Delhi District Court
Supriyo Sarkar vs Sarvagayam on 8 December, 2025
IN THE COURT OF SH. VAIBHAV CHAURASIA, LD. ASCJ-CUM-
JSCC-CUM GUARDIAN JUDGE, SOUTH WEST DISTRICT,
DWARKA, NEW DELHI
CS No. 2049/2018
CNR No. DLSW03-002053-2018
In the matter of:-
Supriyo Sarkar
S/o Sh. Sukhen Sarkar
r/o RZG,-82, A-1 Block, Near Nanda Block,
Mahavir Enclave-1,
Palam Village, New Delhi-110045.
.........PLAINTIFF
VERSUS
1. Sarvagyam
S/O Sh. Ram Kumar
R/o RZ-613/313,
Gali No. 6C, Geetanjali Park,
West Sagarpur,
Nangal Raya,
New Delhi-110046.
.......DEFENDANT
Date of Institution : 01.11.2018
Reserved for Judgment : 11.11.2025
Date of Decision : 08.12.2025
JUDGMENT
Suit for Recovery of Rs. 1,75,000/- alongwith interest @ 12% p.a.
1. The present suit is filed by the plaintiff thereby praying for a decree of Rs. 1,75,000/- alongwith interest @12% per annum.
CS No. 2049/18 Page no. 1 of 10 2. Plaintiff's case
(i). Briefly stated, the case of the plaintiff is that he was running a restaurant at property bearing number E-521, Ground Floor, Palam Extn, Near Ramphal Chowk, Dwarka, New Delhi. The defendant approached the plaintiff for taking restaurant on rent at above mentioned property and entered into an agreement/MOU/Contract on 13.11.2017 and it was agreed that defendant will pay amount of Rs. 55,000/- per month as monthly rent to be payable on or before 7th day of each calender month and agreement for a total period of 11 months.
(ii). That on account of security, defendant had handed over 3 cheques duly signed, out of which one cheque was for monthly rent of January, 2018 and rest of cheques were to be used for security by plaintiff with assurance that same would be encashed on presentation.
(iii). That in the month of January, 2018, defendant had stolen away entire goods, utensils, furniture and fixture fitted in premises which was provided to defendant by the plaintiff while executing above referred MoU and whenever plaintiff had asked defendant to return stolen articles then defendant had been giving assurances and sought time to return same. In the month of May, 2018, the defendant flatly refused to hand over any stolen goods to plaintiff and even had threatened the plaintiff with dire consequences, if he approaches to police.
(iv). That since then defendant had not even paid the rent of the month of January, 2018, that plaintiff had deposited the cheque number 104712 for sum of Rs. 55,000/- drawn on Axis Bank Ltd, MG Road, Gurgaon, CS No. 2049/18 Page no. 2 of 10 Haryana which was dishonoured with remark 'PAYMENT STOPPED BY THE DRAWER'. Thereafter, plaintiff presented the remaining two cheques which were also got dishonoured. Thereafter, plaintiff approached the police for registration of FIR. However, no steps were taken by police and filed CPC under order XXXVII CPC.
(v). That the defendant is liable to pay the said principal balance amount of Rs.1,75,000/- along-with interest @ 12% p.a from the date of due till actual realization of the said sum. Hence the present suit.
3. Defendant's case Written statement was filed on behalf of defendant, contending that the plaintiff had failed to prove till date that the amount in question was a legally recoverable debt and same is liable to be dismissed on same ground. The suit is barred by Order VII Rule 11 CPC as no cause of action has ever arose in favour of plaintiff and against the defendant. It is further averred that present suit is nothing but an attempt of the plaintiff to harass and pressurize the defendant to extort money which is not legally recoverable. The plaintiff has not come to the court with clean hands and has suppressed true material facts.
It is further averred that plaintiff has cheated the defendant by misrepresentation by advertising on OLX to be absolute owner of property number E-521, Ground Floor, Palam Extn, Near Ramphal Chowk, Sector-7, Dwarka for leasing out the premises with whole apparatus of restaurant and believing the same to be true, defendant approached the plaintiff and co-conspirator for exploring the possibility of taking on lease the restaurant premises. When defendant approached them, plaintiff told CS No. 2049/18 Page no. 3 of 10 him that due to lack of time, they could not continue with running the restaurant. They were desirous of letting out the restaurant. It was further revealed that the premises was free from any other encumbrances and title vests solely in them. Plaintiff with his co-conspirator deceived the defendant to take the property on lease by falsely representing themselves to be the owner of the property in question. The defendant was deceived in to enter into aforementioned illegal and sham transaction and plaintiff extracted post dated advance cheque no. 104712, 104713 and 104714 drawn on Axis Bank Gurugram, Haryana. The defendant further made payment of Rs. 1,10,000/-as security and Rs. 55,000/- as advance rent of December, 2017 on execution of contract agreement/MoU to the plaintiff.
The plaintiff was not having right in the property to sublet the premises in question and defendant was defrauded by letting out the premises to them resulting in wrongful gain to plaintiff and wrongful loss to defendant. Later defendant came to know that one Dr. Ms. Sohinder Kaur, who claimed herself to be the owner of the property and stopped the defendant from carrying out the renovation work by showing lease agreement dated 23.06.2017 executed by her and plaintiff and his co- conspirator. The defendant contacted the plaintiff to return the security amount and advance rent with three post dated security cheques, however, despite best efforts they did not return the same and became untraceable. The defendant approached his bank and asked them not to encash the cheques given to plaintiff. Hence, the plaintiff is not entitle to recovery of sum of Rs. 175,000/- with interest of 12 % pa.
4. Issues After completion of pleadings, vide order dated 03.02.2024, the CS No. 2049/18 Page no. 4 of 10 following issue was framed by my learned Predecessor for trial :
(i) Whether the plaintiff is entitled for any money decree as prayed for?
OPP.
(ii) If issue no. 1 is decided in favour of plaintiff, then whether the plaintiff is entitled for any interest thereon, if yes, then quantum thereof? OPP.
(iii) Whether the plaintiff has not come to court with clean hands? OPD
(iv) Whether the defendant is entitled for any set off? (OPD)
(v) Relief
5. Plaintiff's evidence Plaintiff examined himself as PW-1 and tendered in evidence his affidavit Ex. PW1/A, wherein averments made in the plaint have been reiterated. He also relied upon the following documents:-
a. Ex. PW-1/1(OSR) copy of agreement/MoU dated 13.11.2017 and notarised on 15.11.20217 b. Ex. PW-1/2 and Ex. PW-1/3 copy of cheques and returning memo.
Plaintiff's evidence was closed on 26.07.2025 and the matter was adjourned for final arguments as defendant does examine any witness in hid defence.
6. I have gone through the judicial record. Now I shall give my findings.
7. Analysis and Conclusion.
(a) Issue no. (i) and (ii) CS No. 2049/18 Page no. 5 of 10
(a). It is not in controversy that plaintiff along with his partner had leased the suit property i.e. E-521, Ground Floor, Palam Extn, Near Ramphal Chow, Sector-7, Dwarka vide rent agreement dated 23.06.2017 executed between Dr. Sohinder Kaur and plaintiff (including partner) which is Ex. PW-1/1 which stands admitted by plaintiff vide his cross examination dated 18.07.2025.
(b). By virtue of Section 91 and section 92 of Indian Evidence Act 1872, since Ex. PW-1/1 stands admitted, the content in contrast and in particular clause '7', which is being reproduced herein for convenience i.e. 'That the Tenant shall not sublet the said services or any portion thereof to anybody else' that the property or restaurant was given on licence rather than property was leased, has to be proved only under the broad provisions of Section 92 of Indian Evidence Act, 1872. This clause i.e. clause 7 of the MOU clearly reveals that plaintiff or his associates cannot sublet the suit property.
(c) Contrary to aforesaid dictates of the contract dated 23.06.2017, the plaintiff herein had entered agreement/MoU dated 13.11.2017 with the defendant. The assertion on part of defendant have been that there was no subletting, rather restaurant was given on lease. To fortify his claim, the plaintiff has relied upon MoU dated 13.11.2017 wherein plaintiff asserts that he is not absolute owner of the property, and the term that has been specified is 'absolute restaurant'. While interpreting it upon any standard of law, making meaning of 'absolute restaurant' in eyes of law is rather incomprehensible for this Court.
(d). Minute perusal of MoU dated 13.11.2017 reveals the incident of subletting are present by virtue of word 'let out' mentioned in the MOU.
CS No. 2049/18 Page no. 6 of 10 The claim of plaintiff that defendant was only permissive user is defeated wherein defendant was burdened with water and electricity charges, all risk and legal liability associated thereof, not to make structural addition or subtraction, day to day minor repair to be undertaken by defendant, nor to sublet rather abiding all the laws of local authority which includes even maintaining the restaurant as terms of the MOU. The incidents of permissive user is missing and effective control were with the defendant. This interpretations is well manifested from the construction of MoU. Even the clause of inspection from time to time have bearing of landlord on part of plaintiff. Hence, this court has no hesitation to hold that incident of subletting is present, therefore, assertion of plaintiff that there was no subletting is not maintainable.
(e). The other set of argument that have been on part of plaintiff have been as enumerated in his reply are legal notice dated 26.12.2017 Ex. PW-1/P2 admitted by plaintiff in his cross examination dated 13.07.2025 wherein para 5 reveals that 'it was for running business on behalf of his client(plaintiff)' and therefore, defendant is permissive user (para 6). However, in the aforesaid para, this Court has come to the contrary conclusion. Moreover, if oral representation were ever made to the defendant where he was made aware that plaintiff was not the absolute owner of the property, rather the restaurant was on lease, then as per Section 92 Indian Evidence Act 1872, the plaintiff had onus to prove it to the satisfaction of the court on preponderance of probability, which plaintiff had failed to do so.
(f) On the above findings, this Court has arrived to the conclusion that contract/MoU dated 13.11.2017 entered into between plaintiff and CS No. 2049/18 Page no. 7 of 10 defendant is hit by section 17 of Contract Act of 1872 which provides for active concealment of a fact by one having knowledge on behalf of the fact as voidable. The contract is hit by fraud wherein plaintiff having no authority to sublet, had done so without revealing it to the defendant and it is voidable at the instance of defendant.
(g). The set of argument towards recovery of money in present suit to the tune of Rs. 1,65,000/- being monthly lease for January, 2018, February, 2018 and March, 2018 @ 55000/- per month, wherein the cheques were dishonoured respectively on 05.01.2018, 05.02.2018 and 07.03.2018 as advanced rent.
(h). However, the contract is hit by fraud as being voidable, the recovery therein for future 'monthly lease' is not maintainable.
(i). Even otherwise, contract was signed between plaintiff and defendant on 13.11.2017, which was contrary to foundational rent agreement dated 23.06.2017, where subletting was barred, while the legal notice was issued by defendant dated 13.12.2017, and stating that on 05.12.2017, the original actual landlady has clearly got the work stopped, enumerating the rent agreement, where there can be no sublease or subletting. Para 4 of legal notice of defendant stands admitted by plaintiff in reply to legal notice for month of January, February, March, 2018. It is admitted by plaintiff in his cross examination dated 13.07.2025 that he already had received Rs. 1,10,000/- as security and Rs. 50,000/- in advance for December, 2017. When original landlady has already stopped the defendant and at least the contract is frustrated due to fault of plaintiff himself and by latest dated 26.12.2017, when plaintiff has replied to legal notice of defendant dated 13.12.2017, thereafter, the advance rent of January, 2017, February, 2017, CS No. 2049/18 Page no. 8 of 10 March 2018, is not maintainable as contract is voidable and already stands frustrated in in first week of December, 2017.
(j). The argument of plaintiff that his fixtures and articles were stolen is not sustainable as having admitted Ex. PW-1/D3 dated 12.02.2018 and his signatures thereupon. The complaint by plaintiff dated 26.05.2018 i.e. at least 3 months after mentioning plaintiff as worker (karamchari) is certainly at odd with the version of the plaintiff in the plaint (were evident in the certified copy as filed by defendant under order 8 Rule 1A CPC allowed by this court vide order dated 22.09.2025). This court will refrain from appreciating qua the criminal proceedings between plaintiff and defendant qua dishonour of cheque but can safely conclude that nothing can be interpreted against defendant.
(k). Even the cross examination of plaintiff, who was complainant in Negotiable Instruments case, Ct. Case 26970/2018, and certified copy which have been placed on record, the contradiction in evidence in cross examination dated 31.01.2024 wherein complainant states that he has given his Brand ie. S.S. Enterprises to defendant for running the restaurant and in later part of cross examination 'I did not sell SS Enterprise to the accused' while also have admitted in cross examination that he had sold SS Enterprise to accused in his cross examination clearly reveals that witness cannot be relied for giving contradictory statement. It is not clear what has been leased and what has not been sold therefore inference has to be drawn in favour of defendant rather than that of plaintiff.
(l). Atmost when MoU was signed on 13.11.2017 and the contract was frustrated, at most voidable as there been active concealment, and nothing has been brought on record to prove that bar qua subletting was disclosed CS No. 2049/18 Page no. 9 of 10 or permission was taken from the owner, the frustration of contract in first/second week of December, 2017 and at most by 26.10.2017 (date of reply of plaintiff qua legal notice of defendant dated 13.12.2017) do not warrant the legal liability on the part of the defendant, lest the rent of January, 2018, February, 2018 and March 2018. Even on the principle of quantum merit plaintiff is not entitled to such recovery. One cannot benefit from one's own wrong, henceforth for aforesaid reasons, the suit stands dismissed. The issue no. (i) and (ii) are decided against the plaintiff and in favour of defendant.
(b) Issue no. (iii) and (iv) In the present case, the case is for the recovery of money, henceforth no adjudication is required with respect to the clean hands of the plaintiff as the present suit being not an injunction suit. Further the defendant have neither filed the counter claim nor the requisite court fee for any adjudication or set off. Nor any evidence was lead on behalf of defendant as onus was upon him. Henceforth, the aforesaid two issues are decided against defendant and in favour of plaintiff. This court after going through the records do not have any hesitation to hold that the MOU/contract is vitiated by fraud.
8. Relief In view of the aforesaid finding, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Digitally signedby VAIBHAV VAIBHAV CHAURASIA CHAURASIA Date: 2025.12.08 16:54:32 +0530 Announced in the Open Court on 08.12.2025 (Vaibhav Chaurasia) JSCC/ASCJ/GJ:S-W:
Dwarka Courts: New Delhi CS No. 2049/18 Page no. 10 of 10