Delhi District Court
Sh. Rehman Aftab Alam vs Sh. Anis Pahalwan @ Jumman on 22 April, 2015
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 399/14
Case I.D. Number : 02402C0096652014
IN THE MATTER OF :
Sh. Rehman Aftab Alam
S/o Sh. Aftab Alam
R/o F198, Gali No. 27,
Old Mustafabad, Delhi110094. ........ Plaintiff
V E R S U S
1. Sh. Anis Pahalwan @ Jumman
S/o Not Known
2. Mohd. Nasir
S/o Not Known
3. Sh. Suleman
S/o Sh. Shabbir Qureshi
4. Sh. Ali Hasan
S/o Not Known.
All R/o Ward No. 41, Jamalpura,
Near P.S. Loni, Loni,
District Ghaziabad, UP201001
Also At
Property Dealer Office
CS No. 399/14 page 1 of 14
Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
H. No. 272, Main 40 Ft. Road,
Near Police Chowki Khanna Nagar,
Loni, District Ghaziabad, U. P.201001
5. Mohd. Shamim @ Tailor Master
S/o Sh. Mumtaz Ali
6. Mohd. Akil
S/o Sh. Abdul Aziz
Both R/o Ward No. 41, Jamalpura,
Near P. S. Loni, Loni,
District Ghaziabad, U. P.201001. ........ Defendants
Date of Institution of suit : 29.03.2014
Date of argument : 21.04.2015
Date of Judgment/Order : 22.04.2015
Decision : Suit is dismissed with costs
Suit for Recovery of Rs. 8,10,000/
J U D G M E N T
1. Vide this judgment I shall decide the suit for recovery of Rs.
8,10,000/ filed by the plaintiff against the defendants.
2. The brief facts of the case as stated in the plaint is that plaintiff is well
known to Mohd. Ayub who told that one plot is available for sale and
introduced the plaintiff to defendant No. 5 and 6. Mohd. Ayub, defendant No.
5 to 6 introduced the plaintiff to defendant No. 1 and defendant No. 2 to 4 has
disclosed regarding one plot measuring 60 sq. yards situated at Sudhir
Enclave near Tronika City. Defendant No. 1 was claimed as owner of the said
CS No. 399/14 page 2 of 14
Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
property. The plaintiff agreed to purchase the said plot on 26.11.2013 for Rs.
4.35 lakh. The plaintiff paid Rs. 2.35 lakh to the defendant No. 1 as earnest
money, Rs. 1 lakh was paid by him to the defendant No. 1 on 28.11.13 and
remaining Rs. 1 lakh was to paid at the time of registration of sale documents
on 28.01.14. On 28.01.14 plaintiff with balance consideration visited the
defendant No. 1 who refused to execute the documents. The defendant No. 1
misappropriated the amount the plaintiff. The plaintiff was abused and
beaten when he asked money from the defendant and also made complaint to
the Police at PS Gokal Puri on 12.02.2014. Legal Notice dated 12.03.2014
was also issued by the plaintiff to the defendants but of no avail. Hence, this
suit is filed by the plaintiff against the defendant.
3. The defendants could not be served through ordinary process and
were served through publication. As none appeared for the defendants
despite service through publication in Newspaper " Statesman" dated
24.09.2014, they were proceeded ex parte vide order dated 24.11.14. The
case was thereafter fixed for ex parte evidence.
4. In support of the case, the plaintiff examined himself as PW1 by way
of affidavit Ex. PW1/A. By way of his affidavit of evidence, the plaintiff has
reiterated the facts mentioned in the plaint. The witness has also relied upon
the relevant documents i.e. Visiting Card Ex. PW1/1, Agreement to Sell Ex.
PW1/2, Payment Receipt Ex. PW1/3, Written Undertaking dated 28.01.2014
CS No. 399/14 page 3 of 14
Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Ex. PW1/4, Presence Slipt Ex. PW1/5, FIR No. 342/14 dated 29.03.14 Ex.
PW1/6, Legal Notice Ex. PW1/7 and Delivery Report Ex. PW1/8 ( colly).
Other witness Mohd. Ayub was examined as PW2 vide affidavit Ex
PW 2/ A who deposed nothing but as deposed by PW1 and contents in the
plaint. As no other witness remained to be examined on behalf of plaintiff,
PE was closed.
5. I have heard the Ld. Counsel for the plaintiff and considered the
relevant materials on record along with provisions of law.
6. The brief and relevant facts for filing of the suit is mentioned at the
outset. The onus to prove the case regarding entitlement of the prayer made
in the plaint as above mentioned remained on the plaintiff. It is well settled
that a suit has to be tried on the basis of the pleadings of the contesting
parties which is filed in the suit in the form of plaint and written statement
and the nucleus of the case of the plaintiff and the contesting case of the
defendant in the form of issues emerges out of that. Being a civil suit, this
suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities.
The balance of probabilities in the present case shows that
CS No. 399/14 page 4 of 14
Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the Power of Attorney Ex. PW3/1 and the Will Ex. P1 were
duly executed by the deceased Sh. Sohan Singh. The Power
of Attorney is after all a registered Power of Attorney, and
more importantly, the original title documents of the subject
property are in the possession of the respondent No. 1 and
which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her father inlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visa vis a civil suit, indisputably is different. Whereas in a criminal CS No. 399/14 page 5 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
7. Section 101 of the Evidence Act, 1872 defines " burden of proof"
which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he CS No. 399/14 page 6 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. arrives at such conclusion he cannot proceed on the basis of weakness of other party.
8. Section 20 of the Specific Relief Act, 1963 provides that jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. The specific performance is an equitable relief and Section 20 of the Act preserves judicial discretion. The relief U/S 20 is not automatic as the Court is required to see the totality of the circumstances which are to be assessed by the Court in the light of facts and circumstances of each case. The party who seek specific performance being an equitable relief must come to the court with clean hands and while exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties and the motive behind the litigation.
9. In a suit for Specific Performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant and readiness and willingness of the plaintiff to perform his part of the contract. The relevant provision of law i.e. Section 16 (c ) of the Specific Relief Acts mandates readiness and willingness on the part of the plaintiff as a condition precedent to seek specific performance. Section 16 (c ) is reproduced hereunder: " Section 16. Personal bars to relief Specific performance of a contract cannot be enforced in CS No. 399/14 page 7 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
favour of a person
XXX XXX XXX
( C) who fails to aver and prove that he has
performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation. For the purposes of clause ( c ), where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
10. As held by Hon'ble Delhi High Court in RFA No. 83/2007, the readiness and willingness are two separate issues. The former depends upon the availability of the requisite funds whereas the later depends on the intention of the purchaser. The readiness has to be proved by the purchaser by leading evidence relating to the availability of the funds whereas the intention has to be inferred from the various circumstances on record. If there is not availability of the funds with the purchaser, he can be none suited on the ground of non readiness alone. If the plaintiff is able to show and prove CS No. 399/14 page 8 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. the availability of balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform cannot be inferred from readiness alone. It is the duty of the Court to find out which party has not performed his part of the contract and the Court has to take into consideration the human probabilities, ordinary course of human conduct and commonsense to draw necessary inference. The Court has to minutely examine the conduct of the parties in order to ascertain the truth.
11. In N. P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao, ( 1995) 5 SCC 115, the Supreme Court held that the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the "readiness" and "
willingness" of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbing in real estate business without means to purchase the suit property and the very contract was speculative in nature.
In R. C. Chandiok V. Chunni Lal Sabharwal, (1970) 3 SCC 140, the Supreme Court held that " readiness" and " willingness" cannot be treated as a straitjacket formula. It has to be determined from the entirety of facts and CS No. 399/14 page 9 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. circumstances relevant to the intention and conduct of the party concerned.
12. It is noted that the Ex. PW1/2 relied by the plaintiff is not registered. The said agreement on the face of it appears not to be reliable being un registered and it also contained another agreement on the back of it the agreement to sell merely notarized and appears to have many corrections/cuttings. No payment was made by the plaintiff to defendant No. 2 to 6 as apparent from the plaint itself and even except the bald averments of the plaintiff, there is nothing on record to show any payment by the plaintiff to the defendant No. 1. The plaintiff has failed to prove any payment of amount in support of the contentions of the defendant No. 1 or further failed prove that he is entitled for any amount on the ground of mental agony/harassment. Admittedly, the plaintiff is not in possession of the property in respect of which the agreement to sell was entered into between the parties but the plaintiff has not sought any relief of possession nor specific performance of the said agreement to sell. Further, the plaintiff failed to prove the complaint made to the police along with his appearance and ready and willingness to comply the terms of the agreement. Nowhere in the plaint or evidence such readiness or willingness is shown by the plaintiff.
13. It is reiterated that whether the earnest money was paid by cash or cheque is neither detailed in the plaint nor proved. In fact nothing is on record either deposed or proved regarding any payment. No income tax CS No. 399/14 page 10 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. return is placed on record by the plaintiff. Moreover, such transaction, if any in cash is violative of the provisions of Income Tax Act. Section 269(SS) of the Income Tax Act prohibits any person from taking or accepting from any other person any loan or deposit in any other way than by cheque or bank draft where the amount is more than Rs. 20,000/. Similarly Section269(T) prohibits the repayment of any loan or deposit other than by way of cheque or bank draft, if amount is more than Rs. 20,000/.These provisions have been extended to loans between two individual as well and in such cases, the Income Tax assessing officer can levy penalty as high on the amount itself. The whole idea behind this clause is to counter act tax evasion. In this case, plaintiff failed to show any reason or ground for alleged transaction in violation of provisions of Income Tax Act. Such payment was not reflected in the income tax return or any records maintained by the plaintiff. The plaintiff cannot be permitted to gain from the illegal act violating any law of the land.
14. I have gone through the judgment titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) and ratio of the case squarely applies in the facts of this case. The relevant para No. 13 of the judgment reads as under: 13" In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the amount was CS No. 399/14 page 11 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
"unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year 2006 it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
15. I have gone through the judgment reported AIR 2008( NOC) 2495( KAR.) which is squarely applicable in the facts and circumstances of the case. Further the judgment reported as 2009 (107) DRJ 271 squarely applies in the facts and circumstances of this case. The plaintiff has not filed even a single document to show the availability of cash in such large volume along with the source of the same. Further there is no explanation as to why such large sum of money was transacted in cash etc.
16. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The plaintiff has failed to produce any oral or documentary evidence to prove the contentions. Undisputedly, the burden lies on the plaintiff to establish such facts.
CS No. 399/14 page 12 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
17. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged. The ratio of the judgment is squarely applicable in the facts and CS No. 399/14 page 13 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. circumstances of this case.
18. In view of the testimony of the PWs, documents on record/pleadings and examining the case of the plaintiff on the basis of preponderance of probabilities, it is established that the plaintiff failed to prove the case and discharge the onus. This court does not find any merit or substance in the suit of the plaintiff. The plaintiff has categorically failed to prove the execution of agreement to sell Ex. PW1/2 along with payment of any earnest money. This court is of the considered opinion that this suit is liable to be dismissed and plaintiff is not entitled for any relief as prayed in the suit. Relief.
In view of aforesaid discussion and findings, this court of the considered view the plaintiff is not entitled for any relief as prayed in the suit. The suit of plaintiff is accordingly dismissed with costs. Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in open Court on this 22nd day of April, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 399/14 page 14 of 14 Rehman Aftab Alam Vs. Anis Pahalwan @ Ors.