Delhi District Court
Darshan Lal Nagpal vs Anil Sharma on 28 March, 2024
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
CS DJ ADJ No. 484/2017
CNR No. DLSW010052922017
IN THE MATTER OF:
Darshan Lal Nagpal
S/o Sh. Diwan Chand
R/o Plot No.A-65, First Floor,
Vikas Puri, New Delhi ........Plaintiff
Versus
Anil Sharma
S/o Sh. B.D. Sharma
R/o E-554, Mahavir Enclave,
Park-3, Near Veer Bazar Chowk,
New Delhi-59. ........Defendant
Date of institution 18.05.2017
Date of reserving judgment 21.03.2024
Date of pronouncement of judgment 28.03.2024
JUDGMENT
This is a suit for recovery of ₹12,00,000/- that was instituted under Order XXXVII CPC but later, an unconditional leave to defend was granted to the defendant. The brief facts as stated in the plaint are:− 1 It is stated that the plaintiff was known to the defendant since the defendant was earlier a tenant of the plaintiff. It is stated that in January 2013, the defendant requested the plaintiff for a loan of ₹12 lakhs, however, since it was a considerable amount, the defendant offered to sell his property at B-89-A, CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 1/19 Village Palam, New Delhi (hereinafter referred to as "the property") for ₹10.25 lakhs. It is stated that the defendant executed an Agreement to Sell dated 10.01.2013 in favour of the son of the plaintiff, namely Gaurav Nagpal and assured to execute a sale deed very soon.
2 It is stated that the defendant also requested a loan of ₹1.75 lakhs from the plaintiff and relying on his assurances, the same was advanced.
3 It is stated that the defendant kept delaying the execution of the sale deed and later trespassed into the property. It is stated that the defendant again sold the property to someone else, without cancelling the documents in favour of the plaintiff's son. 4 It is stated that when the plaintiff was about to take criminal action against the defendant, he agreed to return ₹12 lakhs to him. It stated that he persuaded the plaintiff not to take any action against him and gave two cheques to the plaintiff:
cheque no. 501707 dated 20.09.2015 in the sum of ₹6 lakhs and cheque no. 501708 dated 01.09.2015 in the sum of ₹6 lakhs.
5 It is stated that the defendant kept requesting the plaintiff to not present the cheques and consequently, one cheque became outdated and later, the other was dishonoured with the remarks "insufficient funds." It is stated that the plaintiff sent a legal notice to the defendant but he did not return his money. 6 It is stated that the plaintiff then filed a criminal complaint case under Section 138 of the Negotiable Instruments Act in which the defendant admitted that he had taken ₹10.25 lakhs from the plaintiff's son as the sale consideration of the property but the said deal was cancelled. It is stated that the defendant also admitted his liability to pay ₹1.75 lakhs, however, he falsely CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 2/19 claimed that it was on account of some money dispute. It is stated that the defendant falsely claimed in the criminal case that he agreed to pay ₹4.5 lakhs more and transferred this total amount of ₹14.75 lakhs in the account of the plaintiff's wife from the account of M/s The Event Manager in instalments from 11.02.2013 to 21.03.2013. It is stated that the defendant falsely claimed that the two cheques were security cheques, which were not returned to him after the repayment.
7 It is stated that the dealings of the plaintiff's wife with M/s The Event Manager and those between the plaintiff and defendant were different. Hence, the present suit has been filed. 8 The defendant filed a written statement stating that the plaintiff & his son were in the money lending business. It is stated that the defendant needed money and the plaintiff's son approached him for the sale of the property. It is stated that the defendant was reluctant to sell his property but owing to close relations, the plaintiff & his son agreed to give ₹10.25 lakhs to him against the property. It is stated that the defendant needed more money and therefore, they transferred ₹15 lakhs into the account of M/s The Event Manager from the account of the plaintiff's wife before the execution of the documents regarding the property. It is stated that the possession of the property was never handed over but only the title deeds were handed over to the plaintiff & his son.
9 It is stated that the defendant requested the plaintiff's son to take the money back but he refused saying that there was some outstanding dispute. It is stated that later both sides agreed that ₹14.75 lakhs would be returned as a full and final settlement, and the same would be paid in instalments starting from the second CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 3/19 week of February 2013. It is stated that the two blank cheques were given as security only. It is stated that the amount of ₹14.75 lakhs was later transferred from the account of M/s The Event Manager (belonging to the defendant's father-in-law) in instalments dated 11.02.2013, 12.02.2013, 14.02.2013, 20.02.2013 and 21.02.2013 in the account of the plaintiff's wife. 10 It is stated that on 02.02.2013 and 09.02.2013, ₹1.5 lakhs and ₹2.75 lakhs were also paid in the account of the plaintiff's wife.
11 It is stated that after the return of this money, the defendant was within his rights to sell the property to anyone. It is also stated that the cheques in question were given at the time of the advancement of the loan. It is also stated that the defendant had made true and correct statements in the criminal case. 12 The plaintiff filed a prolix replication wherein he denied the contents of the written statement and gave an argumentative comparison of the stand taken by the defendant in the written statement, the criminal case, the application for leave to defend and the reply to his application under Order XI Rule 12 CPC. It was stated that the defendant's father-in-law had borrowed ₹15 lakhs from the plaintiff's wife and the amount of ₹14.75 lakhs transferred by him had nothing to do with the amount of ₹10.75 lakhs taken by the defendant. It is stated that the defendant did not mention any loan of ₹15 lakhs in his application for leave to defend and also, he had taken a contrary stand in the said application by stating that the title deeds had never been handed over to the plaintiff's son.
13 Vide order dated 27.02.2021, seven issues were framed by Ld. Predecessor Court:
CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 4/19 "i)Whether the plaintiff purchased an immovable property ad measuring 25sq.yds., Khasra No.116/18 situated in village Palam area abadi known as colony Mahavir Enclave, Gully No.24, Part II, New Delhi for a sum of Rs.10,25,000/- in cash from the defendant? ...OPP
ii)Whether a sum of Rs.1,75,000/- in cash was advanced as friendly loan by the plaintiff to the defendant? ... OPP
iii)Whether the plaintiff has concealed true and material facts from this court? ... OPD
iv)Whether plaintiff has no locus standi to prefer the present suit against the defendant? ... OPD
v)Whether the suit preferred by the plaintiff against the defendant is bad for non joinder of parties? ...OPD
vi)Whether the plaintiff is entitled for a money decree of Rs.12,00,000/- against the defendant? ...OPP
vii) Relief, if any"
14 In order to prove his case, the plaintiff entered the witness box as PW1 and tendered his affidavit Ex PW-1/A in evidence which reiterates the facts mentioned in the plaint. He relied on the following documents: (some exhibits have been wrongly mentioned in the testimony) S. No. Document Marked as
1. Cheque bearing no. 501707 Ex PW1/J
2. Cheque bearing no. 501708 Ex PW1/K
3. Copy of agreement to sell Mark F (also ExPW1/PX1)
4. Copy of cash receipt Mark G
5. Copy of the Will Mark H
6. Copy of possession letter Mark I CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 5/19
7. Copy of affidavit Mark J
8. Certified copy of Notice framed in the criminal case Ex PW1/Q
9. Copy of the application under Section 145(2) of the Mark K NI Act
10. Copy of the statement recorded under Section 313 Mark L CrPC
11. Certified copy of examination-in-chief of the Ex PW1/U defendant recorded in the criminal case
12. Copy of cross-examination of the defendant Ex PW1/V recorded in the criminal case and Mark N
13. Certified copy of the legal notice Ex PW1/W
14. Certified copy of postal receipts Ex PW1/X and Ex PW1/Y
15. Return memo Ex PW1/Z 15 The defendant examined three witnesses in his support:
15.1 DW1/the defendant tendered his affidavit Ex DW1/A, which is on the lines of his written statement. He relied on the following documents:
S. No. Document Marked as
1. Copy of the account statement of M/s The Event Mark Manager with HDFC Bank DW1/A
2. Copy of the account statement of M/s The Event Mark Manager with ICICI Bank DW1/B 15.2 DW2/Witness from ICICI Bank proved the account statement of M/s The Event Manager Ex DW2/B. 15.3 DW3/Witness from HDFC Bank proved the account statement of M/s The Event Manager Ex DW3/A. 16 I have heard Sh. Rajiv Dhawan, Ld Counsel for the plaintiff and Sh. Ajay M. Lal, Ld Counsel for the defendant. 17 My issue-wise findings are as under:
17.1 "(i)Whether the plaintiff purchased an immovable property ad measuring 25sq.yds., Khasra No.116/18 CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 6/19 situated in village Palam area abadi known as colony Mahavir Enclave, Gully No.24, Part II, New Delhi for a sum of Rs.10,25,000/- in cash from the defendant? ...OPP"
AND "(ii)Whether a sum of Rs.1,75,000/- in cash was advanced as friendly loan by the plaintiff to the defendant? ... OPP"
17.1.1 The onus of proving these issues was on the plaintiff. These issues are connected and therefore, being taken up together.
17.1.2 The plaintiff has testified that he had purchased the property in the name of his son and paid the sale consideration of ₹10.25 lakhs in cash whereas the defendant claims that the property had only been mortgaged by deposit of title deeds and ₹10.25 lakhs was a loan that was transferred into the account of M/s The Event Manager by the wife of the plaintiff. 17.1.3 The execution of the chain of documents dated 10.01.2013 is not denied by the defendant. However, it may be noted that the stand of the defendant in his affidavit Ex DW1/A, that he had handed over the original title deeds to the plaintiff's son, is contrary to his affidavit filed the application for leave to defend, where his defence was that the original title deeds had never been handed over.
17.1.4 Nevertheless, a perusal of the documents dated 10.01.2013 would reveal that these are the customary chain of documents that are executed during the transfer of property either as a step before the final execution of the sale deed or to avoid execution of a sale deed (and hence, stamp duty.) The documents CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 7/19 are Agreement to sell, General Power of Attorney, Will, Receipt, Affidavit and Possession Letter. None of these documents are documents of mortgage of the property.
17.1.5 Ld Counsel for the defendant has argued that the plaintiff & his son are property dealers and it is fairly common in their community that such a chain of documents is executed only to secure a mortgage and there is an understanding between the parties that these documents are cancelled as soon as the loan is repaid. It is stated that the possession of the property was never handed over to the plaintiff's son because the chain of documents was not executed to transfer the property but to secure the mortgage only.
17.1.6 I have given due consideration to this argument. 17.1.7 As per Section 92 of the Evidence Act, when the terms of any contract, grant or other disposition of property have been reduced to the form of a document and proved in terms of Section 91 of the Act, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from, its terms. There are some exceptions to this rule:
"Proviso (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 8/19 Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved. Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts."
17.1.8 The onus of proving such exceptional grounds is on the party who asserts such facts.
17.1.9 In the present case, the defendant does not claim fraud, intimidation, etc. He further does not claim the existence of a condition precedent or the existence of a subsequent agreement, thus proviso (1), (3) and (4) are not applicable to his case. Since the defendant seeks to introduce terms that are inconsistent with the nature of these documents, proviso (2) and (5) also do not apply. Further, there is no ambiguity in the language of these documents and hence, proviso (6) is also inapplicable.
17.1.10 Resultantly, the defendant is not allowed to lead oral evidence to repudiate the terms of the chain of documents dated 10.01.2013.
17.1.11 Ld Counsel for the defendant has argued that the documents themselves are invalid because they cannot create any rights in an immovable property. My attention has also been drawn to the fact that all the documents including the Agreement to Sell is signed only by the defendant and not by the plaintiff's CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 9/19 son. It is argued that this shows that the intention of the parties was not to transfer the property.
17.1.12 I am unable to agree with this argument. The documents are Agreement to sell, General Power of Attorney, Will, Receipt, Affidavit and Possession Letter. There is no gainsaying that General Power of Attorney, Receipt and Affidavit had to be signed by the seller/defendant only because of the very nature of these documents. The Will had to be signed in the presence of two witnesses and is thus invalid, but it did not require the signatures of the purchaser/the plaintiff's son. As regards the Agreement to Sell and Possession Letter, there is no law mandating that it must be signed by both sides. Reliance is placed on the judgment in the case of Aloka Bose v. Parmatma Devi, (2009) 2 SCC 582, wherein the Hon'ble Supreme Court observed that an agreement to sale is perfectly valid even if it is signed only by the seller/vendor:
"Section 10 of the Act provides that all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid.
18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 10/19 purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."
(emphasis supplied) 17.1.13 The defendant is a businessman who has run several firms and is wise enough to run them in the name of his father-in- law and wife instead of his own name. There is no reason why he would execute a chain of documents purporting to transfer his property and also hand over blank cheques instead of executing a mortgage deed.
17.1.14 Here, it would be relevant to refer to the statement given by the defendant when the Notice under Section 138 of the NI Act was read out to him. A certified copy of the Notice Ex PW1/Q shows that the defendant stated that "A deal in respect of House No. D-89A, Khasra No. 116/18, Mahavir Enclave..... got done with Mr Gaurav Nagpal (son of the complainant). .....Mr Gaurav Nagpal gave me Rs 10,25,000/- as consideration amount for the aforesaid deal but the said deal was cancelled." 17.1.15 Further, in his examination-in-chief before the Ld Metropolitan Magistrate as recorded in Ex PW1/U, the defendant stated that "The complainant and his son were desirous of purchasing my aforesaid flat and they approached me for the same. I was little reluctant to sell the same. At that time, I was faced with some financial hardship, and then I agreed to the offer of the complainant and executed an agreement to sell, power of attorney, etc in favour of the son of the complainant for a consideration of Rs 10,25,000/-..."
17.1.16 In the written statement filed in this suit, the defendant repeatedly reiterated that the statements given by him CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 11/19 before the Ld Metropolitan Magistrate were true and correct. In these circumstances, it is clear that the documents dated 10.01.2013 were not executed to witness a mortgage but were customary documents executed in the process of transfer of property.
17.1.17 Consequently, the defendant has failed to show any viable reason to believe that the chain of documents dated 10.01.2013 was a mortgage and not an agreement to sell. True that such documents do not transfer ownership of immovable property but the plaintiff has approached the Court for refund of his money and not declaration of ownership rights. 17.1.18 The next point of consideration is whether the amount payable under the Agreement to Sell had been paid in cash or not.
17.1.19 At the risk of repetition, it may again be noted that the defendant has admitted the execution of the chain of documents, including the cash receipt, and also stated that he signed them after understanding the contents thereof. 17.1.20 Ld Counsel for the defendant has argued that the money had been paid in advance through a bank account transfer before the documents dated 10.01.2013 were executed. 17.1.21 On the other hand, Ld Counsel for the plaintiff has argued that the transfer of ₹15 lakhs is not related to the deal of 10.01.2013 and it was an independent transaction. Likewise, it is argued that the amount of ₹14.75 lakhs which was transferred by the defendant through M/s The Event Manager to the plaintiff's wife was the repayment of the transaction of ₹15 lakhs and not against the return of ₹10.25 lakhs or ₹12 lakhs. 17.1.22 The defendant has not annexed the statement CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 12/19 showing the receipt of this money but his examination Ex PW1/V shows that the money had been transferred into the account of M/s The Event Manager by the plaintiff's wife on 07.01.2013, as was also verified by PW1 during his cross- examination.
17.1.23 One fails to understand why the money was transferred to the defendant before the Agreement to Sell was executed. The plaintiff & his son are shown to be property dealers; why would they transfer money before executing necessary documents? Furthermore, why would they accept collateral of ₹10.25 lakh or ₹12 lakh instead of ₹15 lakh. 17.1.24 The defendant has taken contradictory stands to create confusion. While he stated that the plaintiff & his son agreed to give him ₹10.25 lakhs against the property, in the very next sentence he stated that he needed more money and therefore, they transferred ₹15 lakhs to him. If ₹10.25 lakhs were given against the property, then why did they give the remaining ₹4.75 lakhs to the defendant? Even the blank cheques, which the defendant claims to have given, are in the sum of ₹12 lakhs only. 17.1.25 Again, a reference may be made to the Notice Ex PW1/Q. In this statement, the defendant categorically admitted that the plaintiff's son had given him ₹10.25 lakhs but after the deal was called off, some dispute arose between them and he agreed to pay him ₹1.75 lakhs extra. Here too, he changed his version in the very next sentence and stated that he agreed to pay ₹10.25 lakhs with an additional ₹4.5 lakhs. He made no mention of the transfer of ₹15 lakhs in this statement. 17.1.26 These fluctuating stands taken by the defendant show that he was covertly trying to justify the discharge of two CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 13/19 different liabilities: ₹12 lakhs (₹10.25 lakhs + ₹1.75 lakhs) and ₹15 lakhs (₹10.25 lakhs + ₹4.5 lakhs + remainder).
Since he had issued cheques in the sum of ₹12 lakhs, he had to justify the same but at the same time he also wanted to show that ₹14.75 lakhs was also the same transaction, so he mentioned that all well. These overtly contradictory declarations serve no purpose other than to engender confusion within judicial proceedings.
17.1.27 Ld Counsel for the defendant has argued that PW1 admitted in his cross-examination that only ₹25,000 was outstanding against the defendant and therefore, it is proved that the defendant is not liable to pay ₹12 lakhs.
17.1.28 However, I do not concur with this. During the cross-examination, PW1 was questioned about the transfer of ₹14.75 from M/s The Event Manager to his wife's account, to which he replied that ₹25,000 was still outstanding. He was thus, clearly referring to the remainder of the transaction involving ₹15 lakhs and not the transaction dated 10.01.2013. 17.1.29 Ld Counsel for the defendant has further argued that paragraph 6 of Ex PW1/A is beyond the pleadings and as such, it cannot be read. It is stated that in the said paragraph, PW1 stated that the loan of ₹15 lakhs was given in the year 2015 whereas he claims that the defendant had already trespassed into the property in the year 2013. It is stated that the version of the plaintiff is not believable.
17.1.30 Strangely, Ld Counsel has the defendant has argued that the said paragraph should not be relied on and also placed reliance on it. Nevertheless, the fact mentioned in paragraph 6 is not beyond the pleadings; it is mentioned in the replication.
CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 14/19 Further, it is clear that there is a typographical error in the year mentioned in the said paragraph since it is the admitted case of both sides that the amount of ₹15 lakhs was transferred by the plaintiff's wife to M/s The Event Manager on 07.01.2013. 17.1.31 Hence, there is no doubt that the transaction involving ₹15 lakhs and the transaction pertaining to the chain of documents dated 10.01.2013 are two different transactions. 17.1.32 It is not in dispute that the defendant has sold the property to a third person. Therefore, he was liable to return the money paid by the plaintiff & his son under the Agreement to Sell dated 10.01.2013.
17.1.33 Coming to the loan of ₹1.75 lakhs, the plaintiff has testified that the defendant took this amount in cash from him, whereas the defendant has denied taking any such loan. 17.1.34 The plaintiff has not furnished any cash receipt or other document regarding the loan of ₹1.75 lakhs, however, the defendant has admitted his liability to pay ₹1.75 lakhs in addition to ₹10.25 lakhs in Ex PW1/Q. Ergo, he had issued two cheques in the sum of ₹12 lakhs.
17.1.35 Ld Counsel for the defendant has argued that the cheques in question were blank security cheques given on 10.01.2013.
17.1.36 In this regard, it is noteworthy that there are umpteen instances where the defendant has contradicted his previous statements. In paragraph 8 of Ex DW1/A, the defendant stated that the cheques were given on 10.01.2013 but in paragraph 3, he stated that when he requested the plaintiff & his son to take back their money (reasonable to presume that not on the same day), the plaintiff & his son started blackmailing him CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 15/19 and thereafter, he gave blank cheques to them. Per contra, in paragraph 17, the defendant states that when he was told that the cheques were missing, he believed the plaintiff because they had "very cordial and good relations." It is perplexing how the plaintiff could simultaneously engage in blackmail and maintain cordial relations with the defendant.
17.1.37 Further in his cross-examination recorded in Ex DW1/PX1, the defendant has asserted that the agreement with the plaintiff's son was annulled in March 2013. Consequently, if indeed the agreement was terminated in March 2013, it follows that any alleged coercion by the plaintiff & his son may have occurred subsequent to this termination. This supposition suggests that the cheques were issued in March 2013 or later, and not on 10.01.2013, as contended by the defendant in this suit. 17.1.38 Ld Counsel for the defendant has argued that the plaintiff has admitted in his cross-examination that the two cheques in question were given as security on 10.01.2013. On the other hand, Ld Counsel for the plaintiff has submitted that the plaintiff had got perplexed and agitated due to his lengthy cross- examination and hence, he mistakenly made that statement. 17.1.39 I have considered this argument. Ordinarily, an admission by the opposite side is sufficient to dispense proof of that fact since an admitted fact need not be proved. However, in this case, the defendant has himself taken contrary stands as to when the cheques were given by him to the plaintiff and therefore, the admission of the plaintiff would not be sufficient to prove when the cheques were given.
17.1.40 A civil case is decided on the principle of preponderance of probabilities, and in the present case, they do CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 16/19 not tilt in favour of the defendant.
17.1.41 Resultantly, the plaintiff has proven that the defendant had taken a sum of ₹10,25,000/- in cash as sale consideration under the Agreement to Sell dated 10.01.2013, which has been violated by the defendant by selling the property to another person. The plaintiff has further proven that he had advanced a loan of ₹1,75,000/- in cash to the defendant. 17.1.42 Accordingly, issue no.(i) and (ii) are decided in favour of the plaintiff and against the defendant.
17.2 "(iii)Whether the plaintiff has concealed true and material facts from this court? ... OPD"
17.2.1 The onus of proving this issue was on the defendant. However, the defendant has not explained which material facts had been concealed by the plaintiff.
17.2.2 Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
17.3 "(iv)Whether plaintiff has no locus standi to prefer the present suit against the defendant? ... OPD"
AND "(v) Whether the suit preferred by the plaintiff against the defendant is bad for non joinder of parties? ...OPD"
17.3.1 Both these issues are connected and are being taken up together. The onus of proving these issues was on the defendant.
17.3.2 Ld Counsel for the defendant has argued that the son of the plaintiff was a necessary party in this suit since the CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 17/19 documents dated 10.01.2013 have been executed in his favour. It is also argued that the plaintiff had no cause of action to file this suit and the suit ought to be dismissed for non-joinder of necessary party.
17.3.3 I disagree with Ld Counsel for the defendant. It is the case of the plaintiff that he had paid the cash for the sale transaction and he had given a loan of ₹1.75 lakhs to the defendant. It is also his case that after the property deal was revoked, the defendant assured that he would return the entire money, that is ₹12 lakhs to him.
17.3.4 The present suit is based on the two cheque nos. 501707 and 501708. The defendant had admitted in his application for leave to defend that he had given these cheques to the plaintiff. Likewise, in the complaint case also, the defendant admitted that he had given these cheques to the plaintiff (see Ex DW1/PX1.) 17.3.5 Therefore, the defendant cannot argue that the plaintiff had no locus to file this suit or that the suit is bad for the non-joinder of a necessary party. Accordingly, issue nos.(iv) and (v) are decided in favour of the plaintiff and against the defendant.
17.4 "(vi)Whether the plaintiff is entitled for a money decree of Rs.12,00,000/- against the defendant? ...OPP"
17.4.1 In view of the findings in issue no. (i) and (ii), it is held that the plaintiff is entitled to recover ₹12 lakhs from the defendant.
17.4.2 Issue no.(vi) is accordingly answered in favour of the plaintiff and against the defendant.
CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 18/19 17.5 "(vii) Relief, if any."
The suit of the plaintiff is decreed. The defendant is directed to pay ₹12 lakhs to the plaintiff. The plaintiff is entitled to interest at the rate of 4% per annum on this amount from the date of this judgment and decree till the realisation thereof against the defendant. Costs of the suit awarded in favour of the plaintiff.
18 Decree sheet be prepared accordingly.
19 File be consigned to record room after due compliance.
Digitally signed by RICHA RICHA GUSAIN GUSAIN SOLANKI SOLANKI Date: 2024.03.28 16:03:23 +0530 Announced in open Court today (Richa Gusain Solanki) on 28th March, 2024 ADJ-02/South-West District Dwarka Courts: New Delhi CS No. 484/2017 Darshan Lal Nagpal vs Anil Sharma Page no. 19/19