Delhi District Court
Thc vs Sh. Rakesh Kumar on 18 December, 2012
IN THE COURT OF SH. PANKAJ ARORA, LD. CIVIL JUDGE, WEST,
THC, DELHI
Suit No. 447/12
1 Sh. Ramesh Kumar Rajpal,
S/o Sh. Jagan Nath Rajpal,
Sole Prop. M/s Rajpal Properties,
B1/44 Janakpuri, New Delhi.
2 Sh. Vijender Aggarwal,
S/o Late R.C. Aggarwal,
Sole Prop. M/s Aggarwal Properties,
B1/127 Janakpuri, New Delhi. ......Plaintiff.
Vs.
1 Sh. Rakesh Kumar
S/o Sh. Chothu Ram Chhabra,
R/o A44, East Uttam Nagar,
New Delhi110059.
2 Sh. Manjit Singh,
S/o Late S. Sardar Singh,
R/o BL16, Anand Vihar,
LBlock, Hari Nagar,
New Delhi110064. .....Defendant.
Date of institution: 17.01.2007.
Date on which Judgment reserved: 18.12.2012.
Date of Decision: 18.12.2012.
SUIT FOR RECOVERY OF RS. 96,900/
Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 1 of 7
JUDGMENT
Brief facts of the case are as follows: 1 It is the case of the plaintiff that both the plaintiffs are property dealers and are working in the area of Janak Puri, New Delhi where they are dealing in respect of the sale, purchase, renting, collaboration agreement of the immovable properties for the last several years.
2 It is stated that the defendant no. 1 contacted the plaintiff no. 2 for sale of LIG flat owned by him bearing No. BA116A, Janakpuri, New Delhi110058 and agreed to pay usual brokerage at the rate of 2% on the amount of sale and similarly the defendant no. 2 who wanted to purchase the property contacted the plaintiff no. 1 for purchase of the property and also agreed to pay 2% commission to him for such purchase.
3 It is further stated that plaintiff no. 1 showed number of properties to defendant no. 2 but as the defendant no. 2 did not like the property for purchase and the sale did not mature in respect of properties of defendant no. 1, in these circumstances, both the plaintiffs contacted each others and found that defendant no. 1 wanted to sell and defendant no. 2 wanted purchase and as such both of them jointly shown the property baring No. BA116A, Janakpuri, New Delhi 110058 and was able to get the bargain struck at the amount of Rs. 23,75,000/ and, accordingly, the defendant no. 1 agreed to pay commission to the plaintiff no. 2 while the defendant no. 2 agreed to pay the commission to the plaintiff no. 1 after the documents of transfer are registered.
Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 2 of 7 4 It is further stated that these all these talks took place in the month of October, 2006, and the talks matured on 17.10.2006 in the office of plaintiff no.
1. It is submitted that all the talks took place telephonically or by visits to the respective houses / shops of the parties.
5 It is further stated that both the defendants thereafter desired that they would get necessary documents drafted though their own legal advisers and they would inform the plaintiff in this regard, but it is to the utter surprise that both the defendants started putting the plaintiffs off on one or other false pretext that the sale documents are not finalized and thus deferring the payment of the commission. However, the plaintiff learned that the registered Sale Deed came into existence on 10.11.2006 registered as Document No. 21339 in Book No. 1 vol. No. 14281 pages 19 to 26 registered on 10.11.2006 with the SubRegistrar II, Janak Puri, New Delhi and it was to their utter surprise that though the sale was finalized for Rs. 23,75,000/ but the documents were got registered for a sum of Rs. 2,75,000/ thus the defendants were not only dishonest with the plaintiff but the government exchequer as well.
6 It is further stated that such flats even the DDA is selling at the value of about Rs. 8,00,000/ which too for the allotment of those persons who booked their flats as back as in the year 1979.
7 It is further stated that having come to know about the registration of the sale deed, plaintiffs contacted the defendants and demanded for their commission for the services rendered from both the parties, but both of them Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 3 of 7 denied to pay the same and as such the plaintiff got issued notice dated 11.12.2006 through Sh. Atul Kharbandha, Advocate sent under registered A.D. Cover and certificate of Posting, which notice was duly received by the defendants.
8 The plaintiff has, therefore, prayed for a decree of sum of Rs. 96,900/ together with cost and interest at the rate of 12% perannum pendentelite and future be passed in favour of the plaintiffs and against the defendants till realization of the whole of the decreetal amount holding that both the defendants are jointly and severally liable to pay the said amount to the plaintiffs.
9 On the other hand, therefore, the defendants have filed their respective written statement taking preliminary objections on the ground of suppression of material facts, "locusstandi" & "no privity of contract". It is also stated by the defendant no. 2 that the plaintiff no. 1 and the plaintiff no. 2 are not even the witness to the sale transaction between the defendant nos. 1 & 2.
10 In support of his suit, the plaintiff no.1 had examined himself as PW1 wherein he had reaffirmed and reiterated the averments made in the plaint. The plaintiff no.1 has relied upon following documents:
i) The notice which is Ex. PW1/1.
ii) The Regd. AD & UPC which is Ex. PW1/2. iii) The copy of telephone bill which is marked as Mark A. iv) The copy of statement of mobile which is marked as Mark B. v) The copy of letter of DDA which are marked as Mark C & D. Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 4 of 7 11 Thereafter, the plaintiff no.2 had examined himself as PW2 wherein he
had reaffirmed and reiterated the averments made in the plaint. He also relied upon the same documents on which PW2 has relied.
12 On the basis of the pleadings, following issues were framed:
1) Whether the plaintiff has got no locusstandi to file this present suit? (OPD1).
2) Whether there is no privity contract between plaintiff and defendant nos. 1 & 2. (OPD1 & OPD2).
3) Whether the suit is bad for misjoinder of cause of action?
(OPD2).
4) Whether the plaintiff is entitled for a decree for recovery of Rs. 96,900/ together with cost and interest as prayed for? (OPP).
13 Issuewise findings of this Court are as follows: Issue Nos. 1, 2 & 3.
Onus to prove these issue was upon the defendants. No evidence, whatsoever, has been led by the defendants in this regard. Accordingly, these issues are hereby decided in favour of the plaintiff and against the defendant.
Issue No. 4.
Onus to prove this issue was upon the plaintiff. It is well settled principle of law that the plaintiff has to stand on his own legs. He cannot take the Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 5 of 7 advantage of the weakness of the opposite party. This court has heard the arguments and perused the record.
Perusal of the record reveals that as per list of documents filed on behalf of the plaintiff on 17.01.2007, plaintiffs have relied, inter alia, upon one copy of saledeed dated 10.11.2006 and also upon copy of statement of telephone nos. 25500331 & 9818192444. The permission was granted to the plaintiffs for producing the certified copies of the said statement of telephone nos. which were mentioned as Ex. PW1/1 and Ex. PW1/2 in the respective affidavits of both the plaintiff witnesses. Despite having given the opportunity for bringing the certified copies of the said telephone records by this court, the plaintiffs have failed to produce the same. The said telephone call records could be the only evidence which could have established some link between the plaintiffs herein and the defendants. As per illustration (g) of the S.114 of the Indian Evidence Act, "evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it".
Moreover, saledeed dated 10.11.2006 relied upon by the plaintiffs was also not proved. There is no testimony of independent third person regarding transaction between the plaintiffs and the defendants. No document in that regard was proved. The plaintiffs have, therefore, failed to prove any agreement regarding the transaction of immovable property between the defendant nos. 1 & 2 as alleged in the plaint. They have also failed to prove any agreement between the defendant no. 2 and the plaintiff no. 1 or any agreement between defendant no. 1 and the plaintiff no. 2. Accordingly, this issue is hereby decided in favour of the defendants and against the plaintiff.
Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 6 of 7 Relief.
In view of the findings of this Court on the issue no. 4, suit of the plaintiff is hereby dismissed. Decree sheet be prepared separately.
File be consigned to the Record Room.
Announced in the open Court On 18, December, 2012.
(Pankaj Arora) CJ/West08/THC/DELHI 18.12.2012 Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 7 of 7 Suit No. 447/12 18.12.2012.
Present: None.
Vide separate Judgment dictated in the open court, suit of the plaintiff is hereby dismissed.
File be consigned to the Record Room.
(Pankaj Arora) CJ/West08/THC/DELHI 18.12.2012 Sh. Ramesh Kumar Rajpal Vs. Sh. Rakesh Kumar. Page No. 8 of 7