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2015 Supreme(Del) 532
HIGH COURT OF DELHI
V.K. SHALI, J.
Balbir Singh – Appellant
Versus
Ganga Vishan @ Vishan Lal Anand – Respondent
R.S.A. No. 13 of 2014
Decided On : 08-04-2015
For the Appellant :Rajiv K. Garg, Sanjay Gupta, Akshay Gaur, Advocates
For the Respondent:Anju Lal, Shalu Lal, Advocates
The central legal point established is that the appellant failed to prove the validity of the GPA and the authority of the attorney to sell the property, and the revocation of power of attorney was duly registered, serving as notice.
Headnote:
GPA - Specific Performance of Agreement to Sell - Evidence Act - [Section 114(g), Order 41 Rule 27 CPC] - The court discussed the validity of the GPA dated 28.02.1985 and the revocation of power of attorney. It also addressed the issue of adverse inference under Section 114(g) of the Evidence Act and the jurisdiction of the courts to consider unproved documents. The court found that the attorney did not have the power to sell the property and that the revocation of power of attorney was duly registered, thus dismissing the appeal.
Fact of the Case:
The appellant filed a suit for specific performance of an agreement to sell, alleging that the respondent had appointed an attorney to sell the property to the appellant. The respondent contested the suit, claiming that the attorney was not authorized to sell the property and that the agreement to sell was null and void.
Finding of the Court:
The court found that the attorney did not have the power to sell the property and that the revocation of power of attorney was duly registered. It dismissed the appeal, upholding the findings of the lower courts.
Issues: Validity of GPA, Adverse Inference, Ratification of Attorney's Acts, Jurisdiction to Consider Unproved Documents
Ratio Decidendi: The appellant failed to prove that the attorney had the power to sell the property. The revocation of power of attorney was duly registered, serving as notice. The court also held that adverse inference under Section 114(g) of the Evidence Act did not entitle the appellant to a decree of specific performance. The court emphasized the principle that one who asserts must prove and found that there was no pleading regarding the ratification of the attorney's acts by the respondent.
Final Decision: The appeal was dismissed, as the court found no question of law that would change the findings returned by the lower courts.
1. This a regular second appeal bearing No.13/2004 titled Balbir Singh v. Ganga Vishan @ Vishan Lal Anand. Although the appeal has been filed in the year 2004, it has been admitted on 12.08.2008 by my learned predecessor and while admitting the appeal, the following ten questions have been framed as substantial questions of law involved in the matter.
(1). Whether the GPA duly executed in favour of the respondent could be held to be cancelled without proof of the deed of cancellation and without proof of the service of alleged notice of cancellation of GPA to the attorney and the appellant/purchaser?
(2). Whether adverse inference U/s. 114(g) of the Evidence Act ought to be taken against the respondent for not producing himself in the witness box to deny the false allegations in the written statement and to deny his own receipts of money?
(3). Whether in the circumstances of receiving advance of Rs. 15,000/- himself, the respondent has confirmed and ratified the attorney of Shri S L Malhotra to sell the suit property to the appellant. And hence whether Shri Sardari Lal Malhotra was competent to execute the receipt dated 2.3.1987 and formal agreement to sell dated 6.7.1990, on behalf of the respondent?
(4). Whether in the circumstances of non proof of copy of GPA dated 28.2.1985 the learned Additional District Judge could see and read an unproved document (photocopy of GPA) and without comparison with original ?
(5). Whether such copy of GPA dated 28.2.1985 could be read by the learned Additional District Judge without giving the parties an opportunity to lead further evidence and cross-examination on this document?
(6). Whether this unproved GPA could be used by the learned Courts to contradict, corroborate the evidence of the parties and whether it could be used to fill in the lacuna of the evidence of respondent?
(7). Whether the learned Additional District Judge could look to this unproved document of photocopy of GPA dated 28.2.1985 to give a finding of fact?
(8). Whether the learned Courts below had jurisdiction to see unproved alleged deed of cancellation to give a finding of fact of canceling the GPA of Shri S L Malhotra, and that also against the other evidence of the defendant showing that in fact the GPA dated 28.2.1985 was not cancelled?
(9). Whether therefore the evidence of the parties was to be read or the unproved documents dated 20.1.1988 was to be read to give a finding that in fact the GPA dated 28.2.1985 in favour of Shri S L Malhotra was not cancelled?
(10). Whether the findings and judgment of learned Court below is perverse, not based on evidence, and based only on surmises and conjectures, causing substantial injustice to the appellant?
2. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent.
3. Before dealing with the aforesaid questions, it may be pertinent here to give a brief background of the case leading to the filing of the present appeal.
4. The present appellant filed a suit for specific performance of the agreement to sell dated 06.07.1990 and for permanent injunction. The case which was set up by the appellant in the plaint was that the respondent/Sh. Ganga Vishan is the owner of the property bearing No.27/3, Tihar II, Ashok Nagar, New Delhi having purchased the same vide sale deed dated 31.07.1965. It was alleged that the respondent/Sh. Ganga Vishan had appointed one Sh. S.L. Malhotra as his attorney on 28.02.1985 in respect of the suit property and authorized him to sell the property in question. The said attorney (since deceased) is alleged to have entered into an agreement to sell in respect of the suit property in favour of the appellant for a total sale consideration of Rs.46,000/-. It was alleged in the plaint that the appellant had made a payment of Rs.41,000/- in four installments i.e.Rs.15,000/- on 02.03.1987, Rs.15,000/- on 26.08.1988, Rs.5,000/- on 10.10.1989 and Rs.6,000/- on 06.07.1990. It is at the time of receiving the final installm
