Delhi District Court
Tirath Prakash Gupta vs Nitin Uppal on 26 July, 2014
IN THE COURT OF NAVEEN GUPTA, ADDITIONAL SENIOR CIVIL
JUDGE-CUM-JUDGE, SMALL CAUSES COURT-CUM-GUARDIAN
JUDGE, NORTH -WEST DISTRICT, ROHINI COURTS, DELHI.
Suit No. 217/10
Tirath Prakash Gupta,
S/o Late Sh. Sua Lal Gupta,
R/o C-93, Avantika, Sector-1,
Rohini, Delhi-110085. ....Plaintiff
Versus
Nitin Uppal,
S/o Sh. Joginder Uppal,
R/o 1896/142, Tri Nagar,
Delhi-110035. .... Defendant
Date of Institution: 29.05.2010
Date on which judgment was reserved: 17.07.2014
Date of pronouncing judgment: 26.07.2014
JUDGMENT
1. This is a suit for recovery of Rs. 2,00,000/- and permanent injunction.
2. Brief facts of the case of plaintiff are that defendant entered into an agreement with him for sale of plot no. 194, Pocket-G, Sector 3, Bawana Industrial Area, Delhi (hereinafter referred as 'impugned plot') for sale consideration of Rs. 51,00,000/- by executing a receipt of Rs. 21,000/- dated 19.04.2010. Rs. 5,00,000/- were payable as earnest money upto 22.04.2010. All the clauses of agreement to sell were recorded in the receipt executed on 19.04.2010. Thereafter, sum of Rs. 1,79,000/- were paid on 20.04.2010 and balance amount of Rs. 3,00,000/- was agreed to be paid on 22.04.2010. Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 1/15 When the said sum of Rs. 1,79,000/- were paid on 20.04.2010, the defendant did not acknowledge the receipt on the pretext that he would execute the receipt of the entire earnest money on 22.04.2010. When the plaintiff approached defendant on 22.04.2010 alongwith balance amount of Rs. 3,00,000/-, the defendant refused to accept the same and to sell the plot. In this manner, the defendant committed breach of agreement dated 19.04.2010. Subsequently, the plaintiff got served a legal notice by way of telegram on 24.04.2010, thereby informing the defendant that he was ready to perform his part of agreement and pay balance consideration, but defendant avoided the said telegram. In order to take benefit of his own wrongs, the defendant filed a false complaint at the Police Station Shanti Nagar for ulterior and malafide motive. Thereafter, it was so heard that the defendant is processing deal of said plot of land with others and by way of legal notice dated 25.04.2010, the defendant was informed that in case, he would deal with said plot with anybody, the same would amount to offence under Section 420 IPC. But, defendant failed to sell the plot and sent reply to the said notice. Hence, the plaintiff has filed the present suit praying for decree of a sum of Rs. 2,00,000/- alongwith pendente lite and future interest and of permanent injunction restraining the defendant from selling, alienating or creating third party interest over the impugned plot.
3. In his written statement, the defendant submitted that no agreement to sell for the plot in question was ever executed between the parties and a false story had been fabricated by the plaintiff with ulterior motives and to harass and blackmail him. Further, in fact, some days ago, the defendant came to know that DSIDC was going to cancel the plot of those persons who had not raised construction over their respective plots. To enquire about the said fact, the defendant went to the office of DSIDC where the plaintiff met him. Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 2/15 The plaintiff represented him that he was doing Liaisoning work in DSIDC and dealt in property matters. He would get the problem of defendant solved. He would charge a sum of Rs. 40,000/- for the same. However, the plaintiff assured the defendant that he would meet him in his (defendant) house. Accordingly, after two days, the plaintiff came to his house and asked him to handover cash and documents to him. On this pretext, the plaintiff received the photocopies of the documents of the said plot of the defendant, one blank signed cheque in the name of DSIDC, 6 passport size photographs, one signed blank letterhead of the firm of the defendant, copy of the identification proof and cash of Rs. 15,000/- from him. After two days, the plaintiff again approached the defendant and stated that the lease deed could not be executed as the file of the said plot had been sent for cancellation to the concerned office. The plaintiff allured the defendant that it would be better for him to sell the said plot to somebody and he (plaintiff) could arrange a potential buyer. But, the defendant stated that he was not interested to sell the plot. But, at this, the plaintiff started pressurizing and threatening the defendant to sell the said plot to him. On 24.04.2010, the plaintiff alongwith his other associates came to the residence of defendant. The plaintiff again started threatening and pressurizing him to sell the said plot. The defendant informed the police at 100 number. The police officials of police post Shanti Nagar came and matter was sorted out. Subsequently, on receipt of the notice dated 25.04.2010 [of the plaintiff], the defendant came to know that the plaintiff had misused the said blank signed papers. The defendant has denied all other allegations/claims made by plaintiff in his plaint.
4. On the basis of pleadings of the parties, following issues were framed by the Court vide order dated 04.12.2010:-
Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 3/15
1. Whether the plaintiff is entitled to a decree for recovery of Rs. 2 lacs as sought in the plaint? OPP
2. Whether the plaintiff is entitled to interest on the above amount? If so, at what rate and for which period? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
4. Relief.
5. To prove his claim, the plaintiff examined three witnesses. PW-1 is plaintiff himself. He deposed on the similar lines as submitted by him in his plaint.
He tendered receipt executed by defendant on 19.04.2010 as Ex. PW-1/1, receipt of telegram dated 24.04.2010 as Ex. PW1/2, legal notice dated 25.04.2010 sent by the plaintiff to defendant as Ex. PW1/3 and reply of the defendant to the above said legal notice as Ex. PW-1/4. PW-2 is Sh. Suresh Chand and PW-3 is Sh. Suresh Kumar. They both submitted that entire transaction with the defendant was done in their presence. A sum of Rs. 21,000/- was paid on 19.04.2010 against receipt in their presence. Further, a sum of Rs. 1,79,000/- was paid on 20.04.2010, but the defendant had not issued the receipt for the same alleging that he would give the receipt after payment of the entire earnest money. Thereafter, the plaintiff closed his evidence.
6. To prove his defence, the defendant examined one witness. DW-1 is the defendant himself. He deposed on the similar lines as submitted by him in his written statement. Thereafter, the defendant closed his evidence.
7. I have heard counsels for plaintiff and defendant. I have perused the record. Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 4/15
8. Issuewise findings are as follows:
Issue no. 1 The plaintiff has claimed that he entered into an agreement to sell with the defendant, whereby the defendant had agreed to sell the impugned plot to plaintiff for a consideration of Rs. 51,00,000/. The earnest money of Rs. 5,00,000/ was to be given by 22.04.2010. However, a token amount of Rs. 21,000/ was given by the plaintiff to the defendant on 19.04.2010 vide receipt Ex. PW1/1. Further, on 20.04.2010, additional amount of Rs. 1,79,000/ was given by the plaintiff to the defendant. Further, the above said dealings between plaintiff and defendant on 19.04.2010 and 20.04.2010 were carried out in the presence of PW2 and PW3. On other hand, the defendant has refuted the claim of plaintiff by alleging that in fact, the plaintiff misrepresented him stating that he would get cancellation of the impugned plot of the defendant by DSIDC stopped. On this pretext, the plaintiff had got some documents, a blank signed cheque, a blank signed letterhead and Rs. 15,000/ from the defendant. Later on, the plaintiff misused the documents and filed the present case.
9. To prove his contention in respect of alleged agreement to sell entered into between him and defendant, the plaintiff has produced a receipt dated 19.04.2010 Ex. PW1/1 signed by the defendant, wherein the defendant has acknowledged receipt of Rs. 21,000/ against the sale of the impugned plot. Counsel for defendant has argued that the said receipt does not bear the Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 5/15 particulars of the buyer or, in other words, in whose favour, the said receipt had been issued. Furthermore, the receipt does not bear the particulars as to where and in whose presence the said receipt was executed/signed by the defendant. Further, even if, it is accepted that PW2 and PW3 were present when the said receipt was signed by the defendant, it has not been explained by the plaintiff as to why they (PW2 and PW3) did not witness the execution of receipt by the defendant.
10.It is true that the receipt Ex. PW1/1 does not bear the particulars as pointed by counsel for defendant. However, it is pertinent to note that the defendant has admitted his signatures on the same. It is admitted case of the parties that the text of receipt had been written in the handwriting of the plaintiff. Further, it is true that the plaintiff did not mention the name of his associates (PW2 and PW3) who had accompanied him to the house of defendant on 19.04.2010 in his plaint as well as affidavit for evidence. But, it is pertinent to note that the plaintiff filed the list of witnesses showing the names of PW2 and PW3 in it and evidence affidavits of all the witnesses on 22.02.2011. Hence, the defendant must have not been surprised by the plaintiff by introducing a new case by proposing to examine PW2 and PW3 to support his contention/claim. It is further pertinent to note that cross examination of PW2 and PW3 and substantial crossexamination of PW1 were conducted, at the request of counsel for the defendant on the same date i.e. 16.04.2012. Hence, the Court is of the view that any of the above said witnesses could not have been tutored or influenced by already conducted Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 6/15 crossexamination of other witnesses of the plaintiff. With these observations, the Court wishes to examine the testimony of plaintiff's witnesses.
11. PW1 stated that Suresh Kumar (PW3) had told him about this deal around 23 days back when he had gone to the house of defendant. PW2 stated that no deal was struck through him. PW3 stated that he was in continuous touch with the defendant for about one month prior to the deal. The plaintiff and Suresh Chand (PW2) were not in touch with the defendant prior to deal. From the above said versions of plaintiff's witnesses, it can be made out that it was PW3 who had been instrumental in getting the deal of purchase of the impugned plot by the plaintiff from the defendant finalized.
12.PW1 stated that on 19.04.2010, they reached at house of defendant at about 6 pm. Similarly, PW2 stated the same fact. PW3, too, stated that he alongwith plaintiff and PW2 went to the residence of defendant on 19.04.2010 at about 66.15 pm. Although the Court would consider the defence of defendant in detail at later stage; however, it is pertinent to note that during his crossexamination, the defendant admitted that on 19.04.2010, plaintiff was accompanied with two persons when he came to his house. In this manner, there is coherence in the testimony of plaintiff's witnesses in respect of time of their arrival at the house of the defendant on 19.04.2010. Further, PW1 stated that the currency notes of Rs. 21,000/ were in denomination of Rs. 1,000/ each. PW2 stated that Rs. 21,000/ was Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 7/15 paid in his presence and the same was in the denomination of Rs. 1,000/ each. PW3 stated that receipt was executed between the parties [in his presence]. In this manner, the plaintiff has produced two witnesses in addition to his own testimony who had categorically stated that the plaintiff paid Rs. 21,000/ against receipt Ex. PW1/1 to the defendant on 19.04.2010 in their presence. In other words, the version of the plaintiff/PW1 in respect of execution of receipt by defendant has been corroborated by the testimony of PW2 and PW3. During crossexamination of PW1, PW2 and PW3, defendant could not bring anything on record so as to impeach the credibility of their version on this aspect. PW2 and PW3 have stated about the presence of family members of defendant at his house on 19.04.2010. But, surprisingly, the defendant except his own testimony did not examine any of his family members to dispute the version of PW2 and PW3 to this effect. In these circumstances, even if the plaintiff has failed to get the execution of receipt by the defendant witnessed by PW2 and PW3, the same does not nullify evidentiary value of receipt Ex. PW1/1.
13.Besides the version made by PW1, PW2 and PW3 in their evidence affidavits about payment of Rs. 1,79,000/ to the defendant on 20.04.2010, they remained unmoved on this aspect during their crossexamination. PW1 stated that he alongwith PW2 and PW3 went to house of the defendant on 20.04.2010 at about 9.30 am. PW2 stated that they including PW1 and PW3 went to the house of defendant and reached there at about 9.159.30 am. An amount of Rs. 1,79,000/ was paid to the defendant in the Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 8/15 denomination of Rs. 500/. No document was reduced into writing on that day. PW3 stated that they again went to the house of defendant on 20.04.2010 at about 9.30 am. No document was reduced into writing on that day. In this manner, again, there is consistency in the testimony of PW1, PW2 and PW3 in respect of the time of their arrival at the house of defendant on 20.04.2010 and payment of Rs. 1,79,000/ to the defendant by plaintiff. PW2 had deposed even about the denomination of currency notes given to the defendant on that day. Moreover, all the plaintiff's witnesses have provided a detailed picture as to how they had gathered and proceeded to the house of defendant on 20.04.2010. There is consistency in their version on this aspect too. Again, the defendant did not examine any of his family members to contradict the version of their (PW1, PW2 and PW3) visit to his house on 20.04.2010, while PW1 and PW3 had deposed about the presence of family members of defendant in his house on that day. The defendant could not bring anything on record during crossexamination of the plaintiff's witnesses to refute the claim of the plaintiff that he gave Rs. 1,79,000/ to the defendant on 20.04.2010 in his house in the presence of PW2 and PW3.
14. The plaintiff has explained the reason for not furnishing any receipt/acknowledgment by the defendant to him in respect of payment of Rs. 1,79,000/. He stated that defendant told him that he would execute receipt of entire earnest money on 22.04.2010. The said version of the plaintiff/PW1 was not specifically challenged during his crossexamination Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 9/15 or for that matter, of PW2 and PW3. The defendant did not seek any explanation from PW2 and PW3 as to why the document in respect of payment of Rs. 1,79,000/ was not reduced into writing on 20.04.2010. Hence, the fact of nonexistence of any writing in respect of payment of Rs. 1,79,000/ does not effect the case of the plaintiff. Further, the defendant did not put any question to the plaintiff in respect of source of the amount of Rs. 21,000/ or Rs. 1,79,000/ given by him to the defendant in cash. Since defendant has preferred not to put any question on this aspect, the same cannot be taken into consideration at this stage.
15.Counsel for defendant has argued that PW2 and PW3 were interested witnesses. But, defendant could not bring anything on record during cross examination of PW2 and PW3 as to in what manner, they were interested witnesses or for that matter, they had been tutored to depose in favour of the plaintiff. There is consistency in the testimony of PW2 and PW3 so far as their version in respect of the dealings between plaintiff and defendant carried out on 19.04.2010 and 20.04.2010 is concerned.
16.Now, the Court proceeds to examine the defence of defendant that the plaintiff had taken some documents, including blank signed paper on which receipt Ex. PW1/1 was prepared, on the pretext that he would get the cancellation of the impugned plot by DSIDC stopped. The defendant/DW1, during his crossexamination, deposed that he did not have clipping of the newspaper, wherein he had read the notice in respect of cancellation of the Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 10/15 impugned plot. He was not having a specific knowledge as to whether any notice had been served to him by DSIDC. He was not even aware as to whether DSIDC had canceled plot of any person. The defendant further deposed that he had raised the construction of ground floor, first floor and basement over the impugned plot in the year 201112. He has further stated that the impugned plot was in his possession at present. Considering the above said version and nonfiling of any supporting document by the defendant, he (defendant) has failed to prove that he had any apprehension or threat regarding cancellation of the impugned plot by DSIDC at the relevant time.
17. In his evidence affidavit, the defendant in para no. 8, 9 and 10 had submitted about the visit of plaintiff to his house. The defendant did not disclose the date of his first meeting with the plaintiff in the office of DSIDC. Furthermore, he did not mention the dates on which the plaintiff visited his house prior to 24.04.2010. However, during his crossexamination, he stated that the plaintiff visited his house twice. The said version is in contradiction with his evidence affidavit wherein he had submitted that plaintiff had visited his house twice prior to his visit on 24.04.2010 alongwith his other associates. Further, during his crossexamination, the defendant stated that the documents and amount were given to the plaintiff by him on second visit and during first visit on plaintiff, they had talked about the plot. The above said version is also in contradiction with his evidence affidavit/examination inchief. Even otherwise, the defendant has submitted that he did not take Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 11/15 any receipt from the plaintiff in respect of handing over of the photocopies of documents and Rs. 15,000/ to him. There was no witness to the first transaction/deal with the plaintiff. It is beyond comprehension that any person would handover the documents pertaining to a plot, one blank signed cheque in the name of DSIDC, 6 passport size photographs, one blank signed letterhead, copy of identification proof and cash of Rs. 15,000/ without verifying the credential of the receiver and obtaining an appropriate receipt to this effect. Further, it is pertinent to note that the defendant admitted the presence of two persons alongwith plaintiff when they came to his house on 19.04.2010. But, he did not put his defence to PW2 and PW3, if at all they were the same persons who accompanied the plaintiff on 19.04.2010.
18.Furthermore, as per case of the defendant, after two days of handing over of the documents and cash, the plaintiff again approached him and threatened him to sell the impugned plot. On 24.04.2010 too, the plaintiff threatened and pressurized him. He made a call to the police at 100 number. Surprisingly, the defendant did not produce the complaint given by him to the police on 24.04.2010. The said complaint must have contained the details of dealings between the plaintiff and defendant. But, the defendant has preferred not to produce the said complaint for the reasons best known to him. Further, it has not been explained by the defendant as to what action was taken by him against the plaintiff to receive back the alleged documents and cash given by him to the plaintiff or to avoid misuse of the above said Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 12/15 documents by the plaintiff. Furthermore, the defendant did not clarify as to whether he had approached his banker to stop the payment of the blank signed cheque in favour of DSIDC given by him to the plaintiff. It is pertinent to note that the plaintiff had sent a legal notice dated 25.04.2010 Ex. PW1/3 to the defendant promptly, calling upon him to sell the impugned plot as per agreement dated 19.04.2010 and the defendant sent reply dated 04.05.2010 Ex. PW1/4. But, surprisingly, the defendant did not initiate any legal action against the plaintiff for taking the alleged documents and cash back. Furthermore, the defendant has not even filed counter claim to the present suit praying for direction to the plaintiff to return those documents and cash. In these circumstances, the defendant has failed to prove his defence.
19.Since plaintiff has proved that he gave Rs. 2,00,000/ in total to the defendant against agreement entered into on 19.04.2010. But, the sale of the impugned plot could not be materialized due to refusal of the defendant to sell the impugned plot. It is not the case of defendant that the said part payment of the earnest money i.e. Rs. 2,00,000/ has been forfeited by him for breach of any term of agreement between the parties. Hence, the plaintiff is entitled to recover the amount of Rs. 2,00,000/ from the defendant. Issue no. 1 is decided in favour of the plaintiff and against defendant. Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 13/15
20.Issue No. 2:
The plaintiff has prayed for pendente lite and future interest. Having regard to the prevailing bank rates, interest of justice should be served by granting pendente lite interest at the rate of 9% per annum and future interest at the rate of 6% per annum. The issue no. 2 stands decided accordingly.
21.Issue No. 3:
The plaintiff has prayed for decree of permanent injunction restraining the defendant from selling, alienating or creating third party interest over the impugned plot. It is settled law that agreement to sell itself does not create any right in favour of purchaser over the property to be purchased. The plaintiff has not filed the present suit praying for decree of specific performance of contract against the defendant. Unless the plaintiff establishes his claim over the impugned plot, no restriction can be put on rights of defendant over the impugned plot in respect of selling, alienating or creating third party interest. Reliance is placed on the guidelines laid down by the Hon'ble Delhi High Court in Cdr. Bhupinder Singh Rekhi v. C.S. Rekhi And Ors., 76 (1998) DLT 257, wherein the Court has held that:
8. It is axiomatic that mere agreement to sell creates no legal interest or right in the property which is the subject matter of the agreement. (Ram Baran Prasad v. Ram Mohit Hazra and Ors., AIR 1967 SC 744; Satyabrata Ghose v.
Mugneeram Bangur and Co. and Anr., AIR 1954 SC44 ).
Therefore, it must be held that by mere agreement to sell, the plaintiff got no interest in the suit land. Consequently, he Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 14/15 could not be said to be having any legal interest to entitle him to file the present suit.
Accordingly, issue no. 3 is decided against the plaintiff.
22. Relief:
The suit of plaintiff is partly decreed. The plaintiff is entitled to recovery of Rs. 2,00,000/ along with pendente lite interest at the rate of 9% per annum from the date of institution of the suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till the date of realization. The plaintiff is also entitled to recover costs of the suit from the defendant. Decree sheet shall be prepared accordingly. File be consigned to Record Room.
Announced in the open Court (Naveen Gupta)
th
on day of 26 July, 2014 Additional Senior Civil Judge cum Judge,
Small Causes Court cum Guardian Judge,
NorthWest District, Rohini, Delhi.
Suit No. 217/10 Tirath Prakash Gupta v. Nitin Uppal 15/15