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[Cites 14, Cited by 0]

Delhi District Court

Sh. Manoj Kumar Garg vs Smt. Sushila Rani on 15 November, 2014

                                                               1

                                 IN THE COURT OF SH. SUNIL RANA 
                      ADDL. DISTRICT JUDGE­II (NW) : ROHINI : DELHI


CS No. 163/2013.
Unique Code No. 02404C0175122011.



    Sh. Manoj Kumar Garg
    S/o Sh. Jai Bhagwan Garg
    R/o 34, First Floor, Pocket H­17
    Sec­7, Rohini, Delhi­85                                                             .....................Plaintiff

                              Versus
    Smt. Sushila Rani
    W/o Sh. Kartar Singh
    R/o 409, New Modern
    Co­operative Group Housing Society
    Sec­9, Rohini
    Delhi­85                                                                             ..................Defendant

Date of Institution                                                                  : 08.07.2011.
Date on which case was reserved for order                                            : 13.11.2014.
Date of pronouncement of order                                                       : 15.11.2014.

JUDGMENT

By this order/judgment, I shall decide the suit for recovery of Rs.13,60,000/­ along with interest filed by the plaintiff against the defendant.

1. Brief facts as stated in the plaint are that the defendant had CS No.163/13 1/33 2 agreed to sell flat no.409, New Modren Cooperative Housing Society, Sec­9, Rohini, Delhi to the plaintiff for a total sale consideration amount of Rs.50,00,000/­ (Rupee Fifty Lacs Only) and terms & conditions of the deal were reduced into writing as per the agreement to sell cum bayana receipt dt. 22.02.2008.

2. It has been further stated that plaintiff had paid a sum of Rs.8 lacs in cash as advance/part payment to the defendant on 22.02.2008 towards the sale consideration and another sum of Rs.1 lac was paid by the plaintiff to the defendant in cash on 16.03.2008 and another sum of Rs.1 lac was paid on 10.08.2008 and a total sum of Rs. 10 lacs were paid towards the sale consideration and the same has been acknowledged in the agreement cum bayana receipt dt. 22.02.2008.

3. It has been further stated that defendant had claimed herself to be the true & lawful owner in possession of the said flat in front of Mr. Vikas Kumar & Parmod Kumar and assured that she was legally competent to sell and to execute sale deed at the time of execution of agreement dt. 22.02.2008.

CS No.163/13 2/33 3

4. It has been further stated that defendant was always demanding money but never showed the ownership papers of said flat even after receiving the part payments and subsequently on the inquires made from the office of Registrar of Cooperative Society, it was revealed that defendant is not the registered owner of said flat and was not competent to sell and agreement cannot be enforced.

5. It has been further stated that plaintiff had made several requests to the defendant to refund the amount paid to her but she had refused and played fraud by making false assurance and is liable to refund the amount of Rs.10 lacs along with interest @ Rs.12% p. a. It has been prayed that a decree for the recovery of suit amount along with interest be passed in favour of the plaintiff.

6. Summons of the suit was issued to the defendant, who has contested the suit by filing WS and raised objections that plaintiff has suppressed the material facts as both the parties are bound to perform their part under the terms & conditions of the said agreement and clause 10 is as under:­ CS No.163/13 3/33 4 "if the first party fails to execute sale deed of handed over the possession of the above said property on receiving balance amount then he shall be liable to pay the double amount of part sale consideration to the second party and if the second party fails to pay the balance amount to the first party as agreed vide this agreement within the stipulated period, his earnest money shall be forfeited."

7. It has been further submitted that plaintiff has failed to perform his part of contract as he could not arrange the money within the stipulated period and the earnest money given by the plaintiff was forfeited according to the terms & conditions of the said agreement. It has been further submitted that papers of the said property were shown to the plaintiff in the presence of witness Sh. A. K. Ohri and on being satisfied, agreement was entered and earnest money was paid. It has been further submitted that defendant had received only Rs.9 lacs as amount of Rs.8 lacs was paid on 22.02.2008 when the agreement was executed and another payment of Rs.1 lac was made on 16.03.2008. It has been further submitted that suit is based on the false facts & fabricated CS No.163/13 4/33 5 documents as agreement was never extended upto 07.11.2008 and the suit is time barred and liable to be dismissed.

8. On the pleadings of parties, following issues were framed vide order dt. 13.10.2011.

1.Whether the suit of the plaintiff is barred by limitation?OPD.

2.Whether the suit has not been properly valued for the purpose of court fees?OPD

3.Whether the court has no jurisdiction to entertain and try this suit?OPD.

4. Whether the plaintiff is entitled for recovery of suit amount?OPP

5. Whether the plaintiff is entitled for pendentelite & future interest on the decreetal amount? OPP

6. Relief.

9. In order to prove its case, plaintiff has examined himself as PW­1, Sh. Vivek Kumar as PW­2 and Sh. Vikas Kumar as PW­3. On the other hand, defendant has examined four witnesses, Sh. A. K. Ohri as DW­1, Sh. Satbir Singh, UDC from the office of Sub Registrar, Kashmiri Gate, Delhi as DW­2, herself as DW­3 and Sh. Kamal Kant Khandelwal (handwriting expert) as DW­4. Detailed testimonies of the witnesses will be discussed in the later part of judgment.

10. I have heard the arguments on behalf of the parties and gone through the evidence brought on record. My issue wise findings are CS No.163/13 5/33 6 as follows:

Issue no. 1. Whether the suit of the plaintiff is barred by limitation?OPD.

11. The onus to prove this issue is upon the defendant, who has raised the objection in the WS that suit is barred by limitation. Case of the plaintiff is that the defendant had agreed to sell flat no.409, New Modren Cooperative Housing Society, Sec­9, Rohini, Delhi to the plaintiff for a sale consideration amount of Rs. 50 lacs and the agreement to sell cum bayana receipt dt.22.02.2008 was executed, which is Ex. PW­1/1 and a sum of Rs.8 lac in cash was paid as advance/part payment to the defendant on 22.02.2008 towards the sale consideration and another sum of Rs.1 lac was paid by the plaintiff to the defendant in cash on 16.03.2008 and another sum of Rs.1 lac was paid on 10.08.2008 and a total sum of Rs.10 lacs were paid towards the sale consideration.

12. PW­1 has deposed that subsequently on inquires made from the office of Registrar of Cooperative Society came to know that defendant is not the registered owner of said flat and was not competent to sell/transfer the said flat in terms of agreement and the several CS No.163/13 6/33 7 requests were made to refund the amount of Rs.10 lacs paid to the defendant and the suit was filed within limitation on 08.07.2011.

13. On the other hand, defendant has raised objections in the WS that suit is barred by limitation as she had not received amount of Rs. 1 lac on 10.08.2008 and the time was not extended till 07.11.2008.

14. It is worthwhile to note here that plaintiff has urged that an agreement to sell dt. 22.02.2008 was executed between the parties and a sum of Rs. 8 lacs was paid towards the part payment and other sum of Rs. 1 lacs was paid on 16.03.2008 and another sum of Rs. 1 lacs was paid on 10.08.2008 and the date of final payment was extended upto 07.11.2008 as mentioned in the agreement to sale cum bayana receipt dt. 22.02.2008 exhibited PW­1/1.

15. It has been further argued on behalf of the plaintiff that last payment was made on 10.08.2008 and date to make final payment was extended upto 07.11.2008 and when it was raveled that defendant is not the registered owner of the said flat and is not in a capacity to execute the sale­deed or transfer the property, hence, present suit for recovery filed CS No.163/13 7/33 8 on 08.07.2011 is within the period of limitation, which is three years.

16. Before deciding this issue, I have gone through the law of Limitation Act. Plaintiff must on his own averments made in the plaint be able to show that a suit is within time. Mere proof that it was in existence within that period is not sufficient to shift the burden to the defendant for showing that the suit is not filed within time. However, if the plaintiff proves his case and the defendant sets up the defence of the limitation, the defendant must plead it and show that the claim is time barred. It is well settled principle of law that the limitation would run from the time when the money was received and not when the money was demanded.

17. It is worthwhile to mention here that the testimony of DW­4, hand writing expert is not reliable as the observation has not been mentioned in his report on the basis of which he arrived at the conclusion that the signature at point "F" are not of the defendant. It is also worthwhile to mention here that it has been admitted by the DW­4 in his cross examination that he has no document or certificate to show that he has done some professional course to expertise in the field of hand CS No.163/13 8/33 9 writing. The veracity of his report has to be tested on the touchstone of his knowledge and report qua the subject for which he had come to depose. The defendant has taken the stand that her signature at point F on 10.08.2008 on the agreement to sell was forged and the onus to prove this fact was on the defendant. However, the defendant has failed to establish that her signature was forged at point F. Even otherwise, it is a well settled law that the opinion of the handwriting expert is not a conclusive proof of evidence.

18. In the present case, PW­1 has been able to prove that the last payment of Rs. 1 lacs was made on 10.08.2008 by the plaintiff to the defendant and time to make final payment was extended upto 07.11.2008 as per Ex. PW­1/1 and since the present suit for recovery was filed on 08.07.2011 appears to be filed within the limitation as period for filing a suit for recovery is three years as prescribed under the law of limitation.

19. In view of the averments made in the plaint, discussion made above and evidence brought on record. This court is of the view that defendant has not brought any cogent evidence to establish that suit is CS No.163/13 9/33 10 barred by limitation. Pleading is no evidence, far less proof. Hence, It cannot be said that the suit is barred by limitation. Accordingly, present issue is decided against the defendant and in favour of the plaintiff. Issue no. 2.

Whether the suit has not been properly valued for the purpose of court fees? OPD.

20. The onus to prove this issue is upon the defendant. Plaintiff has filed a suit for recovery of part payments made to the defendant towards the agreement of sell dt. 22.02.2008 executed between the parties. Defendant has raised an objection in WS that suit has not been properly valued for the purpose of court fees.

21. Before deciding this issue, I have gone through the provision of Order VII rule 11 of CPC , Rejection of Plaint and sub­clause (c) is reproduced herein for the ready reference:

(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so.

22. Order VII Rule 11 sub clause (c) of CPC specifically provides that when an insufficiently stamped plaint is presented, the court is under CS No.163/13 10/33 11 clause (c), bound to give some time to make up the deficiency before rejection.

23. Under this rule, the court is bound to grant some time to supply the deficient court fee as held in case titled as V.O. Devassy v/s Periyar Credits, AIR 1994 Ker 405. It is well settled that where a suit is not properly valued and the court fees paid is insufficient, the course of remedy will be to direct the plaintiff to correct valuation of the suit within a fixed time and make payment of this balance of Court Fees before proceeding further with the suit.

24. In the present matter, considering the averments made in the plaint and evidence brought on record. Plaintiff has valued the suit for the purpose of court fees for Rs. 13,60,000/­ and has affixed the advolerm court fees of Rs. 15,670/­ on the plaint. On the other hand, the defendant has not brought any cogent evidence to established that suit has not been properly valued for the purpose of court fees. Pleading is no evidence, far less proof. Defendant has not even advance any arguments in this regard at the time of final arguments. Hence, it cannot be said that suit has not CS No.163/13 11/33 12 been properly valued for the purpose of court fees. Accordingly, present issue is decided against the defendant and in favour of the plaintiff. Issue no. 3. Whether the court has no jurisdiction to entertain and try this suit?OPD.

25. The onus to prove this issue is upon the defendant, who has raised objections in the WS that this court has no jurisdiction to try the present suit.

26. It is worthwhile to note that as per the averment made in the plaint. It has not been disputed that the agreement to sell the flat no.409, New Modren Cooperative Housing Society, Sec­9, Rohini, Delhi exhibited PW­1/1 was executed between the parties at Delhi on 22.02.2008. Defendant has also admitted that she had received a part payments from the plaintiff at Delhi. In view of the averments made in the plaint, documents and evidence brought on record, it can be said that cause of action arose at Delhi and this court has no jurisdiction to try the present suit.

27. Before deciding this issue, I have gone through the provision of Sec­9 of CPC and same is reproduce here for ready CS No.163/13 12/33 13 reference.

28. Sec. 9. Courts to try all civil suits unless barred. ­ The courts shall (subject to the provisions herein contained ) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

29. Section 9 gives jurisdiction to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law. The jurisdiction of the curt to try all suits of civil nature is very expansive as is evident from the plain language of section 9 of CPC. It is well settled that the manner in which a dispute is to be adjudicated upon is decided by the procedural law, which are enacted from time to time. It is because of the enactment of the CPC that normally all disputes between the parties of a civil nature would be adjudicated upon by the civil courts. The jurisdiction of the civil court is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law and that is the purpose of section 9 as held in judgment titled as LIC Vs. Indian Auto Mobiles & Co AIR 1991 SC 884. CS No.163/13 13/33 14

30. It is well settled that the jurisdiction as to the nature of the suit is to be determined on the basis of the averments made in the plaint and not on the basis any defence or the merits of the claim as held in Ramesh Chand Ardawatiya Vs. Anil Panjwani AIR 2003 SC 2508.

31. In the present matter plaintiff has filed a suit for recovery of part payment of Rs. 10 lacs made by him to the defendant in terms of the agreement to sale cum bayana agreement Ex. PW 1/1. It is worthwhile to note that as per the averment made in the plaint. It has not been disputed that the agreement to sell the flat no.409, New Modren Cooperative Housing Society, Sec­9, Rohini, Delhi was executed between the parties at Delhi on 22.02.2008, Ex.PW­1/1. Defendant has also admitted that she had received a part payment in terms of the agreement from the plaintiff at Delhi.

32. In view of the averments made in the plaint, documents and evidence brought on record, it can be said that cause of action arose at Delhi and this court has jurisdiction to try the present suit. This court is of the view that defendant has not been able to prove that this court has no CS No.163/13 14/33 15 jurisdiction to try the suit as no cogent evidence has been brought on record to establish that this court has no jurisdiction to try the present suit. Pleading is no evidence, far less proof. Hence, It cannot be said that this court has no jurisdiction to try the present suit. Accordingly, present issue is decided against the defendant and in favour of the plaintiff. Issue no.4: Whether plaintiff is entitled for recovery of suit amount?OPP

33. The onus to prove this issue is upon the plaintiff, who has examined himself as PW­1 and deposed on the line of pleadings that the defendant had agreed to sell the flat no.409, New Modren Cooperative Housing Society, Sec­9, Rohini, Delhi for a total sale consideration amount of Rs. 50 lacs as per the agreement to sell cum bayana receipt dt.22.02.2008 executed between the parties, which is exhibited PW­1/1. PW­1 has further deposed that a sum of Rs.8 lac in cash was paid as advance/part payment to the defendant on 22.02.2008 at the time of execution of the agreement, another sum of Rs.1 lac was paid by the plaintiff to the defendant in cash on 16.03.2008 and another sum of Rs.1 lac was paid on 10.08.2008 and a total sum of Rs.10 lacs were paid CS No.163/13 15/33 16 towards the sale consideration amount and the said amount was acknowledged in the exhibited PW­1/1.

34. PW­1 has further deposed that defendant had claimed herself to be the true & lawful owner of the said flat in front of Vikas Kumar & Parmod Kumar and assured that she was legally entitled to execute the sale deed but on subsequent inquires made from the office of Registrar of Cooperative Society, he came to know that defendant is not the registered owner of said flat and several requests were made to the defendant for refunding the amount paid to her but she had refused and is liable to pay the amount of Rs.10 lacs with interest @ 12% p. a.

35. Let us see the cross examination of PW­1, wherein it has been testified that on 22.2.2008, defendant her husband Mr. A. K. Ohri, Mr. Vivek Kumar (property dealer) and himself were present at the time of execution of agreement to sell, exhibited PW­1/1. PW­1 has denied the suggestion that he had not met the defendant on 10.08.2008 and the signature of the defendant at point F on Ex.PW­1/1 was forged. PW­1 has testified in his cross examination that defendant has failed to show the CS No.163/13 16/33 17 complete papers of the property and was not competent to sell the property and for this reason he refused to pay the remaining amount to perform his part of the contract.

36. PW­2 has deposed that agreement to sell cum bayana agreement dt. 22.02.2008 was entered between the parties in his presence and endorsement at the bottom of page 3 from point K to K1 in the agreement exhibited PW­1/1 was written by him and the defendant had signed the same in his presence after taking payment of Rs. 1,00,000/­ in cash from the plaintiff. PW­2 has further deposed that endorsement from point A to A1 on the reverse of page 3 in exhibit PW­ 1/1 was also written by him and the same was witnessed by Sh. Vikas Kumar & Sh. Parmod Kumar and defendant had also signed the said endorsement in his presence. PW­2 has further deposed that he had visited the defendant number of times along with the plaintiff for seeing the title documents of the property in question but she had always avoided to show the papers of the said flat.

37. Let us see the cross examination of PW­2, wherein it has CS No.163/13 17/33 18 been stated that he is a property dealer and having the complete knowledge of sale & purchase of said property between the plaintiff and defendant and the agreement dt. 22.02.2008 was executed between the parties. PW­2 has denied the suggestion that signature at point F at the bottom of said endorsement is not of the defendant. PW­2 has further testified in his cross examination that writing at the back of page 3 was also made by him and subsequent endorsement was also signed by two witnesses.

38. PW­3 has deposed that endorsement from point A to A1 on the reverse of page 3 of Ex.PW­1/1 was written by Vivek Kumar on 10.08.2008 at the residence of the defendant and he along with Parmod Kumar had signed as a witness on the said endorsement and the defendant had also signed the said endorsement in his presence and the time was extended upto 07.11.2008 by mutual consent and it has been mentioned in the endorsement.

39. Let us see the relevant part of the cross examination of PW­ 3, wherein it has been testified that whole writing at the back page of CS No.163/13 18/33 19 EX.PW­1/1 was made by Vivek (PW­2) in his presence. PW­3 has denied the suggestion that endorsement on PW­1/1 does not bear the signature of defendant at point F.

40. On the other hand, defendant has examined four witnesses and examined herself as DW­3. DW­1 has deposed that defendant had agreed to sell the flat no. 409, New Modern Co­operative Group Housing Society, Sector­9, Rohini, Delhi and agreement was executed and plaintiff had made a payment of Rs. 8,00,000/­ on 22.2.08 in his presence. DW­1 has further deposed that he had also signed as attesting witness on the said agreement Ex. PW­1/1.

41. Let us see the cross examination of DW­1, wherein it has been stated that he knew the defendant as she was his neighbor but he is not aware about the documents executed by the previous owner in favour of defendant in respect of the property. DW­1 was asked the specific question, which is reproduce here as under:

Q. Can you tell on what basis you have stated in your affidavit that the defendant is the lawful absolute owner of the suit property?
CS No.163/13 19/33 20
A. I am stating so because I have seen General Power of Attorney in favour of the defendant.

42. DW­1 has stated in his cross examination that he had no knowledge of any meeting held between the plaintiff & defendant before 22.02.2008 and by chance he had reached the residence of defendant on the said date but he does not know what all documents were shown by the defendant to the plaintiff on 22.02.2008.

43. DW­2 is a summoned witness from the Sub­ Registrar­1, Kashmere Gate, Delhi and deposed that he had brought the summoned record pertaining to Will dated 31.08.95 of Shri A.R. Sagar S/o Shri Gurcharan Dass, which is registered in their office vide no. 36960, Book No.3, Volume No. 2444, page no. 66 and same is exhibited DW­2/A.

44. Let us see the cross examination of DW­2, wherein it has been stated that he has not brought the peshi register as the same was not summoned and cannot say without seeing the peshi register whether record brought by him is the same Will which was presented for the registration.

CS No.163/13 20/33 21

45. DW­3 has deposed that she is the absolute owner of the property and agreed to sell the flat no. 409, Modern Co­operative Group Housing Society, Sector­9, Rohini, Delhi to the plaintiff and the parties had executed an agreement to sell dt.22.02.2008 at her house and the same is already exhibited PW­1/1. DW­3 has further deposed that noting on the back of page 3 and her signature at point F was forged. DW­3 has further deposed that plaintiff has made a payment of Rs.8 lacs on 22.02.2008 in the presence of Sh. A. K. Ohri and thereafter plaintiff has also made a payment of Rs.1 lac on 16.03.2008 at her house and she has received only Rs.9 lacs from the plaintiff.

46. DW­3 has further deposed that since the plaintiff could not arrange the money within the stipulated period, the earnest money of Rs.9 lacs was forfeited. DW­3 has deposed that property tax receipt no.0694608 dt.16.09.2004 and 8462 dt.30.10.2009 are Ex.DW­3/1 & Ex.DW­3/2, property tax challan for 2011­12 dt.15.06.2011 is Ex.PW­3/3, receipt of maintenance charges are mark A, share certificate already Ex.PW/D­2 (OSR), GPA in her favour is Ex.PW/D­1 (OSR), the notice CS No.163/13 21/33 22 dt.08.06.2008 sent to the plaintiff on his failure to arrange money is Ex.DW­3/4 and postal receipt is Ex.DW­3/5. DW­3 has further deposed that notice dt.08.07.2008 was sent through courier and receipt is Ex.DW­ 3/6 and notice is Ex.DW­3/7 and despite that plaintiff had failed to pay the balance consideration amount of Rs.41 lacs and his earnest money was forfeited in terms of agreement dt.22.02.2008.

47. Let us see the cross examination of DW­3, wherein it has been stated that she had known the plaintiff since February'2008 and her husband had spoken to the plaintiff for selling the flat and she did not have any personal knowledge regarding the talks of her husband with the plaintiff regarding the sale of the flat.

48. DW­3 has further testified in her cross examination that she is not aware in whose writing the document Ex.PW­1/1 was filled on page no.1 & 2 and cannot tell who had written the portion at the bottom of page 3 of Ex.PW­1/1 but admitted that it was written in her presence on 16.03.2008 when payment of Rs.1,00,000/­ was made to her. (Vol. It has been stated that she does not remember who had written the said CS No.163/13 22/33 23 portion).

DW­3 was asked specific question, which is as under :­ Q. What all documents you had shown to the plaintiff on 22.02.2008? Ans. I do not have knowledge of documents but I had shown share certificate, GPA, SPA and Will to the plaintiff.

DW­3 has testified in her cross examination that she does not remember on what date and how many time she had met the plaintiff after 22.02.2008. DW­3 has admitted that plaintiff with his friend had come to her house number of times after 22.02.2008 but denied the suggestion that he used to come to see the ownership papers of the said flat. DW­3 has stated in her cross examination that value of the flat is about Rs.1 crore at present and the value has been increasing since 22.02.2008 and the money received from the plaintiff was invested in the Green House and for the education of her daughter. DW­3 has denied the suggestion that time was extended for the completion of the sale upto 07.11.2008 as she was not able to show the ownership papers of the flat to the plaintiff.

49. DW­3 has further testified in her cross examination that her CS No.163/13 23/33 24 husband had never read the said agreement before it was signed as she never thought it was necessary to show the said agreement to her husband before it was signed by the parties. DW­3 has admitted that her husband is an advocate and was practicing in Delhi for sometime and after that he had changed to export fabrication. DW­3 has testified in her cross examination that she had never asked for any permission to sell the said property from DDA, Registrar Group Housing Society and from the New Modern Co­operative Group Housing Society. (Vol. Stated that the same was not required).

50. DW­3 has admitted that Sh. A. R. Sagar was the registered owner of said property and he is still the registered owner of the said property. DW­3 has testified that she does not remember who had told her that the agreement will be executed on 22.02.2008 as her husband had only spoken to the plaintiff and fixed the date and she had never met the plaintiff before 22.02.2008. DW­3 has denied the suggestion that she had entered into an agreement in connivance with her husband to take huge amount from the plaintiff and further denied the suggestion that she had CS No.163/13 24/33 25 no legal right to sell the said property and to execute the sale deed in favour of the plaintiff.

51. DW­4 (hand writing expert) has deposed that he has examined the disputed signature mark "Q­1" alleged to be of Sushila Rani in English script on the back of last page of Ex.PW­1/1 and after careful examination and inter­se comparison of disputed and the comparative signature opined that the disputed signature at mark Q­1 is not of the original writer Smt. Sushila Rani and the photograph of the questioned and disputed signature is Ex.DW­4/1 to Ex.DW­4/11 and the negative of the photographs are Ex.DW­4/12.

52. Let's see the cross examination of DW­4, wherein it has been stated that he had examined the pen pressure, speed, curves, angles, slant, alignment and terminal in the disputed & comparative signature but the same has not been mentioned in his report in detail. DW­4 has denied the suggestion that he has deliberately not mentioned the facts in his report to help the defendant. DW­4 has testified in his cross examination that he has found some sign of tremors, hesitation, pen CS No.163/13 25/33 26 causes and pen lift in the dispute and comparative signature and voluntarily stated that it is due to gap of time and admitted that the above mentioned discrepancy in the disputed & comparative signature have not been highlighted and shown in the photographs filed by him. DW­4 has further testified in his cross examination that he did not find any tracing pressure mark on the disputed signatures in the present case and in case of tracing, pressure marks are always visible on the back side of the paper and he did not find any pressure mark on the back side of the paper of the dispute signature. DW­4 has admitted that he has not mentioned any professional qualification on his letter head, forming part of his detail report and is having no document or certificate with him to show that he has done some professional course in this field.

53. It is worthwhile to note here that defendant has taken the stand that she had received Rs. 9 lacs only from the plaintiff as she had not received Rs.1 lac from the plaintiff on 10.08.2008 and her signature on the agreement exhibited PW­1/1 at point F was forged by the plaintiff. It has been argued on behalf of the defendant that amount paid by the CS No.163/13 26/33 27 plaintiff was forfeited in terms of clause 10 of the agreement as plaintiff has failed to perform his part of the contract. It is worthwhile to note here that defendant has not been able to prove on record by leading any cogent evidence to show that she was in a position and ready to perform her part of agreement, however, the plaintiff has failed to performed his part and as such she was entitled to forfeit the part payments received by her from the plaintiff.

54. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus to proof shifts as held by the Hon'ble Supreme Court in Addagada Raghavamma & Anr. v/s Addagada Chenchamma & Anr. AIR 1964 (SC) 136. Plaintiff has been able to prove its case by leading cogent evidence to show that amount of Rs. 10 lacs was paid to the plaintiff towards the part payment as mentioned in the agreement Ex.PW­1/1. On the other hand, the defendant has not been able to substantiate her defence by CS No.163/13 27/33 28 any cogent evidence to establish that her signature was forged at point F on 10.08.2008 in the agreement Ex. PW­1/1.

55. The initial onus to prove its case always lies on the plaintiff and if it discharge, the onus shifts to the other party to disprove the same to disentitle the plaintiff for grant of relief. This court is also of the view that one thing is evidence led, and the other thing is the weight required to be attached to the same. It is a well settled that a civil case is decided on the balance of probability arrived at after weighing the respective evidence which is led by both the parties.

56. The testimony of DW­4, hand writing expert is not reliable as it has been stated in the cross examination that detail observation has not been mentioned in his report on the basis of which he arrived at the conclusion that the signature are not similar. It is worthwhile to mention here that it has been admitted by the DW­4 in his cross examination that he has no document or certificate to show that he has done some CS No.163/13 28/33 29 professional course to expertise in the field of hand writing. The veracity of his report has to be tested on the touchstone of his knowledge and report qua the subject for which he had come to depose. It is a matter of common knowledge that there may be variations in the handwriting or signature of every person, especially when they are done after a passage of time. Hence, minor variations in signature which occurs in the normal course cannot be a reason to conclude that the two signatures are not of the same person. In the present case, one of the stand/defence taken by the defendant is that her signature at point F on 10.08.2008 on the agreement to sell was forged and the onus to prove this fact was on the defendant.

57. In these circumstances, it can be said that the testimony of hand writing expert i.e. DW­4 cannot be relied upon as there is lot of discrepancy in the report filed by him. In the judgment titled Alva Almunium Ltd. Bangkok vs. Gabrieal India Ltd, 2011 (1) SCC 167, it has been held by the Hon'ble Supreme Court that " Heavy onus lies on the party who alleges fraud". The burden to prove that her signature was CS No.163/13 29/33 30 forged at point F in exhibited PW­1/1 lied heavily upon the defendant, however, she has failed to discharge that onus that her signature was forged at point F on 10.08.2008 in the agreement to sell exhibited as PW­ 1/1. It is worthwhile to note here that the defendant had not even taken any action in this regard after getting the knowledge of alleged forged signature at point F in the agreement exhibited PW­1/1. The aforesaid conduct is not acceptable in the normal course of conduct, because a prudent person in such a situation would take appropriate actions or initiate the proceedings accordance with law. This court is also of the view that even otherwise, it is a well settled that opinion of the expert is not a conclusive proof of evidence.

58. It is also worthwhile to mention here that defendant has admitted the fact that she had received a part payment of Rs. 9,00,000/­ from the plaintiff towards the consideration amount in terms of the agreement exhibited PW­1/1 executed between the parties. It is well settled that the documentary evidence has to be read in supercession and over and above the oral testimony of a witness as document cannot lie. CS No.163/13 30/33 31 Section 91 and 92 of the Evidence Act,1872 has given statutory recognition to this principle. Even otherwise the documentary evidence i.e exhibited PW­1/1 has not been dislodged as defendant has admitted the execution of agreement exhibited PW­1/1 and even admitted that she had received a sum of Rs. 9 lacs from the plaintiff in terms of the agreement.

59. In these circumstances and the evidence brought on record by the parties, it can be said that plaintiff has been able to prove its case that a sum of Rs.10 lacs were paid to the defendant towards the agreement to sell dt. 22.02.2008. Hence, the plaintiff is entitled to recover the said amount of Rs.10 lacs from the defendant as the said agreement could not be enforced. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.

Issue No.5: Whether the plaintiff is entitled for pendente lite and future interest on decreetal amount. If so at what rate ? OPP

60. The onus to prove issue is upon the plaintiff, who has examined himself as PW­1 and deposed that he is entitled for pendente lite and future interest @ 12 % p.a. on the amount of Rs. 10,00,000/­ till its CS No.163/13 31/33 32 realization.

61. Plaintiff has claimed the interest @ 12 % p.a. but has not brought any evidence on record to show that he is entitled for interest @12 % p.a. Hon'ble Supreme Court in the recent chain of judgments titled as "Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority & Ors. 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and Others 2006(11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd. (2006) 7 SCC 700, and Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra 2007 (2) SCC 720" has mandated that courts must reduce the high rate of interest on account of the consistent fall in the rates of interest in the changed economic scenario. Relying upon the above mentioned judgments, it can be easily concluded that interest claimed @ 12% p.a. by the plaintiff is on the higher side and in the absence of any evidence cannot be granted. Hence, plaintiff will be thus entitled to interest @ 7% p.a. on the decreetal amount.

62. Hence, plaintiff will be thus entitled for interest pendente CS No.163/13 32/33 33 lite and future interest @ 7% p.a. on the decreetal amount from the filing of the suit till its realization. Accordingly, this issue is partly decided in favour of the plaintiff and against the defendant.

63. Relief.

64. In the light of findings given on the above said issues, especially the issue no.4 & 5, which have been decided in favour of the plaintiff and against the defendant. Hence, suit of the plaintiff is hereby decreed for a sum of Rs. 10,00,000/­ along with interest @ 7% p.a. from the date of filing of the suit till the realization of a decreetal amount. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room. 

Announced in the Open Court                                                         (SUNIL RANA)
On this 15.11.14                                                          ADJ­II(N/W): ROHINI : DELHI 




CS No.163/13                                                                                                               33/33