed by the parties from the books of account 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 MANU/JK/0026/1970 : AIR 1970 J&K 165 where a partnership which entailed transfer of truck and its route permit to the partnership business, in contravention of the provisions of the Motor Vehicle Act was held to be void in entirety.
48. The alleged loan transaction set up by the defendant is also an illegal transaction as an essential component of the said transaction is allegedly the payment of interest by the defendant to the plaintiff in cash, without receipt i.e. without any accounting. The alleged loan transaction, therefore, entails the generation of unaccounted income for the plaintiffs, and the payment of unaccounted monies by the defendant towards interest-both of which are hit by the provisions of the Income Tax Act. It also entails payment of interest of Rs. 3 lacs in cash, which is contrary to Section 40A(3) of the Income Tax Act, 1961, which reads as follows:
3. Where the assessee incurs any expenditure in respect of which a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds twenty thousand rupees, no deduction shall be allowed in respect of such expenditure.
The court would not countenance a stand/defence/case set up by a party, which is premised on a patent illegality. Pertinently, this is the unilateral case of the defendant, and is not the position accepted by the plaintiff.
49. In Bishundeo Narain Rai (Dead) By LRs. & Others Vs. Anmol Devi & Others, MANU/SC/0533/1998 : (1998) 7 SCC 498, the Supreme Court analysed the provisions of the Transfer of Property Act in respect of a "sale" of an immovable property. The Supreme Court, inter alia, observed in para 11 as follows:
11........... It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which has to be proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of Section 92 of the Evidence Act, 1872.
50. The intrinsic evidence on which the defendant seeks to place reliance is, firstly, the fact that the sale consideration was paid in installments spread between February 2011 and October 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.
51. 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 consideration has been paid. The initial payments aggregating to Rs. 10 lacs were made on 24/25.02.2011. Thereafter, the balance payment of Rs. 1.55 crores has been made between 13.10.2011 and 31.10.2011. Mere spread of the period, during which consideration was paid by the plaintiffs to the defendant-during February and October, 2011 does not suggest that the amounts were given as a loan, and not towards sale consideration. As noticed, such a plea is barred by Sections 91 and 92 of the Evidence Act. Merely because the plaintiffs have not produced the written agreement to sell, or other instruments to show that the amounts were paid towards purchase of the said property, is neither here nor there, since the instrument of sale itself records the factum of the amounts being received by the defendant towards sale consideration. Pertinently, the defendant has not produced any document to show that the amounts were received by him only by way of loan, as alleged by him.
52. There is nothing to suggest, in law, that the sale consideration has to be paid as a lumpsum, and cannot be paid in installments-for the transaction whereunder the payment is made, to be construed as a sale. So far as delivery of possession is concerned, there are conflicting versions as to whether the defendant delivered possession to the plaintiffs on 28.04.2012, and re-possessed the same on 29.04.2012. However, there is no dispute that at the time of execution and registration of the sale deed, though the sale deed records that possession stands delivered, the possession was, in fact, not delivered. Once again, I may note that there are disputes as to the reason why actual physical possession was not delivered at the time of execution and registration of the sale deed. While the plaintiff claims that it was not so delivered on account of excuses given by the defendant, and the assurance given by him that he would deliver possession later; the defendant claims that as the transaction was not that of sale, the possession was not liable to be delivered. Be that as it may, even if were to be accepted that possession was never delivered to the plaintiff, that fact would not deprive the plaintiff to claim ownership on the basis of their title derived from the sale deed, and to claim possession of the suit property from the defendant, since the defendant has not set up any defence to claim possessory rights in the suit property.
53. 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.
54. In Sanjay Gupta v. Cottage Industries Exposition Ltd., MANU/DE/0044/2008 : 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 letting, the relevant clauses of the lease were examined. Section 91 and 92 of the Evidence Act were pressed into service to deny the aforesaid defence set up by the defendant. The relevant extract from the said decision reads as follows:
20. The defence set up by the defendant that the plaintiff had agreed to get the user of the premises changed to commercial is in the teeth of Sections 91 and 92 of the Evidence Act since the defendant is seeking to contradict, vary, add to the terms of the registered lease deed. The Bombay High Court in Dinkarrai Lalit Kumar & Ors. v. Sukhdayal Rambilas & Ors. MANU/MH/0051/1946 : AIR 1947 Bom. 293 held that the terms of a contract reduced to writing cannot be ascertained by allowing parole evidence as to what transpired antecedent to the contract or what the parties did subsequent to the contract. Once the contract between the parties is reduced to writing, the court can only look at the writing alone in order to construe what the terms of the contract were.
22. In S. Saktivel (dead) by LRs. vs. M. Venugopal Pillai & Ors. MANU/SC/0499/2000 : (2000) 7 SCC 104 the Supreme Court held that where under the law a contract or disposition is required by law to be in writing, its terms cannot be modified, altered or substituted by an oral contract, or disposition. Under Section 92(4) of the Evidence Act no parol evidence is admissible to substantiate such oral contract or disposition. Where a document for its validity or effectiveness is required by law to be given in writing, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document that the terms of the earlier document can be altered, rescinded or substituted. The Supreme Court also held that parol evidence cannot be permitted to substantiate the subsequent oral agreement where the original agreement is contained in a registered document. This is not permitted by Section 92(4) of the Evidence Act. The terms of a registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement is allowed to be substantiated by parol evidence it would mean re-writing of the registered document which is not permissible.
55. Mr. Mittal has placed before this court merely a head note of a decision of the Andhra Pradesh High Court in Yerram Krishna Rao & Ors. V. Muttamalla Narasamma & Anr., MANU/AP/0644/2008 : 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.
56. 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.
57. 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, MANU/TN/0896/2005 : 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. Section 91 does not prohibit the parties to lead oral evidence in respect of the nature of the contract, as well as the oral agreement entered into between the parties simultaneously along with the document. If there is an ambiguity in the language employed and the recitals thereof, the intention of the parties may be ascertained by adducing extrinsic evidence. The Court referred to the decision in Bhaskar Waman Joshi Vs. Narayan Rambilas, MANU/SC/0161/1959 : (1960) 2 SCR 117, where the Supreme Court observed:
The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous they must, in the light of the evidence of surrounding circumstances, be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be, by law, be permitted to be adduced to show in what manner the language of the deed was related to existing facts.
58. The Madras High Court held that the construction of the document and the intention of the parties could be determined only when the parties adduced evidence. Only upon leading evidence, and in the light of the evidence adduced; the surrounding circumstances, and; the conduct of the parties, the Court could determine the nature of the transaction.
59. Firstly, I may observe that the real issue in Jayalakshmi Trading Co. (supra) was with regard to the admissibility of certain documents. Some of the defendants had filed an application under Order XIII Rules 3 & 6 CPC to reject some of the documents tendered in evidence by the plaintiffs witness. In any event, the aforesaid observations do not come in the way of plaintiff and do not support the defendants case, for the reason, that the defence set up by the defendant is squarely prohibited from being raised by Sections 91 & 92 of the Evidence Act. The defendant is precluded from contending that the real transaction between the parties was a loan transaction as the sale deed in question stares in the fact of the defendant while raising such a defence. Moreover, there is no ambiguity in the language employed by the parties in the sale deed. The same is absolutely clear and explicit.
60. Reliance placed on Tulsi and Others Vs. Chandrika Prasad and Others, MANU/SC/8449/2006 : (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.
61. 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 merely lays down the "best evidence rule". It does not prohibit the parties to adduce evidence in a case where the deed is capable of being construed differently to show how the parties understood the same. As noticed above, the defence set up by the defendant seeks to contradict the document of sale and the terms & conditions contained in the sale deed. The sale is absolutely clear and incapable of being construed in any manner except as a sale. Therefore, there is no question of the defendant being permitted to lead any evidence by going to trial.
62. In Satya Bhushan Kaura (Shri) Vs. Smt. Vijaya Myne, MANU/DE/9812/2006 : 2007 VII AD (DELHI) 303, the Court found that the defence set up by the defendant was a mala fide afterthought on the part of the defendant, in order to set up a semblance of a defence to the case of the plaint. The defendant sought to impute failure on the part of the plaintiff to perform an obligation, which was contrary and not borne out from the agreement between the parties. The Court, inter alia, observed as follows:
23..........................No such obligation as has been set up against the plaintiff by the defendant in its written statement, is to be found in the agreement dated 6th April, 2005. I find that no such obligation is asserted either in the notice dated 22nd March, 2006 or in the rejoinder dated 10th April, 2006. The pleas set up before this Court in this behalf therefore are completely belied by the prior stand and assertions of the defendant.
24. It is well settled that the oral stipulations when pitched against the written contract, would have to give way to the terms and conditions of the written statement which alone will bind the parties and nothing further. In this behalf, Section 91 and 92 of the Indian Evidence Act, 1872 need no elaboration. Hence the written statement really discloses no defence and such pleas have been set up only in an attempt to protract and delay the trial. If such a defence is examined on the principles applicable to an application on such facts seeking leave to defend in a suit under Order 37 of the CPC, this Court would have had to hold that the defendant has no defence and the pleas set up are illusory and moonshine.
63. In Sharex Acting Through Vinod Kumar Chadha Vs. Sudershan Suri, MANU/DE/1273/2010 : 170 (2010) DLT 600, the learned Single Judge rejected the plea of the appellant on the premise that 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., MANU/DE/0602/2000 : 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 contents of the lease deed are barred by Sections 91 and 92 of the Evidence Act and appear to have been made only for the purpose of delaying the trial of the case. Such pleas as ruled by this Court in the Parivar Seva Sansthan case (supra) can be ignored by the Court while adjudicating an application under Order XII Rule 6 CPC if otherwise the Court finds, either on an application of any party or on its own motion, that the admissions made in the pleadings or otherwise taken as a whole justify the passing of a decree thereon. In fact, the Court in the said case has gone so far as to say that even a constructive admission firmly made can be made the basis of the decree. All that the Court is required to do is to satisfy itself that the question raised in the suit can be determined without evidence....................
64. In the light of the aforesaid discussion, I am of the considered view that the defence/case set up by the defendant in the present case is barred under section 91 and 92 of the Evidence Act, and the defendant is, therefore, precluded from setting up the defence/case, as aforesaid, in the face of the registered instrument of sale in favour of the plaintiffs in respect of the suit property.
65. With the defence/case of the defendant having been held to be not tenable in law, the question that arises for consideration is whether the present is a fit case for passing of a decree in favour of the plaintiffs under Order 12 Rule 6 CPC and, whether the counter claim of the defendant is liable to be rejected under Order 7 Rule 11 CPC. In Parivar Seva Sansthan (supra), a Division Bench of this Court held as follows:
9. Bare perusal of the above rule shows, that it confers very wide powers on the court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis. Any plea raised 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 : AIR 1986 SC 1509; Atma Ram Properties Pvt. Ltd. Vs Air India MANU/DE/1151/1996 : 65 (1997) DLT 533; Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. MANU/DE/0883/1997 : 1997 2 AD (Del) 518; Abdul Hamid Vs. Charanjit Lal & Ors. MANU/DE/0335/1998 : 1998 2 DLT 476 and Lakshmikant Shreekant Vs. M N Dastur & Co. MANU/DE/0524/1998 : 71(1998) DLT 564.
66. 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 : AIR 1999 SC 3381, while considering the scope and ambit of the provisions of rule 6 of order 12 CPC observed:
23. Under this rule, the court can, at an interlocutory stage of the proceedings, pass a Judgment on the basis of admissions made by the defendant. But before the court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This rule empowers the court to pass Judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit.
24. In Razia Begum Vs. Sahebzadi Anwar Begum it was held that Order 12 Rule 6 has to be read along with the proviso to Rule 5 of Order 8. That is to say, notwithstanding the admission made by the defendant in his pleading, the court may still require the plaintiff to prove the facts pleaded by him in the plaint.
25. Thus, in spite of admission of a fact having been made by a party to the suit, the court may still require the plaintiff to prove the fact which has been admitted by the defendant. This is also in consonance with the provisions of Section 58 of the Evidence Act which provides as under:
58. Facts admitted need not be proved.-No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.26. The proviso to this section specifically gives a discretion to the court to require the facts admitted to be proved otherwise than by such admission. The proviso corresponds to the proviso to Rule 5(1) Order 8 CPC.
27. In view of the above, it is clear that the court, at no stage, can act blindly or mechanically. While enabling the court to pronounce Judgment in a situation where no written statement is filed by the defendant, the court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the court can either pronounce Judgment against the defendant or pass such order as it may think fit.
67. In Express Towers P. Ltd. & Another Vs. Mohan Singh & Others, MANU/DE/8493/2007 : 2007 (97) DRJ 687 (DB), the Division Bench 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 judgment 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 Parivar 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.
68. 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 of the sale deed is clear and unequivocal. As held by the Division Bench in Parivar Seva Sansthan (supra), the defence of the defendant being barred by section 91 and 92 of the Evidence Act has to be ignored. The only consequence that can flow, in law-once the title of the plaintiffs stands established on the basis of the sale deed executed by the defendant, is that the plaintiffs are entitled to a decree of possession.
69. There is no purpose of dragging the matter further into trial so far as the relief of possession is concerned, since the title of the plaintiffs in respect of the suit property stands established, and the only consequence thereof, in law, can be that the suit of the plaintiff for possession has to succeed.
70. The defendant has failed to establish any right or title in the suit property. At the highest, the defendant may have occupied the suit property for some duration after the execution of the sale deed in favour of the plaintiffs as a licensee. The said license clearly stands terminated, if not earlier, upon receipt of summons in the suit, inter alia, for possession. (See judgment in Nopany Investments (P) Ltd. v. Santokh Singh (HUF), MANU/SC/8184/2007 : (2008) 2 SCC 728).
71. Consequently, the observations made in para 10 of Parivar Seva Sansthan (supra) and in the decision in Express Towers P. Ltd. (supra) have no application in the facts of the present case.
72. So far as the plaintiff's application under Order 7 Rule 11 is concerned, the logical consequence of the defence/case of the defendant/counter claimant being held as untenable in law, would be that the said counter claim would be liable to rejected under Order 7 Rule 11 CPC for want of cause of action. The cause of action pleaded by the defendant in the counter claim is the so-called oral agreement and understanding that the plaintiffs shall re-transfer the suit property to the defendant in terms and conditions pleaded by the defendant. The defendant is precluded from pleading such an agreement, arrangement or understanding. As already noticed above, no other cause of action or basis for the reliefs sought in the counter claim has been disclosed. It is clear that no cause of action has arisen in favour of the defendant to seek the 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.
73. In Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, MANU/SC/0071/2004 : (2004) 3 SCC 137, the Supreme Court observed-by placing reliance on I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal, MANU/SC/0968/1998 : (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 Order X CPC. (see T. Arivandandam Vs. T.V. Satyapal, MANU/SC/0034/1977 : (1977) 4 SCC 467).
The Supreme Court also observed that:
......................... The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by a searching examination of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.
74. In National Textile Corporation Ltd. & Another Vs. Ashval Vaderaa, MANU/DE/0615/2010 : 2010 IV AD (DELHI) 190, this Court observed as follows:
18. It is the bane of the judicial system that with a view to protract and drag on the case, a litigant who is a wrong-doer often takes all sorts of false and legally untenable pleas. Such litigants should not be allowed to hijack the judicial process and to subvert the cause of justice. Where it is palpably clear to the Court that the defence is with the sole purpose of protracting the proceedings to the advantage of the wrongdoer and the disadvantage of the aggrieved party, it becomes the bounden duty of the Court to save the latter from going through the rigmarole of a futile and expensive trial. For this, the Court has been invested with sweeping powers by a number of provisions in various statutes, the most potent of which are the provisions of Order XII Rule 6 read with Order VIII Rules 3 and 4 CPC. Regrettably, the said provisions, though exploited by the Courts to the advantage of the judicial process, have yet to reach the optimum level of exploitation. It thus becomes imperative on this Court to use the powers reposed in it to prevent misuse of the judicial process, to cut short laws' delays and to save the aggrieved party from the travails of a long drawn out litigation, often outliving his life span itself and falling into the lap of his survivors.
75. Consequently, the counter claim of the defendant is liable to be rejected under Order 7 Rule 11 CPC and the same is accordingly rejected.
76. 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 bearing No. EC-5 admeasuring 500 sq. yds. with terrace roof rights with super area situated in the area of village Naraina in the abadi of the approved colony in Inderpuri, New Delhi-110012, and the counter claim of the defendant i.e. CC No. 18/2013 is dismissed under Order 7 Rule 11 CPC, as the same does not disclose a cause of action. The plaintiffs shall be entitled to costs quantified at Rs. 10,000/- in each of the applications.