Delhi District Court
Trilochan Singh vs Sh. Vikas Dhall on 26 November, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 80/2019
CNR No. DLWT01-004951-2019
In re:
1. Trilochan Singh
S/o Late Sardar Harbhajan Singh
2. Inder Paul Singh
S/o Sh. Trilochan Singh
Both R/o B-3/1101,
Sky Villa Kingsbury, TDI, Sonipat,
Harayana . . . . . . Appellants
Versus
Sh. Vikas Dhall
S/o Sh. Joginder Pal Dhall
R/o 3142, Sector-23,
Gurgaon, Haryana-122017 . . . . . . . . Respondent
Date of Institution of appeal : 01.07.2019
Date of hearing arguments : 15.11.2021
Date of judgment : 26.11.2021
Appearances:
Sh. S.B. Singh, Advocate for the appellants.
Sh. Rajesh Bhatia, Advocate for the respondent.
JUDGMENT
1. This judgment shall decide the first appeal filed by the appellants whereby they have assailed the Judgment dated RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 1 of 12 14.05.2019, passed by the Court of Sh. Rajidner Singh, the then Ld. Senior Civil Judge, (West), Tis Hazari Courts, Delhi, therbey decreeing the suit of the plaintiff for a sum of Rs. 2 Lakhs along-with interest @ 12% per annum w.e.f. July-2013 till January-2015 and further interest @ 12% per annum on the principle amount of Rs. 12 Lakhs from the date of filing of the suit till realization of the amount.
FACTS:
2. Briefly stated, the case of the plaintiff (who is respondent in the present appeal) was that on being approached by the defendants/ appellants, he advanced a friendly loan of Rs. 2 Lakhs for a period of six weeks, which amount was advanced by way of cheque bearing No. 34176 drawn on ICICI Bank, Paschim Vihar, New Delhi in favour of appellant No.1, which was duly encashed on 23.01.2013. It was case of the plaintiff that after six months, the defendants failed to discharge their liability to repay the aforesaid loan amount, and therefore, he was constrained to serve a legal notice dated 09.12.2014 Ex.PW-1/2. As the amount was not paid, the suit for recovery was filed for Rs. 2 Lakhs also claiming interest @ 18% per annum since July-2013 till January- 2015 amounting to Rs. 57,000/-. The plaintiff claimed a decree of Rs. 2.57 Lakhs besides pendente lite and future interest, till realization @ 18% per annum.
3. The appellants/defendants filed a joint written statement and in their written statement they raised preliminary objections to the effect that suit is based on false and fabricated facts and filed only to RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 2 of 12 harass, pressurize and blackmail them. It was stated that defendant No.2 has been doing business of property dealing for many years and he was being assisted by defendant No.1 i.e. his father; and that in the month of November-2012 the plaintiff along-with his partner in business Mr. Sandeep Chhatwal S/o Sh. Pishori Lal Chhatwal R/o 16/27, Abdul Aziz Road, WEA Karol Bagh, New Delhi approached defendant No.1 to sell the property in the name of Mr. Sanddep Chhatwal being entire First Floor and Second Floor bearing No. J-1217 comprising of Drawing Room, Guest Room, Three Bed Rooms, Lobby, Kitchen, Three Toilets, Store on first floor, having covered area of 1400 Sq. Feet approximately and two bed rooms, lobby, kitchen, three toilets, one store and mumty on second floor having covered area of 1000 Sq. feet approximately, total covered area on both floors 2400 Sq. Feet approximately, together with impartible and undivided pro date share of land in such plot measuring 225.5 Sq. Metres in residential colony known as Palam Vihar, Gurgaon situated in and around village Chauma Tehsil and District Gurgaon, Haryana; and that accordingly a deal was finalized through defendant No.2 and sale deed in respect of the aforesaid property was got executed on 30.11.2012 between Sandeep Chhatwal and Smt. Rita Mehta wife of late Sh. Pardeep Kumar Mehta, R/o B-3/107, Janakpuri, New Delhi. It was stated that defendant No.2 signed as a witness on the sale deed and it was also claimed by the defendants that the plaintiff at that time was in possession of ground floor portion of the said property. It was the case of the defendants that plaintiff agreed that he would pay Rs.2 Lakhs as commission to defendant No.2 in cash but on the inability of petitioner RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 3 of 12 to pay the said amount in cash, the cheque in question was issued in name of defendant No.1 in discharge of his liability towards his son defendant No.2, Sh. Inder Pal Singh. It was the case of the defendants that with passage of time, the plaintiff developed some grudge against the defendants due to some failed business transactions and in order to teach a lesson to them, developed dishonest intention and served notice based based on false and frivolous facts dated 09.12.2014 Ex.PW-1/2, which was replied by them vide letter dated 24.12.2014 Ex.PW-1/3. On merits, it was denied that any friendly loan was advanced to the defendants for a period of six months. It was also denied that defendants were liable to pay a sum of Rs. 2.57 Lakhs with interest.
4. During the course of legal proceedings, following issued were framed on 03.12.2015:-
"1. Whether the plaintiff is entitled to decree for a sum of Rs. 2,57,000/- as prayed for? OPP
2. Whether the plaintiff is entitled to interest, if yes, for what period and at what rate? OPP
3. Relief."
5. The plaintiff in order to prove his case, came in the witness box and was examined as PW-1. Likewise, the defendant No.2 came in the witness box and was examined as DW-1.
IMPUGNED JUDGMENT:
6. Ld. Trial Court vide impugned judgment first gave a finding RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 4 of 12 on the aspect of "territorial jurisdiction" holding that since the cheque towards personal/friendly loan was given to defendants drawn on a bank at Paschim Vihar, Delhi in the absence of any specific denial in the written statement and rebuttal to such evidence, the Courts at Delhi had jurisdiction. On the issue no. 1, the Ld. Trial Court was of the opinion that the claim of the plaintiff that he had advanced a friendly loan was plausible enough and defendant no. 2 failed to prove that amount of Rs. 2 Lakhs was given to him as commission towards sale of property at Palam Vihar, Gurgaon. The Ld. Trial Court was of the opinion that no evidence was led by the defendants as to rate / percentage of commission that was allegedly agreed upon with the plaintiff and his relative Sandeep Chhatwal. Further, it was observed that there was no reason why Sandeep Chhatwal or for that matter his wife could not make direct payment to defendant No. 2 towards the alleged commission. Hence, Issue No. 1 was decided in favour of the plaintiff and against the defendants.
7. Lastly, in so far as the issue no. 2 is concerned, it was held that claim of interest @ 18% per annum was on the higher side and plaintiff was entitled to interest @ 12 % per annum on the principal amount of Rs. 2 lakhs w.e.f. July, 2013 to January 2015 as also thereafter pendente lite and till realization.
GROUNDS OF APPEAL
8. The impugned judgment/decree dated 14.05.2019 is assailed by the appellants in the present Civil appeal inter alia on the RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 5 of 12 grounds that the Ld. Trial Court failed to appreciate that in terms of Section 20 of the CPC, the defendants were neither residing nor carrying on any business or working for gain within the jurisdiction of Delhi and even the cause of action had arisen out of Delhi, and therefore, there was no territorial jurisdiction vested with the Ld. Trial Court; and that the Ld. Trial Court erroneously held that the cheque towards personal/family loan was given at Delhi as it failed to read the cross examination of DW-1 wherein a categorical assertion was made by the witness that cheque was given to him in his office at Gurgaon; and that mere case that the drawee bank was located at Paschim Vihar, Delhi would not clothe Delhi Court with territorial jurisdiction either; and that the impugned judgment is assailed on the ground that the Ld. Trial Court failed to appreciate the entries in the statement of bank account of plaintiff Ex. PW 1/1 that would show that he had received payment from wife of his relative Sandeep Chhatwal but otherwise his account was all the time having few thousand rupees to his credit; and that the Ld. Trial Court failed to appreciate that the plaintiff was not able to substantiate that he was in a friendly relationship with defendant no. 2 and/or his father defendant no. 1 in any manner and there was no evidence of any long acquaintance between the parties so as to substantiate the claim that a friendly loan was advanced; and that it was not believable that a huge amount of Rs. 2 lakhs would be advanced to an unknown person; and that the Ld. Trial Court failed to appreciate the own testimony of PW-1 wherein he stated that he had not shown the loan amount of Rs. 2 lakhs in his income tax returns for the year 2013-2014 and 2014-2015; and that the RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 6 of 12 Ld. Trial Court failed to appreciate that PW-1 in his cross examination himself conceded that he had taken security from defendant no. 2 in the nature of Flat located at TDI, Sonipat, Haryana and got bayana receipt signed from him as security but the said document was not produced by him by raising any adverse inference against the plaintiff.
DECISION:
9. I have given my thoughtful consideration to the submissions made by Ld. Counsel for the parties. I have also perused the relevant record of the case.
10. First thing first, this Court has to consider the issue of territorial jurisdiction to try and adjudicate upon the suit, in this context, it would be expedient to re-produce Section 20 of CPC which provides as under:
"Section 20. Other suits to be instituted where defendants reside or cause of action arises Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 7 of 12
(c)The cause of action, wholly or in part, arises.2
[Explanation].-- A corporation shall be deemed to carry on business at its sole or principal office in 3 [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
11. On a bare perusal of the aforesaid provision, it must be stated at the outset, that as per the plaint the defendants / appellants are stated to be resident of B-3/1101, Sky Villa Kingsbury, TDI Sonipat, Haryana. It is also the own case of the plaintiff that notice of demand dated 09.12.2014 was served upon the defendants Ex.PW-1/2 at such address and it is also brought on the record that Sh. Shobhit Vineet, Advocate on behalf of the appellant / defendant gave a reply dated December 24, 2014 in which the allegations of the plaintiff counsel were refuted and it was reiterated that amount of Rs. 2 lakhs was paid to defendant no. 2 towards commission for the sale of property at Paschim Vihar, Gurgaon and not as a personal / friendly loan.
12. Further, Ld. Counsel for the appellants rightly pointed out that in the entire plaint, there is no iota of averment as to where and when the cheque for Rs. 2 lakhs was handed over to either of the defendants. Paragraph (11) of the plaint is with regard to cause of action. There is no iota of assertion evidence as to how the cause of action arose at Delhi. I find that the Ld. Trial Court failed to appreciate the testimony of DW-1 who was given a suggestion that it was only defendant no. 2 who had approached him or with whom he was in RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 8 of 12 contact which was conceded by DW-1 and a question was put to DW-1 which along-with response go as under:-
"Q. In para 2 (C) of your affidavit Ex. DW1/A you have stated that you requested the plaintiff to issue cheque in respect of commission in the name of your father, whereas in the cross examination you have stated that blank cheque was handed over to you by Sandeep Chhatwal issued from the account of plaintiff, which of your version is correct?
Ans. Mr. Sandeep Chhatwal brought the cheque into my office without name and filled my father's name when I told him to do so. "
13. In the cross-examination of DW-1, no suggestion that cheque was not handed over at his office was given, which admittedly was located in Gurgaon. The initial burden of proving the territorial jurisdiction to entertain, try and adjudicate upon the matter was upon the plaintiff and there is no averment in the plaint as to where the cheque towards such personal/friendly loan was given, and therefore, the condition set out in Section 20 CPC are not met and the Court had no territorial jurisdiction to entertain, try and adjudicate upon the matter.
14. While a decision on the issue of territorial jurisdiction can lead to the dismissal of the present appeal straightway. However, it would be expedient that a decision be also rendered on merits. First thing first, the testimony of PW-1 that a friendly loan was advanced is not inspiring confidence. If the testimony of PW-1 is read as a whole, it is not explained how he knew defendant Nos. 1 or 2 except that he deposed that he had spent time with him in search of a house on rental basis in Gurgaon as he was having a job at Manesar. In other words, RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 9 of 12 there is no evidence that there was any long acquaintance or friendship between the two. It is rightly urged by Ld. Counsel for the appellants that it is not fathomable that a huge amount of Rs. 2 lakhs would be advanced as friendly loan without any writing or receipt and without interest.
15. Secondly, PW-1 in his cross examination conceded that he had taken a Bayana receipt of Flat at TDI, Sonipat, Haryana from defendant no. 2 as security towards loan but the said receipt was not produced in evidence which raises an adverse inference that no receipt was issued as no loan was advanced. Again, the burden of proving that it was a friendly loan was upon the plaintiff. On the other hand, the defendant no. 2 is able to demonstrate by preponderance of probabilities that he has been carrying on his occupation as property dealer and right from the beginning after legal notice dated 09.12.2014 Ex.PW-1/2 was served it was replied by the defendants through counsel vide reply dated 24th December 2014 Ex. PW 1 /3 that a deal had been struck with Sandeep Chhatwal, admittedly a close relative of the plaintiff and entire first floor and second floor of property no. J-1217 at Palam Vihar, Gurgaon was sold through the services rendered by defendant no. 2, and commission of Rs. 2 lakhs was paid.
16. I fail to appreciate from where the Ld. Trial Court had assumed that commission of 1% is payable in such business transaction. Judicial cognizance of the fact that can be taken that there are no hard and fast rules with regard to rate of commission in sale and purchase of properties/real estate and it all depends upon the sale RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 10 of 12 consideration, locality where the property is situated and the terms of payment, to cite a few. In the light of evidence of DW-1 that the total sale consideration was Rs. 1,30,00,000/-, it is evidenced by copy of sale deed Ex.DW-1/1 between Sandeep Chhatwal in favour of one Ms. Geeta Mehta, no surmises or conjectures can be formed that the amount of Rs. 2 lakhs was high or low. It was categorical testimony of DW-1 that commission was taken in cash from the buyer viz. Geeta Mehta, which fact was not challenged in his cross examination either.
17. Lastly, both parties admitted authenticity of the bank account of the plaintiff Ex. PW 1/1 which clearly demonstrate that a cheque for Rs. 2 lakhs was credited in the account on 17.01.2013 by Smt. Kamlesh wife of Sandeep Chhatwal and it was then shown "rejected for funds insufficient". Another amount of Rs. 1,95,000/- was credited in the account of the plaintiff on 18.01.2013 through NEFT and on 23.01.2013 the cheque for Rs. 2 lakhs was issued to appellant no. 1 father of defendant no. 2. There is nothing unpalatable in the version of the defendant no. 2 that he was not having a bank account and the cheque was drawn in blank and name of his father was written, which aspect was not challenged in the cross examination of DW-1 by the plaintiff. The observation by the Ld. Trial Court that it is not fathomable that property dealer would not be having bank account is something which is not warranted as such approach would belie common sense and logic since most of time such commissions are paid in hard cash and the statement Ex.PW-1/1 is able to demonstrate that the plaintiff was not a person having huge credit in his account and it was on RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 11 of 12 amount being received from Smt. Kamlesh wife of Sandeep Chhatwal that the cheque was issued. Why Sandeep Chhatwal did not make payment directly to defendant No. 2 is again not something that would raise an adverse inference against the appellants/defendants.
18. In view of the aforesaid discussion, I find that finding rendered by Ld. Trial Court on issue No. 1 cannot be sustained in law. The final order rather incorrectly records a typographical error where the principal amount of Rs. 2 lakhs has been raised to Rs. 12 lakhs. Anyhow, the present appeal is allowed and the impugned judgment dated 14.05.2019 is set aside. Decree-sheet be drawn accordingly.
19. In the facts and circumstances of the case, the parties are left to bear their own costs. The Trial Court Record be sent back along with a copy of this order. The appeal file be consigned to Record Room. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2021.11.27 21:04:06 +0530 Announced in the open Court (DHARMESH SHARMA) th on 26 November, 2021 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi RCA No. 80/2019 Trilochan Singh & Anr. v. Vikas Dhall Page 12 of 12