Delhi District Court
Akash Drall vs Jamna Das on 8 November, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE-02, SOUTH-WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ NO. 17739/2016
CNR No. DLSW010084992016
IN THE MATTER OF:
Sh. Akash Drall
S/o Sh. Ramesh Chand
R/o 124, Mohall Colony
Near M.M.I School
Sector 40, Gurgaon, Haryana ... plaintiff
vs.
Sh. Jamna Dass
S/o Late Sh. Jagan
H.No. T-9/1, Ward No. 3
Kishan Garh Road
Near vikash Hospital
Kishan Garh
New Delhi ... Defendant
Date of institution of petition: 29.10.2010
Date of judgment reserved: 08.11.2023
Date of pronouncement of judgment: 08.11.2023
JUDGMENT
1. The plaintiff has instituted the present suit for recovery of CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 1/28 ₹30,00,000/- (Rupees Thirty lakhs only) along with interest @18% p.a. against the defendant.
2. Briefly stated, it is the case of the plaintiff that he was having a good relationship with the defendant and defendant represented that he is the owner of the Agriculture land measuring 9 bighas 12 biswas comprising in khasra No.s. 15/21(4-16), 15/22 (4-16) and 16/25 (4-16) situated in the Revenue Estate of Village Daulat Pur, Delhi (hereinafter referred as Suit property) and offered the plaintiff to purchase the same and the plaintiff accepted the offer and entered into into an agreement to sell dated 12.03.2007 with the defendant for total sale consideration of ₹90,00,000/- (Rupees Ninety lakhs only) and out of which ₹30,00,000/- (Rupees Thirty lakhs only) was paid by the plaintiff to the defendant as earnest money i.e. ₹18,00,000/- (Rupees Eighteen lakh only) was paid in cash and the balance ₹12,00,000/- (Rupees Twelve lakh only) was paid through two two cheques bearing no. 609053 dated 12.03.2007 drawn upon UCO Bank, Civil Lines, Gurgaon and the second cheque bearing no. 502477 dated 12.03.2007 drawn upon Indian Bank, Gurgaon.
3. It is further averred that as per the agreement to sell, the last date of the bargain was 12.05.2017 with a condition that the defendant would obtain NOC & ITCC and inform the plaintiff within 10 days from receipt of NOC/ITCC and it was further agreed that if defendant fails to obtain the NOC/ITCC within agreed period, then agreed period would be automatically CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 2/28 extended till the time of the NOC/ITCC are obtained and intimated to the plaintiff. However, the defendant failed to obtain the NOC/ITCC despite repeated reminders and ultimately, the plaintiff suspected something suspicious and accordingly, went to Halqa Patwari, of Village Daulatpur alongwith Sh. Anil on 13.08.2009 and was surprised when on inquiry he came to know that the defendant is not owner of the suit property and the same is in the name of one Dheeraj, Ravinder and Sri Bhagwan all residents of Village Daulatpur
4. It is further averred that thereafter, plaintiff issued a legal notice dated 14.09.2009 calling upon the defendant to either execute the sale deed or to repay the double of the bayana amount i.e. Rs 60 lakh to the plaintiff but the same was received back unserved with the remarks" the addresses left without address"
and thereafter the plaintiff by its utmost efforts traced the new address of the defendant and served a fresh legal notice dated 02.12.2009 upon the defendant but the defendant neither replied the legal notice nor came forward to pay the double of the earnest money.
5. It is further averred that being aggrieved and victim of cheating plaintiff filed a police complaint bearing DD No. 38B dated 13.03.2010 at PS Chhawla but police has not taken any action and having no other efficacious remedy the plaintiff has filed the present suit.
6. Summons for settlement of issues were issued to the defen- dant and in pursuant thereto defendant appeared before the Court CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 3/28 and filed his written statement wherein he has raised the prelimi- nary objections that the suit of the plaintiff is barred by limitation and even the suit is bad for non-joinder and mis-joinder of par- ties.
7. On merits, defendant has denied the execution of agreement to sell dated 12.03.2007 with the plaintiff and claimed that the same is forged and fabricated and denied the payment of Rs. 18 lakh, however, it is his case that he was in need of funds and he had taken a personal loan of Rs. 12,00,000/-(Rupees Twelve lakh only) from the plaintiff through the two cheques bearing nos. 609053 and 502477 both dated 12.03.2007.
8. It is further contended that the suit of the plaintiff is not maintainable as the defendant is not owner of the suit land and the original owners of the land have executed an agreement to sell dated 12.02.2007 in his favour. In rest of the written statement he has denied the rest of the claim of the plaintiff as averred by him in the plaint.
9. In replication the plaintiff has denied the contentions raised by the defendant in written statement and reiterated and recon- firmed the stand taken by him in the plaint.
10. On the basis of pleadings of parties, the following issues were framed on 23.08.2016:-
(1) Whether the suit of the plaintiff is barred by limita-
tion? OPD (2) Whether the suit of the plaintiff is bad for non-joinder of necessary party? OPD CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 4/28 (3) Whether the suit of the plaintiff is not maintainable and liable to be dismissed? OPD (4) Whether the plaintiff is entitled for the recovery of suit amount, as prayed for ? OPP (5) Whether the plaintiff is entitled for interest? If so, at what rate and for which period? OPP (6) Relief
11. In order to prove his case plaintiff examined three wit- nesses i.e. Ramesh Chand as PW-1, Ashok Kumar as PW-2 and plaintiff himself as PW-3.
12. Mr Ramsh Chand appeared before this court as PW-1 and tendered his evidence by way of affidavit Ex PW1/A and also re- lied upon the attested/ certified copy of the khatoni for the year 2002-03, Revenue Estate Village Daulatpur, Tehsil Najafgarh.
13. During the cross examination PW-1 has proved his Aadhar card as Ex PW1/DX1 and admitted the document i.e. Agreement to Sell dated 12.03.2007- Ex PW3/2.
14. Mr Ashok Kumar appeared before this Court as PW-2 and tendered his evidence by way of affidavit Ex PW2/A and relied upon the document tendered by PW-1 i.e. Agreement to Sell dated 12.032.007-Ex PW3/2.
15. Plaintiff appeared before this Court as PW-3 and tendered his evidence by way of affidavit Ex PW3/A and relied upon the following documents:-
(i) Ex PW3/1 is the certified ocpy of Khatoni for the year 2002/2003;CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 5/28
(ii) Ex PW3/2 is the original agreement to Sell dated 12.03.2007;
(iii) Ex PW3/4 is the office copy of legal notice dated 02.12.2009, and
(iv) Ex PW3/5 is the office copy of complaint dated 13.03.2010 filed by him.
16. Thereafter PW-3 is cross examined and discharged and matter was fixed for defendant's evidence.
17. In support of his case, defendant has examined five wit- nesses.
18. Defendant appeared before this Court as DW-1 and ten- dered his evidence by way of affidavit Ex DW1/A.
19. During his cross examination he has admitted the following documents:-
(i) Agreement to sell dated 12.02.2007 and Receipt of pay-
ment made to Dheeraj Singh and Ravinder Singh pursuant to agreement dated 12.02.2007 - Ex DW1/PX-1 and Ex DW1/PX-2
20. Mr. Sanjay Kumar Singh, Manager from the Indian Bank. Gurdwara Road, Gurugram, Haryana appeared before this Court as DW-2 and deposed as under:-
Today I have brought the summoned record i.e. statement of account of saving bank of Raj from 20.02.2007 to 07.05.2007 and same is Ex DW2/A. As per the account statement cheque bearing No. 502477 of Rs 6 lakhs is debited from the account of Ms Raj (account holder) on 16.03.2007, however, CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 6/28 from the statement it is not clear that in whose account the same was credited. I cannot produce the record of the cheque as to why whom the same was presented and in whose account the same was credited as the record pertains to the year 2007 and the same was destroyed vide circular No. Admn.54/2022 to 2023 dated 10.08.2022. Copy of the same marked as Mark -A.
21. Mr Ashok Kumar Meena, Manager from UCO Bank, Gurugram Branch, Haryana has appeared before this Court as DW-3 and proved the summons record :- attested copy of statement in respect of Cheque No. 609053 dated 13.03.2007 having transaction No. 699, name of beneficiary Mohit Hans for a sum of Rs 6 lakhs with debit account No. 10440100007585 and same is Ex DW3/A (running into two pages).
22. Mr Shripal Singh, Scale -1 Officer, Central Bank, GK -1, New Delhi appeared before this Court as DW4 and proved the following documents: -
(i) Authorization letter issued by the bank- Ex DW4/1;
(ii) Account statement in respect of account No. 1006235510 maintained by Sh. Jamna Das for the period 01.01.2006 to 28.02.2007 - Ex DW4/A (Colly)
(iii) bank statement for the period of 01.01.2005 to 31.03.2007 pertaining to account No. 1006235510 in the name of Jamna Das - Ex DW4/B.
23. Mr Jagdish Sharma, Head Cashier, SBI Branch, Mehrauli, New Delhi has appeared before this Court as DW-5 and proved the summoned record i.e. Bank statement of Jamna Das bearing CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 7/28 account No. 10628683569 from 01.01.2007 to 31.03.2007 - Ex DW5/A.
24. Thereafter defendant closed his evidence and matter was fixed for final arguments.
25. Ld. Counsel for the plaintiff has argued that the plaintiff has duly proved the agreement to sell in his evidence and in cross examination defendant has categorically admitted that he is resid-
ing on the same address on which the second legal notice dated 02.12.2009 was sent to him and thus, once the defendant despite receipt of notice never obtained the NOC and ITCC and came forward to execute the sale deed in favour of the plaintiff he is entitled for the recovery of the suit amount.
26. Per Contra, the Ld. Counsel for the defendant has argued that the suit of the plaintiff is barred by law of limitation as ad- mittedly as per Article 19 of the limitation act, the period of limi- tation for the recovery of the amount is three years from the date when payment was made and as in the present case both the cheques through which an amount of Rs. 12 lakh is alleged to be paid to the defendant were dated 12.03.2007, therefore, the plain- tiff should have filed the suit on or before 12.03.2010 but as the suit was filed only on 30.09.2010, same is beyond the period of limitation.
27. He further argued that as it came into the evidence of the plaintiff that out of the two cheques through which the amount of Rs. 12 lakh was alleged to be paid to the defendant, one of the CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 8/28 cheque was issued by the mother of the plaintiff and as she has neither joined the suit with the plaintiff nor authorized him to file the present suit on her behalf against the defendant and therefore, the suit of the plaintiff is also bad for non-joinder of necessary party. He relied upon the judgment titled as Baluram s. P Chel- lathangam & Ors - Civil Appeal Nos. 10940-10941 of 2014 of Supreme Court of India, Narayansa and Ors vs. Ramakrishna & Ors - CRP NO. 2668/97 of Hon'ble High Court of Kar- nataka and Kanakarathanammal vs. V.S. Loganatha Mudaliar and Anr. Decided on 18.12.1963 by the Hon'ble Supreme Court of India.
28. On merits of the case, the Ld. Counsel argued that the agreement to sell is computer typed document and thus, it is a computer output and therefore, necessarily requires a certificate under section 65B of the Indian Evidence Act,1872 and as the necessary certificate has never been filed in the present case by the plaintiff, agreement cannot be read into evidence and he relied upon the judgment titled as P.Gopal Krishnan vs. State of Ker- ala - (2020) 9 Supreme Court Cases 161 and Arjun Panditarao Khotkar vs. Kailash Kushanrao Gorantyal and Ors - Civil Ap- peal Nos. 20825-20826 of 2017 of Hon'ble Supreme Court of India.
29. He further argued that defendant has called the bankers of the plaintiff in the witness box during his evidence and the Man- ager from Indian Bank- DW-2 has deposed that the cheque bear- ing No. 502477 of Rs 6 lakh was debited from the account of Ms. CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 9/28 Raj i.e. mother of the plaintiff on 16.03.2007 but it is not clear as to in whose account the same was credited and the Manager from UCO Bank - DW-3 had produced the copy of statement in re- spect of the cheque encashed from the account of the plaintiff and he has deposed that the same was credited into the account of Mr. Mohit Hans and therefore, there is no evidence on record that both the cheques were encahsed into the account of the defendant.
30. He further argued that even the defendant has called the ac- counts statement of his own bank account maintained with the Central Bank as well as State Bank of India through DW-4 and DW-5, for the relevant period but in none of those statements the amount against the two cheques is reflected.
31. The Ld. Counsel further argued that the plaintiff has never produced any evidence to prove that he was having a huge amount of Rs. 18 lakh in cash,which he has claimed to have paid to the defendant under the alleged agreement and therefore, the plaintiff has miserably failed to prove the part payment of Rs. 30 lakh to the defendant under the agreement.
32. He further argued that as per Section 230 of the income tax Act, no Income tax clearance certificate (ITCC) is required for registration of sale deed by the seller if he is resident and citizen of India and therefore, defendant was not required to procure any such ITCC for the purpose of sale deed and he was always ready and willing to perform his part of the agreement. In order to but-
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 10/28tress his argument he as supplied the copy of Section 230 of the IT Act and the relevant forms.
33. In rebuttal, the Ld. Counsel for the plaintiff has argued that as far as the limitation period is concerned, the suit of the plaintiff is well within the period of limitation and as time was never essence of the contract and as per second part of Article 54 of the limitation Act, cause of action to seek recovery arose in favour of the plaintiff only when despite receipt of legal notice dated 02.12.2009, defendant never came forward to perform his part of the agreement and instead of seeking specific performance, plain- tiff choose to seek recovery of the earnest money because he came to know after visiting the revenue office that defendant is not the owner of the suit property and more so the defendant him- self alongwith his written statement relied upon the agreement to sell dated 12.02.2007 entered into by him with the original own- ers of the suit property and in cross-examination the same was ex- hibited as Ex. PW1/DX1 and the defendant has categorically ad- mitted that the said agreement was never performed and there- fore, otherwise also once the agreement on the basis of which the defendant entered into the agreement to sell with the plaintiff has failed, the only remedy available with the plaintiff was to seek re- covery of the suit amount instead of specific performance.
34. He further argued that once the defendant has admitted the receipt of Rs. 12 lakh against two cheques in his written state- ment and his signatures on the agreement to sell and once it has came into the evidence of the bankers of the plaintiff that both the CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 11/28 cheques were cleared from the account of the plaintiff and his mother, the onus was upon defendant to prove that he had never received the earnest money of Rs. 12 lakh against the cheques and Rs. 18 lakh in cash under the agreement to sell dated 12.03.2007. He further argued the one cannot loose sight of the fact that a cheque is payable to either the bearer or the order and therefore, the defendant might have further handed over the cheque to Mohit Hans for encashment but once the defendant ad- mitted the payment against both the cheques, he cannot resile from the same.
35. I have heard the rival arguments and have gone through the entire judicial file and all the issues are taken up together being interconnected and requires appreciation of common evidence and even finding on one issue has direct bearing on the other.
Issue no. (1) to (5) (1 Whether the suit of the plaintiff is barred by limita-
tion? OPD (2) Whether the suit of the plaintiff is bad for non-joinder of necessary party? OPD (3) Whether the suit of the plaintiff is not maintainable and liable to be dismissed? OPD (4) Whether the plaintiff is entitled for the recovery of suit amount, as prayed for ? OPP (5) Whether the plaintiff is entitled for interest? If so, at what rate and for which period? OPP
36. At the outset, it is relevant to observe that as gathered from the pleadings and the arguments of the parties, defendant is CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 12/28 seeking dismissal of the suit of the plaintiff on the ground of limi- tation and non-joinder of his mother as a necessary party on the premise that the agreement to sell dated 12.03.2007 is a forged document and he has only received the Rs. 12 lakh as friendly loan against both the cheques dated 12.03.2007 from the plaintiff and since as per Article 19 of the limitation Act,1963, the period of limitation is three years from the date of payment/cheques, therefore, plaintiff should have filed the suit on or before 12.03.2010 and as plaintiff has not done so, his suit is beyond the period of limitation and similarly, as one of the cheque was is- sued by the mother of the plaintiff and as she is not joined the present suit alongwith the plaintiff and even not authorized the plaintiff to file the present suit on her behalf, the suit is bad for non-joinder of necessary party.
37. However, on the other hand it is the case of the plaintiff that he has paid the earnest money of Rs. 30 lakh including the cheque amount under the agreement to sell dated 12.03.2007 and once despite notice dated 02.12.2009, defendant never came for- ward to execute the sale deed, cause of action arose in his favour and therefore the suit is within the period of limitation and as the mother of the plaintiff was never party to the agreement to sell, therefore, she was not required to join the present suit alongwith the plaintiff and thus, the suit is neither barred by law of limita- tion nor bad for non-joinder of necessary party.
38. Resultantly, at the first instance, it has to be seen that whether the plaintiff has duly proved the execution of agreement CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 13/28 to sell dated 12.03.2007 or not as in case the agreement to sell is not proved, it is simple case of advancement of loan and in such a case both the defenses of the defendant may be sustainable as ad- mittedly, as per Article 19 of the limitation Act,1963, limitation period is three years from the date when the amount was paid and further, the suit of the plaintiff may also be bad for non-joinder of his mother as a necessary party as it has duly came in evidence of the plaintiff that one of the cheques belongs to his mother, even though it is still debatable that once the defendant has admitted the receipt of both the cheques from plaintiff against alleged loan, how the suit is bad for non-joinder of his mother, as according to the claim of the defendant, the oral agreement is only between the plaintiff and the defendant qua the alleged friendly loan.
39. But on the other hand, if the agreement to sell stands proved by the plaintiff, the entire scenario will change and in that case the limitation period has to be seen as per the terms of the agreement and in addition thereto, the plea of non-joinder of mother as a plaintiff being necessary party, will loose its force in light of Section 2(d) of the Contract Act,1872, which provides that the consideration can be paid by third party to the contract for its performance and in such case the suit of the plaintiff can- not be termed as bad for non-joinder of her mother as plaintiff.
40. Thus, firstly, it is essential to decide the validity of the agreement to sell dated 12.03.2007 which is necessary not only for the purpose of deciding the issue of limitation and non-joinder CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 14/28 of necessary party but also for the relief of recovery of suit amount.
41. It is settled preposition of law that burden proof is always on the person who asserts a fact in the affirmative unless the said fact is expressly or by necessary implication stands admitted by the other party, thus, in the present case once the defendant has denied the execution of agreement to sell dated 12.03.2007 , the burden of proof to prove the agreement was on the plaintiff.
42. In order to prove the agreement to sell, plaintiff examined himself, his father and the attesting witness as PW-1, PW-2 & PW-3. All three witnesses were put to test by the counsel for the defendant and have been examined at a length but after going through the testimony of all the three witnesses, this Court has not found any contradiction. All of them have unequivocally tes- tified that the agreement to sell was executed between the plain- tiff and the defendant and the part sale consideration of Rs. 30 lakh was paid through cheques in question as well as in cash at the house of the defendant. Apart from the father of the plaintiff, attesting witness, PW-2, has duly identified the signatures of the defendant on the agreement to sell and also deposed that the amount was paid in his presence through cheque as well as cash to the defendant at his house in the denomination of Rs.500 and Rs.100 currency notes. They have also unequivocally deposed that at the time of the execution of the agreement to sell, apart from the plaintiff and his father, one master Hem Chand, Anil, at- testing witness Ashok and the defendant were present. They have CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 15/28 also deposed that handwritten portion of the agreement to sell was written by master Hem Chand who was acquaintance of at- testing witness Ashok Kumar.
43. On the other hand the defendant has constantly changed his stand qua the execution of agreement to sell, as in the written statement he has outrightly denied the execution of the agreement to sell and claimed that the same is procured by the plaintiff but in his evidence by way of affidavit, he has changed his stand and taken the plea that at the time of advancement of loan of Rs.12 lakh by way of two cheques in question, plaintiff has taken his signatures on 3-4 blank papers and further, in written statement he has taken the plea that he has only received an amount of Rs. 12 lakh as friendly loan against the two cheques but in his evi- dence by way of affidavit, he has changed the stand and has taken the plea that he has never encashed both the cheques as his requirement was met from independent sources and thereafter, he requested for return of signed papers but father of the plaintiff started dilly-delaying for some reason or the other.
44. In cross examination, he has admitted his signatures on the agreement to sell. He also admitted that he has prior to the agree- ment in question, had entered into agreement to sell dated 12.02.2007 with the original owners of the suit property which was exhibited as Ex. DW1/PX1 and also the receipt as DW1/PX2, which also corroborates the fact that even if the de- fendant was not the owner of the suit property but on the basis of CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 16/28 Ex. DW1/PX1&2, he has the right to enter into agreement to sell with the plaintiff.
45. In addition thereto, on perusal of the agreement it is ob- served that the first page is on a stamp paper of Rs. 50 and thus, it also contradicts the plea of the defendant that his signatures were taken on 3-4 blank papers and it is not explained by the defendant in his evidence that how his signatures came on the stamp paper? and further, as per endorsement of the stamp vendor on the back of the stamp paper, same was got issued by the defendant and de- fendant has never called upon the stamp vendor in the witness box to prove that the same was never got issued by him and moreover, if as per him the cheques were never encashed and de- spite his demands the blank documents were never returned, he has not mentioned any reasons for non-action in the entire written statement against the plaintiff for non return of his alleged blank signed papers.
46. Moreover, once the defendant has claimed that his signa- tures were taken on blank papers at the time of advancement of loan of Rs. 12 lakh as alleged by him, onus was upon him to prove that it was later on converted into agreement to sell by the plaintiff and he never called upon any expert to prove that the contents were later on produced on blank signed papers. Thus, not only the stand of the defendant is self contradictory but also he has miserably failed to discharge his onus.
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 17/2847. Thus, from the aforesaid evidence of the parties, it can be safely held that by preponderance of probabilities, plaintiff by leading affirmative evidence, has duly proved the execution of the agreement to sell dated 12.03.2007 with the defendant and on the other hand stand of the defendant is not believable being self contradictory as for the first time at the stage of his evidence, he has taken the plea that plaintiff has taken his signatures on 3-4 blank papers and misused the same. Therefore, this Court is of the considered view that the agreement to sell is a genuine document executed between the plaintiff and the defendant in respect of the suit property.
48. Counsel for the defendant has also raised the issue that as the agreement to sell is a computer generated document therefore, the same is inadmissible in evidence in absence of necessary cer- tificate filed by the plaintiff under section 65-B of the Indian Evi- dence Act, 1872 and he has also relied upon the judgment of Ar- jun Panditrao (supra).
49. However, this Court is of the considered view that the ar- gument of the Ld. Counsel is not sustainable for the reasons that an electronic document can be produced from the computer in various conditions; record generated using the computer as a tool only, record partly fed by human and partly generated by the soft- ware and information exclusively processed by a software on the basis of footprint left by humans on the electronic device.
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 18/2850. In the first category, the document such as a letter, applica- tion, petition or agreement as in the present case is drafted on the computer and then printout is taken and author appends its signa- tures after verifying the content of the document and in such cases the role of the software has no significance as the software has not been instructed to alter the content of text fed by a human; the only function the computer is serving is to process the infor- mation in the shape of printout immediately after the same is fed in the computer. It would be equivalent to when a person write a letter by a pen or on the typewriter and sign the same after verify- ing its contents.
51. Second category refers to the document where some of the information has been fed and some has been generated by soft- ware consequent to the processing or analysis done by computer such as Account Statement, Online Transactions etc.
52. Third category is the record generated by software such as Call Detail Record, Interception voice clips etc. on the basis of footprints left by a human and in such case, manual intervention is very limited and software has dominant role.
53. Thus, in case the document falls under the first category, it is only a document which is generated with the help of a com- puter but the dominant role has been played by the human and not the computer and such documents are akin to a document written by hand or typed on a type writer. Moreover, the contents of such documents are authenticated by the author or the parties to the CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 19/28 document as a case may be by affixing their signatures immedi- ately after the document is printed. Therefore, such documents cannot be termed as an electronic record and for the purpose of admissibility are governed by Section 61 to 65 of the Indian Evi- dence Act.
54. It is only the second and the third category of electronic documents which are partly or exclusively processed by the com- puter software, requires mandatory certificate under section 65B of the Indian Evidence Act, 1872 in order to establish its authen- ticity, issued by a person who was occupying a responsible posi- tion in relation to the operation of the relevant device or manage- ment of the relevant operation.
55. Legislature in its wisdom being aware of the above anom- aly has not amended the definition of 'Document' in the Indian Evidence Act, 1872 and it is only under section 65B (1) of the IEA, it is provided that any information contained in electronic record which is printed on paper, stored, recorded or copied on optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without fur- ther proof or production of the Original....( emphasis supplied on the underlines words).
56. Therefore, as the contents of the agreement to sell inscribed on the papers is only a document within the definition provided CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 20/28 under Section 3 of the IEA and not a deemed document as per Section 65B (1) of the IEA and thus, no certificate under Section 65B of the IEA is required in such a case. In view of above obser- vations, the judgment of P.Gopalkrishan (supra) and Arjun Panditrao (Supra) are distinguishable from the present case and are not of any help to the case of the defendant..
57. Having decided the admissibility and the validity of the agreement to sell dated 12.03.2007 in favour of the plaintiff, now coming to the relevant clauses of the agreement to sell dated 12.03.2007 of the purpose of deciding the issue of limitation, it is observed that as per clause 4 of the agreement, the balance sale consideration of Rs. 60 lakh was agreed to be paid on or before 12.05.2007 and in clause 10 of the agreement, it was agreed that the defendant will obtain the NOC and ITCC at its own costs and expenses and shall inform the plaintiff within 10 days from the receipt of the NOC/ITCC by regd. Post. If the first party (defen- dant) fails to obtain the NOC ITCC within agreed period, then the agreed period shall be automatically extended till the time neces- sary permissions are obtained by the first party and intimated to the second party.
58. Thus, on co-joint reading of clause 4 & 10 together, at the Ist instance, the agreement was to be performed on or before 12.05.2007 and the defendant was required to obtain the NOC/ITCC within the said period and inform the plaintiff by regd. Post within 10 days from the receipt of NOC/ITCC but in case the defendant failed to obtain the same within agreed period CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 21/28 i.e. 12.05.2007, then the agreed period i.e. 12.05.2007 shall auto- matically be extended till the time necessary permissions are ob- tained by the defendant and intimated to the plaintiff as agreed.
59. Thus, once the defendant failed to obtain the requisite NOC/ITCC on or before 12.05.2007, agreement automatically stands extended till the NOC/ITCC is not obtained by the defen- dant.
60. It is settled preposition of law as reiterated by the Superior Courts that as far as the limitation period for return of earnest money is concerned same is governed by Article 113 of the limi- tation Act,1963 and the period of limitation is three years from the date when the right to sue accrues. In the present case the right to sue accrued in favour of the plaintiff when despite legal notice dated 02.12.2009, defendant never came forward to exe- cute the sale deed in favour of the plaintiff and even it is pre- sumed that the legal notice was never served upon the defendant as the plaintiff has admittedly never produced the postal receipts in his evidence to prove the service of notice dated 02.12.2009 on the defendant, filing of the present suit was itself a notice to the defendant and as the defendant in his written statement at the very outset denied the execution of the agreement to sell dated 12.03.2007, it amounts to refusal of performance on his part and thus, the suit of the plaintiff is well within the period of limita- tion.
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 22/2861. Ld. counsel for the defendant has also raised the argument that neither any NOC nor ITCC was required for the sale of the suit property and therefore, no question of obtaining the same by the defendant arose at all and therefore, as the last date of the bar- gain was fixed for 12.05.2007, the limitation period for recovery of the suit amount had expired no 12.05.2010 and therefore, the suit even on the basis of the agreement to sell is beyond the pe- riod of limitation and he has even placed on record the copy of bare provision of Section 230 of the Income Tax Act,1961 in or- der to buttress his argument.
62. Even though, the Ld. Counsel has referred wrong provision of the Income Tax Act, 1961 in his support and rather it was Sec- tion 230A of the Act, which had put restriction on the registration of the sale deed unless the Income-tax Officer issues a necessary certificate under Sub Clause 2 of the Section 230A of the Act but at the same time, it is apposite to observe that Section 230A of the Income Tax Act, 1961 already stands omitted by Finance Act, 2002 w.e.f. 01.06.2001.
63. Thus, if it is accepted that no ITCC certificate was required for the registration of the sale deed no evidence is lead by the de- fendant and even no document in support of this contention is supplied by the Ld. Counsel for the defendant at the time of argu- ments to show that no such NOC was required for the purpose of sale of agricultural land in Delhi.
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 23/2864. There is another aspect of the argument advanced by the Ld. Counsel that even if it is believed that neither the NOC nor the ITCC was required for the purpose of execution of sale deed, the said plea goes against defendant rather than the plaintiff as if that was the scenario, firstly, there was no need for insertion of such condition in the agreement itself and secondly, even if it was so inserted, defendant should have informed the plaintiff within the agreed period of two months that no such NOC and ITCC was required for the purpose of execution of sale deed and he could have asked the plaintiff to come forward and get the sale deed ex- ecuted in his favour on payment of balance sale consideration. Thus, the argument as raised by the Ld. Counsel for the defendant is not sustainable.
65. As far as the plea of the defendant that the suit is bad for non-joinder of mother as a plaintiff, as already observed by this Court, as per Section 2 (d) of the Indian Contract Act, 1872, con- sideration can be paid by a third party to the contract but by virtue of doctrine of privity of contract, only parties to the agreement can sue each other on the breach of the contract and in the present case, the mother of the plaintiff was admittedly never a party to the agreement to sell dated 12.03.2007. Therefore, the suit of the plaintiff is not bad for non-joinder of necessary party. All the judgments relied upon by the defendant are distinguishable from the facts of the present case and thus, are not of any help to the case of the defendant.
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 24/2866. In view of the discussion and observations made above, is- sue no. (1) and (2) are decided against the defendant and in favour of the plaintiff.
67. Now coming to Issue no.(4) that whether the plaintiff is en- titled for the recovery of Rs 30 lakh, after going through the cross-examination of the PW-1 to PW-3, it is observed that they have deposed that the amount of Rs. 18 lakh was paid to the de- fendant at his home in the denomination of Rs. 500 and Rs.100 currency notes and in addition thereto, once the agreement to sell and the receipt annexed with the agreement duly stands proved before this Court, the onus shifts upon the defendant to establish that he has not received any such amount in cash but admittedly nothing material from the cross examination of the plaintiff and his father has come in favour of the defendant and even he has not led any independent evidence to discharge this onus and throughout the suit, as already observed, he constantly tried to change his stand.
68. As far as remaining amount of Rs. 12 lakh is concerned, at the first instance, the defendant himself admitted the receipt of the same against the two cheques in his written statement but with the caveat that the same was received by him as friendly loan from the plaintiff and later on he tried to resile from the above ad- mission. It is also relevant to observe that the defendant has ad- mitted the receipt of Rs 12 lakhs against the two very same cheques which are mentioned in the agreement to sell dated 12.03.2007.
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 25/2869. No doubt the defendant has tried to disprove the receipt of amount of Rs 12 lakh by calling the bankers of the plaintiff and his mother as well as his own bankers but once it has come into the deposition of the bankers of the plaintiff and his mother that both the cheques were encashed on presentation, the onus to rebut the non receipt of Rs 12 lakhs in light of his own admission in the written statement is little heavier than mere preponderance of probabilities on the defendant.
70. This Court also finds force in the argument of the Ld. Counsel for the plaintiff that as far as the encashment of the cheque of the plaintiff into the account of one Mr Mohit Hans is concerned, once the defendant has admitted that he has received the cheque from the plaintiff, it is immaterial for the plaintiff that in whose account the said cheque was encashed and as the cheque is payable to the order or the bearer, thus the onus was on the de- fendant to establish that despite receipt of the cheque the same was not encahsed by him through Mohit Hans.
71. As far as the cheque of the mother is concerned in absence of any evidence on record in whose account the same was en- cashed, in light of the admission of the defendant, it can be safely presumed that the same was encashed by him. The plea of the de- fendant that in his bank statements of the relevant period of SBI and Central Bank as the encashment of the cheque issued by the mother of the plaintiff is not reflected is also not sustainable as it has not come on record that apart from the two bank accounts, de- fendant was or is not having or holding any other bank account CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 26/28 apart from the ones maintained by him with Central Bank and State Bank of India.
72. One aspect of the matter is also relevant to discuss that the defendant started resiling from his admission qua the receipt of Rs. 12 lakh through cheques found mentioned in the agreement to sell only after the evidence of the plaintiff was over and even the defendant filed an application for amendment of the written state- ment to amend the relevant paragraphs wherein he had admitted the receipt of Rs 12 lakhs in his written statement but his amend- ment application was dismissed by the Predecessor of this Court and even the Hon'ble High Court confirmed the order of dis- missal of the application.
73. Thus, in view of the detailed discussion made above, the plaintiff has duly proved the payment of Rs 30 lakh to the defen- dant as part payment under the agreement to sell dated 12.03.2007. Accordingly, the issue no. (4) is decided in favour of the plaintiff and in favour of the defendant.
74. Consequently, on the basis of the findings given by this Court on issue Nos. (1), (2) and (4), the present suit filed by the plaintiff is held to be maintainable and accordingly, the issue No. (3) is also decided against the defendant and in favour of the plaintiff.
75. Now coming to Issue no. (5) regarding the relief of interest @ 18% as claimed by the plaintiff, in the considered view of this Court the same is excessive but simultaneously, as the plaintiff is CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 27/28 forced to fight this protracted litigation for more than 13 years at the hands of the defendant, this Court is of the view that that in order to meet the ends of justice and balance the equity between the parties, interest @ 9 % p.a. will be appropriate payable on the suit amount of Rs. 30 lakh from the date of payment till realiza- tion.
Relief:
76. In view of my issue-wise finding, suit of the plaintiff is hereby decreed for the recovery of Rs. 30 lakh alongwith interest @ 9 % p.a. payable from the date of payment till realization against the defendant.
77. Cost of the suit is also awarded in favour of the plaintiff.
78. Decree sheet be drawn accordingly, as per rules.
79. File be consigned to record room only after completion of all necessary compliance and due formalities, as per rules.
Note: This judgment is having 28 pages and each page is bearing my signature. Digitally signed Sachin by Sachin Jain Date:
Jain 2023.11.10
13:17:19 +0530
Pronounced in the open (SACHIN JAIN)
Court on 08.11.2023 Addl. District Judge-02,
South West
Dwarka Courts Complex, Delhi
CS DJ ADJ NO. 17739/16 Akash Drall vs. Jamna Das Page No. 28/28