Delhi District Court
Pawan Gupta vs Shri Padam Kumar Jain on 20 December, 2022
IN THE COURT OF SH. AJAY GULATI-II,
ADJ-01 (CENTRAL), TIS HAZARI COURTS, DELHI.
CS No. 14645/2016
CNR No. DLCT 01003191-2015
Pawan Gupta
Prop of M/s Pawan Property Dealers
At:- 5066, First Floor,
Rui Mandi, Sadar Bazar,
Delhi-110006. ....PLAINTIFF
VERSUS
1. Shri Padam Kumar Jain
S/o Shri Surinder Pal Singh
2923, First Floor, Bahadur Garh Road,
Sadar Bazar, Delhi 110006.
2. Shri Surinder Pal Singh
2923, First Floor, Bahadur Garh Road,
Sadar Bazar, Delhi 110006.
3. Sh. Ashok Kumar Jain
S/o Sh Shanti Saroop Jain
R/o B-3/364, Purana Bazar,
Central P.O. Ludhiana,
Punjab-141008.
4. Smt Neerja Jain
W/o Shri Padam Kumar Jain
R/o 88-89, Arihant Nagar,
West Punjabi Bagh,
Delhi-110026.
CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 1 of 36
5. Mr Pulkit Jain
S/o Shri Padam Kumar Jain
R/o 88-89, Arihant Nagar,
West Punjabi Bagh,
Delhi-110026.
6. Mr Prafful Jain.
S/o Shri Padam Kumar Jain
R/o 88-89, Arihant Nagar,
West Punjabi Bagh,
Delhi-110026.
7. Sub-Registrar-I,
Central District, Kashmere Gate,
Delhi-110006. ....DEFENDANTS
Date of Institution : 20.10.2015
Date of Conclusion of Hearing : 03.12.2022
Date of Decision : 20.12.2022
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants seeking recovery of Rs.10,20,937/- along with declaration, permanent and mandatory injunction and for pendentelite and future interest @ 15% per annum pleading inter-alia as under:
i. That the plaintiff is engaged in the business of property dealing under the name and style of M/s Pawan Property Dealers and the plaintiff deals in the sale/purchase/renting etc. of shops, godowns, residential and commercial property on commission basis and enjoys a very good reputation and goodwill.
CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 2 of 36 ii. That the defendant no. 1 is the son of defendant no 2 and they approached the plaintiff in the month of November 2013 and showed their intention and willingness to purchase some commercial property for establishing and running a commercial establishment in Sadar Bazar, Delhi and at that time the plaintiff was aware about one property bearing No 2923, Bahadurgarh Road, Sadar Bazar, Delhi comprising of 1st, 2nd and 3rd floor with roof rights which was available for sale since the said property was owned by M/s Red Projects Pvt. Ltd and its managing director namely Sh Arjun Kumar was having close acquaintance being a client of the plaintiff and as such the plaintiff showed the said property to defendant no 1 and 2. (The property bearing No 2923, Bahadurgarh Road, Sadar Bazar, Delhi comprising of 1st, 2nd and 3rd floor is hereinafter collectively referred to as the Suit Property whereas the 1st, 2nd and 3rd Floors hereinafter have also been referred to separately.) iii. That on inspection and carrying out due diligence, the said property was found suitable by defendant no 1 and 2 and as such they expressed their willingness to purchase the same and requested the plaintiff to fix a meeting with Sh Arjun Kumar for settlement of deal and both the defendants agreed to pay the commission as per trade customs & practice i.e. 1% of the total sale consideration upon the successful settlement of the deal.
iv. That the plaintiff thereafter contacted Sh Arjun Kumar and fixed a meeting and after few meetings at the office of M/s Red Projects Pvt. Ltd the deal was finalized and the defendant no 1 and 2 agreed to CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 3 of 36 purchase the said property for a total sale consideration of Rs 9 Crores. The defendant no 1 and 2 mutually agreed to pay the commission @ 1% to the plaintiff in two equal installments i.e. Rs. 4.5 Lakhs at the time of payment of earnest money of Rs 1 crore and remaining Rs 4.5 Lakhs at the time of payment of full and final sale consideration.
v. That the defendant no. 1 and 2 paid the earnest money of Rs 1 Crore to Sh Arjun Kumar in 2 equal installments of Rs. 50 Lakhs each in cash in December 2013 and thereafter as per the mutual agreement between the plaintiff and defendant no 1 and 2, the said defendants were duty bound to pay Rs 4.5 lakhs towards commission to the plaintiff which was promised by the defendant no 1 & 2 however instead of paying the commission to the plaintiff, as agreed and promised, the defendant no. 1 and 2 stopped contacting the plaintiff under malafide intention to avoid payment of commission and directly contacted Sh Arjun Kumar for purchase of said property. vi. That the plaintiff came to know from other sources that the defendant no 1 and 2 have paid the entire sale consideration of Rs 8 Crores and took the possession of the suit property and started doing their business from the said property but they failed to pay due and legitimate commission of Rs. 9 Lakh to the plaintiff i.e. 1% of Rs 9 crores or any part thereof despite many requests made in this behalf. vii. That the plaintiff has carried out intensive and extensive inquiry and found that the defendant no 1 and 2 have cheated the plaintiff and also played fraud upon the statutory authority of Sub-Registrar-I, CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 4 of 36 Delhi i.e. defendant no 7 and purchased the suit property benami in the name of one of their relatives namely Sh Ashok Kumar Jain/defendant no 3 herein vide two separate sale deeds dated 26.11.2014 and 11.02.2015 in respect of 1st and 2nd floor with roof rights respectively and thereafter the defendant no 3 executed two separate sale deeds both dated 18.03.2015 i.e. one in favour of defendant no 4 (the wife of defendant no 1) in respect of 1st floor of the suit property and other in favour of defendant no 5 (son of defendant no 1 & 4) in respect of 2nd floor of the suit property. viii. That the instrument for payment of sale consideration i.e. 4 bankers' cheques which exchanged hands between the defendant no 3 and erstwhile owner M/s Red Projects Pvt. Ltd on one hand and the defendant no 3 to 5 on the other hand are same in as much as the defendant no 3 reportedly paid the sale consideration of Rs 31,25,000/- for the first floor to the erstwhile owner (M/s Red Projects Pvt. Ltd) by way of 4 bankers' cheques and strangely the same 4 bankers' cheques were given by the defendant no 4 as sale consideration for the first floor to defendant no 3. It is further pleaded that the 4 bankers' cheques which were paid as sale consideration qua the 1st floor of the suit property remained the same in respect of two separate sale deeds i.e. one executed by M/s Red Projects Pvt. Ltd in favour of defendant no 3 on 26.11.2014 and thereafter by defendant no 3 in favour of the defendant no 4 vide sale deed dated 18.03.2015 which clearly shows that there is some hanky- panky and shaddy dealings in between defendant no 1 to 4 since the CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 5 of 36 sale consideration did not pass hands in respect of the sale deed executed by the defendant no 3 in favour of defendant no 4. ix. That similarly with respect to the 2 nd floor of the suit property also the instruments for payment of sale consideration i.e. 2 demand drafts which exchanged hands between the defendant no 3 and erstwhile owner i.e. M/s Red Projects Pvt. Ltd on the one hand and between the defendant no 3 and 5 on the other hand are same and similar in as much as the sale consideration of Rs 31,25,000/- paid by the defendant no 3 to M/s Red Project Pvt Ltd by way of 2 demand drafts towards the sale deed dated 11.02.2015 were same and also used as sale consideration in respect of the other sale deed dated 18.03.2015 executed between defendant no 3 to defendant no 5. x. That the unlawful acts of the defendants renders the whole transactions pertaining to suit property is liable to be declared null and void since the same were illegal transactions and a result of under-invoicing and involvement of huge black money and huge evasion of stamp duty by the defendants since the market value of each floor is more than Rs 3.5 Crores whereas defendant no 1 and 2 have showed the sale consideration at 1/10th of the market price. It is also pleaded that the suit property has been shown as residential and semi-pucca instead of commercial in all the sale deeds so as to evade the payment of actual stamp duties.
xi. In so far as the 3rd floor of the suit property is concerned, the defendant no 1 and 2 got it transferred directly from the owner i.e. M/s Red Projects Pvt. Ltd in favor of defendant no 6 vide sale deed CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 6 of 36 dated 05.01.2015 and even the said sale deed involves under- invoicing and involvement of huge black money as well as huge evasion of stamp duty in as much as 90% of stamp duty has been evaded.
xii. That the entire sale consideration of Rs 9 Crores which exchanged hands qua the sale of suit property was provided by the defendant no 1 & 2 and they could procure that much money because they had sold one of their shops bearing no 5137-38, Main Raod, Rui Mandi, Sadar Bazar, Delhi-110006 for a sum of Rs 9 Crores in 2014 or in early 2015 but they under-invoiced the subject transaction thereby generated huge black money and utilized the same in purchasing the suit property as benami transaction.
xiii. That from the above, it is crystal clear that the defendant no 1 to 6 have not only played fraud and breach of trust with the plaintiff but also caused loss to the state exchequer i.e. defendant no 7 and also generated huge black money and as such the plaintiff got issued two legal notice i.e. one dated 23.04.2015 and another dated 16.09.2015 to the defendant no 1 demanding his legitimate due towards commission which was to be paid by the defendants no 1 to 6 however the defendant no 1 to 6 did not care to reply the legal notices.
xiv. On the basis of the above, the plaintiff has filed the present suit seeking following prayers:
i) a decree for a sum of Rs 10,20,937/- (Rupees Ten Lakh Twenty Thousand Nine Hundred Thirty Seven only) against the defendant no 1 to 6 jointly & severally along CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 7 of 36 with pendente-lite and future interest at rate of 15% per annum from the date of filing of the suit till realization.
ii) a decree of declaration thereby declaring the following 5 sale deeds as illegal, non-operative, null & void and liable to be cancelled-
a) a sale deed dated 26.11.2014 executed by M/s Red Projects Pvt Ltd in favor of Sh Ashok Kumar Jain, the defendant no 3 bearing Registration no 10,185 in Book No 1, Vol. 5,55 at page nos 20 to 26 registered on 26.11.2014 in the office of Sub-Registrar-I, Delhi, the defendant no 7 herein, already annexed as Annexure-I.
b) a sale deed dated 18.03.2015 executed by Sh Ashok Kumar Jain the defendant no 3 herein in favour of Smt Neerja Jain the defendant no 4 bearing Registration no 2,116 in Book No 1, Vol. 5,676 at page nos 29 to 38 registered on 18.03.2015 in the office of Sub-
Registrar-I, Delhi, the defendant no 7 herein, already annexed as Annexure-II.
c) a sale deed dated 11.02.2015 executed by M/s Red Projects Pvt Ltd in favor of Sh Ashok Kumar Jain, the defendant no 3 bearing Registration no 1058 in Book No 1, Vol. 5,634 at page nos 193 to 199 registered on 13.02.2015 in the office of Sub-Registrar-I, Delhi, the defendant no 7 herein, already annexed as Annexure-
III.
d) a sale deed dated 18.03.2015 executed by Sh Ashok Kumar Jain the defendant no 3 herein in favour of Sh Pulkit Jain the defendant no 5 bearing Registration no 2,115 in Book No 1, Vol. 5,676 at page nos 19 to 28 registered on 18.03.2015 in the office of Sub-
Registrar-I, Delhi, the defendant no 7 herein, already annexed as Annexure-IV.
CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 8 of 36
e) a sale deed dated 05.01.2015 executed by M/s Red Projects Pvt Ltd in favor of Sh Prafful Jain, the defendant no 6 bearing Registration no 127 in Book No 1, Vol. 5,599 at page nos 59 to 65 registered on 12.01.2015 in the office of Sub-Registrar-I, Delhi, the defendant no 7 herein, already annexed as Annexure-
V. iii. Issue a decree of mandatory injunction thereby directing the defendant no 7 to de-register aforesaid five registered sale deeds and make the necessary entries to nullifying them in pursuance to aforesaid declaration, in its records permanently.
iv. Issue a decree of permanent injunction against the defendant no 1,2,4, 5 & 6 thereby restraining them from selling, alienating and/or creating any third party interest in the suit property i.e. first, second and third floor of 2923, Bahadurgarh Road, Sadar Bazar, Delhi in any manner, v. Award the full costs of the suit, court fees and counsel's fee to the plaintiff.
WRITTEN STATEMENT OF DEFENDANT No. 1,2,4,5 & 62. The defendants were served with the summons of the suit and however a joint written statement was filed on behalf of defendant no 1,2,4,5 & 6, (hereinafter referred to as the contesting defendants), whereas the defendant no. 3 did not file any written statement. The contesting defendants, vide their written statement, challenged the suit of the plaintiff pleading inter-alia as follows:
CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 9 of 36 i. There is no privity of contract between the plaintiff and the contesting defendants for the payment of alleged commission which is claimed at the rate of 1% on Rs 9 Crores.
ii. There is no written contract with the contesting defendants with respect to the payment of the alleged commission. iii. That the suit of the plaintiff is not maintainable as there is no cause of action in favor of the plaintiff and against the contesting defendants.
iv. That the suit is also not maintainable since the plaintiff has not paid the ad-valorem court fees while seeking declaration/cancellation of the sale deeds.
v. On merits, the relationship between the defendants no 1 to 6 has not been disputed however the factum of meeting of defendant no 1 and 2 and the plaintiff has been denied. It has also been denied that the plaintiff has acted as a commission agent qua the transactions between M/s Red Project Pvt. Ltd on the one hand and defendant no 1 to 6 on the other hand. It has also been denied that the contesting defendants ever agreed to pay the commission to the plaintiff.
vi. It has also been denied that the plaintiff had introduced Sh Arjun Kumar to the defendant no. 1 or 2 or that the deal was done for the total sale consideration of Rs 9 Crores. It has also been denied that the defendant no 1 and 2 paid the earnest Rs 1 Crore in cash in 2 installments of Rs 50 Lakhs each to Sh Arjun Kumar in the month of December 2013. It has also been denied that any oral agreement qua the payment of 50% commission at the time of payment of the CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 10 of 36 earnest money and the balance 50% at the time of payment of the total sale consideration was ever entered into between the parties. vii. It has been submitted that all the sale deeds were duly executed before Sub-Registrar-I and there was no evasion of stamp duty or any benami transaction and it has been submitted that at the time of the execution of the two separate sale deeds by M/s Red Project Pvt. Ltd in favor of the defendant no 3 the sale consideration of Rs 31,25,000/- each was paid by way of 4 bankers' cheques and 2 demand drafts and the same were respectively drawn from the account of defendant no 4 and 5 respectively since the defendant no. 4 is the real sister of the defendant no 3 and real mama of defendant no. 5 in as much as at the time of the executions of the sale deeds dated 26.11.2014 and 11.02.2015, the defendant no. 3 did not have the financial capacity to pay for the sale consideration and as such at the request of the defendant no. 3, the defendant no 4 and 5 agreed to lend an amount of Rs 31,25,000/- each to defendant no 3 towards sale consideration qua both the sale deeds with the condition that the said amount shall be repaid by the defendant no 3 to defendant no 4 and 5 respectively within 30 days from the date of execution of the said sale deeds.
viii. That since the defendant no 3 failed to return the amount to defendant no 4 & 5 therefore he executed two separate sale deeds in respect of the entire 1st Floor and 2nd floor without roof right both dated 18.03.2015 in favour of defendant no 4 & 5 respectively after CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 11 of 36 taking an additional amount of Rs 1,90,000/- each in cash qua both the sale deeds.
3. On behalf of the defendant no 7 authority only one page written statement was filed in which the defendant authority has admitted the execution of sale deeds and the payment of stamp duty in respect of the sale of suit property whereas other facts pleaded by the plaintiff in respect of the transaction between the parties has been denied for want of knowledge.
REPLICATION
4. The plaintiff filed his replication to the written statement of the contesting defendants by denying all the averments made and allegations levelled by the defendants while reiterating the contents of the plaint. In addition it is pleaded that since the defendants have disclosed their relationship to the written statement therefore this clearly shows that the transaction qua the sale and purchase of the suit property is hit by the provisions of Prohibition of Benami Transactions Act, 1988.
ISSUES
5. This Court, vide order dated 01.03.2016, framed the following issues for adjudication:-
1) Whether there is no privity of contract between the plaintiff and defendants 1, 2 & 4 to 6? OPD-1, 2 & 4 to 6
2) Whether there is no cause of action in favor of plaintiff? OPD- 1, 2 & 4 to 6
3) Whether the suit has not been properly valued and proper court fee has not been paid? OPD-1, 2 & 4 to 6 CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 12 of 36
4) Whether the suit is bad for non-joinder of necessary parties as per Preliminary Objection 7 of written statement of defendants 1, 2 & 4 to 6? OPD-1, 2 & 4 to 6
5) Whether the suit is bad for mis-joinder of parties, as alleged? OPD-1, 2 & 4 to 6
6) Whether the plaintiff is entitled for recovery of sum of Rs. 10,20,937/- from the defendants 1 to 6 jointly or severally? OPP.
7) Whether plaintiff is entitled for decree of declaration for declaring five sale deeds described in prayer-(ii) of suit to be null and void? OPP
8) Whether plaintiff is entitled for decree of mandatory injunction to de-register five sale deeds and for consequential entries thereof? OPP
9) Whether plaintiff is entitled for decree of permanent injunction against the defendants 1, 2 & 4 to 6 from selling, alienating and/or creating any third party interest in the suit property viz. First, second & third floor of 2923, Bahadurgarh Road, Sadar Bazar, Delhi? OPP
10) Relief.
PLAINTIFF'S EVIDENCE:-
6. The plaintiff in order to prove his case has examined himself as PW1 and tendered his evidence by way of affidavit as PW1/A bearing his signatures at point A & B. The plaintiff has relied upon various documents which are exhibited as Ex PW1/1 to Ex PW1/11 in the following manner:-
S. No. Exhibits Documents
1 Ex.PW1/1 Certified copy of sale deed dt 26.11.2014
CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 13 of 36
executed by M/s Red Projects Pvt Ltd in favor
of Sh Ashok Kumar Jain for first floor.
2 Ex. PW1/2 Certified copy of sale deed dt 18.03.2015
executed by Sh Ashok Kumar Jain in favor of
Smt Neerja Jain for first floor.
3 Ex. PW1/3 Certified copy of sale deed dt 11.02.2015
executed by M/s Red Projects Pvt Ltd in favor
of Sh Ashok Kumar Jain for second floor.
4 Ex. PW1/4 Certified copy of sale deed dt 18.03.2015
executed by Sh Ashok Kumar Jain in favor of
Sh Pulkit Jain for second floor.
5 Ex. PW1/5 Certified copy of sale deed dt 05.01.2015
executed by M/s Red Projects Pvt Ltd in favor
of Sh Prafful Jain.
6 Ex. PW1/6 Office copy of the legal notice dt 23.04.2015
7 Ex. PW1/7 Addendum legal notice dt 16.09.2015
8 Ex.PW1/8 Regd. postal receipts all dt 16.09.2015
(Colly)
9 Ex. PW1/9 Two regd. AD cards
&
Ex.PW1/10
10 Ex.PW1/11 Visiting card of earlier shop of defendant no 1
& 2 viz. M/s Kangan Palace
7. The Plaintiff/PW-1 was duly cross-examined by the Ld Counsel for the defendants and the plaintiff closed his evidence vide statement dated 06.09.2018.
8. The defendants in order to prove their case examined the defendant no. 2 namely Sh. Surinder Pal Jain as DW-1 who tendered his evidence by way of affidavit as Ex. DW-1/A bearing his signatures at point A & B. The DW-
CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 14 of 36 1 relied upon only one complaint dated 05.05.2015, PS Bara Hindu Rao which is exhibited as Ex DW1/1 (OSR).
9. The DW-1 was duly cross-examined by the Ld. Counsel for the plaintiff and defendant closed his evidence vide statement dated 19.08.2019.
10. Thereafter the plaintiff moved an application under section 151 CPC seeking permission to examine the defendant no 3/Sh Ashok Kumar Jain as PW 2 in his rebuttal evidence and the said application was allowed and the defendant no 3 herein i.e. Sh Ashok Kumar Jain was examined as PW 2 by the plaintiff in his rebuttal evidence.
ANALYSYS AND FINDINGS
11. Sh. Vikrant Mittal Ld. Counsel for the Plaintiff and Sh. Akhil Mittal Ld. Counsel for the contesting defendants were heard at length and after perusing the whole record as well as the written submissions filed by the parties, my issue-wise findings is as under.
12. Firstly, I shall take up the Issue No 4 & 5 together since the same are inter-
related and involves common discussion.
"Whether the suit is bad for non-joinder of necessary parties as per Preliminary Objection 7 of written statement of defendants 1, 2 & 4 to 6? OPD-1, 2 & 4 to 6"
"Whether the suit is bad for mis-joinder of parties, as alleged? OPD-1, 2 & 4 to 6."
13. The onus to prove these issues were on the defendants however it is seen that the defendants has not cross examined PW1 on this aspect at all nor CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 15 of 36 any suggestion has been given by the defendants to the effect that the suit is bad of non-joinder and mis-joinder of the necessary parties.
14. Ld Counsel for the contesting defendants, during the course of the arguments has submitted that initially the suit property was purchased by the defendant no. 3 through Ex. PW-1/1 and PW-1/3 and by the defendant no. 6 through PW-1/5 by way of three separate sale deeds from the M/s Red Projects Pvt. Ltd and Ramesh Wadhera since M/s Red Projects Pvt. Ltd and Ramesh Wadhera were co-owners of the suit property and thereafter the defendant no. 3 executed two separate sale deeds in favor of defendant no. 4 and 5 i.e. Ex. PW-1/2 and PW-1/4 and since the plaintiff has challenged all the sale deeds therefore M/s Red Projects Pvt. Ltd and Mr. Ramesh Wadhera are necessary and proper parties in as much as if the sale deeds are declared as null and void then the suit property would fall back upon its erstwhile owner namely M/s Red Projects Pvt Ltd and Ramesh Wadhera and therefore they are required to be made a party to this suit.
15. On the other hand, Ld Counsel for the plaintiff submitted that since no relief has been claimed by the plaintiff against the M/s Red Projects Pvt. Ltd or Ramesh Wadhera and as such they are neither proper nor necessary parties since the said parties are left with no right, title or interest in the suit property after execution of the sale deeds more particularly in view of the fact that the declaration has been sought in respect of the said sale deeds on the basis of the fraud having committed by the defendants in getting the sale deeds executed in their favor.
CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 16 of 36
16. The law relating to non-joinder of the necessary parties is very settled and it has been time and again held that a necessary party is the one without whom no effective adjudication can be done whereas a proper party is one whose presence is required for the just decision of the case. In the present case the plaintiff has not sought any relief against M/s Red Projects Pvt. Ltd. or against Mr. Ramesh Wadhera and the plaintiff has sought declaration that the sale deeds i.e. Ex PW1/1 to Ex PW1/5 be declared null and void and admittedly, as on date, the said sale deeds are in the name of the defendant no 4 to 6 and the said defendants are already party to the suit and as such it cannot be said that the present suit cannot be decided in the absence of the M/s Red Projects Pvt. Ltd or Ramesh Wadhera.
17. For the sake of arguments assuming that the sale deeds i.e. Ex. PW-1/1 to PW-1/5 are to be declared void even then M/s Red Projects Pvt. Ltd. or Mr. Ramesh Wadhera are neither necessary nor a proper party since the falling- back of the ownership upon the said parties would be by operation of law and for that they are no required to be made party to this suit. Thus these issues are decided against the defendants and in favour of the plaintiff.
ISSUE NO 3 "Whether the suit has not been properly valued and proper court fee has not been paid? OPD-1, 2 & 4 to 6"
18. The onus to prove this issue was on the contesting defendants. It is an admitted case between the parties that the sale deeds i.e. Ex PW1/1 to Ex PW1/5, which are sought to be declared null and void, have not been executed by the plaintiff and the present suit has been filed seeking recovery of Rs 9 Lakhs towards commission as well as for declaration on CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 17 of 36 the premise that it was the plaintiff who acted as a commission agent in getting the said deeds (i.e. Ex PW1/1, PW-1/3 and Ex PW1/6) and the suit property was cumulatively purchased for Rs 9 Crores and therefore he is entitled to 1% of the commission and for seeking declaration he has taken the plea that the sale deeds are hit by fraud as well the provisions of Prohibition of Benami Transactions Act.
19. The Ld Counsel for contesting defendants has submitted that since the plaintiff has set up his case that the impugned sale deeds i.e. Ex PW1/1, PW-1/3 and Ex PW1/6 have been cumulatively executed for a total sale consideration of Rs 9 Crores therefore the plaintiff ought to have valued the suit for the purpose of relief of declaration at Rs 9 Crores and should have paid ad-valorem court fees on the same.
20. The arguments raised by the defendants appears to be interesting but the same has no legs to stand since admittedly the sale deeds i.e. Ex PW1/1, PW-1/3 and Ex PW1/6, of which the declaration has been sought has admittedly not been executed by the plaintiff and it is settled law that if a party who challenges a document of which he is not the executant then he is not required to value the suit on the basis of the valuation/consideration mentioned in the said document and only a fixed court fees is required to be paid by the said party.
21. In the present case also, the plaintiff being not an executant of the said sale deeds is not required to pay the court fees on the sale consideration as alleged by the plaintiff i.e. Rs. 9 Crores or the sale consideration which is mentioned in the sale deeds and the plaintiff is required to pay only the fix CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 18 of 36 court fees which has been paid by the plaintiff. In this regard, reference can be had to the landmark judgment of Hon'ble Supreme Court of India in the case of Anathula Sudhakar Vs P. Buchi Reddy (Dead) by LRs & Ors. AIR 2008 SC 2033. In view of the above, this issue is decided against the defendants and in favour of the plaintiff.
Issue No 7, 8 & 9.
"Whether plaintiff is entitled for decree of declaration for declaring five sale deeds described in prayer-(ii) of suit to be null and void? OPP"
"Whether plaintiff is entitled for decree of mandatory injunction to de-register five sale deeds and for consequential entries thereof? OPP"
"Whether plaintiff is entitled for decree of permanent injunction against the defendants 1, 2 & 4 to 6 from selling, alienating and/or creating any third party interest in the suit property viz. First, second & third floor of 2923, Bahadurgarh Road, Sadar Bazar, Delhi? OPP"
22. All these issues are being taken-up together since they are inter-related and involves common discussion.
23. The onus to prove these issues are on the plaintiff. The plaintiff, who examined himself as PW-1, deposed that he does not remember the details of the transaction in respect of the suit property which was purchased by M/s Red Projects Pvt. Ltd through its MD Mr Arjun Kumar. PW-1 admitted that the sale deeds in favor of M/s Red Projects Pvt. Ltd was done on CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 19 of 36 13.01.2012. PW-1 further deposed that though he has not seen the registered sale deeds but the entire property was the same. PW-1 further deposed that he was not aware about the sale consideration mentioned in the sale deeds dated 13.01.2012. During his cross-examination, the PW-1 was shown the photocopy of the sale deeds dated 13.01.2012 (which was taken on record and marked as Mark P-1) however the PW1 was ignorant whether the said photocopy is the same vide which M/s Red Projects Pvt. Ltd had purchased the suit property. On being suggested that the sale deed i.e. Mark P-1 records the sale consideration as Rs 36 Lakhs, the PW-1 deposed that he cannot admit or deny the said suggestion however he volunteered that the sale consideration of Mark-P-1 was Rs 1.5 Crores but he admitted that he does not have any document to prove that the sale consideration of the sale deed i.e. Mark P-1 was Rs 1.5 Crore. He further deposed that he does not have any document that he brokered the said transaction i.e. sale deed dated 13.01.2012. PW-1 further deposed that he does not maintain any record in which the PW-1 used to act as broker. PW- 1 admitted that he had made a complaint to the Income Tax Authorities against the defendant no 1 and 4 however he did not remember the date and year of the complaint. PW-1 further deposed that he is not aware about the outcome of the said complaint. On being suggested that the said complaint was disposed of by the Income Tax Department on merits since the department did not find anything incriminating against the defendant no 1 & 4, the PW-1 deposed that he cannot admit or deny the said suggestion.
24. In his cross-examination, a specific question was put to the PW-1 as to on what basis he has stated that the sale deed dated 26.11.2014 i.e. Ex PW1/1 CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 20 of 36 and the sale deeds dated 18.03.2015 i.e. Ex PW1/2 & Ex PW1/4 are illegal and benami transaction to which the PW-1 deposed that it was on the ground that in both the sale deeds the same cheques and demand drafts have been mentioned by the parties towards the sale consideration. PW-1 further deposed that he was not aware that the defendant no 3 & 4 were real brother and sister since he came to know about the same only after the filing of the written statement. PW-1 however admitted that the sale consideration in both the sale deeds are different.
25. On being further cross-examined, the PW-1 was specifically asked as to whether he is aware that the defendant no 3 had taken loan from defendant no 4 and 5 for purchase of the 1st and 2nd Floor of suit property from M/s Red Projects Pvt. Ltd vide sale deeds dated 26.11.2014 & 11.12.2014 on the basis promissory note-cum-receipt dated 29.01.2015 (also as Ex DW1/P1 & Ex DW1/P2) to which he deposed that he is not aware about the said loan transaction. PW-1 was again specifically asked as whether he has any concern with the sale deeds i.e. Ex PW1/1 & Ex PW1/5 to which the PW-1 admitted that he has no concern with the said sale deeds however he volunteered that the said sale deeds were executed by the parties in order to avoid paying commission to him. PW-1 was further specifically put that since the defendant no 3 had taken loan from the defendant no 4 & 5 for purchasing part of the suit property from M/s Red Projects Pvt Ltd which was not repaid by the defendant no 3 to defendant no 4 & 6 therefore the defendant no 3 sold his share in the suit property to defendant no 4 & 6 by receiving an additional sale consideration however PW-1 deposed that he is not privy to the said transaction.
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26. PW2/Sh Ashok Kumar Jain (who is defendant no 3 and was examined in rebuttal evidence by the plaintiff) deposed that the defendants are related to him and defendant no.1 is the brother-in-law (Jija) of the PW-2 and the defendant no 4 is his real sister and defendant no 5 & 6 are his nephews (Bhanja). He further deposed that the sale consideration in respect of the 1 st floor of the suit property was Rs. 31,25,000/- and the same was paid through 4 bankers cheques' whereas the sale consideration in respect of the 2nd floor of the suit property was also Rs 31,25,000/- which was paid by way of 2 demand drafts and the said amount of 4 bankers' cheques as well as 2 demand drafts were never received back by him at any point of time from anybody. In his cross-examination, he admitted that he had taken financial assistance from his sister i.e. defendant no 4 as well as from his nephew i.e. defendant no 5 so as to make payment for the sale consideration of Rs. 31,25,000/- each in respect of the sale deeds i.e. Ex. PW-1/1 and Ex. PW-1/3 executed qua both the floors in his favour by M/s Red Projects Pvt. Ltd. He also admitted that he had sold out both the floors to defendant no 4 and 5 respectively against the financial assistance as adjustment towards the sale deeds which was executed by M/s Red Projects Pvt Ltd in his favor. He further admitted to have received Rs. 1,90,000/- each in cash additionally in respect of the sale deeds executed in favour of defendant no 4 & 5 i.e. Ex PW 1/ 2 & Ex PW 1/ 4 respectively. He further admitted that the financial assistance of Rs 31,25,000/- each given by the defendant no. 4 and 5 respectively was adjusted towards the sale consideration of the sale deed i.e. Ex PW1/2 & Ex PW1/4. He admitted that he had executed the promissory notes i.e. Ex DW1/P1 & Ex DW1/P2.
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27. The DW-1 in his cross-examination has admitted that the mode of sale consideration for the execution of the sale deeds Ex PW1/1 (by M/s Red Projects Pvt Ltd in favour of defendant no 3 in respect of 1st floor of the suit property) and the mode of sale consideration in respect of the sale deed Ex PW1/2 (by defendant no 3 in favour of defendant no 4 in respect of 1st floor) is same. DW-1 further deposed that the defendant no 3 is the brother of defendant no 4 and he was intending to purchase the 1 st floor and 2nd Floor of the suit property however he did not have sufficient funds and as such on behalf of defendant no 3, the defendant no 4 and defendant no. 5 made the payment of the sale consideration by way of 4 bankers cheques and 2 demand drafts to M/s Red Projects Pvt. Ltd as mentioned in Ex PW1/1 and PW-1/3.
28. In the cross-examination of DW-1, specific court questions were put to DW-1 as to how the 4 bankers' cheques and 2 demand drafts which were given towards the sale consideration of the Ex PW1/1 & Ex PW1/3 can be used further as sale consideration for the execution of Ex PW1/2 & Ex PW1/4. To this, the DW1 deposed that since the defendant no 3 was not able to make the payment against the purchase of 1 st and 2nd floor of the suit property therefore the payments were made by the defendant no 4 & 5 on behalf of defendant no 3 by way of financial assistance and when the defendant no 3 could not repay the said loan to the defendant no 4 & 5 therefore at his request the defendant no. 4 and 5 purchased the 1 st and 2nd Floor of the suit property by way Ex. Pw-1/2 & Ex. PW-1/4 respectively and the said 4 bankers' cheques and 2 demand drafts were shown as the CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 23 of 36 sale consideration in addition to Rs. 1,90,000/- each which was paid by the defendant 4 and 5 respectively to the defendant no. 3.
29. The DW-1 further deposed that the said 4 bankers' cheques and 2 demand drafts, which were paid to M/s Red Projects Pvt Ltd towards sale consideration towards of Ex PW1/1 & Ex PW1/3 never came back into the hands of defendant no 4 or defendant no 5. The DW-1 was specifically put that since the 4 bankers cheques and 2 demand drafts were never delivered to the defendant no 4 & 5 towards the execution of Ex PW1/2 & Ex PW1/4 therefore the payment clause mentioned at point Mark A in both the documents i.e. Ex PW1/2 and Ex PW1/4 is all fraud however the DW1 deposed that the said cheques and demand drafts were shown as an adjustment towards the sale consideration which had already been paid through the defendant no. 4 and 5 on behalf of defendant no. 3 at the time of the execution of the said sale deeds i.e. Ex PW1/1 & Ex PW1/3 since the 4 bankers' cheques towards the sale consideration of Ex PW1/1 and the 2 demand drafts towards sale consideration of Ex PW1/3 were issued from the respective accounts of defendant no 4 & 5. The DW1 further deposed that the defendant no 3 had executed a promissory note i.e. DW1/P1 and DW1/P2 towards the financial assistance taken by the defendant no 3 from defendant no 4 & 5 respectively. He further deposed that the said promissory notes were cancelled since the said promissory notes have been adjusted as per the noting mentioned on the said notes at point X.
30. In the wake of the afore-detailed testimony, the Ld Counsel for plaintiff has led challenge to the sale deeds i.e. Ex PW1/1 & Ex PW1/3 on the ground CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 24 of 36 that the said sale deeds are illegal being hit by the provisions of Prohibition of Benami Transaction Act since admittedly the consideration qua the said sale deeds have come from defendant no 4 & 5 respectively whereas the sale deeds has been executed in favour of defendant no 3.
31. Secondly, the plaintiff has challenged the sale deeds i.e. Ex PW1/1 & Ex PW1/4 executed by defendant no 3 in favour of defendant no 4 & 5 respectively by contending that the said sale deeds are illegal since no consideration has been passed in the said sale deeds and the vendee i.e. defendant no 4 & 5 have played fraud on the state exchequer by using the same bankers' cheques and demand drafts as sale consideration which was used as sale consideration for execution of Ex PW1/1 & Ex PW1/3. It has been contended by the Ld. Counsel for the plaintiff that once the sale consideration by way of a particular mode (4 bankers cheques and 2 demand drafts in the present case) have been used then the same cannot be used again for executing another sale deeds since using of the said 4 bankers' cheque and 2 demand drafts again for execution of Ex PW1/2 & Ex PW1/4 clearly amounts to a calculated fraud as no sale-consideration has been passed actually between the defendant no. 3, 4 and 5.
32. Thirdly, Ld Counsel for plaintiff has challenged the sale deed Ex PW1/5 by contending that the said sale deed has been under-valued as the sale consideration has been shown to be Rs 31,25,000/- whereas the same has been purchased for around 3 Crores and as such the defendant have caused loss to the state exchequer and therefore the sale deed is null and void.
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33. Fourthly, the Ld Counsel for plaintiff has sought to challenge the sale deeds Ex PW1/1 to Ex PW1/5 on the ground that incorrect particulars have been mentioned in the said sale deeds since the suit property, which have been purchased by way of respective sale deeds, is shown to be residential/semi pucca whereas it has been proved on record that the suit property is being used for commercial purposes and therefore the sale deeds are required to be declared as null and void since a calculated fraud has been played upon the state exchequer in as much as if the suit property had been shown as commercial then the defendants would have had to pay a higher amount of stamp duty however the defendants have mischievously evaded to pay the same.
34. The Ld Counsel for the plaintiff in support of his arguments has relied upon two judgments passed by the Hon'ble Supreme Court of India in the case of M/s Fair Communication and Consultants & Anr vs Surendra Kerdile, Civil Appeal No 106/2010, D.O.D. 20.10.2010 and Mangathail Ammal (died) through LRs and others vs Rajeshwari & Others, Civil Appeal No 4805/2019, D.O.D. 09.05.2019.
35. Per contra, the Ld Counsel for the contesting defendants has argued that the plaintiff has no locus-standi to challenge the sale deeds i.e. Ex PW1/1 to Ex PW1/5 since the plaintiff has admitted in his cross-examination that he has no concern with the suit property more particularly when the plaintiff's main grievance is that of non-payment of his commission however the plaintiff has illegally involved the suit property in the present case so as to extort money from the contesting defendants.
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36. Ld Counsel for the contesting defendants further contended that even assuming that the sale deeds Ex PW1/1 & Ex PW1/3 are hit by provisions of Benami Act even then the plaintiff is not entitled to the relief of declaration since the said plea, if any, would have been available either to the defendant no 4 or defendant no 5 as the case may be and not to the plaintiff as it was the defendant no 4 and 5 who had respectively paid the amount towards the sale consideration qua the said sale deeds.
37. The Ld Counsel for contesting defendants further contended that the sale deeds in question have not been under-valued and proper stamp duty has been paid to the state exchequer as also reflected in the said sale deeds and even no such objection has been taken by the defendant no. 7 herein which is the concerned authority to take such an objection.
38. The Ld. Counsel for the contesting defendants further contended that initially 50% of the undivided share in suit property was purchased by M/s Red Projects Pvt. Ltd by way of sale deed dated 13.01.2012 i.e. Mark-P-1 for Rs 36 Lakhs whereas the defendants have cumulatively purchased the share of M/s Red Projects Pvt. Ltd. for a total amount of Rs 66,30,000/- (including the amount of Rs. 1,90,000/- which was paid in cash to the defendant at the time of execution of Ex. PW-1/2 & PW-1/4) which is much more than the earlier sale consideration and it was upon the plaintiff to have proved on record that the sale deeds qua the suit property was executed for Rs. 9 Crores however the plaintiff has not brought on record even a single piece of evidence to show that the sale deeds were executed for Rs 9 Crores or that any under-valuation has been done.
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39. During the course of arguments qua the challenge to the sale deeds Ex PW1/1 & Ex PW1/3 on account of Benami, Ld Counsel for plaintiff was enquired as to how the said plea is available to the plaintiff since the plaintiff is a stranger to the suit property and even if the plea of Benami is assumed to be available then the same would have only been available to the defendant no 4 & 5 and even the said plea also lapsed on the execution of the sale deeds in their favor i.e. Ex. PW-1/2 & PW-1/4 respectively and also for the reason that the PW-1 himself admitted in his cross-examination that he has no concern with the suit property. To this the Ld Counsel for plaintiff fairly conceded that the plea of benami could not have been raised by the plaintiff. The judgments relied upon by the plaintiff are clearly distinguishable on facts of the present case and are thus not applicable.
40. The other contention of Ld Counsel for plaintiff to challenge the sale deeds i.e. Ex. PW-1/2 & PW-1/4 is that that the defendants have played fraud in the execution of the sale deeds as no real consideration passed hands at the time of execution of Ex PW-1/2 & PW-1/4 since the same mode of payment of sale consideration comprising of 4 bankers' cheque and 2 demand drafts have been shown in respect of 2 set of sale deeds i.e. one set of sale deed which was executed by M/s Red Projects Pvt. Ltd in favour of defendant no 3 i.e. Ex PW1/1 & Ex PW1/3 and the other set of sale deeds executed by the defendant no. 3 in favor of the defendant no. 4 & 5 i.e. Ex PW1/2 & Ex PW1/4 and the same is not permissible under the law.
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41. The aforesaid plea appears to be in-genuine and intriguing however the same is against the whole concept of the law of consideration as contained in Section 2(d) read with Section 25 of the Indian Contract Act, 1872.
42. During the course of the arguments, the attention of the Ld Counsel for plaintiff was drawn to Section 2 (d) of the Indian Contract Act and on the basis of the said provision it was enquired as to why a third person cannot give consideration in respect of an agreement between two persons when the provision itself provides for the same and to this the Ld Counsel for plaintiff fairly conceded that the consideration could be passed through a third person in respect of a contract between two other persons however it was submitted by the Ld Counsel for plaintiff that the defendant no 4 and 5 could not have used the same mode of payment towards the sale consideration in respect of two set of sale deeds that is to say once the 4 bankers' cheques and 2 demand drafts have already been used as the sale consideration at the time of the execution of PW-1/1 & PW-1/3 then the same bankers' cheque and demand drafts could not have been used as the sale consideration at the time of execution of Ex. PW-1/2 & PW-1/4 and thus this clearly shows that no consideration had passed for the execution of Ex. PW-1/2 & PW-1/4 and therefore an agreement without consideration is void.
43. This court is unable to agree even with this contention of the Ld Counsel for plaintiff for the simple reason that the said plea is against Section 25 of the Indian Contract Act, 1872. The relevant portion of Section 25, so as to CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 29 of 36 deal with this argument of Ld. Counsel for the plaintiff, is reproduced hereunder:-
25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.--An agreement made without consideration is void, unless:-
(1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Explanation 1:- xxxxxxxxxx Explanation 2:- An Agreement to which the consent of the promisor is freely given is not void merely because the considera-
tion is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.
44. In the present case it has been proved on record that the defendant no 3 was not having the requisite financial condition to purchase the 1 st Floor and 2nd floor of the suit property and as such defendant no 4 and 5 provided financial assistance of Rs 31,25,000/- each to the defendant no 3 towards the sale consideration for execution of the sale deeds i.e. Ex PW1/1 & Ex PW1/3 for which the defendant no. 3 executed the necessary promissory notes and when the defendant no 3 failed to repay the said amount then he offered to sell the said portions of the suit property to the defendant no 4 and 5 and as such the defendant no 3 executed 2 separate sale deeds i.e. Ex PW1/2 & Ex PW1/4 in favour of defendant no 4 & 5 respectively and the sale consideration was adjusted which had already been given by defendant no. 4 and 5 by way of financial assistance at the time of the execution of Ex CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 30 of 36 PW1/1 & Ex PW1/3 and an additional amount of Rs 1,90,000/- each in cash was also given by the defendant no 4 & 5 to the defendant no. 3. It has also been proved on record that on the execution of the sale deeds i.e. Ex PW1/2 & Ex PW1/4, the promissory notes i.e. Ex. DW-1/P1 and DW- 1/P2 also stood cancelled and therefore it cannot be said that the sale deeds are void or vitiated with fraud merely because the said 4 bankers' cheques and 2 demand drafts are mentioned in two separate set of sale deeds in as much as it has also been duly proved on record that the said bankers' cheques and demand drafts have been towards adjustment of the financial assistance rendered by the defendant no. 4 and 5 in favor of the defendant no. 3. It shall not be out be place to mention here that even if it was only mentioned in the sale deeds i.e. Ex PW-1/2 & PW-1/4 that the sale consideration had been paid without disclosing any other details of the mode of sale consideration or whether the sale consideration is past, present or future then also the sale deeds would not have become void. Even for the sake of arguments if it is presumed that the 4 bankers' cheques and 2 demand drafts forming part of the sale consideration in the Ex PW1/1 & Ex PW1/3 could not have been used towards the sale consideration for the execution of Ex PW1/2 & Ex PW1/4 even then the said plea could have been available to the defendant no 3 only since as per Explanation-2 of Section 25 a contract is not void because the consideration is inadequate. Once it has been proved on record that the plaintiff has no concern with the suit property therefore it is not available to the plaintiff to challenge the sale consideration accepted between the defendant no 3, 4 & 5 inter-se or between all the parties since proper stamp duty has been paid to the CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 31 of 36 concerned authority. Thus these issues are decided against the plaintiff and in favor of the defendants.
ISSUE No 1, 2 & 6.
"Whether there is no privity of contract between the plaintiff and defendants 1, 2 & 4 to 6? OPD-1, 2 & 4 to 6"
"Whether there is no cause of action in favor of plaintiff? OPD-1, 2 & 4 to 6"
"Whether the plaintiff is entitled for recovery of sum of Rs. 10,20,937/- from the defendants 1 to 6 jointly or severally? OPP."
45. Issue No. 1, 2 and 6 are taken together since they are inter-related and involve common discussion and appreciation of evidence.
46. The onus to prove issue no. 1 & 2 was on the contesting defendants whereas the onus to prove the issue no. 6 was on the plaintiff.
47. The plaintiff/PW-1 deposed that he is running a business of property dealer alone in the area of Sadar Bazaar, Delhi-06 in the name and style of M/s Pawan Property Dealer and the said firm is not registered. He further deposed that he charges brokerage from the buyer and the seller at the rate of 1% each of the total sale consideration. He deposed that he has no bank account in the name of his proprietorship concern and receives commission in cash. He admitted that he brokered the deal of sale and purchase in respect of the suit property bearing no. 4431, 4432 and 4433, Gali Bahuji, Bahadurgarh Road, Delhi between the defendant no. 2 and one Sh. Rajender Prasad. He further admitted that a dispute arose in respect of the said deal and a suit for specific performance was also filed by the purchaser CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 32 of 36 namely Sh. Rajender Prasad against the defendant no. 2, one Sh. Ajay Luthra and him. He further admitted that the said deal was not finalized between the purchaser and the defendant no. 2 however he denied the suggestion that after filing of the suit for specific performance, disputes had arisen between him and the defendant no. 2. He admitted that he has no agreement to show that he has dealt as a commission agent between the seller i.e. M/s Red Project Pvt. Ltd. and the purchaser i.e. the defendant no. 1 and 2. He admitted that there was no agreement to sell prepared at the initial stage of dealing of the subject property. He admitted that there is no document like agreement to sell, bayana receipt showing the total sale consideration was fixed at Rs. 9 Crores in respect of the dealing of the suit property between Mr. Arjun Kumar and the defendants. He further admitted that he has no receipt showing the handing over of Rs. 50 Lacs in cash on 2 occasions to Mr. Arjun Kumar. In his cross-examination conducted on 03.04.2018, he admitted that he did not receive any commission from Mr. Arjun Kumar or M/s Red Project Pvt Ltd.
48. PW-1 further deposed that he does not maintain any record of the transaction in which he had acted as a broker. He admitted that he had made a complaint to Income Tax Authority against the defendant no. 1 and 4 however he deposed that he was not aware of the outcome of the said complaint. A specific question was put to PW-1 as to whether he has any concern with the sale deed Ex. PW1/1 to Ex. PW1/5 to which he deposed that he has no concern with the said sale deeds. He further admitted that he did not receive any commission from M/s Red Project Pvt. Ltd Ex. PW1/1 to Ex. PW1/5. He admitted that he did not make any complaint against CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 33 of 36 M/s Red Project Pvt. Ltd with Income Tax Department since he had no concern with the suit property. He also admitted that he did not stand as a witness to any of the sale deeds Ex. PW1/1 to Ex. PW1/5. He also admitted that he was not present at the time of execution of the sale deed Ex. Pw1/1 to Ex. PW1/5.
49. The DW-1 in his cross-examination denied the suggestions regarding the total consideration for purchase of the suit property was fixed at the rate of Rs. 9 Crores. He further denied the suggestions that the earnest money was fixed at Rs. 1 Crore. He further denied that the sale deeds Ex. PW1/1 to Ex. PW1/5 were undervalued upto 90% or that there has been any benami transaction. The DW-1 also denied having been introduced by the plaintiff to Mr. Arjun Kumar. He also denied that in the meeting between his son, himself and the purchaser M/s Red Project Pvt Ltd, the plaintiff was also present. He denied that any commission was settled between the plaintiff and the defendants however he volunteered that the plaintiff was not involved in this dealing. He also denied the suggestion that he sent the earnest money of Rs. 1 Crore through the plaintiff to M/s Red Project Pvt Ltd. He denied the suggestion that the commission was payable to the plaintiff by the defendants. He denied the suggestion that the deal regarding the suit property was matured by the efforts made by plaintiff as a mediator.
50. After going through the whole testimony, this Court is of the considered opinion that the plaintiff has failed to prove that the sale consideration towards the execution of sale deeds i.e. Ex. PW-1/1, PW-1/3 and PW-1/5, was Rs. 9 Crores. The plaintiff has also failed to prove that any earnest CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 34 of 36 money of Rs. 1 Crore was paid in cash by the defendant no. 1 and 2 to M/s Red Projects Pvt. Ltd through the plaintiff. The defendants have categorically denied having any privity of contract with the plaintiff. It shall be relevant to state here that once it is the case of the plaintiff that he was instrumental in getting the deal done between M/s Red Projects Pvt. Ltd. and the defendant no. 1 & 2, which facts have been categorically denied by the defendants, and as such in order to prove the said facts, the plaintiff should have brought Mr. Anjum Kumar, MD of M/s Red Projects Pvt. Ltd. as a witness in support of his case who could have proved the case of the plaintiff by deposing that the plaintiff had acted a broker between M/s Red Projects Pvt. Ltd and defendant no. 1 and 2. It shall be pertinent to mention here that the sale deeds in which the plaintiff has claimed to have acted as a broker was actually executed in favor of Defendant No. 3 and 6 and when defendant no. 3 was examined as PW-2 by the plaintiff then he did not even depose that the plaintiff had acted as a broker for finalizing the sale transactions between parties nor did the plaintiff seek permission of the court to cross-examine the PW-2 so as to put suggestions to him to the effect that the plaintiff had acted as a broker. The plaintiff has himself admitted that he does not keep any record of transactions in which he had acted as a broker. The plaintiff also admitted that he did not claim or receive any brokerage/commission from M/s Red Projects Pvt. Ltd. whereas it was his own case that he takes 1% commission from his clients. All these facts go on to prove that there was no privity of contract between the plaintiff and the defendant no. 1 and 2 and since the plaintiff has failed to prove on record that he acted as commission agent in between the CS No. 14645/2016 Pawan Gupta vs. Padam Kumar Jain & Anr. Page No 35 of 36 defendant no. 1 and 2 as well M/s Red Projects Pvt. Ltd therefore the plaintiff is held not entitled to relief of recovery of any amount. Thus these issues are also decided against the plaintiff and in favor of the defendants.
51. In view of the above, the suit filed by the plaintiff is hereby dismissed however parties are left to bear their own cost.
52. Decree Sheet be prepared accordingly.
53. File be consigned to Record Room after due compliance.
Pronounced in the open court on (AJAY GULATI-II)
20 December 2022. ADJ- 01 (Central)
Tis Hazari Courts, Delhi
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