Delhi District Court
Sawli Devi vs Neeraj on 24 December, 2024
IN THE COURT OF SH. SONU AGNIHOTRI DISTRICT JUDGE-07,
SOUTH EAST SAKET COURTS, NEW DELHI
Civil Suit No. 491/2021
CNR No.: DLSE01-005486-2021
SMT. SAWLI DEVI
W/o Vinay Kumar,
R/o. A-8, Palika Kunj Karvala,
Lodhi Road, New Delhi-110003.
.......... Plaintiff
Versus
NEERAJ
S/o. Sh. Kalu
R/o. 114, Village Molarband,
New Delhi-110044.
......... Defendant
SUIT FOR RECOVERY OF RS.16,35,000/- (RUPEES SIXTEEN LAKHS
THIRTY FIVE THOUSAND ONLY)
Date of institution : 19.07.2021
Date when judgment reserved : 20.11.2024
Date of Judgment : 24.12.2024
JUDGMENT
1. Vide this judgment, I shall dispose of present suit filed by CS No. 491/2021 Page No. 1 of 35 Sawli Devi Vs. Neeraj plaintiff against defendant for recovery of Rs.16,35,000/- with interest and cost of construction work.
2. The case of plaintiff in brief as averred in plaint is as under:
3. It is stated that plaintiff through her relatives, advertisement and sign board published/put up in front of office of defendant came to know that defendant is selling residential plots in Nikhil Vihar, Ismail Pur, Faridabad in installments. It is stated that when plaintiff approached defendant, defendant explained all the procedure and requested her to visit his office at H.No. 114, Village Molarband, Delhi. It is stated that defendant showed one plot of 120 sq. yards to plaintiff and offered the same to her in installments. Plaintiff got interested in the deal.
4. It is stated that on 23.10.2016, plaintiff booked 120 sq. yards residential plot situated at Ismailpur, District Faridabad, Khasra No. 58 (0-9), 58 (0-18), 60 (1-0) 61(0-7) for total consideration amount of Rs.21,60,000/- and paid bayana/made part payment of Rs.50,000/- in cash vide receipt No. 539 and again paid Rs.50,000/- in cash to defendant vide receipt No. 546 on 06.11.2016.
5. It is stated that on 18.12.2016, plaintiff again visited office of defendant to pay additional amount of Rs. 60,000/- which was paid vide receipt No. 581. On 18.12.2016, defendant informed that he had sold pot of 120 sq. yards and offered plaintiff a new plot of area approximately 133.33 sq. yards for total consideration amount of Rs.23,94,940/-. When plaintiff objected to the same, defendant told plaintiff that he will not CS No. 491/2021 Page No. 2 of 35 Sawli Devi Vs. Neeraj refund her money and if plaintiff wishes to purchase 133.33 sq. yards plot, then only, he will adjust, money earlier paid. Plaintiff agreed for the same and requested for bayana agreement.
6. It is stated that on 19.12.2016, plaintiff and defendant visited Notary Public and executed bayana agreement for purchase of 133.33 sq. yards plot for total sale consideration of Rs.23,40,000/- mentioning that amount of Rs.1,60,000/- has already been received by defendant and Rs.4,40,000/- will be paid by plaintiff by 23.01.2017 and balance consideration amount of Rs.17,40,000/- will be paid by plaintiff in 36 installments @ Rs.48,334/- per month.
7. It is stated that at the time of signing of bayana agreement as mentioned in last para, plaintiff stated that she cannot pay Rs.4,40,000/- by 23.01.2017 and will not be able to pay installment of Rs.48,334/- per month on which, defendant assured plaintiff that she can pay the amount in easy installments as per her convenience and affordability.
8. It is stated that on 05.02.2017, plaintiff paid Rs.55,000/- in cash to defendant vide receipt No. 626 and Rs.50,000/- by way of cheque bearing No. 204876 drawn on PNB, Jor Bagh, New Delhi.
9. It is stated that on 21.03.2017, plaintiff further paid Rs.50,000/- to defendant vide cheque No. 204877 drawn on PNB, Jor Bagh, New Delhi.
10. It is stated that in April 2017, when plaintiff visited to pay installment to defendant, he informed plaintiff that he has sold plot to CS No. 491/2021 Page No. 3 of 35 Sawli Devi Vs. Neeraj some other person and offered plaintiff another corner plot of 155 sq. yards abutting roads on two sides. When plaintiff objected to the same, defendant told plaintiff that he will not refund her money and further told that if plaintiff is willing to purchase 155 sq. yards plot, then only he can adjust money earlier paid by her.
11. It is stated that after many telephonic calls and conversations with defendant, defendant became ready to give another plot of 155 sq. yards in place of 133.33 sq. yards plot in the same locality. Plaintiff further paid Rs.50,000/- to defendant in cash vide receipt No. 718, again Rs.50,000/- in cash vide receipt No. 774 on 30.07.2017 and Rs.60,000/- in cash vide receipt No. 860 on 12.11.2017 and Rs.50,000/- in cash vide receipt No. 919 on 07.01.2018.
12. It is stated that on 10.06.2018, plaintiff paid further amount of Rs.50,000/- to defendant in cash vide receipt No. 1193. Defendant confirmed and conveyed to plaintiff that plaintiff has paid approximately Rs.6,00,000/- till date and that if plaintiff wants to construct boundary wall on the plot, she can do the same at her cost. After that, plaintiff raised boundary wall of 6 feet height for which, she spent Rs.3,00,000/- from her own pocket.
13. It is stated that on 02.12.2018, plaintiff paid Rs.60,000/- in cash vide receipt No. 1478, Rs.50,000/- in cash vide receipt No. 1675 on 17.03.2019, Rs.70,000/- in cash vide receipt No. 1932 on 01.09.2019 and Rs.70,000/- in cash again vide receipt No. 1996 on 20.10.2019.
CS No. 491/2021 Page No. 4 of 35Sawli Devi Vs. Neeraj
14. Defendant telephonically requested plaintiff to pay balance consideration amount as he needed the money on urgent basis and also requested to pay Rs.5,00,000/- more and further told plaintiff that as husband of plaintiff is a Govt. employee, bank will finance her the balance consideration amount. On 12.12.2019, plaintiff paid Rs.5,00,000/- vide cheques No. 000137, 000138 and 000139, all drawn on Bank of Baroda, Parliament Street, Sansad Marg, New Delhi.
15. It is stated that on 19.12.2019, defendant called and requested plaintiff to visit office of Registrar for preparation of finance papers of the plot on which, defendant requested plaintiff to sign some documents and when plaintiff tried to read the said documents with help of witnesses, defendant requested to sign them immediately as he had to rush to the bank for deposit of those papers for finance of loan. Defendant got signed bayana dated 19.12.2019 from plaintiff in a hurried manner. After 3-4 months, defendant told plaintiff that her finance application/papers were rejected by bank which were submitted in the bank by defendant after getting them duly signed from plaintiff. On 22.03.2020, Govt. of India declared out break of Pandemic of Covid-19 which fact jeopardized functioning of Courts and other functioning.
16. After that, when plaintiff contacted defendant and asked about finance papers of the loan, defendant informed plaintiff that he had also sold this plot to some other person and offered a new plot in lieu thereof.
CS No. 491/2021 Page No. 5 of 35Sawli Devi Vs. Neeraj
17. It is stated that plaintiff has given sum of Rs.13,35,000/- to defendant in his office at Molarband. Amount of Rs.5,50,000/- was given to defendant by way of cheques and sum of Rs.7,85,000/- was given in cash which was duly acknowledged by defendant. Plaintiff also spent Rs.3,00,000/- towards construction of boundary wall.
18. It is stated that thus defendant has cheated plaintiff to the tune of Rs.16,35,000/- by his dishonest acts, repeated lies and misrepresentation of facts. Plaintiff lodged complaint dated 21.09.2020 with SHO, PS Badarpur, copy of which was sent to DCP and concerned ACP but to no avail. It is stated that after giving of complaint dated 21.09.2020, ASI Rajender Chaudhary, PS Badarpur visited suit property but did not give any response. Plaintiff along with his Advocate visited police station number of times to know status of complaint but no status was informed to plaintiff and no action was taken against defendant herein.
19. It is stated that on 21.01.2021, when plaintiff with her family members visited plot offered to her by defendant, they were shocked to see that defendant has destroyed boundary walls of her plot. Defendant started threatening plaintiff from the very beginning. Defendant further intimidated plaintiff by saying that he will not allot any plot and was also not willing to return amount given by plaintiff.
20. It is stated that plaintiff through her counsel sent legal notice dated 01.04.2021 for refund of money but no reply to the same has been CS No. 491/2021 Page No. 6 of 35 Sawli Devi Vs. Neeraj received by plaintiff till date. It is stated that amended legal notice dated 07.08.2021 has also been sent to defendant.
21. It is stated that plaintiff has already given written complaint against defendant for lodging of FIR before concerned Ld. Court vide CT Case No. 717/2021 which is pending before Court for 17.09.2021.
22. Plaintiff has prayed for passing decree in sum of Rs.16,35,000/- in favour of plaintiff and against defendant alongwith interest @ 18% per annum payable from 23.10.2016 till realization. Plaintiff has further prayed for passing decree in sum of Rs.3,00,000/- in favour of plaintiff and against defendant towards cost of construction of boundary wall which was illegally and unlawfully demolished by defendant. Plaintiff has further prayed for passing decree in sum of Rs.4,14,200/- in favour of plaintiff and against defendant towards interest @ 16% per annum with market variations from 12.12.2019 till 23.07.2021.
23. Summons of the suit were ordered to be issued to defendant vide order dated 10.08.2021.
24. Defendant after service of summons of the suit put up appearance before Court through his counsel and filed written statement. Defendant in his written statement pleaded some additional facts.
25. It is stated that entire cause of action consisting of dealing of issue of whatsoever in nature, jurisdiction of immovable property in CS No. 491/2021 Page No. 7 of 35 Sawli Devi Vs. Neeraj respect of present suit and dealing of money transaction as alleged in the suit never took place within territorial jurisdiction of this Court. Property for which entire transaction is alleged to have taken place is located at Faridabad, receipts of payment except cheque payment has taken place at Faridabad and though defendant is resident of Delhi but he is not working for gain within jurisdiction of this Court and plaintiff thus does not have any right to invoke territorial jurisdiction of this Court.
26. It is stated that as per averments made in the plaint, plaintiff approached defendant after seeing sign board of defendant in front of his office which is admittedly located in Faridabad, Haryana and as such, this Court lacks territorial jurisdiction to try present suit.
27. It is stated that as per case of plaintiff, defendant had shown plaintiff a plot of land located at Nikhil Vihar, Ismailpur, Faridabad which is not located within territorial jurisdiction of this Court.
28. It is stated that as per case of plaintiff, she met defendant on 23.10.2016 and booked plot of land measuring 120 sq. yards for her residential use for total consideration of Rs.21,60,000/- for which, she paid booking amount/earnest money of Rs.50,000/- on 23.10.2016. From what has been averred by plaintiff, it is clear that cause of action to file present suit arose on 23.10.2016 whereas present suit for recovery of money was filed by plaintiff in the year 2021 which is barred by law of limitation.
29. It is stated that agreement to sale dated 19.12.2016 has CS No. 491/2021 Page No. 8 of 35 Sawli Devi Vs. Neeraj been filed by plaintiff with present suit which shows that the said agreement was pertaining to plot of land measuring 133.33 sq. yards for total consideration of Rs.23,40,000/- whereas receipts dated 23.10.2016 and 06.11.2016, both for sum of Rs.50,000/- are alleged to be earnest money for plot of land measuring 120 sq. yards. These facts are in itself misleading and contrary to averments made in the plaint and thus, can be termed to be an illegal attempt to extort money in garb of present civil suit for recovery of money.
30. It is stated that as per case put forth by plaintiff herself, plaintiff instead of honouring terms and conditions of agreement to sell dated 19.12.2016 for plot of land measuring 133.33 sq. yards for which complete payment was to be made on or before 23.01.2020, plaintiff on her own executed another agreement to sale dated 19.12.2019 for another plot of land measuring 155 sq. yards for total consideration of Rs.21,00,000/- out of which, only Rs.5,00,000/- were received by defendants by cheque and balance amount of Rs.16,00,000/- was to be paid by plaintiff to defendant on or before 24.12.2019 which plaintiff failed to pay. Plaintiff instead of honouring payment schedule as mentioned in agreements to sale, choose to file present frivolous suit for recovery with sole intent to extort money.
31. Defendant also took certain preliminary objections in his written statement. It is stated that present suit in present form is defective as verification clause of suit is defective and is not in CS No. 491/2021 Page No. 9 of 35 Sawli Devi Vs. Neeraj accordance with provisions of Order VI Rule 15 CPC read with Chapter I (Vol. I) of High Court Rules and Order, Delhi High Court and thus, there is no proper suit before this Court and suit filed by plaintiff deserves to be dismissed. It is stated that present suit is barred by limitation and is required to be dismissed on this ground alone. Present suit has been filed in respect of amount paid in the year 2016 but present suit has been filed in year 2021 i.e. after 05 years of arising of cause of action and is thus, barred by law of limitation. It is stated that present suit has been filed in respect of plot of land situated in Faridabad, Haryana which is not within territorial jurisdiction of this Court and as such, this Court lacks territorial jurisdiction to try and adjudicate present suit. Present suit filed by plaintiff is without any cause of action and as such, requires to be dismissed. From averments made in the plaint, it is clear that no cause of action has been pleaded by plaintiff in the plaint as required under Order VII Rule 11 CPC and suit filed by plaintiff thus warrants to be dismissed on this ground alone. It is stated that even otherwise, plaintiff cannot be allowed to take advantage for her non-adherence of terms and conditions of agreement executed between plaintiff and defendant. Plaintiff is thus, guilty of not coming to the Court with clean hands on account of which, suit filed by plaintiff deserves to be dismissed. It is stated that defendant does not have any office and does not work for gain within territorial jurisdiction of this Court and is having his residence only within territorial jurisdiction of this Court on account of CS No. 491/2021 Page No. 10 of 35 Sawli Devi Vs. Neeraj which also, present suit deserves dismissal.
32. On reply on merits, it is admitted that plaintiff came to know of plot of land as advertisement regarding the same was published on board outside office of defendant located in Faridabad, Haryana. It is denied that defendant ever requested plaintiff to visit his house. It is stated that plaintiff along with her relatives and known persons visited office of defendant at Faridabad, Haryana to understand deal of purchase of parcel of land in Faridabad, Haryana. It is admitted that defendant had shown plot of land measuring 120 sq. yards located in Faridabad, Haryana after plaintiff with her relatives visited office of defendant at Faridabad, Haryana.
33. It is admitted that entire deal of sale/purchase of land located in Nikhil Vihar, Faridabad, Haryana measuring 120 sq. yards for total consideration amount of Rs.21,60,000/- was agreed and dealt at office of defendant at Faridabad and amount stated was received by defendant at his office at Faridabad as advance/bayana.
34. It is denied that defendant informed plaintiff that he had sold earlier plot of land measuring 120 sq. yards shown to plaintiff to someone else and offered plaintiff to purchase another plot of land measuring 133.33 sq. yards. It is stated that plaintiff on visiting office of defendant showed her desire to purchase a bigger plot of land for which, defendant showed a bigger plot of land measuring 133.33 sq. yards to which, plaintiff agreed and made further payment. Payment earlier CS No. 491/2021 Page No. 11 of 35 Sawli Devi Vs. Neeraj received by defendant was adjusted against cost of this plot.
35. It is stated that agreement to sale for purchase of plot measuring 133.33 sq. yards was executed and notarized in Faridabad as plot of land was located within jurisdiction of State of Haryana. All terms and conditions were duly read over to plaintiff in Hindi by deed writer at Faridabad and after being satisfied with contents of agreement to sale, plaintiff executed the same.
36. It is denied that plaintiff ever raised any objection or showed her inability to pay as per terms and conditions written in agreement to sale dated 19.12.2016. It is stated that if plaintiff had any objection for adherence to terms of agreement to sale dated 19.12.2016, nobody could have pressurized plaintiff to execute the same and make further payments as per terms and conditions agreed to.
37. It is denied that in April 2017, when plaintiff visited office of defendant, defendant informed plaintiff that he had sold earlier plot of land measuring 133.33 sq. yards shown to plaintiff to someone else and offered plaintiff to purchase another plot of land measuring 155 sq. yards abutted by two roads. It is denied that when plaintiff objected to the same, defendant conveyed that he will not refund her money and told plaintiff that if she wants to purchase 155 sq. yards plot, then only, he can adjust money earlier paid by her.
38. Execution of receipts and receipt of payment vide receipts No. 718, 774, 860 and 919 are denied as the same pertain to plot of land CS No. 491/2021 Page No. 12 of 35 Sawli Devi Vs. Neeraj measuring 160 sq. yards which was never part of any deal entered into between plaintiff and defendant.
39. It is denied that defendant at any point of time conveyed to plaintiff to construct boundary wall on her plot as she had paid amount of Rs.6,00,000/- approximately. It is stated that as per terms and conditions of agreement to sale dated 19.12.2016, it was agreed that plaintiff had to make entire payment towards cost of plot measuring 133.33 sq. yards within period of 03 years in monthly installments which should have ended on or after 23.01.2020. Question of handing over plot in question would have arisen only after payment of complete consideration amount by plaintiff.
40. It is denied that defendant at any point of time sought any money from plaintiff. It is denied that defendant ever talked to plaintiff about any arrangement of finance to plaintiff as her husband was in Govt. service. It is stated that husband of plaintiff informed defendant on phone that plaintiff is interested in investing further amount in property and thus, made token payment for purchase of plot of land measuring 155 sq. yards for which, agreement to sale dated 19.12.2019 was executed.
41. It is denied that defendant called plaintiff to visit office of Registrar for preparation of finance papers. It is stated that husband of plaintiff is an educated person and is a Govt. servant who is well aware of working of office of Registrar and as such, concoction of story by CS No. 491/2021 Page No. 13 of 35 Sawli Devi Vs. Neeraj plaintiff regarding preparation of financial documents at office of Registrar does not inspire any confidence. Defendant has nothing to do with financing of any property. It is denied that defendant ever received any amount from plaintiff at Molarband i.e. residence of defendant.
42. It is prayed to dismiss present suit with exemplary costs on plaintiff.
43. Replication to written statement of defendant was filed on behalf of plaintiff.
44. In replication, plaintiff made some preliminary submissions. It is stated that defendant has not approached this Court with clean hands and has concealed material facts from this Court. It is stated that so far as claim of Rs.16,25,000/- is concerned, cause of action to file present suit arose in favour of plaintiff in the end of year 2019 when defendant failed to conclude sale of 155 sq. yards plot in favour of plaintiff. So far as claim of Rs.3,00,000/- is concerned, cause of action to file present suit arose in favour of plaintiff on 21.01.2021 when plaintiff discovered that persons of defendant had destroyed wall built by plaintiff on 155 sq. yards plot promised to be sold by defendant to plaintiff. Prayer (a) made in the plaint suffers from typographical error regarding claim of pre- litigation interest which plaintiff has claimed separately by way of prayer
(d) made in the plaint. In view of express pleadings made in para No. 32 of the plaint that three cheques given by plaintiff to defendant were encashed in Delhi and in view of the fact that defendant ordinarily CS No. 491/2021 Page No. 14 of 35 Sawli Devi Vs. Neeraj resides within territorial jurisdiction of this Court, this Court has territorial jurisdiction to entertain present suit.
45. In reply to additional facts, it is denied that entire cause of action consisting of dealing of issue of whatsoever in nature, jurisdiction of immovable property in respect of present suit and dealing of money transaction as alleged in the suit had never taken place within territorial jurisdiction of this Court. It is further denied that property for which entire transaction took place is located at Faridabad, the receipts of payment except cheque payment have been executed at Faridabad and though, defendant is resident but not working for gain within jurisdiction of this Court. It is stated that plaintiff personally paid all the amounts to defendant in his office situated at H.No. 114, Village Molarband, Delhi qua suit property where defendant is working for gain.
46. It is stated that plaintiff approached defendant after seeing the sign board of defendant in front of his office located at H.No. 114, Village Molarband, Delhi. It is denied that this Court lack territorial jurisdiction as alleged invoices/receipts and agreement to sale property in Faridabad were executed in Faridabad.
47. It is admitted that defendant showed plaintiff plot of land located in Nikhil Vihar, Ismailpur, Faridabad, Haryana. It is denied that property in question is not located within territorial jurisdiction of this Court. It is admitted that plaintiff met with defendant on 23.10.2016 and booked plot of land 120 sq. yards in size for her residential use for CS No. 491/2021 Page No. 15 of 35 Sawli Devi Vs. Neeraj consideration of Rs.21,60,000/- and accordingly paid earnest money to the tune of Rs.50,000/- on 23.10.2016. It is denied that cause of action to file present suit arose on 23.10.2016 and present suit seeking recovery of payment has only been filed in the year 2021 and thus, present suit is barred by limitation. It is stated that plaintiff personally paid all the amounts during period from 23.10.2016 to 12.12.2019 to defendant in his office situated at H.No. 114, Village Molarband, Delhi where defendant is working for gain. It is admitted that agreement to sale dated 19.12.2016 pertained to plot of land measuring 133.33 sq. yards and total amount of deal was for Rs.23,40,000/-. It is further admitted that plaintiff paid amount of Rs.50,000/- each vide receipts No. 539 and 546 dated 23.10.2016 and 06.11.2016 for advance booking of a plot of land measuring 120 sq. yards.
48. It is admitted that agreement to sale dated 19.12.2016 is for plot of land measuring 133.33 sq. yards. It is further admitted that entire payment was to be made on or before 23.01.2020. It is denied that plaintiff on her own executant agreement to sale dated 19.12.2019 for another plot of land measuring 155 sq. yards for consideration of Rs.21,00,000/- out of which, Rs.5,00,000/- were received by defendant vide cheques and balance amount of Rs.16,00,000/- was to be paid by plaintiff to defendant on or before 24.12.2019 which plaintiff failed to pay. It is denied that plaintiff instead of honouring payment schedule chose to file present frivolous civil suit for recovery with sole intention to extort CS No. 491/2021 Page No. 16 of 35 Sawli Devi Vs. Neeraj money.
49. In reply to preliminary objection, it is denied that present suit is defective as verification clause of the suit is defective and not in accordance with provisions of Order VI Rule 15 CPC read with Delhi High Court Rules. It is denied that present suit is barred by limitation. It is denied that present suit has been filed in respect of plot of land located in Faridabad, Haryana which is not within territorial jurisdiction of this Court and as such, this Court lacks territorial jurisdiction to try and entertain present suit. It is denied that present suit has been filed without any cause of action before this Court and hence, liable to be dismissed as such. It is stated that cause of action to file present suit arose when defendant refused to return money to plaintiff paid by plaintiff to purchase property. It is stated that cause of action to file present suit against defendant again arose when defendant despite receiving legal notice dated 01.04.2021 did not make any payment/refund to plaintiff towards amount paid plaintiff till date and towards cost of construction of boundary wall around the plot. Cause of action against defendant still subsists as defendant has yet not returned money to plaintiff illegally retained by him.
50. It is denied that even otherwise plaintiff cannot be allowed to take advantage of her non-adherence to the terms and conditions of agreement executed between plaintiff and defendant and thereafter to file present frivolous suit for extorting money from defendant. It is denied CS No. 491/2021 Page No. 17 of 35 Sawli Devi Vs. Neeraj that defendant does not have any office or does not work for gain within territorial jurisdiction of this Court but is having his residence only where defendant never had any business dealings with anyone in the past or present.
51. On reply on merits, it is reiterated that defendant had requested plaintiff to visit his house. It is admitted that husband of plaintiff is working in clerical cadre with NDMC. Plaintiff has reiterated contents of corresponding paragraphs of plaint on reply on merits. Plaintiff has prayed for allowing suit of recovery filed by plaintiff in favour of plaintiff and against defendant.
52. On the basis of the aforesaid pleadings of the parties, issues were framed on 02.06.2022 which are as follows:-
1. Whether this Court lacks the territorial jurisdiction to hear this suit? OPD
2. Whether the reliefs of recovery of money, sought by way of this suit, are barred by law of limitation? OPD
3. Whether the plaint of this suit has not been properly verified as per Order VI Rule 15 of CPC, 1908? If so, to what effect? OPD
4. Whether the plaintiff is entitled to recover from the defendant, a sum of Rs.13,35,000/-? OPP CS No. 491/2021 Page No. 18 of 35 Sawli Devi Vs. Neeraj
5. Whether the plaintiff is entitled to recover from the defendant, a sum of Rs.3,00,000/- on account of demolition of a boundary wall by the defendant? OPP
6. Whether the plaintiff is entitled to recover pre-
litigation interest of Rs.4,14,200/- from the
defendant? OPP
7. Whether the plaintiff is entitled to recover
pendente-lite and future interest from the
defendant? If so, at what rate? OPP
8. Relief
53. In order to prove her case, plaintiff examined herself as PW-1 and exhibited her evidence affidavit vide Ex.PW1/A. In her deposition, PW1 relied upon and exhibited following documents:-
S.No. Description of Document Exhibit/Mark
1 Copy of agreement dated Ex. PW-1/1(OSR)
19.12.2016
2 Copy of receipt No. 539 dated Ex.PW1/2(OSR)
23.10.2016
3 Copy of receipt No. 546 dated Ex.PW1/3(OSR)
06.11.2016
4 Copy of receipt No. 581 dated Ex.PW1/4(OSR)
CS No. 491/2021 Page No. 19 of 35
Sawli Devi Vs. Neeraj
18.12.2016
5 Copy of receipt No. 626 dated Ex.PW1/6(OSR)
05.02.2017
6 Copy of bank statement of PNB Ex.PW1/7(OSR)
7 Copy of receipt No. 718 dated Ex.PW1/8(OSR)
21.05.2017
8 Copy of receipt No. 774 dated Ex.PW1/9(OSR)
30.07.2017
9 Copy of receipt No. 860 dated Ex.PW1/10(OSR)
12.11.2017
10 Copy of receipt No. 919 dated Ex.PW1/11(OSR)
07.01.2018
11 Copy of receipt No. 1193 dated Ex.PW1/12(OSR)
10.06.2018
12 Copy of receipt No. 1478 dated Ex.PW1/13(OSR)
02.12.2018
13 Copy of receipt No. 1675 dated Ex.PW1/14(OSR)
17.03.2019
14 Copy of receipt No. 1932 dated Ex.PW1/15(OSR)
01.09.2019
15 Copy of receipt No. 1996 dated Ex.PW1/16(OSR)
20.10.2019
16 Copy of bank statement of Bank of Ex.PW1/17(OSR)
Baroda
17 Copy of bayana agreement dated Mark PW1/18
19.12.2019
CS No. 491/2021 Page No. 20 of 35
Sawli Devi Vs. Neeraj
18 Copy of complaint dated 21.09.2020 Ex.PW1/19(OSR)
to the SHO, PS Badarpur
19 Copy of complaint dated 21.09.2020 Mark PW1/20
sent to the DCP and ACP through
speed post
20 Nine photographs Ex.PW1/21(colly)
21 CD Ex.PW1/22
22 Copy of legal notice dated Ex.PW1/23(colly)
01.04.2021 alongwith postal receipt
and tracking report
23 Copy of amended legal notice dated Ex.PW1/24
07.08.2021
24 Postal receipt dated 07.08.2021 Ex.PW1/25
25 Certificate under Section 65B of the Ex.PW1/26
Evidence Act, 1872.
54. Plaintiff also examined Mr. Vinay Kumar as PW2 who exhibited his evidence affidavit vide Ex.PW2/A. He corroborated Ex. PW-1/17. Mark PW-1/18, Ex. PW-1/21 (Colly) and Ex. PW-1/22.
55. Plaintiff further examined Mr. Radhey Shyam as PW-3 who exhibited his evidence affidavit vide Ex.PW-3/A. He corroborated Ex.PW1/1.
56. Plaintiff's evidence was closed on statement of plaintiff recorded before court on 11.01.2024.
57. Defendant examined himself as DW1 in defendant's CS No. 491/2021 Page No. 21 of 35 Sawli Devi Vs. Neeraj evidence who exhibited his evidence affidavit vide Ex.DW1/1.
58. I have heard final arguments addressed by respective counsels and perused the record including written arguments/submissions filed on behalf of plaintiff and defendant and judgments filed on behalf of both the parties.
59. My issue-wise findings are as below:-ISSUE No. 1
1. Whether this Court lacks the territorial jurisdiction to hear this suit? OPD
60. Onus to prove this issue was upon defendant.
61. Defendant has contended that immovable property in respect of which agreement to sell was executed between parties and entire dealing of money transaction never took place within territorial jurisdiction of this court. As per defendant, the property for which entire transaction alleged to have taken place is located in Faridabad and receipts of payment except payment received by cheques have been executed at Faridabad. Defendant has further contended that defendant is resident of a place within territorial jurisdiction of this court but he is not working for gain within territorial jurisdiction of this court. Defendant has contended that even as per averments of plaintiff in the plaint, plaintiff approached defendant after seeing sign board of defendant in front of his office which is admittedly located in Faridabad. As per defendant, plaintiff has further admitted that defendant showed plaintiff plots of land located at Nikhil CS No. 491/2021 Page No. 22 of 35 Sawli Devi Vs. Neeraj Vihar, Ismailpur, Faridabad. It was submitted on part of defendant that as per case of plaintiff, she met with defendant at office of defendant at Faridabad on 23.10.2016 and booked plot of land measuring 120 sq. yards for her residential use for total consideration of Rs. 21,60,000/- and paid booking amount of Rs. 50,000/- on 23.10.2016 itself.
62. Plaintiff on the other hand put forth argument that defendant is residing at H. No. 114, Village Molarband, Delhi which fact has been admitted by defendant in his evidence affidavit and cross examination.
Plaintiff further contended that stamp papers for both the agreements to sale have been purchased by defendant showing address of defendant of H. No. 114, Molarband, Delhi.
63. Perusal of Ikrarnamas Ex. PW-1/1 and Mark PW-1/18 which are two agreements to sell filed by plaintiff on record shows that stamp paper upon which they have been executed has been purchased from Haryana and though residential address of defendant therein is of within jurisdiction of this court but Mark PW-1/18 has been attested by Notary Public at Faridabad. Stamp of Notary public on Ex. PW-1/1 is not clear but properties in both these agreement to sell are located in state of Haryana. Address of concern of defendant i.e. DD properties has not been mentioned in receipts Ex. PW-1/2, Ex. PW-1/3, Ex. PW-1/4 and Ex. PW-1/6 but the address of concern of defendant has been mentioned in receipts Ex.PW-1/8 to Ex.PW-1/16 which is of Faridabad in State of Haryana.
CS No. 491/2021 Page No. 23 of 35Sawli Devi Vs. Neeraj
64. Plaintiff/PW-1 in her cross examination conducted on 02.05.2023 stated that she met defendant for the first time in his office at Ismailpur, which she believes in Delhi. She further stated that as per her, the plot, she was purchasing through the agreement dated 19.12.2016 (Ex. PW-1/1) was /is in Faridabad. Plaintiff was shown receipts Ex. PW-1/2 to Ex. PW-1/16 upon which she stated that one out of the said receipts was executed at office of defendant and others were executed at residence of defendant. She stated that she cannot identify which receipt was executed at office of defendant. Plaintiff in her cross examination conducted on 06.09.2023 stated that both agreements Ex. PW-1/1 and Mark PW-1/18 were executed at residence of defendant and all the notarization were filled and got executed defendant in her absence. Plaintiff denied the suggestion that suit property is in Faridabad and entire payment has been made at office of defendant situated in Faridabad.
65. PW-3 Radhay Shyam is witness on Ex. PW-1/1. He in his evidence affidavit Ex. PW-3/A has deposed that he is witness in Ikrarnama dated 19.12.2016 and that he alongwith defendant and his relative visited Notary Public and signed bayana agreement dated 19.12.2016.
66. Plaintiff in her cross examination has denied to have visited Notary public for attestation of agreements to sell. Stand of PW-3 and plaintiff are contradictory so far as their visit to Notary Public is CS No. 491/2021 Page No. 24 of 35 Sawli Devi Vs. Neeraj concerned. Plaintiff otherwise, in her pleadings has stated to have visited Notary Public for attestation.
67. PW-2 Vinay Kumar is witness on Mark PW-1/18. He in his cross examination admitted that agreement to sell dated 19.12.2016 was not signed and executed in front of him. He volunteered that at the time of agreement to sell dated 19.12.2016, he was not there. He admitted that either the first or second payment was made at plot in Faridabad. He admitted that receipts executed as advance payment do not carry his signatures.
68. From factual position as discussed above, I am of the view that defendant has been able to show that properties in respect of which Ex. PW-1/1 and Mark PW-1/18 were executed were located in Faridabad, Haryana. Stamp papers for execution of Ex. PW-1/1 and Mark PW-1/18 were purchased in Faridabad, Haryana. Advance receipts allegedly issued by defendant (Ex.PW-1/8 to Ex. PW-1/16) bear address of office of defendant to be of Faridabad, Haryana. As per plaintiff, Ex. PW-1/1 and Mark PW-1/18 were not notarized in her presence which is contrary to stand taken by PW-3 as mentioned above and even contrary to stand taken by plaintiff in her pleadings. Mark PW-1/18 has been notarized in Faridabad. Onus in these circumstances shifted upon plaintiff to prove that defendant carried out his business activities from his address of Badarpur and that plaintiff made certain payments at this address of defendant to invoke jurisdiction of this court but no positive evidence in CS No. 491/2021 Page No. 25 of 35 Sawli Devi Vs. Neeraj this regard has been led by plaintiff. Plaintiff has exhibited her bank statements /copies of passbook Ex. PW-1/7 and Ex. PW-1/17 in which address of plaintiff has been mentioned to be that of NDMC Flats, New Delhi which is again not within territorial jurisdiction of this court and it cannot be said that some part of money which was paid through cheques was debited from account of plaintiff within jurisdiction of this court. Bank statements of defendant have not been proved on record by plaintiff for showing that any payment was received by defendant through cheques within jurisdiction of this court. In these circumstances, I am of the view that plaintiff has failed to discharge onus shifted upon her and defendant has been able to discharge his burden qua this issue. Present suit being instituted for recovery of money paid for an immovable property for the purpose of jurisdiction shall be governed by Section 16 CPC and suit property in present case is located within jurisdiction of State of Haryana. This Court thus does not have territorial jurisdiction to entertain present suit. This issue is accordingly decided in favour of defendant and against plaintiff.
ISSUE NO. 22. Whether the reliefs of recovery of money, sought by way of this suit, are barred by law of limitation? OPD
69. Onus to prove this issue was upon defendant.
CS No. 491/2021 Page No. 26 of 35Sawli Devi Vs. Neeraj
70. Defendant has contended that relief claimed in present suit pertains to cause of action allegedly arisen on 23.10.2016 and present suit being filed by plaintiff only in the year 2021 is barred by law of limitation. It was argued on behalf of defendant that as per case of plaintiff, she met with defendant at office of defendant at Faridabad on 23.10.2016 and booked plot of land measuring 120 sq. yards for her residential use for total consideration of Rs.21,60,000/- and accordingly paid earnest money of Rs.50,000/- on 23.10.2016. It was argued that above assertion of plaintiff shows that cause of action had arisen on 23.10.2016. Plaintiff thereafter filed suit in year 2021 which is barred by law of limitation as period for limitation for filing suit for recovery of amount paid is only 03 years.
71. Plaintiff has filed suit for recovery based on two agreements to sell/ikrarnamas i.e. Ex.PW-1/1 and Mark PW-1/18. Ex.PW-1/1 was executed on 19.12.2016 and Mark PW-1/18 was executed on 19.12.2019. Perusal of Mark PW-1/18 shows that there is no mention of Ex.PW-1/1 in the same nor payment allegedly made by plaintiff in pursuance of Ex.PW-1/1 has been referred into the same. Defendant in his cross-examination stated that he and plaintiff executed agreement dated 19.12.2019 during validity of earlier agreement dated 19.12.2016 because plaintiff changed size of demanded plot. He further stated that ikrarnama dated 19.12.2016 was not mentioned in ikrarnama dated 19.12.2019. Perusal of Ex.PW-1/1 shows that period of remaining CS No. 491/2021 Page No. 27 of 35 Sawli Devi Vs. Neeraj payment by plaintiff towards purchase of plot of land mentioned in the same has been fixed to be 03 years from 19.12.2016.
72. As per case put forth by plaintiff, it was due to further selling of plot of land by defendant to some other person that she had to agree to purchase of a bigger plot measuring 155 sq. yards and that Mark PW-1/18 was executed by her as defendant told her that he will not adjust earlier payment made by her towards purchase of smaller plot of land in case, she does not agree to purchase bigger plot of land from him. Plaintiff in her cross-examination admitted that size of plot are different in Ex. PW-1/1 and Mark PW-1/18. She further admitted that since size of plots were different as such, the cost of plots were different. As mentioned earlier, Mark PW-1/18 does not contain any reference to Ex. PW-1/1 and payment made by plaintiff to purchase plot of land as mentioned in Ex. PW-1/1. Section 91 of Indian Evidence Act provides that when terms of a contract or of a grant or of any other disposition of property have been reduced to form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of terms of such contract, grant or other disposition of property, or of such matter, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. Section 92 of Indian Evidence Act provides exception to Section 91of Indian Evidence Act but in present case, as terms of Ex.
CS No. 491/2021 Page No. 28 of 35Sawli Devi Vs. Neeraj PW-1/1 and Mark PW-1/18 are quite clear and are not unambiguous and it has been admitted by plaintiff in her cross-examination that size of plots are different in Ex. PW-1/1 and Mark PW-1/18 and further admitted that since size of plots were different as such, the cost of plots were different, I am of the view that Section 92 of Indian Evidence Act has no application in present case. Hence, Ex. PW-1/1 and Mark PW-1/18 are being considered as different documents executed at different points of time between plaintiff and defendant. As mentioned earlier, period of balance payment towards purchase of plot in question was to be paid by plaintiff till 19.12.2019 (Ex. PW-1/1) but plaintiff admittedly did not make complete payment for purchase of plot as agreed vide Ex. PW-1/1. As per contents of Ex. PW-1/1, if plaintiff fails to make balance payment within agreed time, deal shall be deemed to have been canceled and buyer will be responsible for loss suffered by her. This term indirectly indicates that in event of non payment of complete consideration amount, amount given by buyer shall be forfeited by seller. Plaintiff in her cross- examination admitted that prior to execution of Mark PW-1/18, she had not paid entire sale consideration mentioned in Ex. PW-1/1. PW-2 who is husband of plaintiff in his cross-examination admitted that he had not made entire agreed sale consideration of any plot of land admeasuring 120, 133.33, 150, 155 or 160 sq. yards. He further admitted that since he had not made the complete payment of the above mentioned plot of land as such, he was not supposed to construct any boundary wall on any plot CS No. 491/2021 Page No. 29 of 35 Sawli Devi Vs. Neeraj of land. As per contents of Mark PW-1/18 in case of non payment of consideration amount within time agreed (till 24.12.2019), the earnest money and deal shall be deem to be canceled. It also implies forfeiture of earnest money paid by plaintiff in case, plaintiff does not make payment of complete consideration amount within time agreed.
73. In view of my above made discussion, I am of the view that in view of contents of Ex. PW-1/1 and Mark PW-1/18, the amount allegedly paid by plaintiff towards purchase of plots in question stood forfeited on account of non payment of complete consideration amount within agreed period of time and hence, there was no cause of action available to plaintiff to file present suit. Hence, when there was no cause of action available to plaintiff, there cannot be said to be issue of limitation and filing of present suit as such was without any cause of action. This issue is accordingly decided in favour of defendant and against plaintiff.
ISSUE NO. 33. Whether the plaint of this suit has not been properly verified as per Order VI Rule 15 of CPC, 1908? If so, to what effect? OPD
74. Onus to prove this issue was upon defendant.
75. It was argued on behalf of defendant that verification clause of the plaint filed by plaintiff is not in accordance with provisions of Order VI Rule 15 CPC. It was argued that no date has been mentioned in CS No. 491/2021 Page No. 30 of 35 Sawli Devi Vs. Neeraj verification clause by plaintiff nor plaintiff has specified that which of the paragraphs of the plaint are true and correct to her knowledge and which paragraphs are true and correct as per her belief and number of composite paragraphs have been mentioned by plaintiff stating that these paragraphs are true and correct to best of her knowledge and belief.
Judgments in cases titled as "Sukhwinder Pal Bipin Kumar and Others Vs. State of Punjab and Others Writ petitions number 7477- 79 of 1981 and Lokendra Singh Vs. State of U. P. and Others Writ Petition No. 39558/2022" have been referred to on behalf of defendant.
76. Plaintiff on the other hand filed judgment in case titled as "Sri S. Shivashankar Prasad Vs. Sri D. A. Gopala MFA No. 6958/2012"
wherein Hon'ble High Court of Karnataka held that it is, therefore, a settled position in law that defect in verification or on an affidavit is curable. But further question is what happens when the defect is not cured.
77. Plaintiff further filed judgment in case titled as "Kailash Singh Vs. Hiralal Dey Civil Revision No. 17/87 decided on 30.03.1993" wherein it was held that provisions of Order VI Rule 15 CPC are not mandatory but directory in nature.
78. Keeping in view law laid down in Kailash Singh's Case (Supra), I am of the view that in the scenario when trial of the case has completed and evidence has been led by both the parties, while CS No. 491/2021 Page No. 31 of 35 Sawli Devi Vs. Neeraj pronouncing judgment, it will not be appropriate to reject plaint filed by plaintiff only because verification of the plaint has not been properly done by plaintiff as mandated by provisions of Order VI Rule 15 CPC.
Accordingly, this issue is decided against defendant and in favour of plaintiff.
ISSUES NO. 4 and 64. Whether the plaintiff is entitled to recover from the defendant, a sum of Rs.13,35,000/-? OPP and
6. Whether the plaintiff is entitled to recover pre-
litigation interest of Rs.4,14,200/- from the
defendant? OPP
79. Onus to prove these issues was upon plaintiff.
80. In view of my discussion made while deciding issue No. 2, I am of the view that when no cause of action can be said to have accrued in favour of plaintiff, it cannot be said that plaintiff has been able to discharge her burden qua these issues. These issues are accordingly decided in favour of defendant and against plaintiff.
ISSUE NO. 55. Whether the plaintiff is entitled to recover from CS No. 491/2021 Page No. 32 of 35 Sawli Devi Vs. Neeraj the defendant, a sum of Rs.3,00,000/- on account of demolition of a boundary wall by the defendant? OPP
81. Onus to prove this issue was upon plaintiff.
82. Plaintiff has averred that defendant confirmed and conveyed that as plaintiff has paid approximately Rs. 6,00,000/- till date, as such, if plaintiff wants to construct the boundary wall on the plot, she can do so at her own cost. After that, plaintiff started construction of boundary wall of 6 feet height and spent approximately Rs. 3,00,000/- from her own pocket.
83. Plaintiff in her cross-examination admitted that she had not made entire payment mentioned in Ex. PW-1/1 and despite the same, she has executed another agreement Mark PW-1/18 with defendant. She further admitted that her relative who informed about demolition of boundary wall had never met with defendant. She stated that her relative namely Radhay Shyam had informed her about the demolition. PW-2 i.e. husband of plaintiff in his cross examination admitted that since he had not made the complete payment of the above mentioned plot of land as such, he was not supposed to construct any boundary wall on any plot of lands. He volunteered that he constructed the same only at instruction of defendant. He denied the suggestion that defendant had not asked him to construct boundary wall over plot of land of 160 sq. yards but he has constructed on his own. PW-3 Radhay Shyam in his cross-examination CS No. 491/2021 Page No. 33 of 35 Sawli Devi Vs. Neeraj admitted that he never met with defendant. He volunteered that he used to meet him before the deal. He admitted that he does not know who has broken construction of boundary wall.
84. Plaintiff has tried to prove construction of boundary wall over plot in question vide photographs Ex. PW-1/21 but from photographs, location of plot is not clear. Further, as admittedly, complete payment towards purchase of plots was not given by plaintiff to defendant, it cannot be said that plaintiff had any right to raise any boundary wall over any plot of land which was yet to be registered in her name. Further, PW-3 in his cross examination has clearly stated that he does not know who has broken construction of boundary wall. Cost of making alleged boundary wall has also not been proved on record by plaintiff. In these circumstances, I am of the view that plaintiff has failed to discharge her burden qua this issue. This issue is accordingly decided in favour of defendant and against plaintiff.
ISSUE NO. 77. Whether the plaintiff is entitled to recover pendente-lite and future interest from the defendant? If so, at what rate? OPP
85. Onus to prove this issue was upon plaintiff.
86. In view of my finding qua issues No. 2, 4 and 6, I am of the view that plaintiff has failed to discharge her burden qua this issue. This CS No. 491/2021 Page No. 34 of 35 Sawli Devi Vs. Neeraj issue is accordingly decided in favour of defendant and against plaintiff.
RELIEF
87. In view of my findings qua issues No. 2 to 6, I am of the view that suit filed by plaintiff is without merits and is accordingly dismissed. No order as to Costs.
Decree-Sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed by SONU SONU AGNIHOTRI
AGNIHOTRI Date: 2025.01.17
18:29:33 +0530
Announced in open Court (Sonu Agnihotri)
today on 24.12.2024 DJ-07, South East District,
Saket Courts/Delhi
CS No. 491/2021 Page No. 35 of 35
Sawli Devi Vs. Neeraj