Delhi District Court
M/S. St. Divyal Overseas Pvt. Ltd vs Shri Vinod Khosla on 13 September, 2013
IN THE COURT OF SH. ANIL KUMAR SISODIA :
ADDITIONAL DISTRICT JUDGE06, WEST DISTRICT
TIS HAZARI COURTS : DELHI.
CIVIL SUIT NO. 112 OF 2012
M/s. ST. DIVYAL OVERSEAS PVT. LTD.
(A Company incorporated under the
Companies Act, 1956),
through its Director, Shri Tri Nath Khera
having its office at 1512/26,
Hari Singh Nalwa Street,
Karol Bagh, New Delhi110005. ............ PLAINTIFF
Versus
SHRI VINOD KHOSLA
S/o Shri Hari Chand Khosla
R/o 23, Ram Nagar,
Pahar Ganj, New Delhi. ........... DEFENDANT
Date of institution : 06.03.1996
Order reserved on : 13.09.2013
Date of Decision : 13.09.2013
SUIT FOR PERMANENT INJUNCTION
J U D G M E N T :
1. The plaintiff has filed the present suit for permanent injunction against the defendant.
Suit No.112/12 Page : 1/26
2. The facts of the case, as stated in the plaint, are that the plaintiff company is engaged in the business of export in garments and under its diversification programme, it entered in the field of construction and development. The defendant is the sole and absolute owner of property bearing no.NB/1, Master Block, Shakarpur, situated in the area of Village Mandavali Fazalpur, Shahdara, Delhi92, admeasuring 118 sq. yds. and forming part of Khasra No.492 (hereinafter referred to as the "suit property"). In February/ March 1995, defendant approached the plaintiff with the proposal to enter into Agreement of Collaboration to develop and reconstruct the suit property as defendant neither had the resources nor had the experience for the same. The plaintiff company accepted the proposal and entered into the Collaboration Agreement dated 02.04.1995 with the defendant. The defendant handedover the possession of the suit property to the plaintiff company for the purpose of development and reconstruction. It was agreed between the parties that the existing structure of the suit property would be demolished and basement, ground floor, first floor and second floor will be constructed. It was also agreed that the cost of Suit No.112/12 Page : 2/26 construction would be borne by the plaintiff company and defendant will contribute by taking into consideration the value of the land prevailing at Rs.16.00 Lacs. It was also agreed that the plaintiff company will also spend similar amount on the construction and a sum of Rs.5.00 Lacs will be paid to the defendant which would be later on adjusted at the time of sale of the property from the share of the defendant. It was also agreed that the building will be sold by mutual consent of the parties and in case of any dispute, the property would be divided amongst the parties, as provided in the Collaboration Agreement. It is further stated that in pursuance of the Collaboration Agreement, the plaintiff company raised construction after demolishing the existing structure and also paid the defendant on various occasions a sum of Rs.7.23 Lacs out of which Rs.3,23,700/ was paid in cash and the defendant signed the ledger entry for such receipt and the sum of Rs.4.00 Lacs was paid by way of bearer cheque 600449, dated 03.04.1995, drawn on Syndicate Bank, Nirman Vihar, Delhi. In the second week of February 1996, defendant informed the plaintiff company that he was opting for basement, first floor Suit No.112/12 Page : 3/26 and terrace, as stipulated in the Collaboration Agreement and the plaintiff company accepted the offer. On 01.03.1996, defendant gave a pay order to the plaintiff company on account of reimbursement of money received by him. It was further stated that thereafter, the defendant backedout of his option and tried to grab the entire property. It was also stated that the plaintiff company came to know that defendant was trying to sell the suit property to third party and the plaintiff company approached the defendant to restrain from indulging in such illegal activities but the defendant flatly refused to the request of the plaintiff company and also threatened to implicate the plaintiff in false civil and criminal cases. Finding no other alternative, the plaintiff issued public notices in National Herald and Statesman on 28.02.1996 warning the public at large not to deal with the property in question and also filed present suit for injunction.
3. Summons of the suit were served on the defendant. The defendant contested the present suit by filing the Written Statement raising preliminary objections that the plaintiff has not approached the Court with clean hands and has suppressed Suit No.112/12 Page : 4/26 the material facts. It was stated that the defendant was not the owner of the suit property. The defendant was a builder and had been undertaking building construction projects. He wanted to reconstruct the suit property for which he needed finance and he approached the plaintiff for the said purpose and in this context, the Collaboration Agreement dated 02.04.1995 was executed. It was also stated that since the entire money was to be financed by the plaintiff for reconstruction of the building, they wanted some security for their investment and as defendant was unable to give any security of Rs.21.00 Lacs to be invested by the plaintiff, the defendant agreed to enter into the Agreement couched in the language of the Collaboration Agreement. It was stated that the plaintiff had no experience in building contracts nor they had done so at any time before. It was also stated that no consideration was passed between the parties at the time of execution of Collaboration Agreement and the plaintiff gave a bearer cheque no. 600449, dated 03.04.1995 for a sum of Rs.1.00 Lac to the defendant. On the suggestion of Sh. T.N. Khera, Managing Director of the plaintiff company, defendant accepted the cash of Rs.1.00 lac and returned the Suit No.112/12 Page : 5/26 aforesaid cheque after signing on its back, as per the instructions of Sh. T.N. Khera. Later on, the defendant came to know that the plaintiff fabricated the cheque of Rs.1.00 Lac to Rs.4.00 Lacs and withdrew the amount with dishonest intentions on 13.07.1995. The defendant did not receive any amount other than the amount of Rs.1.00 in cash from the plaintiff. It is also stated that since the plaintiff failed to perform their part of the agreement, the defendant forfeited the sum of Rs.1.00 Lac paid by the plaintiff and agreement came to an end. Thereafter, the defendant made some modification and alteration and sold the property part by part. It was at this time the plaintiff again approached the defendant for return of Rs.1.00 Lac. Initially, the defendant declined the demand on the ground he had forfeited the amount. Thereafter, the plaintiff published the notice in the newspaper dated 28.02.1996 and after seeing the notice, defendant called Sh. T.N. Khera, Managing Director of the plaintiff who threatened the defendant of filing suit for injunction as the defendant did not want to be entangled in litigation. He offered to return the sum of Rs.1.00 Lac to the plaintiff but plaintiff further Suit No.112/12 Page : 6/26 demanded Rs.2.00 Lacs which the plaintiff claimed to have paid to Architect and suppliers of building material. The defendant on 26.02.1996 obtained a pay order of Rs.1.00 Lacs and went to the office of the plaintiff. He gave the pay order and Rs.2.00 Lacs in cash to Sh.T.N. Khera on 29.02.1996 and settled the matter. It was stated that the settlement was effected through the common friends but no document was prepared. It was further stated by the defendant that the property has already been disposed off and the suit is bad for nonjoinder of the present owners of the property.
On merits, the contents of the plaint have been denied and the facts stated in the preliminary objections were reiterated and a prayer has been made for dismissal of the suit with costs.
4. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint and a prayer was made for decreeing the suit. The contents of plaint were reiterated and reaffirmed.
5. Vide orders dated 06.03.1996, exparte injunction was passed against the defendant restraining him from creating any third party interest in the suit property.
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6. Following issues were framed on 17.05.2002:
1) Whether the Collaboration Agreement dated 2.4.1995 is a camouflage and is therefore not binding upon the defendant? OPD
2) Whether the plaintiff has failed to perform his part of the contract and the Collaboration Agreement was cancelled by the defendant? OPP
3) Whether the defendant is not the owner of the suit property and is also not authorised to enter into Collaboration Agreement? OPD
4) Whether the defendant has fabricated and antedated the agreement of sale and other documents in favour of various persons? OPP
5) Whether the Collaboration agreement was kept alive after 45 days of its execution and whether the parties acted thereunder? OPD
6) Whether the plaintiff has no cause of action to file the suit?
OPP
7) Whether the suit is bad for misjoinder of necessary parties? OPP
8) Whether the dispute between the parties was amicably settled on 29.2.1996? OPD
9) Whether the physical possession of the property was handed over to the plaintiff in accordance with Collaboration Agreement and whether the developed and reconstructed the property? OPD
10) What amount was paid by the plaintiff under the Collaboration Agreement, if yes, its effect? OPP
11) To what relief, the plaintiff is entitled to?
Suit No.112/12 Page : 8/26
7. Vide order dated 28.04.2013, suit for specific performance and possession pending between the parties bearing Suit No. 55/12 (Old No.509/99) and evidence was directed to be led in the Suit bearing no. 55/12.
8. Thereafter, the parties were directed to lead their evidence. In support of its case, the plaintiff examined Sh. Tri Nath Khera, as PW1 who filed his examination in chief by way of affidavit Ex.PW1/A. PW1 has also proved on record certified copy of the Resolution passed by Board of Directors of the plaintiff firm dated 24.02.1999 as Ex.PW1/1; Collaboration Agreement dated 02.04.1995 as Ex.PW1/2; copy of Ledgers bearing signatures of the defendant as Ex.PW1/3 and MarkA and MarkB. Thereafter, PE was closed.
The plaintiff also examined Sh. P.K. Malhotra as PW2 who was a witness from Syndicate Bank. He stated that the summoned record was not available with the bank as the same has been destroyed and he filed a Certificate to this effect as Ex.PW2/1. Thereafter, PE was closed.
9. Defendant, on the other hand, examined himself as DW1 who filed his examination in chief by way of affidavit Ex.DW1/A. Suit No.112/12 Page : 9/26 Thereafter, DE was closed.
10.I have perused the record carefully including the written submissions filed by the Counsel for the plaintiff and Counsel for the defendant. My findings on the issues are as under: ISSUE NO.1
1) Whether the Collaboration Agreement dated 2.4.1995 is a camouflage and is therefore not binding upon the defendant? OPD
11.The onus of proving this issue was on the defendant. The defendant has admitted that he had entered into a Collaboration Agreement dated 02.04.1995 Ex.PW1/2 with the plaintiff. However, the defence taken by the defendant is that the plaintiff had, in fact, financed the project of the defendant and since the defendant was not having sufficient finance for the construction of the property, the plaintiff in order to secure his investment had the Agreement couched in the language of the Collaboration Agreement. It was submitted that in fact, the plaintiff had no experience in the line of the construction of the buildings and the defendant agreed to the suggestion of the plaintiff and the Agreement Ex.PW1/2 was executed.
12.In support of his case, defendant appeared in the witness box as Suit No.112/12 Page : 10/26 DW1 and filed his examination in chief by way of affidavit Ex.DW1/A wherein he reiterated the same stand. In the cross examination, the defendant admitted the Collaboration Agreement and further admitted that the price of the plot was Rs.16.00 Lacs and the plaintiff was to invest Rs.16.00 Lacs i.e. the value equivalent to the value of the plot. Apart from this evidence, the defendant has not led any evidence to substantiate his defence. The defence raised by the defendant is not admissible and is hit by Section92 of the Indian Evidence Act which provides that when the terms of any contract are required to be reduced into writing and the same has been proved in accordance with law, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding or subtracting to the terms of written contract. In the present case, since the defendant has admitted that he had entered into a Collaboration Agreement Ex.PW1/2 with the plaintiff, his oral evidence to show that the Collaboration Agreement was, in fact, an agreement by way of security to the investment of the plaintiff, is inadmissible. Therefore, the issue is decided against the defendant and in favour of the plaintiff.
Suit No.112/12 Page : 11/26
ISSUE NO.3
3) Whether the defendant is not the owner of the suit property and is also not authorised to enter into Collaboration Agreement? OPD
13.The onus of proving this issue was on the defendant. The defendant has taken a stand that he was not the owner of the suit property. It was stated that the suit property was owned by his sister Mrs. Neena Vaid and he was acting as a Power of Attorney on her behalf.
The plaintiff has denied the contentions of the defendant and it has been submitted that the plaintiff never informed that he was not the owner of the suit property or that he was merely a Power of Attorney on behalf of his sister. It was further stated that the defendant has forged the documents to cheat the plaintiff and he has not proved on record any document to show that he was not the owner of the suit property.
14.A careful perusal of the material available on record would show that the defendant has not placed on record the original documents to show that his sister Neena Vaid was the owner of the suit property nor he has examined Smt. Neena Vaid to prove this fact. The submission of the defendant that he had Suit No.112/12 Page : 12/26 informed the plaintiff that he was a Power of Attorney of Smt. Neena Vaid before entering into the Collaboration Agreement Ex.PW1/2 also appears to be false as a bare perusal of the Agreement Ex.PW1/2 would show that the defendant represented himself to be the owner of the suit property. Therefore, in the absence of any documentary or oral evidence to establish that Smt. Neena Vaid was the owner of the suit property or that the defendant was not authorized to enter into the Collaboration Agreement, I am of the considered opinion that defendant has failed to discharge the onus cast on him. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUES NOS.2, 5 & 9
2) Whether the plaintiff has failed to perform his part of the contract and the Collaboration Agreement was cancelled by the defendant? OPP (OPD)
5) Whether the Collaboration agreement was kept alive after 45 days of its execution and whether the parties acted thereunder? OPD (OPP)
9) Whether the physical possession of the property was handed Suit No.112/12 Page : 13/26 over to the plaintiff in accordance with Collaboration Agreement and whether the developed and reconstructed the property? OPD (OPP)
15.These issues are takenup together as they are interlinked and can be disposed off by common discussion.
The onus of proving issue no.2 has been wrongly placed on plaintiff whereas, it should have been on the defendant. Similarly, the onus of proving issues no.5 & 9 has been wrongly placed on the defendant whereas, it should have been on the plaintiff.
16.The case of the plaintiff is that after entering into Collaboration Agreement, the defendant has handed over the the possession of the suit property to the plaintiff and it had developed and reconstructed the property. The defendant, on the other hand, has taken the defence that the plaintiff has failed to perform his part of the contract and the agreement was cancelled.
17.Ld. Counsel for the defendant has submitted that as per Clause 4 of the Collaboration Agreement Ex.PW1/2, the plaintiff was required to pay a sum of Rs.5.00 Lacs to the defendant in two equal installments within 45 days of execution of the agreement. It has been submitted that the plaintiff failed to Suit No.112/12 Page : 14/26 abide by this term and did not pay Rs.5.00 Lacs to the defendant, as agreed. PW1 admitted in his crossexamination dated 03.03.2010 that he had to pay Rs.5.00 Lacs in cash, as per Agreement and he further admitted that he was to pay Rs.2.50 Lacs at the time of execution of the Agreement and Rs.2.50 Lacs within 45 days of the execution of the Agreement. He further admitted that he has not paid Rs.2.50 Lacs to the defendant as the same was not demanded by the defendant. He further stated that he had paid him Rs.2.50 Lacs in installment to the defendant which has been mentioned in the ledger signed by the defendant. It was submitted by the Counsel for the defendant that the plaintiff also did not comply with the terms & conditions of the Agreement and did not act in accordance with the terms contained therein. He submitted that PW1 agreed in the crossexamination that there was no subsequent agreement in writing for deferring the payment and there was no written agreement for payment of Rs.4.00 Lacs and the same was oral understanding. He also admitted that he has not made any payment to the defendant pertaining to the construction material in cash but the same was paid to various suppliers on Suit No.112/12 Page : 15/26 account of construction. Ld. Counsel for the defendant has submitted that the plaintiff has, thus, failed to perform his part of the Agreement and the Agreement stood cancelled/ revoked for nonperformance by the plaintiff and the said agreement was not acted upon. It was submitted that PW1 admitted that he had to invest Rs.16.00 Lacs, as per the Agreement but in his crossexamination, he stated that he has spent more than Rs.17.00 Lacs for the purpose of construction but he failed to prove the same. It was submitted that the defendant had categorically denied his signatures in the Ledger Ex.PW1/3 and the plaintiff did not examine any Handwriting Expert to prove the signatures of the defendant. It was also stated that the plaintiff filed an additional evidence by way of affidavit dated 08.02.2005 and exhibited the copy of Statement of Account as Ex.PW1/6 and copy of Statement of bank account as Ex.PW1/7 but the same was deexhibited and were marked as MarkA and MarkB and even the additional affidavit was not tendered by the plaintiff in his evidence and hence, the plaintiff failed to prove that he had spent more than Rs.17.00 Lacs for the purposes of construction.
Suit No.112/12 Page : 16/26
18.The plaintiff, on the other hand, placed reliance on the Statement of Account and copy of Statement of bank account and the Ledger Account Ex.PW1/3 and stated that the defendant had wrongly denied his signatures and has given false statement on oath. It was submitted that the Court can itself look to the signatures of the defendant on the Ledger and compare the writings. Reliance was also placed in this regard on the judgment of Lalit Popli Vs. Canara Bank & Ors. (2003) 3 SCC 583.
19.A careful perusal of the evidence available on record would show that even though Clause2 of the Agreement Ex.PW1/2 states that defendant had given the peaceful and vacant possession of the suit property to the plaintiff for the purposes of development and construction, there is nothing on record to show that the possession of the suit property was actually and physically handedover to the plaintiff. The plaintiff has not led any evidence nor has examined any witness to prove this fact. In fact, in view of the admission of PW1 in his cross examination dated 03.03.2010 that he had not even paid Rs.2.50 Lacs to the defendant at the time of execution of the Suit No.112/12 Page : 17/26 Agreement, it is highly improbable that the defendant would have handedover the actual and physical possession of the suit property to the plaintiff. Although, PW1 in his cross examination has stated that the payment was not made as it was not demanded by the defendant but this defence cannot be believed. It is unbelievable that a person entering into a Collaboration Agreement with the Builder would not like to have even the first installment of the payment. PW1 has also admitted that there was no such document to show that defendant did not demand the payment or the payment was deferred on the request of the defendant. No other oral evidence is also available to substantiate the claim of the plaintiff. Similarly, the plaintiff has not been able to prove on record that it had carriedout the construction of the suit property. The Statements of Account and the Ledger have not been duly proved by the plaintiff. Merely filing a document and putting an exhibit mark on the same does not amount to the proof of the contents of the documents, more particularly, when the defendant specifically denied his signatures on the Ledger Account produced by the plaintiff. The plaintiff could have Suit No.112/12 Page : 18/26 examined other witnesses in whose presence the payments were made or even the persons such as the suppliers of the building material to whom the payments were allegedly made by the plaintiff to show that the plaintiff had made the payments and had acted upon the agreement Ex.PW1/2.
20.The fact that the plaintiff was not in possession of the suit property is also corroborated by the report of the Local Commissioner who had visited the suit property on 22.03.1996 to execute the Commission. Perusal of the said report would show that defendant was found to be in possession of first, second and third floors of the suit property and the ground floor and basement were in possession of one Maheshwari and Pandit respectively and the defendant had arranged the keys from those two persons to enable the Local Commissioner to execute the Commission. This report has never been objected to by the plaintiff and it clearly establishes that the plaintiff was not in possession of the suit property even in March, 1996. There is even no complaint on record from the side of the plaintiff that his possession was forcibly taken by the defendant at any point of time prior to the filing of the suit for injunction Suit No.112/12 Page : 19/26 or after the possession was handedover by the defendant in pursuance of the Collaboration Agreement Ex.PW1/2. This fact clearly establishes that the actual physical possession of the suit property was never handedover to the plaintiff at any point of time. If the plaintiff had been given the actual physical possession of the suit property and thereafter, the defendant would have repossessed the suit property, it would have been the natural conduct on the part of the plaintiff to lodge complaint or protest against dispossession but there is no such complaint or protest on the part of the plaintiff which shows that the plaintiff was never put in possession of the suit property in pursuance of the Collaboration Agreement Ex.PW 1/2 and once the plaintiff was not in possession of the suit property, the question of development and reconstruction of the suit property by the plaintiff does not arise.
21.Therefore, in view of the aforesaid discussion, I am of the considered opinion that the Collaboration Agreement Ex.PW 1/2 was never actually acted upon and it was not kept alive after 45 days of its execution and neither of the parties acted under it. Hence, these issues are decided in favour of the Suit No.112/12 Page : 20/26 defendant and against the plaintiff.
ISSUE NO.4
4) Whether the defendant has fabricated and antedated the agreement of sale and other documents in favour of various persons? OPP
22.The onus of proving this issue was on the plaintiff but perusal of the evidence led by the plaintiff would show that except for his bald averments made in the affidavit Ex.PW1/A, the plaintiff has not examined any witness nor has placed on record any evidence of any other nature to prove that the defendant have fabricated and antedated the Agreement of Sale and other documents in favour of various persons. The defendant had filed an affidavit accompanied by the five different Agreements in favour of five persons to show that he had sold the different portions of the suit property to different persons in compliance of the orders of the Hon'ble High Court dated 18.09.1998. From the record, it is apparent that the plaintiff made no attempt to examine these persons as witnesses who could have proved that the copies of the documents placed on record by the plaintiff were forged and not genuine or that they were antedated. Hence, in my considered opinion, the plaintiff has Suit No.112/12 Page : 21/26 miserably failed to discharge the onus cast on him and the issue is accordingly decided against the plaintiff and in favour of defendant.
ISSUE NO.6
6) Whether the plaintiff has no cause of action to file the suit? OPP
23.The onus of proving this issue has been wrongly placed on the plaintiff whereas, the onus of proving this issue should have been on the defendant. In view of my findings on issues no.2, 5 and 9 hereinabove, since it has been held that the Collaboration Agreement Ex.PW1/2 was not acted upon and the plaintiff failed to perform his part of the contract and physical possession of the suit property was never handedover to the plaintiff and the plaintiff did not carryout the development and construction of the suit property, this issue is also decided in favour of the defendant and against the plaintiff. ISSUE NO.7
7) Whether the suit is bad for misjoinder of necessary parties? OPP
24.The onus of proving this issue has been wrongly placed on the plaintiff whereas, the onus of proving this issue should have Suit No.112/12 Page : 22/26 been on the defendant who has alleged that he has sold the suit property to different persons. However, perusal of record shows that defendant has failed to prove any sale documents vide which he had sold the different portions of the suit property to different persons. He has also not examined any of the persons who had allegedly purchased the different portions of the suit property from the defendant and who could have easily corroborated the stand taken by the defendant. Hence, in my considered opinion, the defendant has failed to discharge the onus cast on him. The issue is accordingly decided in favour of the plaintiff and against the defendant. ISSUE NO.8
8) Whether the dispute between the parties was amicably settled on 29.2.1996? OPD
25.The onus of proving this issue was on the defendant. Defendant has taken a defence that the dispute between the parties was amicably settled on 29.02.1996 when the defendant paid Rs.1.00 Lac by way of pay order and cash of Rs.2.00 Lacs to the plaintiff and thereafter there had been no occasion for the parties to approach each other. It was further stated that the said settlement was made when the plaintiff had threatened to Suit No.112/12 Page : 23/26 create trouble by dragging the defendant into the litigation if he did not return the sum of Rs.1.00 Lac paid on 03.04.1995.
26.The defendant in his statement has reiterated this fact and the plaintiff has denied any settlement with the defendant although, the receipt of Rs.1.00 Lacs by demand draft was admitted by PW1 in his crossexamination dated 03.03.2010. In the cross examination, DW1 admitted that the compromise with the plaintiff was oral and he did not have receipt of the payment of Rs.2.00 Lacs to the plaintiff in lieu of compromise. The defendant has not examined any witness to prove the oral compromise with the plaintiff. Hence, in the absence of any corroborative evidence and specific denial by the plaintiff that the matter was amicably settled on 29.02.1996, I am of the considered opinion that the defendant has failed to discharge the onus cast on him and the issue is accordingly decided against the defendant and in favour of the plaintiff. ISSUE NO.10
10) What amount was paid by the plaintiff under the Collaboration Agreement, if yes, its effect? OPP
27.The onus of proving this issue was on the plaintiff. The plaintiff has alleged that he had spent more than Rs.17.00 Lacs Suit No.112/12 Page : 24/26 in pursuance of the Collaboration Agreement Ex.PW1/2. The plaintiff has stated that it had made various payments to the defendant, as per the Statement of Account Ex.PW1/6 and Statement of Bank Account Ex.PW1/7 (subsequently de exhibited and marked as MarkA and MarkB at the time of tendering of affidavit on 02.02.2010).
The defendant, on the other hand, has admitted that he had only received a payment of Rs.1.00 Lac from the plaintiff in cash. He specifically denied that had signed on any ledger maintained by the plaintiff or had received any money from the plaintiff in cash. He also stated that the plaintiff had initially given a cheque of Rs.1.00 Lac on his insistence and the plaintiff after making cash payment took back the cheque and changed the amount to Rs.4.00 Lacs after taking it back and got it encashed on 10.07.1995. In the Written Statement also, the defendant reiterated that he had not received any other amount except a sum of Rs.1.00 Lac. The plaintiff has also not been able to prove the payment of any other amount to the defendant as the record pertaining to the cheque bearing no. 600449 in dispute was destroyed and the plaintiff further failed to prove Suit No.112/12 Page : 25/26 the Statements of Accounts and Statement of bank account as well as the Ledger produced by him in accordance with law and therefore, the same are inadmissible in evidence. The plaintiff has been able to only prove the payment of Rs.1.00 Lac to the defendant which the defendant had admittedly returned to the plaintiff by way of pay order on 29.02.1996, as has been admitted by PW1 in his crossexamination. Therefore, in my considered opinion, no amount is due and outstanding against the defendant and the plaintiff has failed to discharge the onus cast on it. The issue is accordingly decided against the plaintiff. ISSUE NO. 11 (RELIEF)
28.In view of my findings on the aforesaid issues, the plaintiff is not entitled to any relief. The suit of the plaintiff is accordingly dismissed. No orders as to costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court Dated : 13th September, 2013. (ANIL KUMAR SISODIA) ADJ06 (WEST DISTRICT) TIS HAZARI COURTS, DELHI.
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