At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE PRAKASH KRISHNA & THE HONOURABLE MR. JUSTICE A.K. TRIPATHI
For the Appellant: Ravi Kant, Surendra Tiwari, Advocates. For the Respondents: Nisha Richharia, Ramendra Pratap Singh, Vishnu Gupta, Advocates.
Prakash Krishna, J.
1. The beautiful natural relation of love, affection and mutual trust between the two sisters has been drifted apart for a small piece of land measuring 162 Sq. Mtrs.
These two first appeals have been preferred u/s 96 of the CPC against the judgment and decree dated 27th of March, 2010 passed by the First Additional Chief Judicial Magistrate, Gautam Buddha Nagar in O.S. No. 584 of 2005 whereby the Court below has dismissed the suit so far as it relates to grant of permanent injunction and specific performance of contract to sell dated 18.5.2005 but decreed the suit for recovery of Rs. 7,64,795/- alongwith pendente lite and future interest @ 6 per cent per annum. The dispute relates to a residential plot No. 155 area 162 Sq. Mtrs. situate in Block D, Sector 50, NOIDA. The said parcel of land was admittedly allotted and sold for residential purposes by NOIDA Authority to Nisha Richhariya/ defendant No. 1 and is not an ancestral property.
Smt. Prabha Awasthi, the plaintiff who is appellant in First Appeal No. 188 of 2005, instituted the above suit No. 584 of 2005 against Nisha Richhariya, defendant No. 1 (herein after called as defendant) and NOIDA Authority, defendant No. 2 with the allegations that the plaintiff and defendant are sisters and the defendant is her elder sister to whom the plot in dispute was allotted by NOIDA Authority in the year 2002. The defendant, on 18th of May, 2005 executed an agreement to sell and a general power of attorney in the presence of witnesses in her favour. It was agreed upon between the plaintiff and defendant that the plaintiff will pay the installments and the other such sums which were required to be paid by the defendant in pursuance of the allotment of the plot in dispute to her, to the NOIDA Authority. In the plaint various payments made by the plaintiff to the NOIDA Authority have been detailed with the dates of payments, draft numbers, amount and names of the banks where on the bank drafts were drawn. In short, the plaintiff alleges that she has deposited a sum of Rs. 7,13,094/- with the defendant No. 2 and not a single shell was invested by the defendant. On 18th of May, 2005 an agreement to sell and general power of attorney were executed, a sum of Rs. 50,000/- was given in cash by the plaintiff to the defendant. Subsequently, the defendant became dishonest and under some conspiracy she got a news item published in newspaper "Nav Bharat" dated 26th of August, 2005 that she has lost a blue colour file at Satna which contained the original documents with regard to the said plot. On coming to know of the above advertisement, the plaintiff tried to impress upon defendant that her action is not justified and she is under obligation to execute the sale-deed. But the request was not acceded to, hence the suit.
2. In the suit, the plaintiff has claimed a decree for permanent injunction restraining the defendant from alienating, transferring the property in dispute permanently, a decree for specific performance of contract to sell dated 18th of May, 2005 and in alternative for refund of Rs. 7,63,094/- alongwith penal interest @ 24 per cent and penalty.
3. Two sets of written statements were filed - One by the defendant No. 1 i.e. defendant and another by the defendant No. 2. The defendant filed a written statement by denying all the material averments made in the plaint. She admitted the relationship between the parties but came out with the case that she applied for and was allotted the plot in dispute by the NOIDA Authority whereon the plaintiff has no right, title or interest. The defendant No. 2 on 15th of September, 2005 has already executed a sale-deed in her favour which is a registered document, thus, she is owner in possession of the property in dispute. She denied the execution of any agreement to sell or power of attorney by her in favour of the plaintiff. She claimed that a sum of Rs. 60,000/- towards the registration money was deposited by her and she never agreed that she would transfer the said plot to the plaintiff who is her sister. But the plaintiff is taking undue advantage of relationship between the parties. It was further pleaded that the defendant is resident of District Satna (State of Madhya Pradesh) and had given money to the plaintiff to deposit the installments from time to time as it was not possible for her to visit NOIDA frequently for the purposes of making the deposits. She disputed and denied her signatures on the alleged agreement to sell or on power of attorney; legal pleas, such as suit for permanent injunction is not maintainable, and the plaint is not properly valued etc. were put forth.
4. The defendant No. 2 in the written statement in substance pleaded that it has received the sale consideration and the installment moneys from the defendant (defendant No. 1) and has executed the necessary registered document in her favour and there is no cause of action against it.
5. The trial Court framed as many as following eleven issues on the basis of the pleadings of the parties:
1. Whether the plaintiff is entitled to get a decree for permanent injunction against the defendant in respect of disputed plot No. D-155, Sector 50, Noida permanently restraining the defendant and other persons to transfer the said plot on the basis of sale agreement dated 18.5.2005?
2. Whether the sale agreement dated 18.5.2005 and power of attorney which are basis of the suit are forged documents?
3. Whether the suit has been properly valued and the Court fees paid is sufficient?
4. Whether the suit is barred under Sections 34 an
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41 of the Specific Relief Act, 1963?5. Whether the suit is barred by Section 4 of the Benami Transaction (Prohibition) Act?6. Whether the suit is barred by Section 54 of the Transfer of Property Act?7. Whether the suit is barred by time?8. Whether the plaintiff is entitled to any relief?9. Whether the suit is barred by Section 17 of the Registration Act?10. Whether the plaintiff was ready to perform her part of the contract to fulfill the terms of agreement?11. Whether the plaintiff is entitled on the grounds mentioned in the plaint to recover a sum of Rs. 7,63,094/ - with interest from the defendants?6. It has decided issue No. 1 against the plaintiff by holding that no relief for permanent injunction with respect to plot in question can be granted. Issue Nos. 2 and 9 have been decided together and Court has come to the conclusion that the alleged agreement to sell dated 18th of May, 2005 is admittedly an unregistered document and as such no decree for specific performance of contract to sell in pursuance thereof can be passed. On the basis of the statements of PWs 3, 4 and 8, the execution of the agreement to sell dated 18th of May, 2005 has been found to be proved. It concluded that the said agreement does not create any right, title or interest in favour of the plaintiff. The Court fees was found sufficient under issue No. 3. The plea that the suit is barred by Sections 34 and 41 of the Specific Relief Act has been negatived, under issue No. 4. The suit has been held to be not barred by Benami Prohibition Act, while deciding the issue No. 5. Although under issue No. 10 it was found that there is no averment with regard to the readiness and willingness on the part of the plaintiff to perform her part of contract but the said fact is not of much relevance in view of the findings recorded under the other issues holding that the suit for specific performance of contract cannot be decreed. It has been held that the plaintiff is not owner of the property in question and no right in her favour is created therein but as she has paid a sum of Rs. 7,64,795/- is entitled for a decree of the said amount alongwith interest.7. Feeling aggrieved, the plaintiff has preferred the First Appeal No. 188 of 2010 claiming a decree for specific performance of contract to sell dated 18th of May, 2005. The defendant is aggrieved by the other part of the decree directing the recovery of amount alongwith interest from her; hence she has filed First Appeal No. 239 of 2010. On the joint request of the Learned Counsel for the parties both these appeals were heard together and are being disposed of by a common judgment as common questions of law and fact are involved.Heard Sri M.D. Singh, senior counsel alongwith Sri Surendra Tiwari, Advocate for the plaintiff and Sri Waseem Alam for the defendant. None appeared on behalf of NOIDA Authority, defendant No. 2 on any day of hearing.From the arguments of the Learned Counsel for the parties as was also indicated by us to them, the following points, fall for determination:1. Whether in view of the fact that the agreement to sell dated 18th of May, 2005 is admittedly an unregistered document, the plaintiff is entitled to get it enforced specifically through suit and can claim a decree for its specific performance?2. Whether the execution of the agreement in question is proved?3. Whether the plaintiff is entitled for refund of the amount from the defendant as awarded by the trial Court in view of Sections 17(3) and 65 of the Contract Act, in particular.Point No. 1.8. It is not in dispute that the agreement to sell dated 18th of May, 2005 which is in dispute is an unregistered document. It was also not disputed by the Learned Counsel for the plaintiff that an agreement to sell in respect of immovable property in the State of U.P. necessarily requires registration in view of the State Amendment in the Registration Act. The learned senior counsel submits that notwithstanding the fact that an agreement to sell necessarily requires registration in the State of U.P., certain exceptions to this Rule, according to him, has been carved out by the Apex Court. Reliance has been placed on a recent Apex Court decision in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Another, . He submits that the property in question lies in NCR Region where it is a prevalent practice to transfer the property through an agreement to sell alongwith general power of attorney and is a recognized mode of transfer.For the sake of convenience, paragraph Nos. 26 and 27, relied by the Learned Counsel for the plaintiff are reproduced below:26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession u/s 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/ WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bonafide/genuine transactions.In the above case, the question with regard to the validity of transfer of immovable property under sale agreement and general power of attorney executed by owner in favour of another person, was up for consideration. In the very opening of the judgment the Apex Court has noticed that there cannot be a sale by execution of power of attorney nor can there be transfer by execution of agreement of sale and a power of attorney and will. The Court considered the ill effects of agreement of sale/general power of attorney/will transaction and held that ownership in an immovable property can be transferred only by registered sale-deed. It considered the definition of 'sale' as contained in Section 54 of the Transfer of Property Act (T.P. Act) as also the various provisions of the Registration Act, as also the scope of power of attorney. In paragraph 19, it has been held that any contract of sale which is not a registered deed or conveyance would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted u/s 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest in an immovable property. Paragraphs 26 and 27 come thereafter.9. A close reading of these paragraphs would show that after clarifying the legal position with regard to the agreement of sale/general power of attorney/will and holding that these are not transfers or sales, if these documents have been accepted/acted upon by the development authorities or by municipality or revenue authorities and affected the mutation, they need not be disturbed merely on account of above decision. They also added that the observations made by them will not affect "genuine transactions". The purport of the paragraphs relied upon by the Learned Counsel for the appellant is that where genuineness of the transaction is not in issue and mutation etc. has been carried out by the municipal authorities i.e. where the mutation is a fact accomplished it will not reopen the closed transaction. It is not otherwise. In a case like the present one where the very existence of the transaction is in issue, may be between two sisters, from very inception of the alleged transaction, it is not correct to say that in such cases an agreement to sell does not require registration in view of the observations made by the Apex Court in the case of Suraj Lamp and Industries Pvt. Ltd. (supra). It would be misreading the said ruling. The argument of the Learned Counsel for the appellant that since in the present case the transaction is between two sisters, the title in property in question stands transferred, is not correct. Had it been so, there was no necessity for institution of the suit by the plaintiff for specific contract to sell giving rise to the present appeal. Even otherwise also, the property in question stands in the name of the defendant, admittedly, in view of the registered deed issued in the name of latter by the NOIDA, the observations made in paragraphs 26 and 27 of the above report are not applicable and are distinguishable. The said paragraphs cannot be torn out and read out of the context of the facts of that case.10. Section 17 of the Registration Act, 1908 has been amended in the State of U.P. vide U.P. Act No. 57 of 1976 w.e.f. 1st of April, 1977 by amending clause (b) of sub-section (2) and by omitting the Explanation thereto of Section 17 of the Registration Act. It follows that after the commencement of the aforesaid Amending Act, an agreement to sell in respect of immovable property lying in the State of U.P. necessarily requires registration. A document which necessarily requires registration being unregistered one cannot be read in evidence in view of Section 49 of the aforesaid Act. It deals with the effect of non registered document required to be registered. Noticeably, Section 49 of the Registration Act was also amended by the U.P. Act No. 57 of 1976 vide Section 34 simultaneously.As against the above, the Learned Counsel for the appellant could not show anything to take a different view of the matter.It is, therefore, concluded that the finding recorded by the trial Court holding that the alleged agreement of sale dated 18th of May, 2005 being unregistered document cannot be specifically enforced, is legally correct and does not call for any interference by this Court.11. Secondly, there is another hurdle in the way of the plaintiff to get a decree for specific performance of contract to sell. Section 16(C) of the Specific Relief Act provides that the specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready or willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the defendant. Coming to the pleadings of the parties, it may be noticed that there is not even a whisper that the plaintiff is ready and willing to perform her part of the contract. The said aspect of the case has been considered by the trial Court who returned the finding in favour of defendant and against the plaintiff, under issue No. 10. We endorse the finding of trial Court and find additional reasons for it. A look to the agreement in question would show that under para 2-d., the plaintiff agreed to pay the balance amount of Rs. 1,49,688/- at the time of execution of the sale-deed. The said paragraph is reproduced below:2-d. That the balance amount of Rs. 1,49,688/- (Rupees One Lac Forty Nine Thousand Six Hundred Eighty Eight only) shall be payable by the VENDEE to the VENDOR at the time of execution of Transfer Deed.Further, in paragraph 10 it is stipulated that in case of breach of any clause by the vendor the aforesaid vendee shall have rights to get the transfer deed registered through the Court of law "after depositing the balance amount of this agreement to sell." Meaning thereby the plaintiff is under an obligation to pay the aforesaid amount of Rs. 1,49,688/- to the defendant. There is neither any pleading nor proof that the plaintiff ever expressed her desire to pay the aforesaid amount to the defendant. There being no readiness and willingness on the part of the plaintiff to discharge her obligation under the contract in question, this is additional reason to dismiss the suit for specific performance of contract to sell and not to grant the relief which is otherwise discretionary one also.No notice etc. was given by the plaintiff to the defendant asking her to execute the sale-deed. There is one more reason to uphold the dismissal of the suit and not to grant relief for specific performance of contract to sell as the plaintiff who is seeking discretionary relief has not come to the Court with clean hands. The plaint has been framed in such a manner as it gives an impression that it is a suit for permanent injunction restraining the defendant from transferring and alienating the property in question in any manner. This appears to be so on its plain reading. Remarkably, the suit was also valued as a suit for permanent injunction vide paragraph 16 of the plaint accordingly. At the subsequent stage, it appears that the plaint was got amended and the reliefs 17A1 and 17A2 were added. The relief 17A1 is not happily worded and is confusing one. A simple relief for specific performance of contract to sell dated 18th May, 2005 has not been prayed for and instead it is worded in the manner that if ultimately it is found that the plaintiff is declared entitled for a decree of specific performance of contract to sell against the defendant, then a decree for specific performance be passed against the defendant. The body of the plaint was not amended so as to bring it in the conformity of plaint for specific performance.Viewed as above, the point No. 1 is decided accordingly against the plaintiff and in favour of the defendant by confirming the decree passed by the trial Court in this regard.Point No. 212. Now, we take up the point No. 2. It relates to the execution of the alleged agreement to sell dated 18th of May, 2005 decided by the trial Court in favour of the plaintiff and against the defendant under issue Nos. 2 and 9. Issue No. 2 is to the effect as to whether the agreement to sell dated 18th of May, 2005 and the power of attorney, the basis of the suit, are forged documents. The trial Court while deciding the above issues has noticed that the defendant has denied the execution of the agreement in question but the plaintiff as PW/1 deposed otherwise. The trial Court noticed that in view of the statement of PW 3 and 4 (attesting witnesses) and of the handwriting expert PW/8 and his report, the execution of the agreement in question by the defendant is proved. We have considered the matter in depth and find that the trial Court without making any analysis has decided the issue in a very cursory manner forgetting that this was a vital issue between the parties. By making an observation without noticing the contradictions in the statements of the witnesses, it jumped to the conclusion that the execution of the agreement in question is established, may be the counsel for the parties failed to draw the attention of the Court to the relevant portions of the evidence in this regard. We, therefore, ourselves undertook to make an in-depth analysis of the evidence led by the parties.At the very outset, it may be noticed that the document in question contains seal of Notary Public, NOIDA, J.P. Nagar. This is a bilateral document but only one photograph is pasted there. It does not contain the photo of the plaintiff. It is a typed document. It does not contain the name of the person who prepared it or typed it out.Amit Chand Awasthi, PW/4, and Chandra Pratap Tiwari, PW/3 are the attesting witnesses of both the documents. Below the signatures of the vendor, vendee and the attesting witnesses, their addresses have been written by hand. Similar is the position with regard to the general power of attorney which is revocable one.The plaintiff has examined herself as PW/1, her husband Satish Awasthi as PW/2, Chandra Pratap Tiwari (one of the attesting witnesses), PW/3, Amit Chand Awasthi as PW/4, Mithala Richhariya PW/ 5, Sudhir Richhariya PW/6, Narendra Kumar Pateriya PW/7 and Raj Kishore Jaiswal PW/8 in support of her case. Examination in chief of all these witnesses were filed and their contents are reproduction of plaint allegations. The cross-examination of PW/1 was not recorded in one stroke. It was recorded on different dates i.e. on 20th October, 2008, 25th of February, 2009, 26th February, 2009 and then 5th of March, 2009, in piece-meal. A reading of the cross-examination of PW/1 would show that she has improved her statement gradually. In her first cross-examination dated 20th of October, 2008 she states that she did not fill the form for allotment of the plot in dispute. On a next date, i.e. 25.2.2009 she came out with the case that she filled the form in the name of defendant. The said form was filled up by her husband Satish Chand Awasthi. On further examination, she states that she does not remember when the power of attorney and agreement to sell in her favour were got prepared although subsequently, she states that the agreement to sell, paper No. 10A filed by her contains the date, 18th of May, 2005.In her cross-examination dated 20th October, 2008 she has stated that her third sister is married at Indore but states that she does not know her husband's name. In the subsequent cross-examination dated 26.2.2009 she came out with the statement that the name of husband of Sunita Dubey is Nitin Dubey. In her examination in chief, the place of execution of the disputed documents has not been disclosed. But in cross-examination by the counsel for NOIDA Authority she states that it was executed at Sector 16, Registrar Office. It does not appeal to reason when according to the statement of the plaintiff, the agreement was executed in the Registrar Office why it has not been got registered. As pointed out herein above, the document in question contains seal of Notary Public. Significantly, Narendra Kumar Pateriya, PW/7 states that the agreement to sell was executed in the Registrar Office in his cross-examination vide page No. 117 of the paper book. The plaintiff, PW/1, denied the suggestion that this is wrong that the agreement to sell and general power of attorney was not registered vide page 82 of the paper book. Amit Chand Awasthi, PW/4 who is one of the attesting witnesses of the document in question in his cross-examination has stated that the agreement to sell was drawn at about 1:30 P.M. at NOIDA Authority. PW/4 is the brother of Satish Chand Awasthi who is husband of the plaintiff and is admittedly residing with him and is an interested witness. Sudhir Richhariya, PW/6, brother of the plaintiff, in his cross-examination stated that alongwith Nisha, Amit Chand Awasthi and Chandra Shekhar Tiwari, the attesting witnesses, went out before him and his wife. From the above it follows that the disputed documents were not executed at the residence of the plaintiff but at somewhere else as per the evidence led by her; the place where these documents were executed is not established by the plaintiff. There are contradictions in the statements of the witnesses in this regard. No clear-cut evidence with regard to the place of execution of the documents is there. All the witnesses are educated persons and had they been truthful witnesses it is not expected from them to forget the place of the execution of documents in question, a circumstance which goes heavily against the credit worthiness of these witnesses who are all close relatives of the plaintiff being husband, husband's brother living together with the plaintiff, plaintiffs brother and her relatives. The sale agreement being unregistered one could easily be procured with the help of such persons specifically when the husband of the plaintiff is in a commanding position being a senior central Government officer posted at Delhi and was instrumental according to the plaintiff's own showing for getting the allotment application filed and making the payments of installments.Yet there are other material contradictions in the statements of these witnesses which escaped the notice of trial judge. These contradictions assume importance in the background of the facts of the case. As noticed herein above, the addresses of the vendor, vendee and of attesting witnesses are handwritten on the disputed documents. The plaintiff, the attesting witnesses and other witnesses contradict themselves in whose writing these addresses are there or who authored them. Chandra Pratap Tiwari, PW/3 one of the attesting witnesses states that the address "Prabha Awasthi wife of S.C. Awasthi, G-3 Glaxy Apartments, Vikaspuri, New Delhi 17" is written by Prabha Awasthi or not, he has no knowledge. Earlier, he gave an evasive reply with regard to the address written below the alleged signature of the defendant by stating that this must be written by the person who has written them. Subsequently, he states that the address written below the signature of Prabha Awasthi is written by Prabha Awasthi and similarly the address written below the signature of Dr. Nisha Richhariya was written by Dr. Nisha Richhariya. Similarly, the address below the signature of Amit Chand Awasthi was written by him and all the persons signed before him. On the contrary, PW/1 has stated that all these addresses are in the handwriting of her husband Satish Chand vide pages 81 and 82 of paper book. This part of the evidence having been ignored by the trial Court, vitiates the finding. The defendant has come out with the case that she did not ink either the agreement in question or the power of attorney and her signatures on the said documents are forged ones.13. It is interesting to notice that to prove the signatures of defendant one handwriting expert Sri R.K. Jaiswal of Gorakhpur was examined by the plaintiff.The very fact that the plaintiff could not get any handwriting expert at Gautam Buddha Nagar and nearby districts namely Ghaziabad, Meerut, Moradabad but had to travel to Eastern Uttar Pradesh to find such an expert of very distant place speaks a lot against her. The report of handwriting expert and his statement in the cross-examination makes the matter interesting. He gave the report that the disputed documents contain signature of the defendant without caring to obtain an admitted signature of the defendant from the original record. He states that one lady walked to his office for obtaining his opinion who stated about the admitted signature but he did not remember her name. He was informed by the lady that the admitted signature is not obtained either from the Court or from the person concerned i.e. Dr. Nisha Richhariya, the defendant. He states in his report dated 11th of March, 2008 that he "scientifically examined the Photostat copies of the disputed signatures to be put in English on the agreement to sell and the power of attorney dated 18th of May, 2005 marked as D1 to D5 on the Photostat copies and have the same with the signatures on lease-deed of NOIDA dated 15th of May, 2005 marked with C1, C2 on the Photostat copies respectively." Meaning thereby that the original records or the admitted signatures of the defendant were not before him and he ventured to give his report on the basis of photocopies of the signatures. Such evidence is in the nature of self serving statement of the plaintiff and is not reliable or trustworthy. It has got no evidentiary value. There is no evidence to show that the Photostat copies were true and correct copies of the original without there being any tampering. The trial judge was conscious of the quality of the statement of the handwriting expert examined as PW/8 but misdirected himself treating it that the statement of the PW/8 gives credence to the statements of the PW/3, PW/4, the attesting witnesses. We do not find any good reason as to why the plaintiff did not apply to the Court for grant of permission to make available the admitted signature of the defendant available on record for comparison with her signatures on the documents in question. By no stretch of imagination either the report dated 11th of March, 2008 of Sri R.K. Jaiswal, handwriting expert or his statement can be considered as credit worthy. It is not safe to place any reliance thereon.14. The other witness examined by the plaintiff is Smt. Mithla Richhariya PW/5, who in her cross-examination admits that the defendant is in litigation with her husband at district Satna (M.P.). This witness is sister of the plaintiff's husband and is resident of Satna (M.P.), she in a zeal to help the plaintiff had gone to the extent of stating in her examination in chief that she is one of the attesting witnesses of power attorney dated 18th of May, 2005 vide para 2. She in cross-examination states that she has oral information about the agreement to sell and denies the suggestion that she is giving a false statement as there is a litigation. Her statement at the most is of hear say nature and is liable to be rejected.15. The plaintiff then examined Sudhir Richhariya PW/6, brother of the parties. His statement is also of no significance as he has no personal knowledge about the agreement to sell or the place of its execution. His evidence is liable to be rejected being in the nature of hearsay. He states that the dispute is with regard to the joint property, a case which is not even pleaded by either party. He has gone to the extent that the plaintiff with his consent in year 2001 applied for allotment of the plot in question in the name of defendant. There is no such pleading and this statement is of little consequence and cannot be relied upon. Similarly, the statement of Narendra Kumar Pateriya PW/7, resident of Chhatarpur, M.P. is of no consequence as he did not witness the document in question and did not prove anything.16. Having regard to what have been said above, on an in-depth analysis of the evidence led by the plaintiff, we are of the opinion that the evidence led by the plaintiff is not sufficient to prove the due execution of the agreement to sell in question as also the power of attorney in favour of the plaintiff, in view of the specific and categorical denial by the defendant who is residing at Satna, State of M.P. There is absolutely no evidence that on the date the alleged documents were executed she was present at Gautam Buddha Nagar or New Delhi at the address shown in the documents in question.Shri Wasim Alam, Learned Counsel for the defendant rightly points out that to give an impression that the document in question is a genuine document, attempt was made to show that the document was notorised. There is no indication as to who identified the alleged executants before the notary. The document does not show that it was entered into any register or record in any manner, if any, maintained by the Notary Public. The Notary has not been examined. When we examined the instant matter on the anvil of what has been stated above, we have noticed that the trial Court has recorded the finding of due execution of the agreement to sell, without assigning any valid reason how the document is proved. The same is absolutely cryptic in nature wherein the trial Court has not critically examined the evidence on record.As a consequence of the above analysis and reasons, we reverse the finding of trial Court and hold that the execution of the agreement to sell is not proved.Our legal system has always led emphasis on value, weight and quality rather than quantity, multiplicity or plurality of witnesses as laid down by the Apex Court in Namdeo Vs. State of Maharashtra, .POINT No. 317. Now, we take the third point involved in the connected appeal No. 239 of 2010 with regard to the decree decreeing the recovery of Rs. 7,64,795/- alongwith the interest etc. against the defendant. The said point has been considered by the trial Court under issue No. 11. The trial Court has proceeded to pass the decree on the footing that a sum of Rs. 50,000/- was given to the defendant at the time of the execution of agreement to sell dated 18th of May, 2005. Rest of the amount was deposited by the plaintiff from time to time from her own account with Noida, detailed in the agreement. The Court was of the opinion that as the amounts were deposited with Noida by the plaintiff, she is entitled for the restitution of the amount so deposited.18. The contention of the defendant is that she never asked the plaintiff to deposit any amount with Noida in her account. The defendant has gone to the extent of disputing the deposits, if any, made by the plaintiff. The Learned Counsel for the defendant before us submitted that as a matter of fact, the plaintiff did not deposit any amount and the amount if was deposited, was deposited before the execution of the agreement in question and as such no decree could be passed against the defendant, as the agreement in question has not been found to be duly executed. He submitted that a sum of Rs. 3 Lakhs was given by the defendant to the plaintiff to deposit the installments and those amounts were deposited by the plaintiff, out of Rs. 3 Lakhs.19. The broad submission of the Learned Counsel for the defendant that no amount was deposited by the plaintiff, in view of the voluminous evidence on record such as dates of deposits, particulars of the bank drafts and copies of the bank accounts of the plaintiff cannot be accepted, we are not prepared to accept that the money was not deposited by the plaintiff. Noticeably, it is the plaintiff who produced the original receipts so issued in the name of the defendant in evidence. She has given each and every detail and particulars of the deposits made by her in the pleadings and in the evidence as well. There is practically no evidence in rebuttal, except a bald statement of the defendant. We examined the original record of the trial Court and have noticed that the original receipts of deposits were produced by the plaintiff. She gave the bank particulars etc. What is more important is that even the Noida Authority has accepted the receipts of various amounts in its account from time to time, in the account of the defendant. It is not the case of defendant that she deposited any amount other than the amount deposited by her on 15th of September, 2005. Paper No. 91C is on the record. It is dated 17th of August, 2007, an application by Noida stating that it is filing statement of account on record in pursuance of the order of Court. The said statement of account would show the deposit of various amounts in the account of Noida with respect to the plot in dispute from time to time. It is, thus, established that in the account of the defendant the money was deposited with Noida from time to time and the receipt of the money has been acknowledged by Noida and its benefit has been given to the defendant. Consequently, it follows that whatever amount was deposited in the account was deposited by the plaintiff. There is a document of Noida on record. It is paper No. 20C dated 14th February, 2005 addressed to the defendant. It is a letter from Noida informing the defendant 'on her request' that a sum of Rs. 5,36,750/- is payable by her in respect of the plot allotted to her. Consequent thereof, the amount was deposited by her.The said statement of account further reveals that on account of deposit of Rs. 5,36,750/- by the defendant, a sum of Rs. 3,76,550/- has become excess in the account of Noida.At this stage, the theory of payment of Rs. 3 Lakhs in cash by the defendant to the plaintiff is to be examined. The trial Court has disbelieved the said theory and in our view rightly so. A perusal of the statement of defendant would show that she utterly failed to prove the source of alleged amount of Rs. 3 Lakhs or its payment to the plaintiff. She could not state month or date on which the alleged sum of Rs. 3 Lakhs was given to the plaintiff. She states that the said amount was not withdrawn from the bank. A close reading of her cross-examination would show that she has failed to disclose the source of the said amount and no reliance can be placed on her statement. Besides the statement there is no other evidence to prove the said fact. No reliance can be placed on such statement.Having said so as above, a question arises Whether was the Court below justified in decreeing the suit for recovery of the amount in dispute even if some amount was deposited by the plaintiff with Noida Authority?. The main defence of the defendant is that she never asked the plaintiff to deposit any account on her behalf nor she ever agreed to return any such amount.20. Before proceeding further, it is necessary to have a look to the plaint. The Learned Counsel for the plaintiff could refer paragraphs 4 to 6 of the plaint in this regard and submits that there was an agreement for repayment of the amount and execution of the sale-deed by the defendant in favour of the plaintiff. We find that on a meaningful reading of these paragraphs, no such case has been set out therein. In paragraph 4 only this much is stated that it was agreed upon between the plaintiff and the defendant that if the defendant is successful in the allotment, the plaintiff would deposit the entire amount including the registration fee with the defendant No. 2, Noida Authority and the said agreement was arrived at in the presence of number of relatives of the parties. In paragraph 5 it has been pleaded that after the allotment of the plot, the plaintiff deposited a sum of Rs. 1,00,380/- on 24.4.2002 towards the allotment of money, drawn from State Bank of India. In paragraph 6 it has been stated that on the assurance of the defendant (without specifying what was the assurance) the plaintiff started paying the installments to the Noida Authority. This is all with regard to the pleadings. We find that the pleading is short of necessary requirements with regard to the repayment of amount, if any, by the defendant to the plaintiff. What has been pleaded in these paragraphs at the most is that the plaintiff and defendant agreed upon that the plaintiff shall pay the installments if plot is ultimately allotted to the defendant and she started paying the installments and deposited the allotment money etc. detailed in paragraph 6 of the plaint. In paragraph 6 of the plaint although it has been stated that on assurance (Ashwasan) of the defendant, the plaintiff started paying the installments. It does not follow that it was ever agreed between the parties that the defendant will repay/refund the amount so deposited by the plaintiff with Noida Authority. Also, it will be appropriate to have a look to the cause of action pleaded in the plaint. The cause of action as pleaded in para 15 is the publication of a news-item dated 26.8.2005 in the newspaper that papers relating to plot in question have lost. This is all. The plaint discloses no cause of action for return of the money allegedly deposited by the plaintiff in account of defendant with Noida Authority. In absence of any cause of action, merely because a relief for refund has been claimed through amendment, will not entitle the plaintiff to get the decree for the same. In other words, it is neither pleaded nor proved by the plaintiff that the defendant has promised that she would repay the amount so deposited by the plaintiff with the Noida Authority or on demand, the defendant failed to discharge her obligation with regard to the payment of that amount. There is also no evidence to that effect. The plaintiff could not bring any evidence or material on record, to show that the defendant had agreed to return the amount, if any, deposited by the plaintiff with Noida Authority. It is a case of no evidence.The suit as noticed herein above was initially filed for permanent injunction wherein subsequently reliefs for specific performance of contract to sell and in alternative for recovery of amount were added. But the fact remains that corresponding averments entitling the plaintiff to get a decree for return of the amount have not been pleaded and proved either in the plaint or in evidence.21. At this juncture, the Learned Counsel submitted that in view of Section 17(3) of the Contract Act the plaintiff is entitled to get the desired decree. Section 17 of the Contract Act defines 'fraud' and as per its sub-section (3) "fraud" means "Where a contract has been entered into a promise made without any intention of performing it, is fraudulent." We hardly see any application of the said provision on the facts as pleaded by the parties. Firstly, no such plea was put forward before the trial Court as 'fraud' has not been even averred in the plaint. Section 17 defines 'fraud', "such acts which amount to fraud". A mere false statement is not fraud. The plaint discloses that it was agreed in between the parties that the plaintiff will pay the installment which she did. There is no allegation that the defendant had any intention to deceive the plaintiff and under that deception the plaintiff made payments. There is also nothing of the sort that the defendant induced the plaintiff to enter into any contract. Making a promise without intention of performing it is a fraud. To fall u/s 17(3), it must be shown that the promiser had no intention of performing the promise at the time of making it. We have already noticed that the promiser (defendant) was not required to do anything, as per paras 4 to 6 of the plaint.22. Learned Counsel for the appellant referred certain decisions of the Apex Court on the subject of fraud which are as follows:1. MSK Projects (I) (JV) Ltd. Vs. State of Rajasthan and Another, ;2. Meghmala and Others Vs. G. Narasimha Reddy and Others, ; and3. Venture Global Engineering Vs. Satyam Computer Services Ltd. and Another, .The aforesaid cases relied upon by the Learned Counsel for appellant are irrelevant. There being no pleading of fraud, nor any such plea was put forth in issue or during the argument before the trial Court, we are unable to agree with him.23. Then, it was submitted that in view of Section 65 of the Contract Act which deals with obligation of person who received advantage under void agreement or contract that becomes void, to support the decree for refund of the amount was validly passed. Section 65 of the Contract Act provides that when a contract becomes void, any person who has received any advantage under agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. The section aims at preventing unjust enrichment. The intention of section is to prevent a party from avoiding an agreement and retaining benefits received under it. It presupposes an agreement 'is discovered to be void', or 'when a contract becomes void'. These are two clauses which are keywords to the section. Reverting to the facts of the case, that under the agreement, if any, as disclosed in paras 4 to 6 of the plaint, the plaintiff voluntarily paid the amount, but there was promise of its return from the side of the defendant. The agreement, if any, between the parties as pleaded in paragraphs 4, 5 and 6 of the plaint cannot be said to be discovered to be void. The parties are sisters and if one sister voluntarily agreed to pay the installment, it cannot be said that the contract is discovered to be void. The consideration of contract or agreement may be natural love and affection between the parties and not necessarily unless pleaded and proved that the other party would return money. The other phrase used is "When a contract becomes void." The agreement to pay installment voluntarily agreed upon by the plaintiff will also not fall under the said phrase. We are of the view that Section 65 of the Contract Act will not be applicable to the facts of the present case.24. We are conscious that the agreement to sell dated 18th May, 2005 is also pleaded in the plaint, but it has not been found to be established in evidence as the plaintiff has failed to prove its due execution. Besides the fact that it is an unregistered agreement, such an agreement is no agreement in the eyes of law. For the purposes of Section 65 of the Contract Act, it cannot be said that the agreement was discovered to be void for simple reason that the plaintiff was aware from the very inception that such an agreement necessarily requires registration. But she failed to get it registered on the excuse of being sister of the executant. The said agreement will also not fall under the second clause that "when a contract becomes void." Thus, the phrase "when the contract becomes void" presupposes that it was valid initially and has become void subsequently for one reason or the other. The words "discovered to be void" referred to an agreement which was void ab initio but was not known to be so by the parties, which is not so here. Secondly, even for the sake of argument it is treated that the agreement in question falls within the ambit and scope of Section 65, it will not in any manner advance the case of the plaintiff. The said agreement recites only this much that a sum of Rs. 50,000/- has been given in cash to the defendant and details the various payments made anterior to the date of execution of the alleged agreement. Meaning thereby, all other payments except Rs. 50,000/- were not made to the Noida Authority on behalf of the defendant under the said agreement which has not been found to be proved. This being so, no question of restitution of any advantage received by the defendant to the plaintiff or to compensate arise. At the most it could be argued that a sum of Rs. 50,000/- was given under the agreement. Under point No. 2 we have held that execution of the agreement is not proved. Resultantly, the payment of Rs. 50,000/-by the plaintiff to the defendant is also not established in absence of any other material on record. A contract would be 'discovered to be void' in situations where the parties have contracted on the basis of mutual mistake as to a fact essential to the agreements or where the meaning of the agreement is not capable of being made certain. This section cannot be invoked where a person deliberately enters into a contract which he knows cannot be valid vide Bava C. Gopalaswami Mudaliar Vs. The Annadhana Kattalai of Sri Tyagarajaswami temple by Trustee, Vaithilinga Pandarasannadhi and Another, .The advantage sought to be recovered by invoking Section 65 of the Contract Act must have been received under the contract. In the present factual matrix of the case and the pleadings of the parties as they stand, it is difficult to hold that the defendant obtained any advantage under the agreement and is liable for restitution to the plaintiff.25. The effect of non registration of the agreement to sell in question; whether it can be used for collateral purposes in view of Section 49 and proviso of the Registration Act was also debated. The Learned Counsel for the defendant strongly placed reliance upon M/s. K.B. Saha and Sons Pvt. Ltd. v. M/s. Development Consultant Ltd., 2008 AIR SCW 4829, to support his contention that the agreement to sell being an unregistered document, its clauses which relates to the payment of amount to the Noida Authority cannot be read in evidence. He submits that the said term in the agreement cannot be enforced and read in evidence as it would amount enforcing the term of the agreement. The terms relating to the payments made by the plaintiff to the Noida Authority cannot be called a collateral purpose in view of the aforesaid decision. The Learned Counsel for the plaintiff submits otherwise with the help of S. Kala Devi v. B.R. Somasundaram and others, 2010 (110) RD 427 (SC).In the case of M/s. K.B. Saha and Sons Pvt. Limited (supra), the Apex Court has summarised the following principles with regard to what is collateral purpose:21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:1. A document required to be registered is not admissible into evidence u/s 49 of the Registration Act.2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.It was also pointed out by the Learned Counsel for the defendant that the agreement in question being unstamped document cannot be read in evidence.26. In our view by applying the above principle, it cannot be said that the alleged payments made by the plaintiff as evidenced in the agreement to sell can be called a collateral purpose. It is an essential term of the agreement to sell that the plaintiff has made payments which have been adjusted against the total sale consideration. In clause 2 of the agreement it has been stated that the vendor has received a part payment of Rs. 50,000/- cash from the vendee and in its sub clauses the other payments made to Noida Authority, have been detailed. The enforcement of those clauses for the purposes of decreeing the suit for refund of the amount will amount to enforcement of the said clause and does not amount for collateral purposes. In other words, the clause of the agreement cannot be looked into even for collateral purposes to come to the conclusion that the defendant is liable to pay any amount.27. The relied upon decision by the Learned Counsel for the plaintiff, was given under a different factual matrix. There the issue was with regard to the admissibility of unregistered sale-deed in evidence. The Court held that looking to the nature of the suit which happens to be a suit for specific performance, the trial Court was not justified in refusing to admit an unregistered sale-deed tendered by the plaintiff in evidence. In this very case in para 12 the Apex Court has noticed its earlier case M/s. K.B. Saha and Sons Pvt. Limited (supra). The ratio laid down therein has not been in any manner doubted. One of the principles which has been reiterated therein is that if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purposes of proving an important clause would not be using it as a collateral purpose, fully answers and negatives the contention of the appellant. Repeatedly, the plaintiff's counsel submitted that the conduct of the defendant is blameworthy. She is in habit of entering into such type of contracts to sell and then repudiate it. He submits similar kind of unregistered contract of sell was executed subsequently in favour of one Om Prakash and was repudiated afterwards. We find that the execution of contract to sell with Om Prakash is admitted to the defendant. Be that as it may, conduct of a party is of hardly any relevance in civil matters. Whether the agreement to sell has been rightly repudiated with Om Prakash, shall be considered on evidence by an appropriate forum and not in this appeal.But that is not the end of the matter. We find that on the admitted case in between the plaintiff and defendant No. 2 i.e. Noida Authority as per the statement of account filed by Noida Authority, a sum of Rs. 3,76,580/- in excess is lying in deposit with Noida Authority. Neither the defendant nor the Noida Authority has any claim to the said amount which was deposited by the plaintiff. The plaintiff is, thus, entitled to get a decree for recovery of the said amount i.e. Rs. 3,76,580/- from Noida. By moulding the relief as claimed in the plaint, we are of the view that the plaintiff is entitled to get a decree for recovery of the said amount and we do so accordingly.We place on record that Sri Wasim Alam appeared as amicus curiae to assist the Court as the defendant was appearing in person. He rendered valuable assistance to the Court. It is provided that he will be entitled to get a sum of Rs. 10,000/-(Rupees Ten Thousand Only) from High Court Legal Services Committee, Allahabad. We order accordingly.Viewed as above, the judgment and decree of the Court below is modified. The dismissal of the suit for specific performance of contract to sell and injunction is confirmed and to this extent the First Appeal No. 188 of 2010 is dismissed. But the plaintiff will be entitled to receive a sum of Rs. 3,76,580/- from the defendant No. 2. The defendant No. 2 shall pay the said amount within one month failing which, it would be liable to pay interest thereon at the rate of 10 per cent per annum thereafter till the date of actual payment thereon.The First Appeal No. 239 of 2010 is allowed and the decree of the trial Court for recovery of amount from the defendant (defendant No. 1) is hereby set aside. The parties shall bear their own costs.
"2012 (8) ADJ 557, 2012 (3) ARC 81, 2012 (29) RCR(Civil) 475,"