YASHWANT CHHAJTA vs. COMMISSIONER OF INCOME TAX

The case was subsequently listed on 26.07.2017, when the Court passed the following order: “OMP No. 211 of 2017 Dismissed as withdrawn. OMP No. 393 of 2016

Now, adverting to the written statement, filed to the amended plaint, preliminary objections regarding suppressio veri and suggestio falsi, estoppel, cause of action, maintainability, suit being time barred, improper valuation etc. have been raised. On merits, the averments made in the plaint to the effect that the defendant had received another sum of ₹3,00,000/- in the presence of Tilak Raj or that the plaintiff had spent ₹20,00,000/- in levelling the land, have been denied. It is further denied that the defendant agreed to execute and register the sale deed latest by 31.07.2005, rather it is claimed that it was mutually agreed to between the parties that the sale deed will be got registered before 31.07.2004. It is also denied that the defendant delayed the execution of the sale deed by pleading that there was stay granted by the learned Civil Court. Rather, it is claimed that the sale deed was registered after repeated requests made by the defendant to the plaintiff and at that time the defendant had impressed upon the plaintiff to get the sale deed registered

The plaintiff filed replication to the written statement wherein the averments made in the plaint were reiterated and reasserted, whereas, contrary averments made in the written statement were denied.

From the pleadings of the parties, this Court on 26.02.2013 framed the following issues: “1) Whether the plaintiff is entitled to the decree for specific performance of the agreement dated

At the outset, it needs to be noticed that the parties are ad idem regarding execution of the agreement dated 24.04.2004. As per the defendant, the cut off date in the agreement was prescribed as 31.07.2004 whereafter the agreement was un-executable and, therefore, the suit is also barred by limitation. It is further the case of the defendant that by making interpolation in the agreement by changing the date from 31.07.2004 to 31.07.2005, the plaintiff played fraud and is, therefore, not entitled to the decree of specific performance.

Since, the agreement is not in dispute, it would be noticed that as regards there being interpolation in the said agreement, the defendant had not raised any such defence in reply to the notice dated 03.07.2008 that was served upon her. Therefore, in my considered opinion, the defence regarding interpolation is only an after-thought and, thus, this plea is not available to the defendant. Even otherwise, in case, the plea of the defendant is accepted that the cut off date was 31.07.2004, then there was no occasion for the defendant to have executed and got

According to the Article 54 of schedule of the Limitation Act, the suit for specific performance is to be filed within three years from the date of accrual of cause of action or within three years from the date of refusal of the defendant to perfect the title of the plaintiff. Since, this Court has already upheld the cut off date to be 31.07.2005, the suit having been filed within three years from the said date cannot be held to be time barred. Accordingly, these issues are answered against the defendant. Issue No.1. 16. Section 20 of the Specific Relief Act reads thus:

It is more than settled that the Court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is “sound and reasonable”, to be “guided by judicial principles”.

Explanation 1 (supra) stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of 14 clause (b). Moreover, explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract. (Refer: While, appearing as PW-1, he again reiterated that he was 16 ready and willing to perform his part of the contract by getting the sale deed executed in respect of the remaining land on payment of ₹8,83,000/-. Further, stated that he had been approaching the defendant through her attorney to do the needful, but he had been putting off the matter on the plea that cases under Section 47-A of the Indian Stamp Act concerning alleged under payment of stamp duty were pending before the Registrar( Deputy Commissioner), Una. He further stated that lateron on 02.07.2008, he came to know that the defendant was going to sell the suit land to someone, therefore, he issued notice dated 03.08.2008 to the defendant calling upon her to execute the sale deed on 04.07.2008. On 04.07.2008, even though, the plaintiff remained present in the Office of the Sub Registrar, but the defendant did not turn up.

Now, adverting to cross examination, except for a very general suggestion to the plaintiff that the defendant had been asking him to get the sale deed executed, it is the plaintiff, who had not come forward as he was not having money. No other suggestion has been put to the plaintiff by the defendant. In case, the defendant was really serious in contesting the claim of the plaintiff that he had no money

Once, it is found that the defendant did not perform her part of the contract, then failure on the part of the plaintiff to demonstrate that he was having sufficient money with him to pay the balance sale consideration is not of much consequence. (See: Beemaneni Maha Lakshmi vs. Gangumalla Appa Rao (since dead) by legal representatives (2019) 6 SCC 233. 24. At this stage, it would also be relevant to make note of the conduct of the parties. The plaintiff in the instant case served upon a telegraphic notice upon the defendant on 3rd July, 2008 on which date he drafted the present suit and thereafter filed the same before this Court on 4th July, 2008, on the pretext that the defendant was intending to sell the suit land to somebody else. This hot haste on the part of the plaintiff appears to be unjustified on 18 the first flush, but when considered in its entirety, the plaintiff seems to be justified. Reason for the same is obvious.

In the initial written statement filed before this Court, the defendant admitted the receipt of ₹26,00,000/- as an earnest money, but denied the receipt of ₹3,00,000/- which were alleged to have been paid in the presence of Tilak Raj. However, at the time of filing written statement to the amended plaint, the defendant surreptitiously and without the leave of the Court tried to wriggle out of his admission by claiming that he had only received a sum of ₹2,60,000/-.

As observed above, grant of a decree for specific performance of contract is a discretionary relief. Though the discretion has to be exercised judiciously and not arbitrarily, yet the conduct of the parties plays an important role. The Courts ordinarily would not grant any relief in favour of the person, who approaches the Court with dirty hands. (See: also in the statement of the plaintiff appearing as PW-1. However, agreement to sell Ex.PW-1/A does not contain any such recital and said fact is admitted by the plaintiff in his cross examination where he states as under: “The recital with regard to handing over the possession of the suit land was not incorporated in the agreement dated 24.04.2004 Ex. PW-1/A. Volunteered that it was done orally.”

That apart, it would be noticed that the plaintiff himself categorically admitted that he had not approached

PW-4 Parmod Singh, is one of the attesting witnesses, but he nowhere states that the possession of the suit land had been given to the plaintiff at the time of execution of the agreement. Therefore, it can safely be concluded that save and except being in possession of 23 Kanals of land that was sold to the plaintiff vide Ex.PW1/B dated 11.02.2005, he is not in possession of any other land. This issue is decided accordingly. Issue No.2. 31. In order to prove this issue, the plaintiff while appearing as PW-1 stated that he had developed the suit land by spending ₹20,00,000/- and had also installed a tubewell by spending ₹5,50,000/-. But, this statement is not corroborated by any documentary evidence. However, on being cross-examined, the plaintiff stuck to his stand that he has made improvement over the suit land. To corroborate this plea, the plaintiff has examined four witnesses.

PW-7, Shashi Pal stated that he was owner of JCB and had been engaged by the plaintiff for doing levelling

PW-8, K.K. Gupta is a retired Executive Engineer, who stated that he had dug a bore-well for the plaintiff in December, 2007 through a firm ‘Parwinder Singh’ of Ambala Cantt. However, on being cross-examined, he admitted that 22 he is not aware of the exact land owned by the plaintiff at Rakkar Colony and in its surroundings. He is also not aware of the Khasra number over which the bore-well was dug.

PW-9 is Parvinder Singh through whose firm the well is alleged to be bored. He stated that he knew the plaintiff as he had bored his tubewell at village Bharolian Khurd in District Una in December, 2007. He stated that it took about three months to execute the work and the tubewell was bored at 350 feets. Further, stated that he had charged ₹1500/- per feet along with material. On being cross-examined, he stated that he had executed the work near Rakkar Colony, but was not aware on which khasra number the tubewell had been bored. He claimed to be an income tax payee, but did not produce the income tax records. He admitted that he was not maintaining any records regarding the payments received by him for execution of the work. The testimony of PW-9 does not inspire any confidence as despite being in the business of boring tubewells and claimed to have charged ₹1500/- per feet, it is unimaginable that he would not be maintaining records despite being an income tax payee and when the 23 alleged amount is more than ₹5,00,000/- to be precise ₹5,25,000/-.

PW-10, Vinay Kumar Rana, is a JCB owner, who claims to have executed the levelling work of the plaintiff over an area of 40 Kanals belonging to the plaintiff and remaining 40 Kanals land belonging to Usha Devi. This work he claims to have been executed from May, 2004 to July, 2005. He stated that this work was executed by him at village Bharolian Khurd(Krishna Colony, Una) and claimed to have been paid ₹10.5 lacs for execution of this Court. However, being cross examined, this witness feigned ignorance about the size of village Bharolian Khurd and further feigned ignorance regarding the number of colonies in village Bharolian Khurd. He was not in a position to state that out of the existing colonies, how many number of colonies had been made by the plaintiff, but stated that Krishna Colony has definitely been constructed by the plaintiff. He admitted that he had not received any written order for the execution of the work from the plaintiff. He too like PW-9 stated that he did not maintain any records for payments received by him for execution of the work. He admitted that he had not brought any documentary records

It would be noticed that there is virtually no proof of the plaintiff having paid a sum of ₹3,00,000/- to the defendant in September, 2005 in presence of Tilak Raj. The plaintiff while appearing as PW-1 has specifically stated that he had paid a sum of ₹3,00,000/- in cash to the defendant in September, 2005, in presence of Tilak Raj. The defendant has not chosen to cross- examine the plaintiff on this point.

In addition thereto, it would be noticed that the plaintiff has in fact examined Tilak Raj as PW-5, who categorically stated that the plaintiff in September, 2005 had paid a sum of Rs.3,00,000/- to late Kabul Singh at his (plaintiff’s) residence. Surprisingly, even this statement has gone unrebutted as the defendant chosen not to cross- examine this witness on this aspect of the case.

As regards the defendant, she virtually led no evidence to even remotely show as to which part of the agreement has not been performed by the plaintiff. Rather the defendant has failed to appear in the witness box constraining this Court to draw an adverse inference against her.

It is more than settled that withholding a party by the plaintiff or the defendant from the witness box and 26 thereby denying the opposite party an opportunity for cross- examination, results in an adverse inference being drawn against the said party. Having failed to appear in the witness box, obviously, an adverse inference has to be drawn against the defendant as it is more than settled that withholding of a party/defendant himself/herself from witness box thereby denying the plaintiff an opportunity for cross examination results in an adverse inference to be drawn against the defendant. (See: Ishwar Bhai C.Patel In view of the issue-wise findings above, the suit of the plaintiff is partly decreed. A decree for specific performance of the agreement to sell dated 24.04.2004 with respect to 38 Kanals of land measuring 2-34-27 hectares i.e. 234427/31099 shares i.e. land 3-10-99 in Khewat No.20, Khatauni No.34min, 35min and Khasra No. 2445 (0-69-21), 2448 (0-32-48), 2449 (0-55-32), 2446 (0-74-90) 2544 (0-17- 52), 2545 (0-61-56), kitas-6, situated in village Bharolian Khurd, Tehsil and District Una, with the plaintiff for a consideration of ₹73,000/- per Kanal, on payment of ₹8,83,000/- is passed in favour of the plaintiff and against the defendant, by directing the defendant to specifically perform the said part of the agreement to sell. The remaining claims of the plaintiff are dismissed. The parties are left to bear their own costs. Pending application(s), if any, also stand disposed of. Decree sheet be prepared accordingly. 7th August, 2019. (Tarlok Singh Chauhan) (krt)