Delhi District Court
Sukhpal vs Mukesh Chand Sharma on 25 November, 2016
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER,
SCJ-Cum-RC, (NE) KARKARDOOMA COURTS, DELHI
CIS/S No. 5632/2015
In the matter of:
SUKHPAL
S/o Sh. Baljeet Singh
R/o H. No. 14/21, Gali No.9,
Phase-10, Shiv Vihar, Delhi-1100094
.......Plaintiff
Through Sh. V.K. Upadhyay
Advocate
Versus
1. MUKESH CHAND SHARMA
S/o Sh. Janki Prasad Sharma
2. SACHIN SHARMA
S/o Sh. Mukesh Chand Sharma
Both are Resident of:
# D-18, Nathu Colony,
School Block, Gali No.2, Shahdara,
Delhi-110032
.........Defendant
Through Sh. O.P. Aggarwal
Advocate
Date of Institution : 03.05.2012
Date of Pronouncement : 25.11.2016
Final Order : Suit decreed
J U D G M E N T
(Suit for recovery of Rs.3,00,000/-)
1. Plaint Plaintiff has approached the court for recovery of Rs.3 lakhs which was paid by plaintiff to defendant when he agreed to purchase property measuring 50 sq. yards out of Khasra No.21, situated in Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 1 of 19 the abadi of Phase-3, at Shiv Vihar, Karawal Nagar, Illaqua Shahdara, Delhi for consideration of Rs.9 lakhs as per agreement to sell dated 27.04.2011. (Rs.1 Lakh on 27.04.2011 and Rs.2 lakhs on 15.05.2011), but when on the last day i.e. 27.06.2011 the plaintiff approached the defendants with balance consideration, the defendants refused to execute title documents as per agreement dated 27.04.2011. Plaintiff issued legal notice on 29.02.2012 but to no avail, hence the present suit was filed on 03.05.2012.
2. Written statement Defendants in their joint written statment raised preliminary objection regarding maintainability of suit in view of Section 41 (h) of Specific Relief Act and also that suit is under valued and beyond pecuniary jurisdiction of the court.
On merits in the written statement the defendants admitted the execution of the agreement to sell dated 27.04.2011 between plaintiff and defendant no.1, but alleged that the plaintiff failed to pay the balance amount upto 27.06.2011, hence, the earnest money of Rs.3 lakhs was forfeited. Defendants further submitted that the plaintiff himself brought another purchaser Ram Nath on 25.11.2011 i.e. after expiry of earlier agreement dated 27.04.2011 and at the time of execution of second agreement with Ram Nath, he received Rs.1 lakh and at the time of execution of sale deed he received Rs.2 lakhs. Therefore, entire payment was received by the plaintiff.
3. Replication:
In replication, the plaintiff reiterated the contents of plaint and denied having received Rs.3 lakhs. Plaintiff also denied knowledge of transaction between defendants and Ram Nath.
4. Issues After completion of the pleadings, following issues were framed on Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 2 of 19 03.06.2014:-
4.1. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 4.2. Whether the suit is barred under Section 41 (h) of Specific Relief Act? OPD 4.3. Whether the plaintiff is entitled to the decree for the recovery of Rs.3 lakhs as prayed for? OPP 4.4. Whether the plaintiff is entitled to any interest on the aforesaid amount? If so at what rate and for what period? OPP 4.5. Relief.
5. Evidence 5.1. Plaintiff's evidence The plaintiff testified as PW-1 and examined Rakesh Kumar as PW- 2 and Mohd. Shabbir Khan as PW-3 in plaintiff's evidence. 5.2. Defendant's evidence The defendant testified as DW-1 and examined Raj Kumar in defendant's evidence as DW-2.
JUDICIAL RESOLUTION: FINDINGS ON ISSUES
6. Issue No.1: Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 6.1. The onus to prove the said issue was upon the defendant.
a) The said issue has arisen out of para 4 of the written statement filed on 16.04.2013 which is reproduced as under:-
"That the Hon'ble Court has no pecuniary jurisdiction to try and entertain the present suit. However the valuation of suit property as per Biyana Agreement of Rs.9,00,000/-. The suit for Specific Performance of Contract can be filed for execution of title documents for Rs.9,00,000/- in terms of Biyana Agreement while the jurisdiction of Hon'ble Court is Rs.3,00,000/-."
b) The said objection was primarily raised because in the original plaint, the plaintiff prayed for decree of Rs.3,00,000/- along with interest at the rate of 18 percent Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 3 of 19 w.e.f. 27.04.2011 i.e. from the date of the agreement to sell and as such on the date of filing of the suit, as per the defendants the amount claimed as per the prayer in the plaint came out to Rs.3,55,000/-, whereas suit was valued at Rs.3,00,000/- and court fees was also paid on the said amount.
c) After the said objection was taken in the written statement, an application under Order VI Rule 17 of Code of Civil Procedure, 1908 was filed on 03.12.2013 by the plaintiff wherein he prayed that he be permitted to amend the suit, so as to curtail his relief merely for the purpose of recovery of Rs.3,00,000/- as he gave up the relief of interest on the said amount w.e.f. 27.04.2011 till the filing of the suit.
d) The said application under Order VI Rule 17 of Code of Civil Procedure, 1908 was not objected to by ld. Counsel for the defendant and was allowed as per order dated 01.05.2014.
e) In the amended plaint, the relief is merely for recovery of Rs.3,00,000/- and the suit has also been valued at Rs.3,00,000/- upon which court fess of Rs.5,300/- has been affixed with the plaint.
f) Therefore, the objection of the defendant in para 4 of the written statement filed prior to amendment of the plaint, does not hold good as on date, because by way of the amendment the plaintiff gave up the relief of interest.
g) Accordingly, in the opinion of the court, the suit has been properly valued at Rs.3,00,000/- for recovery of the said amount and requisite court fees has been paid thereon. 6.2. Though there is not a specific issue with respect to the Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 4 of 19 pecuniary jurisdiction of this court to entertain the present suit, however, as the said issue is connected with the issue at hand, hence, the court deems it appropriate to decide the same, as the same is purely legal issue.
a) In para 5 of the written statement, the defendants have stated that as suit has been filed on the basis of agreement to sell/biyana agreement in which the total consideration amount is mentioned as Rs.9 lakhs, hence, the court fees was required to be paid on Rs.9 lakhs and as such the suit is beyond the pecuniary jurisdiction of this court, as this court has pecuniary jurisdiction upto the limit of Rs.3 lakhs only. In the opinion of the court the said argument is also without merits as suit for recovery of money under Section 7 (i) 1 1 7. Computation of fees payable in certain suits. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
for money.
(i) In suits for money (including suits for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically)according to the amount claimed; for maintenance and annuities.
(ii) In suits for maintenance and annuities or other sums payable periodicallyaccording to the value of the subject matter of the suit, and such value shall be deemed to be ten times the amount claimed to be payable for one year;
for other movable property having a marketvalue.
(iii) In suits for movable property other than money, where the subjectmatter has a marketvalue according to such value at the date of presenting the plaint;
(iv) In suits for movable property of no marketvalue.(a) for movable property where the subjectmatter has no marketvalue, as, for instance, in the case of documents relating to title;
to enforce a right to share in joint family property.(b) to enforce the right to share in any property on the ground that it is joint family property;
for a declaratory decree and consequential relief.(c) to obtain a declaratory decree or order, where consequential relief is prayed;
for an injunction.(d) to obtain an injunction; for easements.(e) for a right to some benefit (not herein otherwise provided for) to arise out of land; and for accounts.(f) for accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal:
In all such suits, the plaintiff shall state the amount at which he values the relief sought for possession of land, houses and gardens.(v) In suits for the possession of land, houses and gardens according to the value of the subjectmatter; and such value shall be deemed to be where the subjectmatter is land, and
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collectors register as separately assessed with such revenue, and such revenue is permanently settled ten times the revenue so payable:
(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid, and such revenue is settled, but not permanently five times the revenue so payable:
(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 5 of 19 of the Court Fees Act is to be valued according to the amount claimed in the suit and not according to the entire consideration amount mentioned in the agreement on the basis of which said suit is filed.
For example: If a bank advances a loan of Rs.5 lakhs to a person, who failed to pay Rs.50,000/- and the bank seeks recovery of said amount of Rs.50,000/- on the fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint fifteen times such net profits;
but where no such net profits have arisen therefromthe amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood;
(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as abovementionedthe marketvalue of the land:
Proviso as to Bombay Presidency .Provided that, in the [territories] subject to the Governor of Bombay in Council, the value of the land shall be deemed to be (1) where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Governmenta sum equal to five times the surveyassessment; (2) where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Governmenta sum equal to ten times the surveyassessment; and (3) where the whole or any part of the annual surveyassessment is remitteda sum computed under paragraph (1) or paragraph (2) of this proviso, as the case may be, in addition to ten times the assessment, or the portion of assessment, so remitted;
Explanation. The word estate, as used in this paragraph, means any land subject to the payment of revenue, for which the proprietor or a farmer or raiyat shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue; for houses and gardens.(e) Where the subjectmatter is a house or gardenaccording to the marketvalue of the house or garden;
to enforce a right of preemption.(vi) In suits to enforce a right of preemptionaccording to the value (computed in accordance with paragraph (v) of this section) of the land, house or garden in respect of which the right is claimed;
for interest of assignee of landrevenue.(vii) In suits for the interest of an assignee of landrevenuefifteen times his net profits as such for the year next before the date of presenting the plaint; to set aside an attachment.(viii) In suits to set aside an attachment of land or of an interest in land or revenueaccording to the amount for which the land or interest was attached:
Provided that, where such amount exceeds the value of the land or interest, the amount of fee shall be computed as if the suit were for the possession of such land or interest. to redeem.(ix) In suits against a mortgagee for the recovery of the property mortgaged;
to foreclose .and in suits by a mortgagee to foreclose the mortgage, or, where the mortgage is made by conditional sale, to have the sale declared absolute according to the principal money expressed to be secured by the instrument of mortgage; for specific performance.(x) In suits for specific performance
(a) of a contract of saleaccording to the amount of the consideration;
(b) of a contract of mortgageaccording to the amount agreed to be secured;
(c) of a contract of leaseaccording to the aggregate amount of the fine or premium (if any) and of the rent agreed to be paid during the first year of the term;
(d) of an awardaccording to the amount or value of the property in dispute; between landlord and tenant.(xi) In the following suits between landlord and tenant:
(a) for the delivery by a tenant of the counterpart of a lease,
(b) to enhance the rent of a tenant having a right of occupancy,
(c) for the delivery by a landlord of a lease, [cc) for the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy,]
(d) to contest a notice of ejectment,
(e) to recover the occupancy of [immovable property] from which a tenant has been illegally ejected by the landlord, and Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 6 of 19 basis of loan agreement, then the bank is required to value suit only at Rs.50,000/- and not on Rs.5,00,000/-
because the loan of Rs. 5 lakhs was granted and in the loan agreement amount of Rs5 lakhs is mentioned. Further, the bank would not file the suit for specific performance of the loan agreement for recovery of Rs.50,000/-.
b) In the written argument it has been submitted that "the suit is barred by pecuniary jurisdiction as well as u/s 7
(c) of Court Fees Act"2, however, the court is unable to understand as to which clause is being referred to by the defendant in the said written arguments as there is no Section 7 (c) in the Court Fees Act. Section 7 (iv) (c) of Court Fees Act relates to declaratory decree and consequential relief, Section 7 (v) (c) deals with possession of land, 7 (x) (c) deals with contract of lease and 7 (xi) (c) deals with delivery of lease by landlord. 6.3. Therefore, the arguments of defendants is devoid of merits and this issue stands decided in favour of the plaintiff and against the defendant.
7. Issue No.2: Whether the suit is barred under Section 41 (h) of Specific Relief Act? OPD 7.1. The onus to prove the said issue on upon the defendants. 7.2. This issue has arisen out of para 2 of preliminary objections on page 3 of written statement. The said para is reproduced herein below:-
"That the present suit for recovery is barred U/s 41 (h) of the Specific Relief Act. However the suit of Plaintiff is based on Biyana Agreement dt.27-4-2011. As per Biyana Agreement the balance amount was to be paid by Plaintiff upto 27-6-2011. In (f ) for abatement of rent according to the amount of the rent of the [immovable property] to which the suit refers, payable for the year next before the date of presenting the plaint."
2 Last three lines of page 9 of the written arguments.
Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 7 of 19terms of Biyana Agreement, the earnest money is liable to be forfeited. Moreover only the suit for specific performance of contract can be filed. No recovery suit is maintainable. Hence the present suit is barred U/s 41 (h) of the Specific Relief Act. The Plaintiff was/is having equally efficacious remedy to file suit for Specific Performance of Contract. Hence the suit of Plaintiff is liable to be dismissed."
7.3. The written arguments of defendant in this regard is as under:-
"The onus of proving the issue on Defendant. The entire suit of Plaintiff is based on Biyana Agreement dt.27-4-2011 Exb. Pw1A and notice dt.29-2-2012 Exb. Pw1/B. However Exb. Pw1/C is postal receipt. Both the documents Exb. Pw1/A and Exb. PW1/B are totally related to Biyana Agreement dt.27-4-2011, for which only suit for specific performance can be filed. The suit for recovery is only an alternative relief. In the absence of suit for specific performance, no simplicitor suit for recovery can be filed. The Plaintiff is having equally efficacious remedy U/s 41 (h) of Specific Relief Act is available. Moreover no simplicitor suit for recovery of earnest money which was earlier forfeited can be filed. The relief of filing recovery suit is only an alternative relief. Further Exb. Pw1/D1 is depicting that Plaintiff himself is witness on Exb. Pw1/D1. The evidence of Pw2 and Pw3 have admitted the said fact in cross examination. Hence it is clear that the suit is barred U/s 41 (h) of the Specific Relief Act clearly. The Defendant are filing herewith various ruling in this regard."
7.4. It is stated in the last line of the argument reproduced above, that "defendants are filing herewith various ruling in this,"
however, defendants filed only two rulings:-
a) Satish Batra Vs. Sudhir Rawal dated 18.10.2012 in Civil Appeal No.7588 of 2012 (Supreme Court of India).
b) Naresh Chandra Guha Vs. Ram Chandra Samanta & Ors. AIR 1952 Calcutta 93.
Both the aforesaid rulings are not with respect to the applicability of Section 41 (h) of Specific Relief Act to suit for recovery of suit for specific performance. 7.5. Relevant portion of Section 41 (h)3 is reproduced as under:-
3 41. Injunction when refused .An injunction cannot be granted
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 8 of 19"41 Injunction when refused. An injunction cannot be granted:
...............
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust ............"
7.6. The said section is in Chapter VIII of the Act which relates to 'Perpetual Injunction' and the title of the section is 'Injunction when refused'.
7.7. The said section only deals with injunction suits and not with recovery suits or suits for specific performance. 7.8. Section 41 (h) provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. It does not provide with respect to suit for recovery is not maintainable when equally efficacious relief can certainly be obtained by any other usual mode of proceeding.
7.9. The court is unable to understand as to how Section 41 (h) of Specific Relief Act is applicable to the present suit in which the plaintiff has not sought relief of injunction. 7.10. In the opinion of the court, the present suit for recovery of amount paid is not barred under Section 41 (h) of Specific Relief Act.
7.11. This issue is accordingly decided in favour of the plaintiff and against the defendant.
8. Issue No.3: Whether the plaintiff is entitled to the decree for the recovery of Rs.3 lakhs as prayed for? OPP 8.1. The onus to prove the said issue is upon the plaintiff. 8.2. The plaintiff in order to prove the said issue, had to prove the agreement to sell dated 27.04.2011 and the fact that on 27.06.2011 he was ready and willing to perform his part of the
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court;
(j) when the plaintiff has no personal interest in the matter.
Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 9 of 19contract, but it was because of the defendants that the sale deed was not executed in favour of the plaintiff and the defendants deliberately breached the terms of contract. 8.3. The plaintiff has proved the agreement to sell Ex. PW 1/A dated 27.04.2011, as the said document has been admitted in the written statement by the defendants and also because defendant no.1 in para 2 of his affidavit admitted the execution of agreement to sell and DW-2 also in para 1 of his affidavit testified that the said agreement was executed between defendant no.1 and plaintiff.
8.4. The agreement Ex. PW 1/A therefore, stands proved as per which defendant no.1 in the presence of defendant no.2 agreed to sell property measuring 50 sq. yards out of Khasra No.21, situated in the abadi of Phase-3, at Shiv Vihar, Karawal Nagar, Illaqua Shahdara, Delhi for consideration of Rs.9 lakhs of which Rs. 1 lakh was paid in cash on the date of agreement and the last date for execution of the title deeds was fixed as 27.06.2011.
8.5. The plaintiff has also proved that subsequently Rs.2 lakhs was received by defendant no.2 as defendant no.1/DW-1 in para 2 of his affidavit Ex. DW 1/A has testified that after the execution of agreement to sell on 27.04.2011, the plaintiff "paid Rs.2,00,000/- on 15.05.2011 to my son on my behalf". The said fact even otherwise has been admitted in para 1 on merits of the written statement wherein it is stated that : "the plaintiff and defendant no.1 executed the biyana agreement dt.27.04.2011. As per biyana agreement the plaintiff paid Rs.1,00,000/- on 27.04.2011 and Rs.2,00,000/- on 15.05.2011 towards earnest money".
8.6. Therefore, the parties are not at dispute as regards the Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 10 of 19 following facts:
that an agreement to sell was executed on 27.04.2011 between plaintiff and defendant no.1 in which defendant no.2 was a witness that on the said date defendant no.1 received Rs.1 lakh from the plaintiff that subsequently in furtherance of the said agreement defendant no.2 received Rs.2 lakhs from the plaintiff that the plaintiff was to pay Rs.6 lakhs at the time of execution of title deeds, to be executed on or before 27.06.2011.
8.7. The dispute between the parties is, whether the plaintiff defaulted in making payment of the remaining consideration, because of which the title deeds could not be executed OR whether it was due to the fault on the part of defendant no.1 that the title deeds could not be executed till the last date mentioned in the agreement because of which amount of Rs.3 lakhs was forfeited OR whether the defendants paid Rs.3 lakhs to the plaintiff from the consideration received by them from Ram Nath to whom they sold the property and who was allegedly introduced to the defendants by the plaintiff? 8.8. The defendants in the written statement have raised two contrary and mutually destructive pleas/defenses as under:-
FIRST PLEA SECOND PLEA "It is pertinent to mention here that "Plaintiff himself brought another on 27.04.2011 a biyana agreement purchaser namely Sh. Ram Nath was executed between defendant and another biyana agreement was no.1 and plaintiff. The plaintiff had executed on 25.11.2011 i.e. after to purchase the property from expiry period of earlier biyana defendant no.1 and the balance agreement. The said deal was amount of the same was to be paid made for Rs.10,80,000/-. In the Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 11 of 19 upto 27.06.2011. The plaintiff said second biyana agreement the failed to make the payment and plaintiff was witness. Omn hence the earnest money of 25.11.2011, the plaintiff himself Rs.3,00,000/- was forfeited. The received Rs.1,00,000/- from Sh. plaintiff couldn't make the Ram Nath. Thereafter, the plaintiff arrangements of the balance received Rs.2,00,000/- at the time amount. Hence, the plaintiff failed of execution of sale deed in favour to fulfill the terms of biyana of the nominated persons of Sh. agreement. Hence, the earnest Ram Nath. Hence, the plaintiff money was forfeited.4 received full and final payment.
8.9. The two pleas are inconsistent because either the defendants can claim that they forfeited the amount of Rs.3 lakhs because the plaintiff failed to perform his part of the contract or they can plead that they had returned the amount of Rs.3 lakhs to the plaintiff. The defendants cannot say that they forfeited the said amount of Rs 3 lakhs of plaintiff and also paid the said amount to the plaintiff.
8.10. At this stage, the court would like to reproduce the written arguments made by the defendants on page 12 and 13 of the written synopsis in this regard:-
"The onus of proving the said issue is on Plaintiff. The Plaintiff has fialed to prove the said issue. Exb. Pw1/A and Exb.Pw 1/B are depicting that the last date of making payment was 27-6-2011. Exb. Pw1/D1 depicting that the later deal was made through Plaintiff on which Plaintiff signed as witness. However Plaintiff Pw1 denied his signature which Pw2 stated that the signature on Pw1/D1 are similar of Plaintiff signature. Pw3s stated that on Exb.Pw1/D1 Plaintiff signed the same. There is no explanation from the side of Plaintiff why he didn't make any payment on or before 27-6-2011. Exb. Pw1/B is only 29-2-2013 which is after forfeiture of earnest money. There is no explanation above procurement of money. The Plaintiff himself admitted that he has no Bank Account. He is not filing any ITR. Further Plaintiff stated in Pw1 in Cross that he is beldar. Pw1 stated that he sold his property but no documents are proved on record by Pw1. Apart from it, Pw2 & Pw3 identify the signature of Plaintiff on Exb. Pw1/D1. Moreover at the most, the Plaintiff only can file suit for specific performance against Defendant in view of Exb. Pw1/A & Exb. Pw1/B. The recovery suit is not maintainable in any manner. The recovery can be sought as an alternative relief with the suit for Specific Performance. In any manner the law of estople is application in filing simplicitor suit for recovery. Hence, 4 Para 1 of preliminary objections in written statement.Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 12 of 19
the issue may be decided in favour of defendants and against the Plaintiff in view of Exb. Pw1/A, Exb. Pw1/B and Exb. Pw1/D1 and in view of various judgments filed herewith."
8.11. In the written arguments it is stated that the plaintiff has failed to explain as to why he did not make any payment on or before 27.06.2011 and that he also failed to explain as to whether he had the remaining consideration of Rs.6 lakhs in hand on or before 27.06.2011 to pay to the defendants. It is therefore agreed that the biyana money was forfeited. However, the said argument is contrary to the another argument of the defendants to the effect that they had returned the amount of Rs.3 lakhs to the plaintiff from the amount received by them from Ram Nath, whom the plaintiff had brought to the defendants. Therefore, even the written argument set forth two contradictory and mutually destructive defences.
8.12. In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, (2009) 5 SCC 713 at page 727, Honourable Supreme Court has observed as under:-
"25. Pleadings of the parties, it is trite, are required to be read as a whole. The defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which are mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the court in considering as to whether the deposition of a witness and/or a party is truthful or not may consider his conduct. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore. (See Ranganayakamma v. K.S. Prakash [(2008) 15 SCC 673 : (2008)
9 Scale 144] .) It is for the aforementioned purpose, the deed of sale was required to be construed in proper perspective."
8.13. In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693 at page 700, it was observed by Apex Court as under:
19. A defendant as is well known may raise inconsistent pleas so long as they are not mutually destructive. In Gautam Sarup v.
Leela Jetly [(2008) 7 SCC 85] this Court held: (SCC p. 94, para
28) "28. What, therefore, emerges from the discussions made Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 13 of 19 hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."
8.14. In Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91 at page 110, the Apex Court held that the plea of mistake and misrepresentation to avoid a contract are mutually inconsistent pleas and cannot be accepted:-
"31. Under Section 20 of the Contract Act, a mistake of fact avoids the agreement when both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement. It is necessary that both the parties should be under a mistake. On the appellants' own showing, the respondents were not under mistake; according to the appellants, the respondents knew the correct facts and yet misrepresented. The appellants' pleadings of misrepresentation and mistake in the alternative, in the facts and circumstances of the case, are mutually destructive."
8.15. In Steel Authority of India Ltd. v. Union of India [2006 (12) SCC 233, it was observed by the Apex Court that mutually destructive pleas are not acceptable even in Industrial Disputes. Relevant para is reproduced as under:-
"The workmen whether before the Labour Court or in writ proceedings, were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principle employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication."
8.16. Even in a criminal case titled Hafiz v. State of U.P. (2005) 12 SCC 599 Honorable Supreme Court Court observed as under:
"34. It may be true that the right of private defence need not Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 14 of 19 specifically be taken and in the event the court on the basis of the materials on record is in a position to come to such a conclusion, despite some other plea having been raised, that such a case had been made out, it may act thereupon....
35. Mutually destructive defences taken by the accused persons would also go a long way to disbelieve their story."
8.17. The question is thus, whether the court is required to consider both the pleas od the defendants one by one? 8.18. In the opinion of the court, in the present case the court is only required to consider the second plea (i.e. the defendants paid Rs.3 lakhs to the plaintiff from the consideration received by them from Ram Nath to whom they sold the property and who was allegedly introduced to the defendants by the plaintiff), as the said plea is admission of the fact that the said amount of Rs.3 lakhs was not forfeited. Had the said amount been forfeited, then the defendants would not have taken the plea that they paid the said amount to the plaintiff out of Rs.10,80,000/- received by them from new purchaser Ram Nath.
8.19. The second plea is admission of the fact that the bayana amount was not forfeited.
For example: If suit is filed for recovery of loan and the defendant take two pleas i.e. he never took the loan and that he had already returned the loan amount, then the plea that he had already returned the loan amount is admission of the fact that he had taken loan and in such situation, the court is not required to consider first plea that the defendant never took loan.
Similarly, in present case, the second plea that bayana amount was returned to plaintiff, is admission of the fact that the byana amount was not forfeited and the court is therefore not required to consider the first plea.
8.20. Thus, the court is required to answer the question: whether Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 15 of 19 the defendants have successfully proved that defendants paid Rs.3 lakhs to the plaintiff from the consideration received by them from Ram Nath to whom they sold the property and who was allegedly introduced to the defendants by the plaintiff?
8.21. If the defendants successfully proved the said fact, then the suit shall be liable to be dismissed, but they fail to prove it, the suit will have to be decreed.
8.22. In order to prove the said fact the defendants are strongly relying upon document Ex.PW-1/D1 i.e. agreement to sell between defendant No.1 and Ram Nath dated 25.11.2011, because as per the defendants the said agreement to sell bears the signature of the plaintiff as a witness. 8.23. The plaintiff in his cross examination has categorically denied his signatures on the said agreement in following words:-
"I never approached the defendant no.1 with Ram Nath thereby proposing to the defendant no.1 to sell the suit property to Ram Nath in my place. It is wrong to suggest that the Bayana agreement Ex. PW1/D1 bears my signatures at point A or that it was executed at my instance with Ram Nath. It is wrong to suggest that I have received part amount of my bayana as Rs. 1 lac at the execution Ex. PW1/D1 and the remaining Rs.2 lacs at the time the sale deed of Ram Nath."
8.24. PW-2 Rakesh Kumar testified:
"The signatures at point A of Ex.PW-1/D1 matches with that of the plaintiff to the extent of 50% since they look similar to signature."
8.25. PW-3 Shabbir Khan deposed in his cross examination:
"I can identify the signatures of the plaintiff because I have seen him signing and writing in my presence. The signature at point A of Ex.PW-1/D1 are of the plaintiff."
8.26. The defendants are relying heavily on the testimony of PW-3 to prove that the signatures on Ex.PW-1/D1 are that of the plaintiff, however, in the opinion of the court, as the plaintiff himself denied his signatures on Ex.PW-1/D1 as witness, hence the opinion of PW-3 about his signatures on Ex.PW-
Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 16 of 191/D1 cannot be relied upon to hold that Ex.PW-1/D1 bears the signatures of the Ex.PW-1/D1 as a witness. PW-3 is not a handwriting expert and he can give an opinion about the signatures on Ex.PW-1/D1 on the basis of his limited knowledge. The said testimony in normal course may be believed, but when the purported executant/plaintiff himself denies the signatures, then such an opinion cannot be relied upon to hold that the testimony of the purported executant/plaintiff is incorrect. In such a situation the other party, i.e. the defendants needed to prove by examining a handwriting expert the fact that the signatures on Ex.PW-1/D1 were that of the plaintiff, or the defendants should have examined Ram Nath or the other witness to Ex.PW-1/D1, before whom the plaintiff allegedly signed Ex.PW-1/D1 as a witness.
The best witness whom the defendants could have examined were Ram Nath and witness Mange Ram, but for reasons best known to the defendants they did not examine the said Ram Nath as well as Mange Ram.
Defendants examined Raj Kumar to prove that Ex.PW-1/D1 bears the signature of the plaintiff as witness and that the plaintiff received Rs.3 lakhs from the defendants, but the presence of the said witness at the time of execution of Ex.PW-1/D1 could not be proved, as the said witness did not sign the document Ex.PW-1/D1. Though it is not necessary that every person present at the time of the transaction should sign the document, but then from the cross examination of the witness the court is not able to believe his testimony in this regard.
8.27. Moreover, the court is unable to understand as to why the Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 17 of 19 defendants would pay amount of Rs.3 lakhs to the plaintiff without obtaining any receiving from the plaintiff. The plaintiff took receiving from defendant no.1 when he paid amount of Rs 1 lakh and he again took receiving from defendant No.2 when he paid Rs.2 lakhs, but the defendants did not take receiving from the plaintiff of payment of Rs.1 lakh on 25.11.2011 and also of payment of Rs.2 lakhs after wards. 8.28. Further, the court is not able to understand as to why the defendants did not ask the plaintiff to return the original agreement to sell Ex.PW-1/A, at the time when they allegedly paid Rs.2 lakhs to the plaintiff i.e. when they executed title documents in favour of persons nominated by Ram Nath. 8.29. All these facts leads the court to believe, that the defence taken by the defendants to the effect that they returned bayana amount of Rs.3 lakhs to the plaintiff is false and concocted, to avoid their liability to return the said amount. 8.30. However, the liability to return the bayana amount of Rs.3 lakhs is only of defendant No.1, as the agreement to sell Ex.PW-1/A is with defendant No.1 only and defendant no.2 is only a witness thereto and the amount that defendant No.2 received on 15.05.2011 was also on behalf on defendant no.1, as admitted by defendants.
8.31. Accordingly, the plaintiff is held entitled to the recovery of Rs 3 lakhs from defendant No.1 and this issue is accordingly decided in favour of the plaintiff and against defendant no.1.
9. Issue No.4: Whether the plaintiff is entitled to any interest on the aforesaid amount? If so at what rate and for what period? OPP 9.1. The Onus to prove the said issue is upon the plaintiff, however, as stated earlier, the plaintiff by way of amendment, Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 18 of 19 allowed on 1.5.2014, gave up the relief of interest on the amount of Rs.3 lakhs from the date of agreement i.e. 27.04.2011 till the filing of the suit.
9.2. As far as pendente lite and future interest is concerned, the same is governed by section 34 of Code of Civil Procedure and in view of the said section the plaintiff is entitled to pendente lite and future interest on the amount of Rs.3 lakhs at the rate of 6% per annum.
9.3. No evidence has been lead by the plaintiff to show that he is entitled to higher interest.
9.4. This issue is decided accordingly.
10. RELIEF 10.1. In view of the aforesaid discussion, the suit is decreed and plaintiff is held entitled to recover Rs.3 lakhs from defendant No.1 along with pendente lite and future interest @ 6% per annum. No order is made against defendant No.2. 10.2. Costs of the suit are granted in favour of plaintiff, to be paid by defendant no.1.
11. Decree sheet be accordingly prepared.
12. File be consigned to Record Room after due compliance. Announced in the Open Court on 25th November, 2016 (S.P.S. LALER) SCJ Cum RC(NE) KKD Courts, Delhi/25.11.2016 Judgment CIS/S No.5632/2015 Sukhpal Singh Vs. Mukesh Chand & Ors. Page 19 of 19