Delhi District Court
Both vs Sh.Nirmal Singh Sethi on 15 December, 2017
IN THE COURT OF SH. DEEPAK WASON
ADJ-02 (NORTH): ROHINI COURTS: DELHI
CS No. 705/17
Ms. Simardeep Kaur Kharbanda
D/o Sh. Narinder Singh Kharbanda
Master Upkar Singh Kharbanda
S/o Sh. Narinder Singh Kharbanda
Both plaintiffs are minors acting through and by the hands of
their father and Natural Guardian and Next friend Sh.
Narinder Singh Kharbanda.
All R/o F 29/A, Vijay Nagar,
Delhi-110009.
.............Plaintiff (s)
VERSUS
Sh.Nirmal Singh Sethi
since deceased
through its Estate represented by
Gursharan Kaur Sethi and
Amarjit Kaur Sethi
Flat No. 8 C, La Belle Mansion,
118, Argyle Street, Kowloon.
..........Defendant
SUIT FOR RECOVERY OF RS.25,00,000/- (RUPEES TWENTY
FIVE LAKHS) (HKS 4,45,000)
Date of institution : 23.02.2001
Date of reserving judgment : 07.12.2017
Date of judgment : 15.12.2017
Final Order : Dismissed
CS No. 705/17 & 706/17 Page 21 of 22
Suit No. 706/17
Nirmal Singh Sethi
since deceased
through its Estate represented by
Gursharan Kaur Sethi and
Amarjit Kaur Sethi
Flat No. 8 C, La Belle Mansion,
118, Argyle Street, Kowloon.
.............Plaintiff
Versus
1. Ms. Simardeep Kaur Kharbanda
D/o Sh Narinder Singh Kharbanda
2. Mr. Upkar Singh Kharbanda
S/o Sh Narinder Singh Kharbanda
3. Narinder Singh Kharbanda
All residents of F 29/A, Vijay Nagar,
New Delhi.
..........Defendant (s)
SUIT FOR DECLARATION AND SETTING ASIDE AND
CANCELLATION OF AGGREEMENT DT. 16.11.2000
Date of institution : 12.11.2003
Date of reserving judgment : 07.12.2017
Date of judgment : 15.12.2017
Final Order : Decreed
JUDGMENT
1. Vide this judgment, I shall decide both the suits mentioned in caption.
CS No. 705/17 & 706/17 Page 21 of 222. The brief facts necessary for disposal of the present case bearing No. 705/17 titled as Simardeep Kaur Kharbanda & Ors Vs. Nirmal Singh Sethi are that plaintiff no. 1 and plaintiff No. 2 are minors and the present suit has been filed by the hands of their father and natural guardian. That, the father of plaintiffs was married with the daughter of the defendant namely Ms. Jatinder Kaur and during her lifetime she obtained various insurance policies in her name from Manu Life Insurance Company at Hong Kong total worth of Rs. HKD 4,45,000 (Rs.25 Lakh) and in all the said policies, she made defendant as well as plaintiffs as sole beneficiaries. That, Ms. Jatinder Kaur (mother of plaintiffs) expired on 22.01.1996. That, as the defendant had been named as one of the beneficiaries, withheld the insurance amount from the said insurance company after death of Smt. Jatinder Kaur for a long period of more than five years, appropriated the same for his own personal use knowing the fact that plaintiffs are the first class legal heirs and only beneficiaries. That, upon several repeated request and demands made by plaintiffs for their legal and legitimate dues, in the month of November 2000, defendant came to India from Hong Kong and had entered into an agreement with the plaintiff's father Sh. Narinder Singh Kharbanda on 16.11.2000. That, vide agreement dt. 16.11.2000, it was agreed between the plaintiff's father and defendant that the plaintiffs would not claim any right in the properties of the defendant in future and on the basis of such specific assurance given by the plaintiff's father, a bank draft no. 603021 dt. 06.11.2000 for HKD 4,45,000 drawn on Fortis Bank was handed over by the defendant to plaintiff's father in duly presence of Sh. Gurvinder Singh and Sh. Rama Shanker, Advocate. That, the said bank draft had been returned back in CS No. 705/17 & 706/17 Page 21 of 22 original to the plaintiffs by bankers alongwith the returning memo containing the remarks 'Stop Payment'. Thus, the defendant defrauded the plaintiffs as the plaintiffs are the beneficiaries of the insurance amount after the death of Smt. Jatinder Kaur. That, the defendant had illegally withholding the said amount without any reason and justification, used the same for his own benefit and liable for outstanding payment of at the rate of 24% per annum from the date of receipt of the payment from the insurance company. That, the plaintiffs had also served defendant with the legal notice of demand dated 16.01.2001 but in spite of lapse of notice period, the defendant failed to pay up the amount. That, a substantial cause of action accrued at Delhi as the defendant is also having his second address of Delhi and the acknowledgment of debt by the defendant in terms of agreement dated 16.11.2000 when the defendant personally delivered the bank draft duly signed, executed and authenticated in Delhi to the plaintiffs father and the said draft had been dishonored and returned to the plaintiffs. Hence, this suit.
3. Summons of the suit were issued to the defendant which were unserved at both addresses i.e at Hong Kong as well as Delhi but notice of injunction application were duly served upon defendant through Gurvinder Singh. Vide order dated 26.02.2001 passed by Hon'ble High Court, ex-parte ad-interim order was passed in favour of plaintiffs.
4. In the written statement, the defendant denied the facts as stated by the plaintiffs in their plaint and averred that Mrs. Jatinder Kaur had insurance policies in her name and the same were obtained CS No. 705/17 & 706/17 Page 21 of 22 by the defendant himself and all the premiums were paid by him and the defendant was made the primary beneficiary in respect of all the four life insurance policies and the minor plaintiffs were made the joint secondary beneficiaries. Further that, in Hongkong, the insurance company shall pay the right beneficiary based on the priority system, and right beneficiary is legally entitled to the full insurance proceeds unlike in India where all beneficiaries are treated as nominees by the insurance company. Further that, there were strained relations between father of plaintiffs Sh. Narinder Singh Kharbanda and Smt. Jatinder Kaur and this fact is also evidenced by the fact that Smt. Jatinder Kaur made defendant herein as primary beneficiary to the exclusion of her husband i.e. father of plaintiffs and wanted to make sure that no proceeds would ever be paid to her husband. Further that, the secondary beneficiaries under the Insurance Policies were not entitled to the proceeds of the Insurance company so long the primary beneficiary was alive.
5. Further that, the father of plaintiffs only made demands for the proceeds of the insurance policies and produced Memorandum of Policy Certificate for the said policies. It is further stated that father of the plaintiffs had illegally occupied the defendant's plot No. F 28, Vijay Nagar, Delhi. The defendant further averred that neither of the parties had the original policies since they were lost and the defendant herein bonafide believing the representation of the father of plaintiffs to the effect that the minors were in fact the primary beneficiaries under the Insurance Policies, entered into the Agreement in question and handed over a draft for HKD 4,45,000/- to Sh. Gurvinder Singh on 16.11.2000 to be handed over to the CS No. 705/17 & 706/17 Page 21 of 22 father of the plaintiffs after fulfilling certain conditions. Further that, the defendant from Smt. Amrit Kaur (daughter of defendant) learned from the insurance company at Hong Kong that plaintiffs were not the primary beneficiaries under the four insurance policies and requested the father of plaintiffs to return the draft, however, the father of the plaintiffs claimed that he had lost the draft. Further that, in such circumstances, Smt. Amrit Kaur proceeded to issue stop payment instructions to the bank in Hong Kong. Further that, in view of the fraud played by the father of the minor plaintiffs and by adopting coercive tactics, Agreement dt. 16.11.2000 is not binding on the defendant. The suit of the plaintiff is challenged by the defendant and certain preliminary objections regarding maintainability of the suit are taken. The defendant has challenged the suit of plaintiff on merits also.
6. Replication was filed on behalf of plaintiffs wherein plaintiffs reiterated all the facts mentioned in the plaint and denied the case of defendant.
7. The suit of the plaintiffs was dismissed in default by the Hon'ble High Court and the all interim orders were vacated vide order dated 31.01.2003. The suit was survived and restored to its original number vide order dt. 25.05.2005. Again, qua order dated 02.02.2006, suit was dismissed in default. Thrice, the suit was restored to its original number vide order dated 20.03.2007.
8. It is a matter of record that the suit bearing No. CS (OS) No. 236/2004 titled as Nirmal Singh Sethi Vs. Simardeep CS No. 705/17 & 706/17 Page 21 of 22 Kaur Kharbanda & Ors was also clubbed qua order dated 29.03.2012 passed by Hon'ble High Court. During the trial, Sh. Nirmal Singh Sethi expired and his LRs were brought on record in both cases.
9. That upon the pleadings, vide order dated 29.03.2012 of Hon'ble High Court, the following issues were framed:-
1) Whether the plaintiffs are beneficiaries under the insurance policy as claimed in paragraph 3 of the plaint? OPP
2) Whether the plaintiffs are entitled to the suit amount?OPP
3) Whether the suit is bad for non-joinder of the Insurance Company ?OPD
4) Whether the plaintiffs had misrepresented to the defendants as to their claim of being primary beneficiaries of the policies?OPD
5) To what relief, if any, are the plaintiffs entitled?
10. A separate suit titled as 'Nirmal Singh Sethi Vs. Simardeep Kaur Kharbanda & Ors' bearing no. 706/15 for declaration, setting aside and cancellation of Agreement dt. 16.11.2000 was filed by Sh. Nirmal Singh Sethi against the plaintiffs on 12.11.2003 wherein he reiterated the facts in plaint as stated in the written statement in case No.705/17 titled as 'Simardeep Kaur Kharbanda & Ors Vs. Nirmal Singh Sethi' and Simardeep Kaur Kharbanda & ors reiterated the facts in their written statement as stated in the plaint in case no. 705/17 titled as 'Simardeep Kaur Kharbanda & ors Vs. Nirmal Singh Sethi. Replication was also filed by the Simardeep Kaur & ors in case no. 706/17. Hence, in these circumstances, I am not reproducing the pleadings of the case no. 706/17.
11. That upon the pleadings, vide order dated 17.04.2009 of CS No. 705/17 & 706/17 Page 21 of 22 Hon'ble High Court, the following issues were framed in case no. 706/17:-
1) Whether the suit of the plaintiff is liable to be stayed under Section 10 of CPC? OPD
2) Whether the suit of the plaintiff is barred by limitation ?OPP
3) Whether the agreement dt. 16.11.2000 suffers from fraud, undue influence, coercion and misrepresentation ?OPP
4) Whether the agreement dt. 16.11.2000 is liable to be declared as unlawful, unenforceable and void ?OPD
5) Whether the agreement dt.16.11.2000 is liable to be cancelled?
6) Relief
12. As stated above, the suit bearing No. CS (OS) No. 236/2004 (new no. 706/17) titled as Nirmal Singh Sethi Vs. Simardeep Kaur Kharbanda & Ors was also clubbed qua order dt. 29.03.2012 passed by Hon'ble High Court and it was directed that the suit bearing no. 382/01 (new no. 705/17) titled as Simardeep Kaur Kharbanda & anr. Vs. Nirmal Singh Sethi shall be treated as lead case. Accordingly, evidence was led by both the parties in case bearing no. 705/17 as it was treated as lead case.
13. In order to prove the case, the father of the plaintiffs has examined two witnesses. PW-1 is namely Narender Singh Kharbanda i.e father of plaintiffs. PW-1 has relied upon documents from Ex. PW- 1/1 to Ex. PW-1/5. Ex. PW-1/1 is the photocopy of the bank draft bearing no. 603021. Ex. PW-1/2 is copy of received message dated 02.12.2000. Ex. PW-1/3 is copy of Indian Overseas Bank slip. Ex. PW- 1/4 is copy of Memorandum of Policy certificate. Ex. PW-1/5 is Agreement between Nirmal Singh Sethi and Narender Singh Kharbanda. Sh. Gurvinder Singh was examined as PW2.
CS No. 705/17 & 706/17 Page 21 of 2214. Whereas, the defendant has examined only one witness i.e Sh. Surender S. P. Sethi i.e son of defendant as DW-1. DW-1 tendered his evidence by way of affidavit. It is a matter of record that the documents exhibited as Ex. PW-1/1 to PW-1/21 were read as a DW- 1/1 to DW-1/21 (as mentioned in examination-in-chief of DW-1 which was recorded on 17.09.2014). He has relied upon various documents i.e Ex.DW-1/1 to Ex.DW-1/21, out of which the witness has not exhibited documents Ex.DW-1/7, Ex.DW-1/9 & Ex.DW-1/10 as they were not on record. Ex.DW-1/1 to Ex.DW-1/6 are Memorandum of Policy Certificates. Ex.DW-1/8 i.e a letter dated 11.07.2001 issued by M/s. Manulife Insurance Company. Ex.DW-1/11 i.e letter dated 21.05.1993, Ex.DW-1/12 i.e letter dated 15.05.1993, Ex.DW-1/13 i.e terms and policy, Ex.DW-1/14 i.e complaint to PS Mukherjee Nagar dated 29.10.2000, Ex.DW-1/15 i.e Agreement dated 16.11.2000, Ex.DW-1/16 i.e affidavit of Sh. Narender Singh Kharbanda dated 16.11.2000, Ex. DW-1/17 i.e complaint to PS Mukherjee Nagar, Ex.DW-1/18 i.e copy of letter dated 17.11.2000 of M/s. Manulife Insurance Company, Ex.DW-1/19 i.e copy of letter dated 17.11.2000 by Ms. Amrit Kaur to defendant no. 3, Ex.DW-1/20 i.e certified copy of suit and Ex. DW-1/21 i.e copy of written statement.
15. I have heard the parties. I have also gone through the record. I have also gone through the written arguments filed by Sh. M.G. Vachar i.e Ld. counsel for Simardeep Kaur & ors. I have also gone through the written arguments filed by Sh. Rajiv Talwar i.e Ld. counsel for LRs of Nirmal Singh Sethi.
16. My issue wise findings are as under:-
CS No. 705/17 & 706/17 Page 21 of 22Issue no.1 of suit no. 705/17:-
"Whether the plaintiffs are beneficiaries under the insurance policy as claimed in paragraph No. 3 of the plaint? OPP"
17. The onus to prove this issue was upon the plaintiffs and the father of plaintiffs has tendered his evidence by way of affidavit Ex.PW-1/A which bears his signatures at point A and B and proved the documents i.e. bank draft Ex. PW 1/1, copy of message received dt. 02.12.2000 as Ex.PW 1/2, copy of Indian Overseas Bank Slip is Ex.PW 1/3, copy of memorandum of policy certificate as Ex. PW1/4 and Agreement executed between the father of the plaintiffs and defendant as Ex.PW 1/5.
18. It is deposed that mother of plaintiffs was gainfully employed at Hong Kong and original premium amount qua the policies were paid by his wife. In his cross examination, the father of plaintiffs i.e PW1 has stated that premium amount qua policies was paid by his wife. He has further stated that he does not have any documents to this effect. PW-1 has voluntarily stated that some payments of the insurance policies were paid by the defendant. At this stage, it would be relevant to go through the document Ex.P2 (admitted on 17.02.2006 in Civil Suit no. 706/17) also exhibited as Ex. DW-1/8 in which the status of each beneficiary is clearly designated. Para B clearly shows that Nirmal Singh Sethi is the primary beneficiary for all policies.
19. Para no. C & d(i) show the entitlement of beneficiaries towards CS No. 705/17 & 706/17 Page 21 of 22 full proceeds which are reproduced as under:-
C) Status/ class of each beneficiary/ beneficiaries designates as at the time of death of the insured:
(i) Sh Nirmal S. Sethi was the sole primary beneficiary of all above policies
(ii) Simardeep Kaur was a Ist joint secondary beneficiary designation forms for the above policies; and
(iii) Upkar Singh was 2nd joint secondary beneficiary under the beneficiary designation forms for the above policies.
d) Beneficiary/ beneficiaries entitlement to full proceeds of the above policies:
d) (I) A primary beneficiary shall have priority over all other classes of beneficiary to be entitled to the policy proceeds from one insurance policies above if he is alive at the time of death of the life insured.
20. It is further stated in the above said document that Nirmal Singh Sethi is the sole primary beneficiary under insurance policy and he was alive at the time of death of the life insured and hence, he is the right beneficiary and insurance company paid him to discharge their duty under their insurance policy. It is clearly stated in the para no. e of the above said document that the other named beneficiary Simardeep Kaur and Upkar Singh i.e plaintiffs are not entitled to any proceeds of the policies as they are joint secondary beneficiaries only. It is specifically stated in this document that as the place of incorporation of The Manufacturer Life Insurance Company is Canada, the said policies should therefore be interpreted in accordance with laws of Hong kong or Canada.
21. Hence, in view of the submissions made above, it is clear CS No. 705/17 & 706/17 Page 21 of 22 that as per the terms and conditions of Manulife insurance policy, defendant was the primary beneficiary and other named beneficiaries namely Simrandeep Kaur and Upkar Singh are not entitled to any proceeds. Hence, this issue is decided in favour of defendant and against the plaintiffs.
Issue no. 2 & 4 of suit no. 705/17 & issue no. 3, 4 & 5 of suit no. 706/17 are co-related, therefore, same are to be taken all together for adjudication. The onus to prove these issues are upon both the plaintiffs as well as defendant.
2) "Whether the suit of the plaintiffs are entitled to the suit amount?OPP
4) "Whether the plaintiffs had misrepresented to the defendant as to their claim of being primary beneficiaries of the policies?OPD
3) "Whether the agreement dt. 16.11.2000 suffers from fraud,undue influence, coercion and misrepresentation? OPP
4) Whether the agreement dt. 16.11.2000 is liable to be declared as unlawful, unenforceable and void ?OPD
5) Whether the agreement dt.16.11.2000 is liable to be cancelled?
22. The whole case of the plaintiffs as well as defendants revolves around agreement dated 16.11.2000. Plaintiffs have claimed the suit amount on the basis of this document. On the other hand, defendant has taken the plea that the said agreement was executed on behalf of defendant by misrepresenting the true facts and by adopting coercive tactics by the father of the plaintiffs. This document is exhibited as Ex. PW-1/5 as well as DW-1/15. Perusal of entire plaint CS No. 705/17 & 706/17 Page 21 of 22 shows that plaintiffs have alleged that insurance amount was wrongly paid to defendant and on the basis of the above said agreement, they are entitled for the suit amount. Hence, in these circumstances, pivotal issue before this Court is that whether agreement dated 16.11.2000 suffers from fraud, undue influence, coercion and misrepresentation or not.
23. At this stage, it would be relevant to go through the testimony of DW-1. Before this, it is necessary to point out that the plaintiffs have taken the plea in the written arguments that DW-1 is not competent person to give evidence as he is not the party to the suit and documents relied upon by him have not been proved in accordance with law. It is to be kept in mind that any person can give evidence on behalf of either of the parties and it is not necessary that only parties to suit are competent to give evidence. Even otherwise, DW-1 is son of Lt. Sh. Nirmal Singh Sethi. The plaintiffs have also taken a plea in written arguments that documents relied upon by DW-1 are not proved as per law as DW-1 was not the author. Perusal of record shows that at the time of examination of DW-1, Ld. counsel for plaintiffs has not objected regarding the proof of documents, hence, now plaintiffs cannot take this plea. Even otherwise, some of the important documents (relied upon by this Court) were put to the PW-1 in his cross-examination wherein he admitted some documents. On 17.11.2006, some of the documents were also admitted by the parties. Hence, let us consider the testimony of DW-1. DW-1 Sh. Surinder S. Sethi who is LR of defendant came forward and stated in this affidavit that Agreement dated 16.11.2000 is interlia nullity being a result of CS No. 705/17 & 706/17 Page 21 of 22 misrepresentation and fraud played by father of plaintiffs in order to unlawfully siphon off money and benefits arising out of insurance policy of Smt. Jatinder Kaur Sethi.
24. In his cross examination, he has deposed that his father had purchased insurance policies for Smt. Jatinder Kaur. DW 1 has stated in his affidavit that father of the plaintiffs did not claim the insurance money after the death of late Smt. Jatinder Kaur, however, the father of plaintiffs wrongly and illegally occupied a property bearing No. F 28, Vijay Nagar Delhi of defendant (Nirmal Singh Sethi) knowing that sale proceeds of said plot was going on and vacant possession of the said plot was to be given otherwise heavy penalty would be levied on the deceased defendant. It is further stated in the examination of DW-1 that the father of the plaintiffs refused to vacate the said property till the insurance amount was released to him and showed a copy of Memorandum of Policy Certificate showing the plaintiffs No. 1 and 2 as beneficiaries and claimed that plaintiffs No. 1 and 2 were the primary beneficiaries. It is further stated in the examination of DW-1 that father of plaintiffs in order to pressurize the deceased defendant made a complaint dated 29.10.2000 at PS Mukherji Nagar alleging that he is tenant and defendant was forcibly dispossessing him from the said plot and this way father of plaintiffs put the deceased defendant under misconception and played fraud upon the defendant and put him under tremendous pressure and forced him to enter into an Agreement dated 16.11.2000. DW-1 has specifically stated in para no. 19 of affidavit that it was only under pressure, coercive tactics and misrepresentation of father of plaintiffs and believing his representation that defendant no. 1 & 2 are the prime CS No. 705/17 & 706/17 Page 21 of 22 beneficiaries, Deceased defendant Sh. Nirmal Singh Sethi, as a result of aforesaid representation and understanding was forced and mislead into an agreement dated 16.11.2000. DW-1 has extensively stated in his affidavit regarding circumstances leading to execution of agreement dated 16.11.2000. These facts remained unrebutted. There is no cross-examination on the above said facts. Even otherwise, the above stated facts are supported with some documents i.e a complaint dated 29.10.2000 i.e Ex. PW-1/D3. The said complaint was filed by the father of the plaintiffs i.e PW-1. PW-1 has admitted this fact in his cross-examination that he had filed a police complaint against defendant prior to 16.11.2000. Ex. PW-1/D3 shows that PW-1 had made a complaint before PS Mukherjee Nagar wherein it is stated that PW-1 is tenant in F-28 B and Mr. Nirmal Singh Sethi is trying to dispossess him. There is also another document Ex. PW-1/D4 which shows that soon after the agreement dated 16.11.2000, father of plaintiff i.e PW-1 withdrew the above said complaint and said fact is admitted by PW-1 in his cross- examination. As per document Ex. PW-1/D3, PW-1 was the tenant in property bearing no. 28-B. However, as per cross-examination of PW- 2, property situated at F-28, Vijay Nagar, Delhi was only a plot of land and had no construction over it in the year 2000. When this property was only a plot of land, then how PW-1 was the tenant of deceased defendant i.e Sh. Nirmal Singh Sethi. It is also clear that soon after the execution of agreement dated 16.11.2000, PW-1 withdrew the complaint from the police. Hence, it emerges from the circumstances that the agreement dated 16.11.2000 was executed under coercion. It is also to be kept in mind that at the time of execution of the above said agreement, the age of Nirmal Singh CS No. 705/17 & 706/17 Page 21 of 22 Sethi was around 73 years.
25. There is also another aspect of this agreement. As per this document, Nirmal Singh Sethi was the first party and Sh. Narender Singh Kharbanda I.e father of the plaintiffs was the second party. Further, as per this document, it is stated that second party is claiming that children Simrandeep Kaur Kharbanda and Upkar Singh Kharbanda were the primary beneficiaries in the insurance policy and first party having believed on the representation and assurance of the second party, notwithstanding any evidence to contrary, that the above said children are the primary beneficiary, has handed over draft of HKD 4,45,000 to the second party towards all claims. Hence, it is clear that on believing on the representation and assurance that above said children are primary beneficiary, the draft in question was handed over to second party. There is one letter dated 17.11.2000 on record i.e Ex. PW-1/D6. As per this letter, Smt. Amrit Kaur Sethi, daughter of deceased defendant by her letter dated 17.11.2000 informed plaintiffs through their father that Manulife Insurance Company has on her inquiry, informed that plaintiffs were not the primary beneficiary and thus, were not entitled to through insurance amount. These facts have been explained in the testimony of DW-1 in paras no. 20 to 22 of the affidavit and in these circumstances, father of the plaintiffs was asked to return the draft but he did not do so and accordingly, Amrit Kaur Sethi requested the banker namely Fortis Bank to stop the payment. Accordingly, no payment was made to the father of the plaintiffs. Even otherwise, at the time of execution of above said agreement dated 16.11.2000, the draft was not handed over to the father of the plaintiffs as claimed by the father of the plaintiffs in para no. 8 of his affidavit.
CS No. 705/17 & 706/17 Page 21 of 22This fact is confirmed from the cross-examination of PW-2 wherein he has specifically deposed in his cross-examination that it is correct that Lt. Sh. Nirmal Singh Sethi had handed over the draft to him on 16.11.2000 i.e at the time of signing the agreement. This fact has been concealed by PW-1 i.e father of plaintiffs. Hence, it is clear from the circumstances that Sh. Nirmal Singh Sethi clearly not believed on the presentation of PW-1 that children namely Simardeep Kaur and Upkar Singh are primary beneficiary and accordingly, draft was not handed over to PW-1 and rather it was handed over to some third person.
26. From the above facts and circumstances and from record, it is clear that plaintiffs had misrepresented to the defendant as to their claim of being primary beneficiaries of the policies and it is also clear that agreement dated 16.11.2000 suffers from coercion and misrepresentation and is liable to be declared cancelled and hence, plaintiffs are not entitled to any suit amount.
27. Besides above, there is also one legal position in the present case. The plaint clearly shows that recovery of an amount of Rs. 25 lakhs is in reality a recovery of insurance amount under the policies in question. At this stage, it would be relevant to go through Article 44 of the Limitation Act, 1963 (in short Limitation Act) wherein the limitation of filing a suit for recovery of insurance amount is three years from the date of death. Admittedly, Lt. Smt. Jatinder Kaur died on 22.01.1996 and suit has been filed on 26.02.2001 i.e almost after five years of date of death of deceased. Although, issue of limitation was not pleaded as a ground, even otherwise it is a duty of the Court CS No. 705/17 & 706/17 Page 21 of 22 to consider this aspect of law, even on its own initiative. Plaintiffs have claimed the amount on the basis of the agreement dated 16.11.2000 and according to them, suit is within time as it was filed in the year 2001. As per Section 18 of Limitation Act, if any acknowledgement is made then it should have been made before the expiration of the prescribed period of the suit. Hence, acknowledgement should be before the expiration of limitation period. As per the judgment titled as J.C. Budhraja Vs. Chairman Orissa Mining Corporation Ltd. & anr SCC (2008) 2, 444 (relied upon by LRs of Nirmal Singh Sethi), it is clear that an acknowledgement made with reference to a liability, cannot extend limitation for a time barred liability or a claim that was not made at the time of acknowledgement. Assuming that the agreement dated 16.11.2000 to be lawful, there was no acknowledgement of liability within the period of limitation as Lt. Smt. Jatinder Kaur died on 22.01.1996 and suit has been filed on 26.02.2001 i.e almost after five years of date of death of deceased i.e beyond the period of limitation. Hence, suit bearing no. 705/17 is also time barred.
28. Hence, for the reason stated above, issues no. 2 & 4 of suit no. 705/17 & issues no. 3, 4 & 5 of suit no. 706/17 are decided in favour of LRs of deceased defendant Sh. Nirmal Singh Sethi (who is defendant in suit no. 705/17) and against plaintiffs namely Simardeep Kaur Kharbanda and Upkar Singh (who are plaintiffs in suit no. 705/17).
Issue no. 3 of suit no. 705/17:-
"Whether the suit is bad for non-joinder of the insurance company ?OPD"CS No. 705/17 & 706/17 Page 21 of 22
29. The onus to prove this issue was upon the defendant.
30. DW-1 i.e Sh. S.P. Sethi has nowhere deposed that how the suit is bad for non-joinder of insurance company. Even otherwise, plaintiffs have filed the present suit on the basis of agreement dated 16.11.2000 which was executed between father of the plaintiffs and Lt. Sh. Nirmal Singh Sethi. Hence, in this circumstances, suit is not bad for non-joinder of insurance party. Hence, this issue is decided in favour of plaintiffs and against the defendant.
Issue no. 1 of suit no. 706/17:-
"Whether the suit of plaintiff is liable to be stayed under Section 10 of CPC? OPD"
31. The onus to prove this issue was upon the defendants.
32. The defendants i.e plaintiffs in case no. 705/17 have not pleaded anywhere in the evidence that how suit is liable to be stayed under Section 10 of CPC. Even otherwise, one case pertains to recovery of amount and other case pertains to cancellation of agreement dated 16.11.2000. Further, on 29.03.2012, both suits were clubbed together by the order of Hon'ble High Court of Delhi, hence, this issue does not survive now.
33. Accordingly, this issue is decided in favour of plaintiff i.e LRs of deceased namely Nirmal Singh Sethi in suit no. 706/17 and against the defendants namely Simardeep Kaur & ors in suit no. 706/17.
CS No. 705/17 & 706/17 Page 21 of 22Issue no. 2 of suit no. 706/17:-
"Whether the suit of plaintiff is barred by limitation? OPD"
34. The onus to prove this issue was upon the defendants.
35. The defendants i.e plaintiffs in case no. 705/17 have not pleaded anywhere in the evidence that how suit is time barred. Even otherwise, the plaintiff has challenged the agreement dated 16.11.2000 and suit was filed on 12.11.2003 i.e within three years from the date of execution of agreement dated 16.11.2000 which is within period of limitation in view of Article 58 of Limitation Act. As per Article 58, to obtain any other declaration, suit can be filed within three years when the right to sue first accrues.
36. Accordingly, this issue is decided in favour of plaintiff i.e LRs of deceased namely Nirmal Singh Sethi in suit no. 706/17 and against the defendants namely Simardeep Kaur & ors in suit no. 706/17.
Relief
37. In view of my findings on issues, the suit of the plaintiffs titled as Simardeep Kaur Kharbanda & ors Vs. Nirmal Singh Sethi (through LRs) (Suit no. 705/17) is dismissed & the suit of the plaintiff titled as Nirmal Singh Sethi (through LRs) Vs. Simardeep Kaur Kharbanda & ors (Suit no. 706/17) is decreed and it is declared that agreement dated 16.11.2000 executed between plaintiff and defendant no. 3 is unlawful and not binding on the plaintiff. No order as to costs. Decree sheet be prepared in both cases accordingly. Copy of this judgment be also placed in suit no. 706/17 titled as Nirmal Singh Sethi (through LRs) Vs. Simardeep Kaur Kharbanda & ors. Both files CS No. 705/17 & 706/17 Page 21 of 22 be consigned to Record Room, after due compliance.
Announced in the open Court today i.e 15th December, 2017 (Deepak Wason) Additional District Judge-02 (North):
Rohini Courts: Delhi Every page of this judgment is signed by me.
(Deepak Wason) Additional District Judge-02 (North):
Rohini Courts: Delhi CS No. 705/17 & 706/17 Page 21 of 22 CS No.705/17 Simardeep Kaur Kharbanda & ors Vs. Nirmal Singh Sethi & CS No. 706/17 Nirmal Singh Sethi Vs. Simareep Kaur Kharbanda & ors 15.12.2017 (At 4:00 p.m) Present : None.
Vide separate judgment dictated to the steno in the open Court, the suit of the plaintiffs titled as Simardeep Kaur Kharbanda & ors Vs. Nirmal Singh Sethi (through LRs) (Suit no. 705/17) is dismissed & the suit of the plaintiff titled as Nirmal Singh Sethi (through LRs) Vs. Simardeep Kaur Kharbanda & ors (Suit no. 706/17) is decreed and it is declared that agreement dated 16.11.2000 executed between plaintiff and defendant no. 3 is unlawful and not binding on the plaintiff. No order as to costs.
Decree sheet be prepared in both cases accordingly. Copy of this order be also placed in suit no. 706/17 titled as Nirmal Singh Sethi (through LRs) Vs. Simardeep Kaur Kharbanda & ors.
Both files be consigned to Record Room, after due compliance.
(Deepak Wason) ADJ-02 (North): Rohini Courts:
Delhi: 15.12.2017 CS No. 705/17 & 706/17 Page 21 of 22