Delhi District Court
Suit No.6395/16 Sumer Chand & Anr. vs . Sulekh Chand Singhal & Anr. on 31 July, 2018
Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
IN THE COURT OF SH. MUNEESH GARG, CIVIL
JUDGE: EAST, KARKARDOOMA COURTS, DELHI
Suit no.:6395/16
In the matter of:
1.Sumer Chand
s/o Sh. Leela Ram,
2.Lokesh Kumar
s/o Sh. Sumer Chand,
both r/o I76, JBlock,
New Seelampur, Delhi110053
................. Plaintiffs
Versus
1.Sulekh Chand Singhal
s/o Sh. Kishan Lal Singhal,
r/o H. No. G289, Preet Vihar, Delhi
2. Rattan Pal (deleted vide order dated 14.10.2016)
Station House Officer,
PS Preet Vihar, Delhi110092
........ Defendants
Date of Institution of suit:06.10.2015
Date of reservation for judgment: 10.07.2018
Date of pronouncement of judgment:31.07.2018
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Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
JUDGMENT
1. This is a suit for mandatory and permanent injunction filed by the plaintiffs against the defendants.
Pleadings of the plaintiffs
2. Plaintiff no.1 is the father of plaintiff no.2 and they are residing in house no. I76, JBlock, New Seelampur, Delhi110053. Plaintiff no.1 was the absolute owner of aforesaid property and he transferred the same to the plaintiff no.2 on 20.01.2014 by executing documents i.e. GPA, Agreement to sell and receipt. Defendant no.1 was known to the plaintiff no.1 Plaintiffs visited the shop of defendant no.1 for loan as defendant no.1 is doing the said business. Defendant no.1 advanced a loan of Rs. 2,50,000/ in cash with interest @ 10% p.a. to the plaintiff and plaintiff no.1 was paying the interest to the defendant no.1 at the agreed rate of 10%.
3. Later on, defendant no.1 started compelling plaintiff no.1 to pay interest @ 10% per month, saying that he asked for rate of interest @ 10% per month. Defendant no.1 started harassing the plaintiff no.1. Defendant no. 1 compelled plaintiff no.1 and obtained four blank cheques bearing no.1 007901, 007910, 007913 and 007919 of Central Bank of India as a security to return the same after clearance of loan amount. Plaintiff no.2, being the son of plaintiff no.1, had taken guarantee and handed over original documents of his property bearing no. I76, J Block, New Seelampur, Delhi to the defendant no.1 as a Page No. 2/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
guarantor. Defendant no. 1 also took signatures on some blank papers. Defendant no.1 gave assurance that he will return the said cheques and signed papers to the plaintiffs as soon as the loan amount would be repaid.
4. Plaintiff no.1 was constrained to make the regular payment and he paid the last payment in December 2014. Then he requested the defendant no.1 to handover all the four cheques, blank signed papers and original property documents. Defendant no.1 told to the plaintiffs that he will return the same within 1015 days as he kept the same at safe place. Plaintiffs visited several times to take their said cheques, papers and documents, but defendant no.1 had not returned the same on one pretext or the other.
5. On 20.03.2015, the mala fide intentions of defendant no. 1 came to light and plaintiff no.1 wrote a letter to his bank to stop the payment of said cheques. On. 02.06.2015, plaintiffs visited at the shop of the defendant no.1 at Seelampur and requested him to return the said cheques, papers and documents. On which, defendant no.1 got infuriated and started abusing the plaintiffs with bad remarks and with name and caste. Defendant no.1 also refused to return the said cheques, papers and documents and extended threat to implicate plaintiff in false case by executing false documents. Defendant no.1 gave thrashing to them, misbehaved and coercively threw them out from his premises and abused openly in street with caste remarks.
6. It is further averred that defendant no.1 has been constantly Page No. 3/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
harassing the plaintiffs by extending threats to them stating that he has links with antisocial elements and local police officials and he will get the plaintiffs eliminated and will get them thrown out of the house with the help of goonda elements with generating false documents and will dispossess the plaintiffs from the property and take the forcible possession of the same. Plaintiff no.1 lodged a complaint dated 07.06.2015 to the police but no action has been taken against the defendant no.1 by the police.
7. It is further averred the plaintiff no.2 is the owner of the property in question, documents of which are in custody of the defendant no.1 as security in the aforesaid loan transaction. It is further averred that defendant no.1 had received his entire loan amount and now no amount is due from the plaintiffs to the defendant no.1. It is further averred that defendant no.1 has no legal right to retain the said four cheques, blank signed papers and original documents in question. It is further averred that plaintiff lastly approached the defendant no.1 on 29.09.2015 and requested him to return the cheques, papers and documents but the defendant no.1 threatened the plaintiffs to harass them to such an extent that they will pay a handsome amount to him to get back the said documents. It is further averred that defendant no.1 further threatened the plaintiffs to get them implicated in false criminal case through the defendant no.2. He further stated that he has already got a case registered through the defendant no.2 against one Sh. Umesh Garg under Section 420 IPC etc. Page No. 4/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
and he was forced to pay Rs. 10 lakhs to the defendant no.1 and only then his bail was accepted. It is further averred that defendant no.1 openly said that he will do the same with the plaintiff. It is further averred that defendant no.1 is adamant in his illegal design and the plaintiffs are apprehending that the defendant no.1 will put his threats into action, as such the plaintiffs are left with no option but to file the present suit.
Pleadings of the defendants
8. Written statement was filed on behalf of defendant no.1 wherein he took preliminary objection stating that the present suit is not maintainable and is liable to be dismissed as the same has been filed without any cause of action. It is further averred that the entire plaint does not disclose any cause of action for the filing of the present suit against the defendants, hence, the same is liable to be dismissed under Order 7 Rule 11 CPC. It is further averred that the plaintiff has not approached this court with clean hands and suppressed the material facts from the court, hence, the present is liable to be dismissed on sole ground.
9. In reply on merits, it is submitted that plaintiff no.2 entered into an agreement to sell dated 16.04.2015 with the son of the defendant no.1 for the sale of property no. J76, Second Floor, measuring 53 sq. yards, New Seelampur Delhi110053 consisting of two room set for total sum of Rs. 9,00,000/. Son of the defendant has already paid Rs. 5,00,000/ to plaintiff no.2 and the said agreement to sell was executed in the presence of Vishal Chourawat and Taslim. However, the plaintiff became Page No. 5/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
dishonest prior to the time of execution of said documents in favour of the son of defendant no.1 and filed the present false suit in collusion with each other. Defendant no.1 denied that he borrowed a sum of Rs. 2,50,000/ as loan with interest at the rate of 10% per annum. Defendant no.1 has also denied that he obtained four blank cheques and some blank signed papers from plaintiff no.1 and original documents of property bearing no. J 76, Second Floor, New Seelampur, Delhi from plaintiff no.2 as guarantee. Defendant no.1 also denied the other contents of the plaint as wrong and false and sought dismissal of the suit.
10.Defendant no.2 i.e. Station House Officer, Police Station Preet Vihar filed written statement wherein he stated that neither the complainant has been residing in the jurisdiction of police station Preet Vihar nor any complaint has been received in police station Preet Vihar. It is also mentioned in the written statement that the transaction of loan amount and exchange of cheques, original documents of property and blank signed paper did not occur in the area of police station Preet Vihar and he tried to contact complainant (plaintiff) several times to ascertain facts of the complaint but he did not turn up. It is pertinent to mention here that plaintiffs have deleted defendant no.2 from the array of parties on 14.10.2016.
11.Replication to the written statement of defendant no.1 was filed by the plaintiffs, wherein they refuted the allegations levelled by defendants in their written statements and plaintiffs reaffirmed the averments and allegations of plaint as true and correct.
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Issues
12.After completion of pleadings, following issues were framed on 19.03.2016.
1. Whether the plaintiff is entitled to the relief of mandatory injunction as claimed for? OPP
2. Whether the plaintiff is entitled to the relief of permanent injunction as claimed for? OPP
3. Relief.
Evidence
13.Thereafter, plaintiff no.1 examined himself in evidence as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He placed reliance upon the following documents: Ex. PW1/1 (colly) Copy of GPA, agreement to sale, possession letter, receipt and deed of will dated 20.01.2004 Ex. PW1/2 Copy of letter dated 20.03.2015 to the bank manager, Central Bank of India, New Delhi Seelampur, Delhi Ex. PW1/3 Copy of complaint dated 07.06.2015
14.Evidence of the plaintiffs was closed on 28.11.2016.
15.Defendant examined himself in evidence as DW1 and tendered his evidence by way of affidavit Ex. DW1/A. Evidence of the defendant was closed on 13.03.2018. Final arguments are heard. Record is perused.
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16.At the outset, it is pertinent to mention that defendant no.2 was deleted from the array of parties on the statement of Ld. Counsel for the plaintiff on 14.10.2016. Hence, the present suit is required to be adjudicated against defendant no.1 only. It is also pertinent to mention that defendant no.1 was examined under Order X CPC on 03.11.2015 wherein he stated that he does not have any cheque of the plaintiff with him. In view of the aforesaid statement of defendant no.1, Ld. Counsel for the plaintiff submitted on 04.02.2016 that his part prayer qua the relief of said cheques has been satisfied. It is claim of the plaintiff that he took a loan of Rs. 2,50,000/ in cash with interest @ 10% per annum. Plaintiff also claimed that defendant started compelling him to pay interest @ 10% per month and obtained four blank signed cheques bearing no. 007901, 007910, 007913 and 007919 of Central Bank of India, New Seelampur, Delhi as a security. It is also the claim of plaintiff that defendant put a condition to bring a guarantor for the aforesaid amount and his son i.e. plaintiff no.2 took the guarantee and handed over original documents of his property bearing no. I76, JBlock, New Seelampur, Delhi as security in the aforesaid loan transaction. It is the allegation of the plaintiff that defendant has not returned aforesaid four cheques, blank signed papers and property papers despite full and final payment of the loan amount. On the other hand, defendant denied that plaintiff borrowed a sum of Rs. 2,50,000/ with interest @ 10% per annum. Defendant also denied receipt of four blank cheques, blank signed paper and original documents of the property from Page No. 8/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
son of the plaintiff in lieu of alleged loan transaction.
17.It is a settled principle of law that burden lies upon the plaintiff to prove his own case. In this regard, it would be gainful to refer the judgment of Apex Court in Rangammal vs. Kuppuswami, (2011) 12 SCC 220. "101.burden of prove 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 those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies on the person who asserts it. 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 any person upon whom the burden lies has been able to discharge his burden. Until the court arrives at such a conclusion, he cannot proceed on the basis of weakness of the other parties".
18.Thus, it is the duty of the plaintiffs to prove that they have handed over four blank cheques of Central Bank of India, blank signed paper and original documents of the property to the defendant and they entitled for the reliefs claimed by them. It is the claim of the plaintiff no.1 that he took the loan amount of Rs. 2,50,000/ and handed over four blank cheques, blank signed paper and original documents of the property to the defendant. However, plaintiffs have miserably failed to prove the aforesaid facts during the trial. No document is placed on record to show Page No. 9/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
that plaintiff no.1 took loan amount of Rs. 2,50,000/ from the defendant. Even the date, time and place has not been mentioned in the plaint on which he took loan from the defendant. No other independent witness has been examined by the plaintiff to support his oral testimony in this regard. Even it is not mentioned by the plaintiff in the plaint as to why he took loan from the defendant. Plaintiff has not disclosed the date and time when he handed over four blank cheques, blank signed paper and original documents of the property to the defendant. Plaintiff has not disclosed the mode and manner of returning of loan amount. Plaintiff has not given any notice to the defendant to return the aforesaid four blank cheques, blank signed paper and original documents of the property after payment of alleged loan amount. Plaintiff no.1 deposed that he gave instruction to his bank to stop the payment of aforesaid cheques. Perusal of the document Ex. PW1/2 i.e. letter to the Manager, Central Bank of India shows that plaintiff has not mentioned the reason for stopping the payment of aforesaid cheques in the said letter. PW1 admitted in his crossexamination that "It is correct that in Ex. PW1/2 there is no mention of defendant's name." DW1 denied the suggestion in his crossexamination that plaintiff had taken a loan of Rs. 2,50,000/ from him.
19.Further, Plaintiffs' have examined only PW1 to prove their case. For reasons best known to plaintiffs, plaintiff no.2 did not enter into witness box to prove their claim. It is the claim of the plaintiffs' that plaintiff no.2 stood as a surety and handed over Page No. 10/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
his property documents as security in alleged loan transaction. However, he chose to remain silent for reason best known to him and did not enter into witness box to prove that he had handed over the property documents to the defendant no.1 as security.
20.Per contra, it is the claim of defendant no.1 that plaintiff no.2 entered into an agreement to sale dated 16.04.2015 with his son for the sale of property bearing no. J76, 2 nd Floor, measuring 53 sq. yards, New Seelampur, Delhi110053 for a total consideration amount of Rs. 9,00,000/, out of which Rs. 5,00,000/ had already been paid by his son on 16.04.2015. However, plaintiffs became dishonest prior to the execution of title documents in favour of his son and in collusion filed the present false suit. Though a suggestion was given to DW1 that no agreement was executed between plaintiff and son of defendant but a contradictory statement has been given to DW1 to the effect that one Phool Singh was also present at the time of execution of the agreement which strengthens the theory of defence that there was transaction of sale purchase of property bearing no. J76, JBlock, New Seelampur, Delhi and property papers were handed over in the said transaction. Admittedly, a suit for recovery of Rs. 5,00,000/is pending against son of defendant and plaintiff no.2, therefore, this court could not give any finding with respect to said transaction and moreover, said transaction is neither factinissue nor son of defendant no.1 is a party in this suit. As discussed above, plaintiffs have failed to Page No. 11/12 Suit no.6395/16 Sumer Chand & Anr. vs. Sulekh Chand Singhal & Anr.
prove that alleged loan transaction. Hence, their plea that they handed over four blank signed cheques, signed blank papers and original documents of property no. I76, JBlock, New Seelampur, Delhi as security of alleged loan transaction, cannot be believed.
21.It is pertinent to note that a civil suit is based on preponderance of probabilities. Viewed in this prism, it can be concluded that the plaintiffs have not been able to prove their claim. Issue no.1 and 2, thus, stands decided in favour of the defendant and against the plaintiffs.
Issue No.3 Relief
22.In view of the aforesaid discussion, plaintiffs are not entitled for the relief claimed by them. Suit is, hence, dismissed. Decree sheet be drawn up accordingly. No Order as to costs. Pending applications, if any, stand disposed off accordingly. File be consigned to record room after necessary compliance.
Digitally signedJudgment is dictated directly and by MUNEESH
GARG
Announced in Open Court MUNEESH Location:
Karkardooma
on 31.07.2018 GARG Courts, Delhi
Muneesh Garg
Date:
2018.08.01
CJ/East/Karkardooma
14:35:20 +0530
31.07.2018
The judgment contains 12 pages, all checked and signed by me.
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