Delhi District Court
Om Mishra vs Sunil Kumar Rajauria on 6 August, 2016
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 476448/15
Case I.D. Number : 02402C0006752014
IN THE MATTER OF :
Om Mishra
S/o Sh. Kashi Ram Mishra
R/o D162, Gali No. 5,
Bhajanpura, Delhi110053 ...... Plaintiff
V E R S U S
Sunil Kumar Rajauria
S/o Sh. Shiv Narayan Sharma
D433, Gali No. 9,
Bhajanpura, Delhi110053 ......Defendant
Date of Institution of suit : 09.01.2014
Received in this Court : 25.02.2014
Arguments heard on ` : 06.08.2016
Date of Judgment/Order : 06.08.2016
Decision : Suit is decreed with cost.
CS No. 476448/15 Page 1 of 20
Om Mishra V/s Sunil Kumar Rajauria
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
SUIT FOR RECOVERY OF RS. 5,05,618/
J U D G M E N T
1. This suit has been filed by the plaintiff against the defendant praying for
recovery of Rs. 5,05,618/ alongwith interest @ 24 % per annum.
2. Plaintiff has averred that on 23.02.13, an agreement to sell was entered
into between the plaintiff and defendant in respect of property measuring 62.70
Sq. meter situated in Khasra No. 434, bearing property No. D190( New No.
D433), Village Ghonda Gujran in the abadi of DBlock, Gali No. 9, Bhajan
Pura, Illaqa Shahdara, Delhi53 with one two wheeler parking for total sale
consideration of Rs. 34,00,000/. The plaintiff paid on 22.02.13 Rs. 1,00,000/
as earnest money vide cheque No. 120280, Rs. 1,00,000/ on 19.04.13
deposited in the account of defendant, Rs. 80,000/ through cheque No.
741745 dt. 22.05.13, Rs. 50,000/ through cheque No. 745633 dt. 08.08.13 and
Rs. 1,70,000/ in cash( Rs. 80,000/ on 13.04.13, Rs. 29,000/ on 10.05.13, Rs.
40,000/ on 12.07.13 and Rs. 21,000/ on 20.09.13) in view of the agreement to
sale towards total sale consideration. It was settled vide agreement dt. 23.02.13
that in case the loan is not sanctioned, the deal shall be cancelled and amount
shall be refundable. The plaintiff tried to avail the housing loan which was
refused due to non sanctioned plan of the building. The plaintiff requested the
defendant at several occasion to provide previous chain of documents
alongwith building plan but of no avail. The loan application applied by
CS No. 476448/15 Page 2 of 20
Om Mishra V/s Sunil Kumar Rajauria
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
plaintiff has also been rejected accordingly. The plaintiff issued legal notice dt.
25.10.13 which was replied vide reply dt. 29.10.13. As the defendant failed to
return the earnest money, this suit is filed by plaintiff against the defendant.
3. The defendant filed Written statement contending that this suit is not
maintainable and is liable to be dismissed U/o 7 Rule 11 CPC as there is no
cause of action for filing of the suit. As contended, plaintiff has concealed the
material facts and plaintiff has not paid the appropriate court fee; this suit is a
counter bast of the legal notice dt. 17.10.13 sent by the defendant. The
defendant admitted the execution of agreement dt. 23.02.13 alongwith terms
and condition mentioned therein but the defendant claimed that plaintiff failed
to pay the balance payment within the prescribed period therefore earnest
money paid by the plaintiff was forfeited for non compliance of terms and
condition of the agreement. The defendant also admitted the receipt of Rs.
5,00,000/ as earnest money but denied the claim of the plaintiff. The
defendant lastly prayed that suit of the plaintiff be dismissed with cost.
4. Replication to the WS of the defendant was filed by the plaintiff
whereby the plaintiff has reiterated and reaffirmed the contentions as
mentioned in the plaint.
5. In view of the pleadings of the parties, following issues were framed
vide order dated 13.05.2014:
(i) Whether the plaintiff is entitled for decree of Rs.
CS No. 476448/15 Page 3 of 20
Om Mishra V/s Sunil Kumar Rajauria
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
5,05,618/ alongwith interest @ 24 % per annum as prayed in
the suit? OPP
(ii) Relief.
The case was thereafter fixed for plaintiff's evidence.
6. In support of his case, the plaintiff examined himself as PW1 by way of
affidavit Ex. PW1/A. By way of his affidavit of evidence, the plaintiff has
reiterated the facts mentioned in the plaint. The witness has also relied upon
the relevant documents i.e. original agreement of sale dt. 23.02.13 Ex. PW 1/1,
copy of the passbook issued by OBC bank Ex. PW 1/ 2( OSR), Cheque deposit
slip Ex. PW 1/ 3, Copy of letters received from HDFC bank Ex. PW 1/ 4 and
Ex. PW 1/ 5, copy of the legal notice dt. 25.10.13, speed post coupne and reply
dt. 29.10.13 Ex. PW 1/ 6 to Ex. PW 1/ 8 respectively, attested copy of
photographs of the property with refusal for housing loan by DHFL Ex. PW
1/9. Copy of chain of suit property containing 48 pages mark A, photocopy of
cheque No. 745650, photocopy of cheque No. 745630, photocopy of loan
application of OBC mark B to D respectively.
Plaintiff further examined other witness i.e. Sh. Kanhaiya Lal as PW2
by way of affidavit Ex. PW 2/1 who is witness of the documents. He deposed
nothing but as deposed by PW1.
Plaintiff further examined witness Sh. Diganta Baruah as PW3 who
appeared with the summoned record i.e. letter cum statement dated 07.04.16
CS No. 476448/15 Page 4 of 20
Om Mishra V/s Sunil Kumar Rajauria
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
Ex. PW 3/1. As no other witness remained to be examined on behalf of
plaintiff, PE was closed and case was fixed for DE.
7. The defendant examined himself as DW1 vide his affidavit by way of
evidence Ex. DW1/A and deposed regarding the averments as mentioned in the
written statement. The witness has also relied upon the relevant documents i.e
legal notice dt. 17.10.13 Ex. DW 1/1, postal receipt ( two in numbers) dt.
18.10.13 Ex. DW 1/ 2 and Ex. DW 1/ 3, reply dt. 29.10.13 to the legal notice
dt. 25.10.13 already exhibited as Ex. PW 1/ 8 and copies of postal receipts dt.
30.10.13 Ex. DW 1/5 to Ex. DW 1/7. The DE was thereafter closed.
8. I have heard the Ld. Counsel for the parties and considered the relevant
materials on record. I have also gone through the relevant provisions of law.
My finding on the above said issue is as under:
ISSUE No. I :
(i) Whether the plaintiff is entitled for decree of Rs.
5,05,618/ along with interest @ 24 % per annum as prayed in
the suit? OPP
9. The onus to prove this issue i.e. regarding entitlement of the amount as
prayed in the suit was upon the plaintiff.
10. It is well settled that a suit has to be tried on the basis of the pleadings
of the contesting parties which is filed in the suit in the form of plaint and
CS No. 476448/15 Page 5 of 20
Om Mishra V/s Sunil Kumar Rajauria
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
written statement and the nucleus of the case of the plaintiff and the contesting
case of the defendant in the form of issues emerges out of that. Being a civil
suit, this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that
the Power of Attorney Ex. PW3/1 and the Will Ex. P1
were duly executed by the deceased Sh. Sohan Singh. The
Power of Attorney is after all a registered Power of
Attorney, and more importantly, the original title
documents of the subject property are in the possession
of the respondent No. 1 and which would not have been,
if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
CS No. 476448/15 Page 6 of 20Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities
11. Section 101 of the Evidence Act, 1872 defines " burden of proof" which is reproduced as below: " 101. Burden of proof whoever desires any CS No. 476448/15 Page 7 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
12. Section 20 of the Specific Relief Act, 1963 provides that jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. The specific performance is an equitable relief and Section 20 of the Act preserves judicial discretion. The relief U/S 20 is not automatic as the Court is required to see the totality of the circumstances which are to be assessed by the Court in the light of facts and circumstances of each case. The party who seek specific performance being an equitable relief must come to the court with clean hands and while exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties and the motive behind the CS No. 476448/15 Page 8 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi litigation.
13. In a suit for Specific Performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant and readiness and willingness of the plaintiff to perform his part of the contract. The relevant provision of law i.e. Section 16 (c ) of the Specific Relief Acts mandates readiness and willingness on the part of the plaintiff as a condition precedent to seek specific performance. Section 16 (c ) is reproduced hereunder: " Section 16. Personal bars to relief Specific performance of a contract cannot be enforced in favour of a person XXX XXX XXX ( C) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation. For the purposes of clause ( c ), where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; the plaintiff must aver performance of, or readiness CS No. 476448/15 Page 9 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi and willingness to perform, the contract according to its true construction."
14. As held by Hon'ble Delhi High Court in RFA No. 83/2007, the readiness and willingness are two separate issues. The former depends upon the availability of the requisite funds whereas the later depends on the intention of the purchaser. The readiness has to be proved by the purchaser by leading evidence relating to the availability of the funds whereas the intention has to be inferred from the various circumstances on record. If there is not availability of the funds with the purchaser, he can be none suited on the ground of non readiness alone. If the plaintiff is able to show and prove the availability of balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform cannot be inferred from readiness alone. It is the duty of the Court to find out which party has not performed his part of the contract and the Court has to take into consideration the human probabilities, ordinary course of human conduct and commonsense to draw necessary inference. The Court has to minutely examine the conduct of the parties in order to ascertain the truth.
15. In N. P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao, ( 1995) 5 SCC 115, the Supreme Court held that the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the " readiness" and " willingness" of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of CS No. 476448/15 Page 10 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi decree. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbing in real estate business without means to purchase the suit property and the very contract was speculative in nature.
In R. C. Chandiok V. Chunni Lal Sabharwal, (1970) 3 SCC 140, the Supreme Court held that " readiness" and " willingness" cannot be treated as a straitjacket formula. It has to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.
16. The brief and relevant facts for filing of the suit along with the defence of the defendant is mentioned at the outset. The plaintiff examined himself as PW1 in support of the case and also proved the relevant documents. At the outset, it is relevant to note that the execution of the agreement between the parties dt. 23.02.13 Ex. PW 1/1 is not denied. The defendant further admitted receipt of Rs. 5,00,000/ as earnest money. The only contentions of the defendant remained that the earnest money was forfeited as plaintiff failed to pay the balance consideration. I have gone through the agreement executed between the parties Ex. PW 1/ 1 and clause3 of the agreement contained that in case the loan is not sanctioned, the deal shall be cancelled and money shall be refundable without any interest. The plaintiff during cross examination admitted that he has not paid the amount as per the schedule in the agreement. It is further apparent and proved from the records that plaintiff applied for the loan to purchase the property in question which was not sanctioned. It is also proved in view of the testimony of plaintiff as well as PW3 that application of CS No. 476448/15 Page 11 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi plaintiff for loan with HDFC was rejected and was not processed due to lack of the documents including property documents of the proposed property of the seller. The testimony of defendant/ DW1 was totally shattered during his cross examination and defendant admitted the terms and condition of the agreement; the original documents of the property to be sold not in possession of the defendant and the defendant himself has taken loan in 2006. It is also admitted by DW1 that he has received the legal notice of the plaintiff and replied the same. In any case, the plaintiff cannot held responsible for non sanctioning of the loan as he has taken appropriate steps in pursuance of the agreement to sale Ex. PW 1/ 1. The defence of the defendant appeared to be the contradictory as on one hand he claimed that earnest money has been forfeited and on the other hand, the original documents was not given by him to plaintiff for getting the loan and plaintiff failed to pay the amount due to nonsanction of loan as per Clause3 of agreement to sell Ex. PW 1/1. The defendant is liable to refund the amount or money received by him in view of Clause3 of Ex. PW 1/1 without interest. It is also settled that defendant cannot be permitted unjust enrichment at the cost the plaintiff.
17. The ld. Counsel for defendant has relied upon the judgment i.e. Civil Appeal No. 7588 of 2012 titled Satish Batra V/s Sudhir Rawal. The ratio of the judgment relied upon by ld. Counsel for defendant is not applicable in the facts and circumstances of the case. The claim of the defendant that plaintiff was not ready and willing to perform his part of agreement appears to be without any ground as plaintiff was ready to comply the terms and condition of the agreement Ex. PW 1/ 1 even at the time of cross examination as deposed by CS No. 476448/15 Page 12 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi him. There appears to be no ground for the defendant to forfeit the earnest money at all. The breach of contract gives right to remedy and relief of damages U/s 73 of the Indian Contract Act, 1872. I have gone through the judgment of Hon'ble Delhi High Court reported as 182(2011)DLT 646 titled Dilip Kumar Bhargava V/s Urmila Devi Sharma & Ors. The ratio of judgment is squarely applicable in the facts and circumstances of this case. As held in para 6: "A contract pertaining to breach of an Agreement to Sell is a contract when loss can be calculated, the loss ordinarily being the lesser value of the immovable property on the date of the contract. Such contracts of Agreements to sell, being contracts where damages can be calculated, even if, there is a provision of forfeiture of a huge amount of Rs. 5 lacs, the same would be a clause in terrorem. The clause being in the nature of a penalty or in terrorem, such forfeiture of a huge amount cannot be allowed unless damages are actually proved, the law being that Section 74 only provides the outer limit of damages which can be awarded. The Court always awards reasonable compensation depending upon the outer limit of compensation / damages which are prescribed under the contract, and which are in the nature of liquidated damages under Section 74 of the Contract Act. The present case, and other similar cases of breaches of Agreement to sell, must be distinguished from those class of cases where loss cannot be proved and which contracts CS No. 476448/15 Page 13 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi were the subject matter before the Supreme Court in the cases reported as O.N.G.C. v Saw Pipes Ltd. III (2003) SLT 324=II (2003) CLT 242(SC)=2003(5) SCC 705 and Sir Chunilal V. Mehta & Sons. Ltd. V Century Spinning and Manufacturing Co. Ltd, AIR 1962 SC 1314 (1)".
Para No. 7: "On reading of the aforesaid decisions of the Supreme Court it becomes clear that there cannot be forfeiture of an amount which is paid by a buyer under an agreement to sell to the respondents, even if, the buyer is guilty of breach of contract because the seller who has received monies, cannot forfeit the monies unless he has suffered loss in the bargain. A seller ordinarily suffers loss under an Agreement to sell only, if value of the property decreases as per the breach committed by the buyer/plaintiff/ appellant and in the present case, no loss has been pleaded or proved by the respondents. Even assuming therefore that the appellant/ plaintiff is guilty of breach of contract, the respondent No. 1 at best can forfeit only a reasonable amount and not an amount of Rs. 10 lacs out of the total sale consideration of Rs. 55 lacs. It could not be argued with any conviction by the learned Counsel for the respondent No. 1/ defendant No. 1 that there are any pleadings in the trial Court that the respondent No. 1/ defendant No. 1 has been caused loss in any manner including by the value of the CS No. 476448/15 Page 14 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi property having gone down. It is because of lack of any pleadings in this behalf that the respondent No. 1/defendant No. 1 led no evidence as to any fall in the value of the property by a specific amount of Rs. 10 lacs so as to entitle him to forfeit the amount of Rs. 10 lacs received as advance price".
18. The ratio of judgment of Hon'ble Supreme Court in MANU/SC/0122/2014 titled Maya Devi V/s Lalta Prasad is also squarely applicable in the facts and circumstances of this case. As held : "Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a contract containing a covenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by section 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the court has subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of tile cases. Jurisdiction of the court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the CS No. 476448/15 Page 15 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi court duty to award compensation according to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of 'actual loss or damage'; it does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breach".
"Before turning to the question about the compensation which may be awarded to the plaintiff, it is necessary to consider whether Section 74 applies to stipulations for forfeiture of amounts deposited or paid under the contract. It was urged that the section deals in terms with the right to receive from the party who has broken the contract reasonable compensation and not the right to forfeit what has already been received by the party aggrieved. There is however no warrant for the assumption made by some of the High Courts in India, that Section 74 applies only to cases where the aggrieved party is seeking to receive some amount on breach of contract and not to cases where upon breach of contract an amount received under CS No. 476448/15 Page 16 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi the contract is sought to be forfeited. In our judgment the expression "the contract contains any other stipulation by way of penalty" comprehensively applies to every covenant involving a penalty whether it is for payment on breach of contract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty not to enforce the penalty clause but only to award reasonable compensation is statutorily imposed upon courts by Section 74. In all cases, therefore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of contract which expressly provides for forfeiture, the court has jurisdiction to award such sum only as it considers reasonable but not exceeding the amount specified in the contract as liable to forfeiture".
19. From the pleadings of the parties, testimony of the witnesses and documents on records, it is proved that the agreement dt. 23.02.2013 was executed and the defendant have received earnest money of Rs. 5,00,000/ from plaintiff. The testimony of defendant was totally shattered and appears to be contrary to the contentions to the WS. In view of the ratio of judgment of Maya Devi ( supra), the agreement regarding forfeiture of the earnest money cannot be enforced as the defendant failed to prove that he had suffered any damages and is entitled for the amount by way of penalty. The defendant admittedly received the earnest money from the plaintiff and failed to return without any basis and therefore cannot be permitted to be enriched unjust and CS No. 476448/15 Page 17 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi at the cost of the plaintiff. The defendant was accordingly under obligation to return the earnest money of the plaintiff which he failed to do and therefore he is liable to make the payment alongwith interest. By no stretch of imagination, the plaintiff can be considered having committed breach of contract. The judgment relied upon by ld. counsel for defendant is not applicable in the facts and circumstances of the case nor helpful to the defendant.
20. The plaintiff led evidence and proved the relevant documents, the testimony of plaintiff remained unimpeached and uncontroverted and therefore there is no reason to disbelieve the same. The documents relied by the plaintiff are duly proved as per law. The testimony of DW was thoroughly controverted. The defence of defendant is accordingly not reliable and defendant failed to discharge the onus. As the defendant failed to return the earnest money despite service of legal notice, the defendant is liable to pay the amount alongwith interest as prayed in the suit. As held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The defendant has failed to produce any oral or documentary evidence to prove the contentions. This Court is therefore of the considered view that the defendant has failed to discharge the onus and rebut the claim of the plaintiff. Merely oral contentions is not sufficient to deny the claim of the plaintiff. Plaintiff is accordingly entitled for amount of Rs. 5,00,000/. In view of the aforesaid discussion and admitted facts, the defendant is liable to make the payment of the earnest money to the plaintiff alongwith interest as per prevalent market rate and interest @ 10% p.a appears to suffice the purpose. Issue No. I is accordingly decided in favour of the CS No. 476448/15 Page 18 of 20 Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi plaintiff and against the defendant.
21. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
CS No. 476448/15 Page 19 of 20Om Mishra V/s Sunil Kumar Rajauria Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
22. In view of the pleadings of the parties, testimony of the witnesses and documents on record, this court is of the considered view that plaintiff is entitled for the decree as prayed in the suit. The plaintiff is entitled for an amount of Rs. 5,00,000/ along with interest as per the prevalent market rates i.e. @ 10% per annum from the filing of this suit till realization of the amount. Issue No. I is disposed off accordingly.
Relief:
23. In view of the aforesaid discussions and for the reasons recorded, the suit of the plaintiff is decreed in the following manner:
(a) Plaintiff is granted a decree for recovery of Rs. 5,00,000/ alongwith interest @ 10% p.a. from the date of filing of this suit till realization of the amount;
(b) Plaintiff is granted costs of suit.
24. Decree sheet be drawn accordingly.
25. File be consigned to record room.
Announced in open Court
on this 06th day of August, 2016
G. N. Pandey
Addl. District Judge02 (NE)
Karkardooma Courts, Delhi.
CS No. 476448/15 Page 20 of 20
Om Mishra V/s Sunil Kumar Rajauria