Delhi District Court
Sh. Dharampal Garg vs Sh. Devinder Bhatia on 16 May, 2019
IN THE COURT OF SHRI BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE05, SOUTH WEST
DWARKA COURTS, NEW DELHI
IN THE MATTERS OF
Civil Suit No. 522/18
Sh. Dharampal Garg
S/o Sh. Ram Kumar Garg
R/o K5/12A,
Mohan Garden, New Delhi - 59.
.......... Plaintiff
versus
Sh. Devinder Bhatia
S/o Sh. T.R. Bhatia
R/o J89, Arya Samaj Road,
Uttam Nagar, New Delhi - 110059.
Also at:
Proprietor of Aarti Properties
Rama Park Road, Mohan Garden
Near 14J, Uttam Nagar,
New Delhi - 110059.
.......... Defendant
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION
Date of filing before the Ld. Senior
Civil Judge, Dwarka, New Delhi
in its original jurisdiction : 03.11.2016
CS No. 522/18 Dharampal Garg vs. Devinder Bhatia
&
CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 1 of 63
Date of transfer to this Court : 23.05.2018
Date of hearing final arguments : 20.04.2019
Date of pronouncement of judgment: 16.05.2019
and
Civil Suit No: 102/18
Sh. Devinder Bhatia
S/o Sh. T.R. Bhatia
R/o J89, Arya Samaj Road,
Uttam Nagar, New Delhi - 110059.
.......... Plaintiff
versus
Sh. Dharampal Garg
S/o Sh. Ram Kumar Garg
R/o R3/A335, Mohan Garden,
New Delhi - 110059.
Also at:
R/o K5/12A,
Mohan Garden, New Delhi - 59.
.......... Defendant
SUIT FOR POSSESSION, MESNE PROFITS, PERMANENT AND
MANDATORY INJUNCTION
Date of institution : 30.01.2018
Date when judgment reserved : 20.04.2019
Date of Judgment : 16.05.2019
CS No. 522/18 Dharampal Garg vs. Devinder Bhatia
&
CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 2 of 63
COMMON JUDGMENT: In Civil Suit No. 522/2018 and 102/2018
1. Vide this common judgment, I shall decide both the above suits as the parties and property in question i.e. one shop measuring 50 sq. yards, portion of Plot No. 12A, Out of Khasra No. 42/6, situated in the area of Village Hastsal, Delhi State, colony known as Block K5, Mohan Garden, New Delhi (hereinafter referred to as "suit property") are the same. Moreover, the documents which are being sought by plaintiff Dharampal Garg (in suit No. 522/18) to be declared as null and void are the same documents on the basis of which the plaintiff Devinder Bhatia (in suit No. 102/18) is seeking recovery of possession of the suit property.
2. First the suit bearing No. 522/18 titled as "Dharampal Garg vs. Devinder Bhatia" (hereinafter referred to as "suit for declaration and injunction") has been instituted by Sh. Dharampal Garg against Sh. Devinder Bhatia before the Ld. Senior Civil Judge, Dwarka Courts, CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 3 of 63 New Delhi seeking, inter alia, decree of declaration thereby declaring him to be owner of the suit property and the documents executed in favour of Sh. Devinder Bhatia as null and void. Thereafter, another suit No.102/18, titled as "Devinder Bhatia vs. Dharampal Garg"
(hereinafter referred to as "suit for possession & mesne profits") has been instituted by Sh. Devinder Bhatia against Sh. Dharampal Garg before this Court seeking possession, mesne profits and permanent injunction in respect of the suit property.
3. The parties, for the sake of convenience, are being referred hereinunder according to their litigation status and ranking in 'suit for declaration and injunction' instituted by Sh. Dharampal Garg. As such, Sh. Dharampal Garg hereinafter shall be referred to as "plaintiff" and Sh. Devinder Bhatia shall be referred to as "defendant". Case of plaintiff Dharampal Garg in 'suit for declaration and injunction' and as a defendant in 'suit for possession and mesne profits'
4. The case of the plaintiff Dharampal Garg as set out in the plaint in 'suit for declaration and injunction' and as a defendant in the CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 4 of 63 written statement in 'suit for possession and mesne profits' is summarized as under: 4.1. Plaintiff Dharampal Garg had borrowed Rs. 14 lacs from the defendant Devinder Bhatia in December 2011 to meet his financial necessity. Defendant Devinder Bhata paid Rs. 14 lacs @ 3% monthly rate of interest and asked for some sound security for the loan amount. 4.2. Plaintiff Dharampal Garg kept his immovable property documents i.e. of suit property as security with defendant Sh. Devinder Bhatia along with chain of previous owners. Defendant Devinder Bhaita had got signature of plaintiff on some property document prepared by the defendant in his name without informing the contents thereof along with some blank stamp papers. Defendant Devinder Bhatia assured the plaintiff that the said signed papers were just a formality and will be returned to the plaintiff at the time of full and final payment of loan amount.
4.3. Plaintiff Dharampal Garg returned the loan amount to defendant Devinder Bhatia as per his arrangement of money and some CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 5 of 63 amount was deducted in his comity, whereas interest was paid by the plaintiff monthly to the defendant on his loan amount. 4.4. On 12.03.2015, defendant Devinder Bhatia and plaintiff Dharampal Garg sat together in the defendant's office and after calculation, the defendant made an amount of Rs. 7,37,950/ due towards plaintiff which was recorded in writing and signed by the defendant. In the month of May 2015, plaintiff Dharampal Garg arranged the said balance amount of Rs. 7,37,950/ along with his interest and approached defendant Devinder Bhatia to return the said amount, but the defendant refused to accept the amount and asked the plaintiff to pay the amount along with his father's loan amount.
4.5. The plaintiff approached several times to defendant with his balance amount and requested him to return all the signed security documents and to accept the balance amount but the defendant refused to take the balance amount and repeated his previous demand. The plaintiff made personal as well as telephonic request to defendant Devinder Bhatia for return of the aforesaid documents but the defendant CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 6 of 63 threatened with dire consequences if he dared to visit his office again. 4.6. The plaintiff lodged a police complaint against defendant Devinder Bhatia on 12.02.2016. On the same day i.e. on 12.02.2016, the plaintiff sent a legal notice to defendant Devinder Bhatia which was replied by the defendant through a false and frivolous reply dated 19.02.2016.
4.7. Defendant Devinder Bhatia called plaintiff Dharampal Garg in his office in presence of respectable persons where it was decided that the plaintiff or his father has to clear a lumpsum amount of Rs. 30 lacs towards present interest, past balance amount and other dues of the plaintiff and his father. It was further decided that the father of the plaintiff will pay the said amount after selling his property which was taken as security by the defendant on his father's loan amount and, thereafter, the defendant will return the property paper to the plaintiff's father. The father of the plaintiff sold his property bearing Plot No. 99, measuring 100 sq. yards and 113 sq. yards, Mohan Garden, Uttam Nagar, New Delhi - 59 on 27.02.2016 and paid Rs. 30 lacs to the CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 7 of 63 defendant Devinder Bhatia and received his property document. 4.8. Defendant Devinder Bhatia called the plaintiff in his office on 29.02.2016 and asked for monthly interest @ 5% on his balance amount of Rs.7,37,950/ due towards plaintiff in presence of some persons. But due to intervention of other people, it was decided that the plaintiff will pay a lumpsum amount of Rs.30,000/ per month till refund of above mentioned loan amount. The defendant again asked for a security from the plaintiff for payment of Rs. 30,000/ per month and then a rent agreement was executed which was kept by the defendant as security. Plaintiff Dharampal Garg arranged the amount of Rs. 7,37,950/ in the month of June 2016 and approached the defendant to return the said amount but the defendant refused to accept the same. 4.9. On 15.09.2016, the defendant sent a legal notice to the plaintiff to which plaintiff sent a reply on 02.10.2016 stating that he is ready to pay the balance amount and also requested to return his property document. The plaintiff tried to contact the defendant personally but the defendant threatened him saying that he will not CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 8 of 63 return the property documents and get the property sold to someone. Hence, plaintiff Dharampal Garg has filed the present suit against defendant Devinder Bhatia seeking following reliefs:
(a) a decree of declaration in his favour and against defendant Devinder Bhatia thereby declaring him to be the owner of the suit property i.e. one shop measuring 50 sq. yards, portion of Plot No. 12A, Out of Khasra No. 42/6, situated in the area of Village Hastsal, Delhi State, colony known as Block K5, Mohan Garden, New Delhi;
(b) a decree of declaration in his favour and against Devinder Bhatia thereby declaring the security documents executed in respect of the suit property in the name of defendant as null and void;
(c) a decree of mandatory injunction in his favour and against defendant Devinder Bhatia thereby directing the defendant to return all the original documents along with chain of previous owners, other signed paper kept as security of loan CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 9 of 63 amount regarding the suit property to him after receipt of balance amount from him;
(d) a decree of permanent injunction in his favour and against Devinder Bhatia thereby restraining the defendant, his agents, assignees and associates from disturbing the peaceful possession of the plaintiff in the suit property.
5. It is pertinent to note here that on the aforesaid lines, plaintiff Dharampal Garg as a defendant has filed his written statement in 'suit for possession and mesne profits' filed by Sh. Devinder Bhatia and sought dismissal of the said suit.
Case of defendant Devinder Bhatia in 'suit for declaration and injunction' and as a plaintiff in 'suit for possession and mesne profits'
6. Defendant Devinder Bhatia in his written statement filed in 'suit for declaration and injunction' and in the plaint as plaintiff in 'suit for possession and mesne profits' has contended that: 6.1. Defendant Devinder Bhatia had purchased the suit property from plaintiff Dharampal Garg against valid consideration of Rs. 12 lacs and plaintiff Dharampal Garg had executed all the required legal CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 10 of 63 documents pertaining to sale i.e. Agreement to sell, GPA, Will, Affidavit, Receipt, Possession letter etc. The plaintiff at that time requested the defendant to retain the possession of the suit property as a licensee for some time so that he may shift his business in the meanwhile.
6.2. In the month of February 2016, despite selling the aforesaid shop, plaintiff Dharampal Garg sent a legal notice dated 12.02.2016 on the basis of false and frivolous facts. Defendant Devinder Bhatia sent reply to the said legal notice dated 12.02.2016 and, thereafter, plaintiff Dharampal Garg along with his father contacted the defendant and other respectable persons of the locality and admitted the ownership of defendant Devinder Bhatia and requested to give some time to vacate the shop. Defendant Devinder Bhatia agreed to keep plaintiff Dharampal Garg as tenant in the suit shop with the condition that he will pay the arrears of rent and a formal rent agreement dated 29.02.2016 was executed and the suit property was let out to plaintiff Dharampal Garg @ Rs. 30,000/ per month excluding other charges. As per the said rent CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 11 of 63 agreement, the tenancy of the said shop was for a period of 11 months commencing from 01.03.2016 till 31.01.2017. 6.3. Plaintiff Dharampal Garg paid the rent till May 2016 and, thereafter, he did not pay any rent to defendant Devinder Bhatia nor vacated the shop. Therefore, defendant Devinder Bhatia terminated the tenancy vide legal notice dated 15.09.2016 u/s 106 of Transfer of Property Act, which was replied by plaintiff Dharampal Garg on the basis of false and frivolous facts.
6.4. Defendant Devinder Bhatia in his written statement filed in 'suit for declaration and injunction' has denied the contents of the plaint filed by plaintiff Dharampal Garg in the said suit and on the basis of aforesaid pleadings, defendant Devinder Bhatia has prayed for dismissal of the suit filed by plaintiff Dharampal Garg for declaration and permanent injunction. Defendant Devinder Bhatia as a plaintiff in his 'suit for possession and mesne profits' has prayed for following reliefs:
a) a decree of possession in his favour and against plaintiff Dharampal Garg in respect of suit shop;
CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 12 of 63
b) a decree of accrued occupational charges in his favour @ Rs.30,000/ per month till realization of the possession of the suit property along with interest;
(c) a decree of permanent injunction thereby restraining the plaintiff Dharampal Garg, his associates, agents etc. from transferring, alienating or otherwise parting with possession of the suit shop;
(d) a decree of mandatory injunction thereby directing plaintiff Dharampal Garg to remove his goods and articles from the suit shop.
7. Replications were filed in both the suits by the respective plaintiff in their respective suit to the written statement of the respective defendant reiterating the averments made in the plaint and denying the contents of the written statement.
Admission denial of documents
8. During admission/denial of documents on 18.04.2018 in 'suit for possession and mesne profits', plaintiff Dharampal Garg (defendant in CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 13 of 63 the said suit) admitted the documents filed by defendant Devinder Bhatia (plaintiff in the said suit) which are GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will, all dated 09.12.2011 executed by him in favour of Devinder Bhatia in respect of suit property, which were exhibited as Ex. P1 to Ex. P6 respectively. Plaintiff Dharampal Garg also admitted legal notice sent by him to defendant Devinder Bhatia dated 12.02.2016 as Ex. P7, reply sent by Sh. Devinder Bhaita to the said legal notice as Ex. P8, rent agreement dated 29.02.2016 executed between defendant Sh. Devinder Bhatia and him as Ex. P9, legal notice u/s 106 of Transfer of Property Act dated 15.09.2016 sent by defendant Devinder Bhatia to him as Ex P10 and reply dated 02.10.2016 sent by him to defendant Devinder Bhatia as Ex. P11.
Clubbing of both the suits
9. Originally plaintiff Dharampal Garg had filed his suit bearing Civil suit No. 522/18 titled as "Dharampal Garg vs. Devinder Bhatia"
before the Court of Ld. Senior Civil Judge, South West District, Dwarka Courts, New Delhi, however on an application u/s 22 & 23 r/w section CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 14 of 63 151 CPC moved by plaintiff Dharampal Garg before the Ld. District & Sessions Judge (South West), the said suit was withdrawn from the Court of Ld. Senior Civil Judge and transferred to this Court by the Ld. District & Sessions Judge (South West) vide order dated 16.05.2018 and parties were directed to appear before this Court on 23.05.2018. This Court vide order dated 30.05.2018 clubbed both the suits and it was directed that the evidence is to be adduced by the parties in 'suit for possession and mesne profits' titled as "Devinder Bhatia vs. Dharampal Garg" and the said evidence shall be read in both the cases. Issues in 'suit for declaration and injunction' filed by Sh. Dharampal Garg bearing CS No. 522/18 titled "Dharampal Garg vs. Devinder Bhatia"
10. Following issues were framed in this case vide order dated 30.08.2017:
1. Whether plaintiff is not having any locus to file the present suit? OPD.
2. Whether plaintiff is entitled to relief of declaration (Prayer Clause 'A')? OPP.
3. Whether plaintiff is entitled to relief of CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 15 of 63 declaration, as prayed for (Prayer Clause 'B')? OPP.
4. Whether plaintiff is entitled to relief of mandatory injunction, as prayed for ? OPP.
5. Whether plaintiff is entitled to relief of permanent injunction, as prayed for? OPP.
6. Relief Issues in 'suit for possession and mesne profits' filed by Sh. Devinder Bhatia bearing No. CS 102/18 titled "Devinder Bhatia vs. Dharampal Garg"
11. Following issues were framed in this case vide order dated 18.04.2018:
(i) Whether the suit has been undervalued and proper court fee has not been affixed by the plaintiff?
OPD.
(ii) Whether there was no sale transaction between the plaintiff and the defendant and the defendant had executed the sale documents as the security for the loan amount of Rs. 14 lacs? OPD.
(iii) Whether the plaintiff has purchased the suit property i.e. shop measuring 50 sq. yards bearing No. K5/12A, 40 Ft. Road, Mohan Garden, Uttam Nagar, New Delhi 110059 from the defendant vide CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 16 of 63 GPA, Agreement to sell, Receipt, Possession Letter, Affidavit, all dated 02.12.2011 after payment of valuable sale consideration of Rs. 12 lacs? OPP.
(iv) Whether there exists the landlord tenant relationship between the plaintiff and the defendant vide rent agreement dated 29.02.2016? OPP.
(v) Whether the plaintiff is entitled to the decree of possession qua the suit property? OPP.
(vi) Whether the plaintiff is entitled to the decree of permanent and mandatory injunction, as prayed for? OPP.
(vii) Whether the plaintiff is entitled to the decree of arrears of rent or mesne profits, if so, for which period and at what rate? OPP.
(viii) Relief Evidence led by the parties in 'suit for possession and mesne profits'
12. In this suit, Sh. Devinder Bhatia (plaintiff in this suit) has examined his son and Special Power of Attorney Sh. Gaurav Bhatia as PW1 as his sole witness and he closed his evidence on 19.09.2018. PW1 Sh. Gaurav Bhatia has filed his evidence by way of affidavit CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 17 of 63 which is Ex.PW1/A reiterating the averments made in the plaint filed by his father Sh. Devinder Bhatia in 'suit for possession and mesne profits'. He also relied upon the following documents during his deposition: Ex. PW1/1 : Original SPA executed by Sh. Devinder Bhatia in his favour Ex. PW1/2 : Copy of GPA dated 09.12.2011 executed by Sh. Dharampal Garg in favour of Sh. Devinder Bhatia Ex. PW1/3 : Copy of Agreement to Sell dated 09.12.2011 executed between Sh. Dharampal Garg and Sh. Devinder Bhatia Ex. PW1/4 : Copy of Affidavit dated 09.12.2011 of Sh. Dharampal Garg Ex. PW1/5 : Copy of Receipt dated 09.12.2011 Ex. PW1/6 : Copy of Possession Letter dated 09.12.2011 Ex. PW1/7 : Copy of Will dated 09.12.2011 executed by Sh. Dharampal Garg in favour of Sh. Devinder Bhatia Ex. PW1/8 : Copy of rent agreement dated 29.02.2016 Ex. PW1/9 : Copy of legal notice dated 15.09.2016 Ex. PW1/10 : Copy of postal receipts Mark A : Copy of reply to legal notice dated 15.09.2016 CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 18 of 63
13. On the other hand, plaintiff Sh. Dharampal Garg (defendant in this case) has examined himself as DW1 and filed his evidence by way of affidavit which is Ex.DW1/A in which he reiterated the averments made in the written statement filed in suit for possession and mesne profits and the avements made in the plaint filed by him in 'suit for declaration and injunction'. During his deposition, he also relied upon the following documents: Ex.DW1/1 : Photocopy of the settlement dated 12.03.2015 Ex.DW1/2 : Copy of legal notice dated 12.02.2016 Ex.DW1/3 : Reply dated 19.02.2016 to legal notice dated 12.02.2016 Ex.DW1/4 : Photocopy of GPA in respect of plot no. 99, area measuring 213 sq. yards, Mohan Garden, Uttam Ngar, New Delhi 59 Ex.DW1/5 : Photocopy of Agreement to Sell in respect of aforesaid property bearing plot no. 99 Ex.DW1/6 : Copy of affidavit in respect of aforesaid property bearing plot no. 99 Ex.DW1/7 : Copy of receipt in respect of plot no. 99 Ex.DW1/8 : Copy of possession letter in respect of plot no. 99 CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 19 of 63 Ex.DW1/9 : Copy of Will in respect of plot no. 99 Ex. DW1/10 : Copy of legal notice dated 15.09.2016 Ex. DW1/11 : Reply dated 02.10.2016 to legal notice dated 15.09.2016 Ex. DW1/12 : Copy of police complaint dated 12.02.2016 Mark A : Photocopies of ownership documents (Colly) i.e. GPA, relinquishment deed, sale deed, GPAs in respect of the suit property Mark D/X1 Photocopy of loan agreement
14. Plaintiff Dharampal Garg in support of his case has also examined his father Sh. Ram Kumar Garg as DW2 who also filed his evidence by way of affidavit Ex. DW2/A and has relied upon the following documents: Ex.DW2/1 : Copies of GPA, Agreement to sell, (Colly) Affidavit, Receipt, Possession Letter, all dated 09.08.2008 Ex.DW2/2 : Copies of GPA, Agreement to sell, (Colly) Affidavit, Receipt, Possession Letter, Deed of Will, all dated 27.02.2016 Evidence led by parties in 'suit for declaration and permanent injunction' CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 20 of 63
15. Evidence in the aforesaid suit filed by Sh. Dharampal Garg was not led by the parties separately and the evidence led by the parties in 'suit for possession and mesne profits' filed by Sh. Devinder Bhatia was adopted in 'suit for declaration and injunction' filed by Sh. Dharampal Garg as both the suits were clubbed together for the purpose of evidence vide order dated 30.05.2018 and hence the evidence led by the parties in 'suit for possession and msene profits' is to be read as the evidence led by the parties in 'suit for declaration and injunction' filed by Sh. Dharampal Garg.
Final arguments in both suits
16. I have heard the final arguments advanced on behalf of both the parties in both the suits and perused the material on record carefully. I have also gone through the written arguments filed on behalf of the parties.
Findings
17. On the basis of material available on record, my issuewise findings are as under: CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 21 of 63 Issue No. 1 (in 'suit for declaration and injunction') (Whether plaintiff is not having any locus to file the present suit?)
18. The onus to prove this issue has been placed upon defendant Devinder Bhatia who has taken a plea in his written statement that the plaintiff has no locus to file the present suit as he is not the owner of the suit property as he has sold the suit property to him.
19. During course of the arguments, Ld. Counsel for defendant Devinder Bhatia has not pressed this issue and did not make any submission on the same. Even otherwise, plaintiff Dharampal Garg is seeking declaration that he is the owner of the suit property and that documents executed by him in favour of defendant Devinder Bhatia in respect of the suit property be declared as null and void because said documents were given to the defendant towards security against loan of Rs. 14 lacs.
20. In view of aforesaid averments made in his plaint, plaintiff Dharampal Garg has locus to file the present suit and it is altogether different matter whether he will be able to succeed in proving his case or CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 22 of 63 not. So far as locus is concerned, the plaintiff has locus to file the suit on the ground taken in the plaint. Hence, this issue is decided against defendant Devinder Bhatia.
Issue No. 2 & 3
(in 'suit for declaration and injunction') (Whether plaintiff Dharampal Garg is entitled to relief of declaration (Prayer Clause 'A')?
& (Whether plaintiff Dharampal Garg is entitled to relief of declaration (Prayer Clause 'B')?
and Issue No. (ii) to (iv) (in 'suit for possession and mesne profits') (Whether there was no sale transaction between plaintiff Devinder Bhatia and the defendant Dharampal Garg and defendant Dharampal Garg had executed the sale documents as the security for the loan amount of Rs. 14 lacs?) & (Whether plaintiff Devinder Bhatia has purchased the suit property i.e. shop measuring 50 sq. yards bearing No. K 5/12A, 40 Ft. Road, Mohan Garden, Uttam Nagar, New Delhi 110059 from the defendant vide GPA, Agreement to sell, Receipt, Possession Letter, Affidavit, all dated 02.12.2011 after payment of valuable sale consideration of Rs. 12 lacs?) & (Whether there exists the landlord tenant relationship between the plaintiff and the defendant vide rent agreement CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 23 of 63 dated 29.02.2016?)
21. These issues are taken up together being interlinked and the discussion thereupon is going to be common. The onus to prove the Issue Nos. (2) and (3) in 'suit for declaration and injunction' and Issue No. (ii) in 'suit for possession and mesne profits ' is on plaintiff Dharampal Garg and the onus to prove Issue Nos. (iii) and (iv) in 'suit for possession and mesne profits' is on defendant Devinder Bhatia (plaintiff in the said suit).
22. The facts of the case are within the narrow compass. As per the case of plaintiff Dharampal Garg, he had borrowed a sum of Rs. 14 lacs as loan from defendant Devinder Bhatia in December 2011 and at that time he had kept his property documents i.e. of the suit property with defendant Devinder Bhatia as security against the said loan. It is further case of plaintiff Dharampal Garg that at the time of advancement of loan, defendant Devinder Bhatia had got his signature on some property documents in his name without informing the contents of the same and on some blank stamp papers which he kept with him. The CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 24 of 63 plaintiff tried to repay the loan amount to the defendant but the defendant refused to accept the same and misused the property documents which he had kept with the defendant as security against the loan availed by him. While defendant Devinder Bhatia has claimed that he has purchased the suit property from plaintiff Dharampal Garg vide sale documents dated 09.12.2011 for a valid sale consideration of Rs. 12 lacs, however at the request of the plaintiff, he was allowed to remain in possession of the suit property as a licensee and finally a formal rent agreement was executed between the parties on 29.02.2016. Defendant Devinder Bhatia has further claimed that the plaintiff has failed to pay the rent since June 2016 and hence his tenancy was terminated vide legal notice dated 15.09.2016 and he was called upon to pay the arrears of rent and to vacate the suit property but he failed to do so despite service of legal notice.
23. Plaintiff Dharampal Garg has not disputed the execution of documents Ex. PW1/2 to Ex. PW1/7 which are GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will, all dated 09.12.2011 in CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 25 of 63 favour of defendant Devinder Bhatia, on the basis of which the defendant is claiming ownership over the suit property. This admission can be deduced from the plaint filed by him in 'suit for declaration and injunction' and the written statement filed in 'suit for possession and mesne profits'. Furthermore, plaintiff Dharampal Garg when appeared in the witness box as DW1 in 'suit for possession and mesne profits', he categorically stated that apart from the loan agreement documents, he had signed Affidavit, GPA, Agreement to Sell, Possession letter, Will and Receipt of the cash. Voluntarily, he stated that apart from these documents, he has signed few blank papers also. He categorically admitted that the documents Ex.PW1/2, Ex.PW1/3, Ex. PW1/4, Ex. PW1/5, Ex.PW1/6 and Ex.PW1/7 are the documents which he had executed at that time. He further admitted that a rent agreement between him and the plaintiff (Devinder Bhatia) was prepared and executed and the said rent agreement was probably prepared and executed somewhere in 2016. He further admitted that the rent agreement ExPW1/8 was executed by him in favour of the plaintiff (Devinder Bhatia). CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 26 of 63
24. In view of aforesaid admissions of plaintiff Dharampal Garg that he has executed the aforesaid title documents Ex. PW1/2 to Ex. PW1/7 in favour of defendant Devinder Bhatia by virtue of which defendant Devinder Bhatia is claiming ownership over the suit property and further in view of rent agreement Ex.PW1/8 executed between the parties which is also not in dispute, the onus has shifted upon the plaintiff to prove that the documents Ex.PW1/2 to Ex.PW1/7 were executed by him only for the security purposes against the loan taken by him from defendant Devinder Bhatia and, in fact, he had not sold the suit property to the defendant by virtue of said documents Ex.PW1/2 to Ex. PW1/7.
25. At the outset, it may be noted that the pleadings in the plaint filed by plaintiff Dharampal Garg in 'suit for declaration and injunction' are vague and not clear.
26. The plaintiff though has claimed to have taken a loan of Rs. 14 lacs from defendant Devinder Bhatia but it has not been disclosed by him in the entire plaint as to how the loan amount of Rs. 14 lacs was CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 27 of 63 disbursed to him by defendant Devinder Bhatia, whether it was given to him in cash or by way of cheque or by way of any other banking mode. The plaintiff even has not mentioned the date when he had taken the loan from the defendant. Further, the plaintiff has claimed to have kept his original property documents i.e. of suit property with defendant Devinder Bhatia as security against the loan taken by him from the defendant but nothing has been placed on record by plaintiff Dharampal Garg in the form of any receipt issued by the defendant regarding deposit of his original property documents with the defendant. It is highly improbable that a prudent person would submit his original property documents with another person towards security against the loan taken by him from the said person without acknowledging the receipt of the documents by the said person.
27. Plaintiff Dharampal Garg has further pleaded in para no. 5 of his plaint that he has returned the loan amount to defendant Devinder Bhatia as per his arrangement of money and some amount was deducted in his comity, whereas interest was paid by plaintiff monthly to CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 28 of 63 defendant on his loan amount. Again plaintiff Dharampal Garg has not disclosed that how the loan amount and interest thereon was refunded by him to defendant Devinder Bhatia and on which date and what amount was adjusted in his comity. It is also not believable that plaintiff Dharampal Garg would return the loan amount to defendant Devinder Bhatia without getting any receipt towards acknowledgment of return of loan as no such receipt has been placed on record and only vague and bald averments have been made without mentioning the dates when the loan amount was refunded to defendant Devinder Bhatia and when interest thereon was paid to defendant Devinder Bhatia and what comity was between the parties.
28. It is further pleaded by plaintiff Dharampal Garg that on 12.03.2015, a meeting was held between him and defendant Devinder Bhatia at the defendant's office, wherein after some calculations made by the defendant, it was settled that a sum of Rs. 7,37,950/ was due and payable by the plaintiff towards the balance loan amount. The plaintiff has further pleaded that the said settlement was also reduced in writing CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 29 of 63 and signed by the defendant. The plaintiff has placed on record the said settlement dated 12.03.2015 as Ex. DW1/1, which has been refuted by defendant Devinder Bhatia. Perusal of the said settlement Ex.DW1/1 shows that nothing is deducible from it that what calculation was made by the defendant. It is not clear what principal amount was taken by the plaintiff Dharampal Garg from defendant Devinder Bhatia and what amount he has paid towards the repayment of the loan amount and how the defendant reached at the figure of Rs.7,37,950/. Even amount of Rs. 7,37,950/ is not fully legible. There are only some initials at points A, B, C and D but it is not discernible to whom these initials belong to. Thus, the said document Ex.DW1/1 does not substantiate the plea of plaintiff Dharampal Garg that defendant Devinder Bhatia has calculated balance loan amount at Rs.7,37,950/ which was found due and payable by plaintiff Dharampal Garg to defendant Devinder Bhatia against his loan amount.
29. It may also be noted that though plaintiff Dharampal Garg has claimed to have taken a loan of Rs. 14 lacs from defendant Devinder CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 30 of 63 Bhatia in December 2011, but he has not filed any loan agreement alongwith his plaint in 'suit for declaration and injunction'. He even did not make any reference of the loan agreement and did not make a single whisper in his plaint regarding execution of any loan agreement nor he has relied upon any such loan agreement in the list of documents. It is not believable that such a huge amount of Rs. 14 lacs would be paid by any prudent person without execution of any loan agreement.
30. It is also interesting to note that plaintiff Dharampal Garg did not make any reference of the loan agreement in the legal notice dated 12.02.2016 Ex. DW1/2 sent by him to defendant Devinder Bhatia or in the reply to the legal notice dated 15.09.2016 Ex. DW1/11 sent by defendant Devinder Bhatia u/s 106 of Transfer of Property Act or in the complaint made to the police on 12.02.2016 Ex. DW1/12. In as much as, plaintiff Dharampal Garg did not make any whisper or reference of the loan agreement in the written statement filed in 'suit for possession and mesne profits' filed by defendant Devinder Bhatia. It is only after filing of his written statement in 'suit for possession and mesne profits', CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 31 of 63 plaintiff Dharampal Garg has filed the photocopy of the loan agreement Mark D/X1 on 18.04.2018, which has been strongly refuted by defendant Devinder Bhatia. It has not been explained by the plaintiff as to why this loan agreement Mark D/X1 which was an important piece of document had not been filed by him alongwith his plaint filed in 'suit for declaration and injunction' nor there was any reference or whisper in the pleadings about the same.
31. Moreover, plaintiff Dharampal Garg has not been able to prove the said loan agreement Mark D/X1 as per law, which is only a photocopy. The plaintiff not only has failed to file the original loan agreement on record but he has also failed to prove the same on record as per law by leading secondary evidence.
32. Perusal of loan agreement Mark D/X1 would reveal that same has been executed on 04.02.2012, while throughout the case of the plaintiff has been that he had taken a loan of Rs. 14 lacs in December 2011. It is not understandable that if the plaintiff had availed the loan in December 2011 then why and in what circumstances, the loan agreement CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 32 of 63 Mark D/X1 was executed on 04.02.2012 and the said discrepancy has not been explained by the plaintiff and in the absence thereof it casts doubt on the authenticity of the said loan agreement Mark D/X1 and the same appears to be an after thought and manufactured by the plaintiff later on. Otherwise, there was no reason for the plaintiff of not placing the loan agreement alongwith his plaint or not making any reference of the same in his plaint filed in 'suit for declaration and injunction' and in written statement filed in 'suit for possession and mesne profits' and not placing of any reliance on this document in the list of documents.
33. It is a matter of record that plaintiff Dharampal Garg had got served a legal notice dated 12.02.2016 Ex.DW1/2 upon defendant Devinder Bhatia reiterating his claim that he had taken a loan of Rs. 14 lacs from defendant Devinder Bhatia and kept his original property documents as security with the defendant against the said loan and he tried to return the balance loan amount of Rs.7,37,950/ as agreed between the parties on 12.03.2015, but the defendant refused to accept the same and asked the plaintiff to pay the same along with his father's CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 33 of 63 loan amount and hence vide said legal notice, the defendant was called upon to accept his balance loan amount and to return the original property documents to the plaintiff. The said legal notice dated 12.02.2016 Ex. DW1/2 was duly replied by defendant Devinder Bhatia vide reply dated 19.02.2016 wherein he denied the factum of advancement of any loan to the plaintiff and categorically stated that he had purchased the suit property from plaintiff Dharampal Garg vide documents Ex.PW1/2 to Ex. PW1/7 and even after sale of the suit property, the plaintiff was allowed to stay in the suit property as a licensee.
34. The reply dated 19.02.2016 so sent by defendant Devinder Bhatia was duly received by plaintiff Dharampal Garg and he himself has relied upon the said reply and placed it on record as Ex DW1/3. As such, it is evident that through reply Ex.DW1/3, the plaintiff came to know that the defendant has allegedly misused the documents Ex.PW1/2 to Ex.PW1/7, which he has claimed to have executed as security against the loan taken by him from the defendant, but despite CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 34 of 63 having knowledge of the said fact, still the plaintiff has executed the rent agreement Ex.PW1/8 on 29.02.2016 and that too as security towards the repayment of balance loan amount of Rs. 7,37,950/, which is highly unbelievable. It was not expected from the plaintiff to execute rent agreement for the security purpose when defendant Devinder Bhatia has allegedly misused the earlier security documents entrusted by him to the defendant for securing the loan amount. No prudent person is expected to fall into another trap if he has already been cheated and became the victim of fraud committed by the other party. Therefore, story propounded by the plaintiff Dharampal Garg is highly unbelievable and does not appeal to the reason that the rent agreement Ex.PW1/8 was executed just for the sake of security against the balance loan amount.
35. There is another reason for which the plea of the plaintiff that he executed the rent agreement Ex.PW1/8 only as security against the repayment of balance loan amount of Rs.7,37,950/ cannot be accepted. As per own case of plaintiff Dharampal Garg, all the accounts stood settled for Rs. 30 lacs which the plaintiff has alleged to have paid CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 35 of 63 to defendant Devinder Bhatia towards his loan amount as well as towards his father's loan amount. If it was so and nothing remained due either towards plaintiff's loan amount or his father's loan amount, then it is not understandable as to why the plaintiff again agreed to pay balance loan amount of Rs.7,37,950/ in monthly installment of Rs. 30,000/ and executed rent agreement Ex.PW1/8 as security towards the repayment of the said amount of Rs. 7,37,950/.
36. It is interesting to note that plaintiff Dharampal Garg has not placed on record anything to show that there was any liability of Rs. 30 lacs towards his father's loan amount or that his father has taken any loan from defendant Devinder Bhatia.
37. Even the plea of plaintiff Dharampal Garg that Rs. 30 lacs was paid by his father to the defendant after selling his property is also not substantiated. A perusal of documents placed on record by plaintiff Dharampal Garg dated 27.02.2016 which are GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will Ex.DW2/2 (Colly) executed by his father Sh. Ram Kumar Garg reveals that the property bearing Plot CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 36 of 63 No. 99, measuring 100 sq. yards and 113 sq. yards, Mohan Garden, Uttam Nagar, New Delhi59 has been sold to the plaintiff for a sum of Rs. 30 lacs. It is not understandable as to why the father of the plaintiff has sold the property to the plaintiff first and thereafter the plaintiff sold the same to some other person and paid Rs. 30 lacs to defendant Devinder Bhatia. Even the name of said vendee has not been disclosed leaving aside the fact that no document in this regard has been placed on record. Moreover, if the plaintiff was having such a huge amount of Rs. 30 lacs for purchasing the property from his father, then why he agreed to pay his balance amount of Rs. 7,37,950/ to defendant Devinder Bhatia in monthly payment of Rs. 30,000/ and executed the rent agreement dated 29.02.2016 as security towards repayment of the said loan amount.
38. The aforesaid discussion would show that the whole story regarding the payment of Rs. 30 lacs by the father of the plaintiff to the defendant towards his loan account by selling the property bearing Plot No. 99, measuring 100 sq. yards and 113 sq. yards, Mohan Garden, CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 37 of 63 Uttam Nagar, New Delhi59, is sham, concocted and unbelievable.
39. Even plaintiff Dharampal Garg has not been able to prove that any such agreement took place between the parties at the office of defendant Devinder Bhatia whereby it was decided that a lump sum payment of Rs. 30 lacs was to be paid by the plaintiff or his father towards their loan account or that on 29.02.2016 in the meeting it was decided that the plaintiff would pay a lumpsum of Rs. 30,000/ per month till refund of balance loan amount of Rs. 7,37,950/ for which he executed the rent agreement as security towards the repayment of the said amount. The plaintiff has alleged that the said settlements took place in the presence of some persons present in the office of the defendant, however name of any person has not been disclosed by the plaintiff who were allegedly present at that time. The plaintiff even has not examined any independent person out of those persons who were present at that time in whose presence the said settlements had taken place between the parties. The said persons were the most important and crucial witnesses in the present case who could have thrown light CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 38 of 63 regarding the settlement arrived at between the parties and could have proved the case of the plaintiff that he had actually availed a loan from the defendant and he had executed the rent agreement only as a security against the repayment of the loan, but the plaintiff has withheld the said evidence, and, therefore, an adverse inference is liable to be drawn against the plaintiff.
40. Plaintiff Dharampal Garg when appeared in the witness box as DW1 in 'suit for possession and mesne profits' filed by defendant Devinder Bhatia (plaintiff in the said suit) reiterated the averments made in his plaint filed in 'suit for declaration and injunction' in his affidavit in evidence Ex.DW1/A. In his crossexamination, DW1 (plaintiff Dharampal Garg) stated that he had borrowed a sum of Rs. 14 lacs as loan from plaintiff (Devinder Bhatia) in the year 2012, probably the month was February. The said statement of plaintiff Dharampal Garg is contrary to the averment made by him in his plaint filed in 'suit for declaration and injunction' and written statement filed in 'suit for possession and mesne profits', where he claimed that he had availed the CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 39 of 63 loan from defendant Devinder Bhatia in the month of December 2011. He further stated that he cannot give the details of the documents executed by him in favour of the plaintiff (Devinder Bhatia) at that time. Voluntarily, he stated that if the documents shown to him, only then he can identify those documents executed at that time. He further stated that no written document was executed between him and the plaintiff (Devinder Bhatia) at the relevant time. He again said, the documents were executed i.e. loan agreement. He stated that no other person was present when the aforesaid loan agreement was executed.
41. The aforesaid testimony of plaintiff Dharampal Garg clearly shows that he is not aware of the facts and his statement is wavering and not worthy of any reliance. At first instance, he stated that he could not tell the details of the documents executed by him at the time of availing the loan from defendant Devinder Bhatia and no written document was executed at that time but again in the same breathe, he stated that a loan agreement was executed at that time and no other person was present at that time. However, perusal of loan agreement Mark X/D1, though not CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 40 of 63 proved but relied upon by the plaintiff, shows that same is witnessed by none other than Sh.Ram Kumar Garg, the father of plaintiff Dharampal Garg. Therefore, testimony of plaintiff that no other person was present at the time of execution of alleged loan agreement is belied and it again shows that the said document has been manufactured by plaintiff Dharampal Garg later on. Even there are contradictions in the statement of the plaintiff regarding the time when allegedly he had taken the loan of Rs. 14 lacs from defendant Devinder Bhatia. In his examinationin chief, he stated that he had taken loan of Rs. 14 lacs from the defendant in the month of December 2011 but in his crossexamination he stated that he took the loan from the defendant in the year 2012 in the month of February.
42. Plaintiff Dharampal Garg in support of his case has also examined his father Sh. Ram Kumar Garg as DW2 . The affidavit filed by this witness in evidence Ex.DW2/A gives an interesting reading. Para no. 1 of his affidavit in evidence Ex.DW2/A, DW2 has deposed that the deponent i.e. he himself had borrowed Rs. 14,00,000/ from the plaintiff CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 41 of 63 (defendant Devinder Bhatia) at 3% monthly rate of interest, however it is not the case of the plaintiff that his father had borrowed a loan of Rs. 14 lacs from defendant Devinder Bhatia rather it is his case that he had borrowed Rs. 14 lacs from the defendant. In para no. 3 of his affidavit in evidence Ex.DW2/A, DW2 further deposed that he had kept his immovable property documents i.e. of suit property along with chain of previous owners as security against his loan amount. Again this deposition of DW2 is contrary to the pleadings made by plaintiff Dharampal Garg in his plaint in 'suit for declaration and injunction'. In para no. 4 of his affidavit, DW2 has further deposed that plaintiff (defendant Devinder Bhatia) used to advance loan to borrowers after taking signatures on property documents prepared in his name and on some blank stamp papers/plain papers. He further deposed that plaintiff keeps all signed papers with him and assures every borrower that same will be returned to them at the time of full and final payment of loan amount. However, not a single witness or any other person has been examined by plaintiff Dharampal Garg or even name has not been CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 42 of 63 disclosed of the borrowers to whom defendant Devinder Bhatia used to lend money and keep their property documents as security.
43. In para no. 5 of his affidavit, DW2 has deposed that he and his sons had taken loan from plaintiff several times after keeping their property document as security and returned the loan amount with interest to plaintiff i.e. Devinder Bhatia after some time and taken their property documents back. He further deposed that plaintiff has become dishonest and tried to grab property of his late wife kept as security with him. He further deposed that loan amount has already returned by him and for return of property document, he filed a case against the plaintiff (defendant Devinder Bhatia). One of the property documents are General Power of attorney, Agreement to Sell, Affidavit, Receipt, Possession letter all dated 09.08.2008 Ex. DW2/1 (Colly)
44. In his crossexamination, he admitted that the documents Ex.DW2/1 (Colly) do not relate to the suit property. He further admitted that he had also filed a civil suit against this plaintiff with regard to some other property.
CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 43 of 63
45. It is not in dispute that this witness (DW2) Sh. Ram Kumar Garg, who is father of the plaintiff Dharampal Garg along with his sons including plaintiff Dharampal Garg has filed a 'suit for declaration and injunction' against defendant Devinder Bhatia bearing Civil Suit No. 53/2018 titled as "Ram Kumar Garg & Ors vs. Devinder Bhatia"
claiming that Smt. Bimla Devi (Wife of Sh. Ram Kumar Garg and mother of plaintiff Dharampal Garg) was owner of the suit property in the said suit and she borrowed Rs. 22 lacs from defendant Devinder Bhatia in the year 20112012 to meet their financial necessity and towards security against the said loan, they handed over property documents of immovable property i.e. Plot No. 99 to the defendant which were kept by defendant as security against the said loan. Similarly, defendant Devinder Bhatia also filed a civil suit bearing Civil Suit No. 214/17 against Ram Kumar Garg & his sons including present plaintiff Dharampal Garg for possession and mesne profits on the same ground that he has purchased the suit property from Smt. Bimla Devi and no loan was advanced by him to her. Admittedly, the said suit has CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 44 of 63 been decreed in favour of present defendant Devinder Bhatia by Ld. Predecessor of this Court vide judgment & decree dated 08.02.2019 and the suit filed by Ram Kumar Garg and others was dismissed. Therefore, statement of this witness that he and his sons kept on borrowing the money from the defendant and kept their property documents as security with the defendant is liable to be rejected.
46. In para no. 6 of his affidavit, DW2 has deposed that the deponent has returned the loan amount to plaintiff as per his arrangement of money and some amount were deducted in his comity and interest was paid by deponent monthly to plaintiff on his loan amount. Again no details regarding date, month and year when the loan amount was refunded and what amount and what interest was paid to defendant Devinder Bhatia has been disclosed and only the vague averments have been made.
47. So far the deposition of DW2 in para no. 12 of his affidavit that he sold his property bearing No. 99, measuring 100 sq. yards and 113 sq. yards, Mohan Garden, Uttam Nagar, New Delhi59 on CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 45 of 63 27.02.2016 to the plaintiff, is concerned, though he has placed on record the sale documents i.e. the GPA, Sale Agreement, Affidavit, Receipt, Possession letter, Will, all dated 27.02.2016 as Ex.DW2/2 (Colly) in this regard which are in favour of plaintiff Dharampal Garg for Rs. 25 lacs but the sale of the said property to plaintiff has been found to be very doubtful and suspicious for which I have already given detailed findings herein above and the same are not being repeated here.
48. Furthermore, this witness has categorically stated in his crossexamination that his son had not borrowed Rs. 14 lacs in his presence. Voluntarily, he stated that his son informed him about the same. Therefore, it is clear that entire testimony of this witness is hearsay as loan transaction was not carried out in his presence and hence testimony of this witness is of no help to the case of plaintiff Dharampal Garg. Rather his testimony demolishes the case of plaintiff Dharampal Garg and the contentions made by him in his affidavit in evidence Ex.DW2/A are found to be nonexistent and has been duly rejected by the judicial pronouncement which is not in dispute. CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 46 of 63
49. On the other hand, defendant Devinder Bhatia in order to prove his case has examined his son and SPA Sh. Gaurav Bhatia as PW1 who in his affidavit in evidence Ex.PW1/A has deposed as per the averments made in the plaint filed by defendant Devinder Bhatia in 'suit for possession and mesne profits'. In his crossexamination, nothing material could be extracted to shake his testimony. He denied the suggestion that there was a loan agreement dated 04.02.2012 between the plaintiff and defendant for an amount of Rs. 14 lacs. The witness was confronted with the copy of loan agreement dated 04.02.2012 Mark D/X1 from the court record and he was asked that original of the same is with the plaintiff (Devinder Bhatia) to which he replied that the said loan agreement was not signed by his father. He stated that he can identify the signature of his father. He was confronted with the photocopy of settlement dated 12.03.2015 Mark D/X2 and original of same was shown to him and on seeing the same he stated that he cannot identify the signature of his father on the said document as the signatures are small in size. He has admitted signature of his father on documents CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 47 of 63 Mark D/X3 (Colly) which are GPA, SPA, etc at points B & D. He categorically stated that no rent agreement was executed between plaintiff and defendant earlier to 29.02.2016. He denied the suggestion that plaintiff (Devinder Bhatia) used to keep all the originals of those persons to whom he used to lend the money and also used to get executed such sale documents in his favour and those persons are still occupying the same properties by them or sold by them. If that was so, it was for the plaintiff to examine those persons whose property documents have been taken by defendant Devinder Bhatia as security and despite selling their properties, they are still occupying the same, but the plaintiff has not done so.
50. Ld. Counsel for plaintiff Dharampal Garg has vehemently argued that defendant Devinder Bhatia did not appear in the witness box himself and examined his son and attorney Sh. Gaurav Bhatia as PW1 who is not aware of the facts and hence testimony of PW1 Gaurav Bhatia cannot be read. In this regard, he has relied upon the judgment reported in Ramesh Chand vs. Hari Naraian, AIR 1988 Rajasthan 185. CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 48 of 63
51. I have gone through the testimony of PW Sh. Gaurav Bhatia and I do not find that he is not aware of the facts. Though he stated at one place that he is not conversant with the entire facts or circumstances, however he is aware of most of the transactions because it happened with his father only. There is nothing in the crossexamination of PW1 which could show that he is not aware of the facts and circumstances of the case or that he evaded the questions put to him in his cross examination. Therefore, authority relied upon by the Ld. Counsel for plaintiff has no applicability in the facts and circumstances of the present case.
52. The another judgment relied upon by the Ld. Counsel for plaintiff Dharampal Garg titled as 'Janki Vashdeo Bhojwani & Anr. vs. IndusInd Bank Ltd. & Ors., (2004) 3 SCC 584, Civil Appeal 6790 of 2003 decided on February 10, 2004 has no relevance in the facts and circumstances of this case.
53. Defendant Devinder Bhatia has claimed that plaintiff Dharampal Garg was kept as a licensee in the suit property after CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 49 of 63 purchase of the suit property by him on 09.12.2011 and a formal rent agreement Ex. PW1/8 was executed by which suit property was let out to plaintiff Dharampal Garg @ Rs. 30,000/ per month for a period of 11 months commencing from 01.03.2016 till 31.01.2017. Plaintiff Dharampal Garg has not disputed the execution of rent agreement dated 29.02.2016 Ex.PW1/8, however he contended that he executed the said rent agreement as security towards the repayment of balance loan amount of Rs. 7,37,950/ which was payable in lump sum amount of Rs.30,000/ per month, which story has been found unbelievable and even not duly proved and remained unsubstantiated as discussed herein above.
54. During course of the arguments, Ld. Counsel for plaintiff Dharampal Garg has vehemently argued that defendant Devinder Bhatia cannot claim ownership by virtue of documents Ex.PW1/2 to Ex. PW1/7 and the said documents relied upon by him which are GPA, Agreement to Sell, Will, Affidavit etc. cannot be considered as valid mode of transfer and the same will not confer any right, title or interest in the suit CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 50 of 63 property in favour of the plaintiff. In this regard, he has heavily relied upon the judgment of the Hon'be Apex Court in Suraj Lamp & Industries (P) Ltd. vs. State of Haryana reported in 2012 (1) SCC 656.
55. To this, Ld. Counsel for defendant Devinder Bhatia submitted that at one hand plaintiff Dharampal Garg himself has relied upon the documents Ex.DW2/2 (Colly) with regard to sale of Property bearing Plot No. 99, measuring 100 sq. yards and 113 sq. yards, Mohan Garden, Uttam Nagar, New Delhi - 59 on 27.02.2016 by his father in his favour and whereas on the other hand, he has disputed the sale of suit property to defendant Devinder Bhatia by virtue of similar kind of documents Ex.PW1/2 to Ex.PW1/7, which is highly ridiculous.
56. Be that as it may, of course the documents relied upon by defendant Devinder Bhatia Ex. PW1/1 to Ex. PW1/7 cannot be said to be title documents stricto sansu in view of judgment of Hon'ble Supreme Court in Suraj Lamp case, however it is to be noticed that plaintiff Dharampal Garg has not disputed the execution of rent agreement dated 29.02.2016 Ex.PW1/8 and he has miserably failed to establish that the CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 51 of 63 said rent agreement was executed just for the sake of security against the loan availed by him. The necessary conclusion which can be derived from this is that the plaintiff has admitted the relationship of landlord and tenant between the parties and admitted the defendant as landlord of the suit property and hence plaintiff Dharampal Garg is estopped from disputing the title of the defendant Devinder Bhatia by virtue of section 116 of Indian Evidence Act.
57. Furthermore, though on the basis of said documents i.e. Ex. PW1/2 to Ex.PW1/7, defendant Devinder Bhatia cannot be classified as owner as would be an owner under a duly registered sale deed, but surely he would have better right of possession of suit property than plaintiff Dharampal Garg in view of Section 202 of Contract Act. I am fortified in this regard the judgment of Hon'ble Delhi High Court in Ramesh Chand vs. Suresh Chand , 2012 (188) DLC 538.
58. In the light of aforesaid discussions, plaintiff Dharampal Garg has miserably failed to prove his case that he had availed loan of Rs. 14 lacs from defendant Devinder Bhatia and handed over property CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 52 of 63 documents to the defendant as security, whereas defendant Devinder Bhatia has been able to prove that no loan was advanced by him to plaintiff Dharampal Garg, rather he had purchased the suit property from plaintiff Dharampal Garg vide documents Ex. PW1/2 to Ex. PW1/7 and after purchase of the suit property, he allowed the plaintiff to remain in possession of the same as a licensee and later on had let out the same to the plaintiff vide rent agreement Ex.PW1/8. Hence, Issue Nos. (2) and (3) in 'suit for declaration and injunction' and Issue No. (ii) in 'suit for possession and mesne profits' are decided against plaintiff Dharampal Garg and in favour of defendant Devinder Bhatia; and Issue nos. (iii) and (iv) in 'suit for possession and mesne profits' are decided in favour of defendant Devinder Bhatia (plaintiff in the said suit).
Issue No. (i) (in 'suit for possession and mesne profits') (Whether the suit has been under valued and proper court fee has not been affixed by the plaintiff?)
59. The onus to prove this issue is on plaintiff Dharampal Garg CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 53 of 63 who as defendant in his written statement filed in 'suit for possession and mesne profits' has contended that the plaintiff (Devinder Bhatia) has grossly undervalued the suit property than its market value to pay less court fee and proper court fee has not been paid by plaintiff (Devinder Bhatia).
60. Except taking a vague plea, the plaintiff Dharampal Garg has not disclosed as to what was the market value of the suit property at the time of institution of suit by Sh. Devinder Bhatia and how the suit filed by Sh. Devinder Bhatia is undervalued and court fee paid by him for the reliefs prayed in the plaint is deficient and what court fee ought to have been paid by him. Even in his affidavit in evidence Ex.DW1/A, plaintiff Dharampal Garg (defendant in the said suit) has not made any single whisper regarding valuation of the suit property.
61. Perusal of the record shows that defendant Devinder Bhatia (plaintiff in 'suit for possession and mesne profits') has valued the suit for the purpose of court fee and jurisdiction for the relief of permanent and mandatory injunction at Rs. 130/ each. He has further valued the CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 54 of 63 suit for the purposes of court fee and jurisdiction for the relief of inquiry into damages and mesne profits under Order 20 Rule 12 CPC at Rs.3,60,000/ being annual rental at agreed rate of rent @ Rs. 30,000/ per month and thus he has affixed total court fee of Rs. 6,333/. Though defendant Devinder Bhatia has not valued the suit for the purposes of court fee and jurisdiction for the relief of possession as also submitted by Ld. Counsel for plaintiff Dharampal Garg in the written arguments filed by him, but since mesne profits or damages, if any, is to be awarded to the defendant, the same shall be assessed after conducting an inquiry under Order 20 Rule 12 CPC and once the mesne profits is assessed, then the defendant is required to pay the court fees on the same. Therefore, court fee paid by defendant Devinder Bhatia for the relief of mesne profits and damages is considered as paid for the relief of possession and he will be required to pay the additional court fees if he is awarded the mesne profits as prayed by him. Since I have already held in forgoing issue that there exist relationship of landlord and tenant between the parties, defendant Devinder Bhatia has rightly valued the CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 55 of 63 suit on annual rental of Rs.3,60,000/ of the suit property at the agreed rate of rent of Rs.30,000/ per month and the contention of plaintiff Dharampal Garg that the defendant has not valued the suit on the market value of the suit property for the recovery of possession is not tenable leaving aside the fact that he has not disclosed the market value of the suit property.
62. In the absence of any evidence led by plaintiff Dharampal Garg to the effect that the court fee so affixed by defendant Devinder Bhatia is deficient, it cannot be said that the present suit is undervalued and proper court fee has not been affixed by defendant Dharampal Garg. Hence, this issue is decided against plaint Dharampal Garg (defendant in the said suit).
Issue no. (v) to (vii) ('in suit for possession and mesne profits') (Whether the plaintiff (Devinder Bhatia) is entitled to the decree of possession qua the suit property) & Whether the plaintiff (Devinder Bhatia) is entitled to the decree of permanent and mandatory injunction, as prayed for?
& Whether the plaintiff (Devinder Bhatia) is entitled to the CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 56 of 63 decree of arrears of rent or mesne profit, if so, for which period and at what rate?
63. These issues are taken up together being interlinked and involve common discussions. The onus to prove these issues is on defendant Devinder Bhatia (plaintiff in 'suit for possession and mesne profits').
64. I have already held under Issue No. (iii) in 'suit for possession and mesne profits', that the plaintiff has sold the suit property to defendant Devinder Bhatia vide documents Ex.PW1/2 to Ex.PW1/7 for a sale consideration of Rs. 12 laces. It has also been held that the plaintiff Dharampal Garg after selling the suit property was allowed to remain in the suit property as a licensee and a formal rent agreement was executed between the parties on 29.02.2016 Ex. PW1/8. It has also come on record that the defendant Devinder Bhatia had terminated the tenancy of plaintiff vide legal notice dated 15.09.2016 Ex. PW1/9 because he has failed to pay the rentals of the suit property w.e.f. June 2016 in breach of the rent agreement. The said legal notice was duly served upon plaintiff Dharampal Garg and same was also replied vide reply dated 02.10.2010 CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 57 of 63 DW1/11.
65. Since the defendant Devinder Bhatia has terminated the tenancy of plaintiff Dharampal Garg vide legal notice which has not been complied with by the plaintiff, therefore the defendant is entitled to decree of possession of the suit property.
66. Defendant Devinder Bhatia has claimed that the plaintiff was inducted as tenant in the suit property at the monthly rent of Rs. 30,000/ per month vide rent agreement dated 29.02.2016 and the said tenancy was for a period of 11 months w.e.f. 01.03.2016 to 31.03.2017 and he has paid the rentals for two months and is in arrears of rent since June 2016. Plaintiff Dharampal Garg has not rebutted the said contention of defendant Devinder Bhatia by way of crossexamination of PW1 nor led any evidence to the effect that he has paid the rentals during the said period. So far the plea of plaintiff Dharampal Garg that he is not a tenant and had not sold the suit property to the defendant and property documents were kept by him as security is concerned, the said contention has already been rejected by me under foregoing discussions. CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 58 of 63 Therefore, it is held that the plaintiff was tenant under the tenancy of defendant Devinder Bhatia and is in arrears of rent since June 2016 and defendant is entitled to recover the same. He is entitled to recover the arrears of rent w.e.f June 2016 @ Rs. 30,000/ per month till 30.09.2016.
67. As tenancy of plaintiff Dharampal Garg was terminated vide legal notice dated 15.09.2016 and 15 days time was granted to him to vacate the suit property, but he failed to do so, hence after expiry of notice period, the status of the plaintiff in the suit property is of an unauthorized occupant and he is liable to pay unauthorized occupation charges to defendant Devinder Bhatia. Defendant Devinder Bhatia has claimed damages and mesne profits at the agreed rate of rent i.e. Rs.30,000/ per month, which does not appear to be on higher side. Therefore, the defendant Devinder Bhatia is entitled to recover mesne profits towards unauthorized occupation charges from the plaintiff Dharampal Garg @ Rs. 30,000/ per month w.e.f. 01.10.2016 till he vacates the suit property.
68. Since defendant Devinder Bhatia has been able to establish CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 59 of 63 that he has purchased the suit property from the plaintiff vide documents Ex.PW1/2 to Ex. PW1/7 and has better title than the plaintiff Dharampal Garg ,who was tenant of defendant Devinder Bhatia in the suit property and whose tenancy was terminated and plaintiff is occupying the suit property as an unauthorized occupant, he cannot sell, transfer or alienate or part with possession of the suit property.
69. Since decree of possession of the suit property has already been granted to defendant Devinder Bhatia and plaintiff Dharampal Garg is held to be an unauthorized occupant in the suit property, he has no right, title or interest in the suit property and he is directed to remove all his goods and articles from the suit property. These issues are accordingly passed in favour of defendant Devinder Bhatia and against plaintiff Dharampal Garg.
Issue No. 4 and 5
(In 'suit for declaration and injunction') (Whether plaintiff (Dharampal Garg) is entitled to relief of mandatory injunction, as prayed for?) & (Whether plaintiff (Dharampal Garg) is entitled to relief of permanent CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 60 of 63 injunction, as prayed for?)
70. In view of my findings under Issue Nos. (ii) to (iv) in 'suit for possession and mesne profits', since the plaintiff has miserably failed to prove his case that he is owner of the suit property and executed the documents Ex.PW1/2 to Ex. PW1/8 only for security purposes and further since defendant Devinder Bhatia has been held entitled to decree of possession of the suit property, the plaintiff cannot be said to be entitled for the decree of permanent and mandatory injunction as prayed for. Hence, these issues are decided against plaintiff Dharampal Garg and in favour of defendant Devinder Bhatia.
RELIEF
71. In view of my above issue wise findings in both the suits, the suit filed by the plaintiff Dharampal Garg is dismissed and the suit filed by defendant Devinder Bhatia is decreed. Consequently, a decree of possession is passed in favour of defendant Devinder Bhatia and against plaintiff Dharampal Garg in respect of the suit property i.e. one shop measuring 50 sq. yards, portion of Plot No. 12A, Out of CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 61 of 63 Khasra No. 42/6, situated in the area of Village Hastsal, Delhi State, colony known as Block K5, Mohan Garden, New Delhi. Defendant Devinder Bhatia is also entitled to recover the arrears of rent from plaintiff Dharampal Garg w.e.f. June 2016 till 30.09.2016 @ Rs.30,000/ per month and thereafter unauthorized occupational charges/mesne profits at the same rate i.e. @ Rs. 30,000/ per month w.e.f 01.10.2016 till the vacation of suit property by the plaintiff. However, defendant Devinder Bhatia is required to pay court fees on the mesne profits so awarded to him w.e.f. 01.10.2016 till the date of order.
72. A decree of permanent injunction is also passed in favour of defendant Devinder Bhatia and against plaintiff Dharampal Garg whereby plaintiff Dharampal Garg, his agents, associates etc. are restrained from transferring, alienating or otherwise parting with possession of the suit shop till he remains in possession of the suit property. A decree of mandatory injunction is also passed against plaintiff Dharampal Garg and he is directed to remove all his goods from the suit shop.
CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 62 of 63
73. Defendant Devinder Bhatia is also entitled to cost of the suit filed by him.
74. Decree sheet be prepared accordingly on deposit of court fees by defendant Devinder Bhatia on the mesne profits so awarded to him.
75. File be consigned to Record Room after necessary compliance.
Announced in the open Court (Balwant Rai Bansal) on 16th May, 2019 Addl. District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 522/18 Dharampal Garg vs. Devinder Bhatia & CS No. 102/18 Devinder Bhatia vs. Dharampal Garg Page 63 of 63