Delhi District Court
Smt. Satwanti vs Sh. Kailash on 22 August, 2014
1
IN THE COURT OF SH. LAL SINGH,
ADJ-03 (SOUTH WEST), DWARKA COURT COMPLEX, NEW DELHI
Suit no.543/12
In the matter of :
Smt. Satwanti
W/o Sh. Laxman Singh
R/o Gali No.1, Mam Chand Colony
Dwara Road, Sonepat (Haryana). ........Plaintiff.
Versus.
Sh. Kailash
S/o Late Sh. Balbir Singh
R/o A-11, Chander Vihar
Palam Extension, Part-1
New Delhi. ..........Defendant.
Date of Institution of petition: 11/07/2012
Date on which judgment was reserved:24/7/2014
Date on which judgment was passed: 22/8/2014
JUDGMENT
1 The present suit for recovery in the sum of Rs.
5,00,000/- (Rupees Five Lacs only) along with pendent elite interest has been filed by the plaintiff against the defendant. 2 Brief relevant facts of the case are that defendant represented himself to be the registered owner of property bearing Khasra No. 27/6/1, measuring 29 square yards, situated at A-Block, Chander Vihar, Palam Extension, New Delhi. It is averred that on Suit No.543/12 Satwanti vs Kailash 2 misrepresentation of the defendant, the plaintiff entered into an agreement dt. 18/2/2012 with the defendant to purchase the property bearing Khasra No. 27/6/1, measuring 29 sq. yds, situated at A-Block, Chander Vihar, Palam Extension, New Delhi (hereinafter referred as property) for a total consideration amount in the sum of Rs. 29,00,000/- (Rupees Twenty Nine Lacs only) and on 18.02.2012, plaintiff has given to the defendant a sum of Rs. 5,00,000/-(Rupees Five lacs) towards earnest money/bayana amount and date of execution of the title documents was fixed as 05.05.2012 and to this effect, bayana receipt was also executed on 18.02.2012 in the presence of the witnesses. It is further averred by the plaintiff that it was agreed between the defendant and the plaintiff that the defendant will hand over the photocopy of the registry/title documents of the above said suit property in his name as well as its chain of documents to the plaintiff within seven days from the date of receiving the earnest money i.e on or before 25.02.2012, but despite passing of two months, the defendant has not supplied the photocopy of registry as well as its chain of documents of the above said property to the plaintiff inspite of so many requests and demands made by the plaintiff. It is further averred by the plaintiff that on 07.04.2012, plaintiff has sent a legal notice to the defendant through his counsel thereby calling upon the defendant to hand over the photocopy of the registry as well as chain Suit No.543/12 Satwanti vs Kailash 3 of documents in respect of the suit property and after receipt of the said legal notice, the defendant has sent the reply dated 11.04.2012 and the defendant alongwith the reply sent only the photocopy of GPA set which is in his name.
3 It is further averred by the plaintiff that GPA has no value in the eyes of law, whereas the defendant misrepresented the plaintiff that he is the registered owner of the above said property. On 30.04.2012, plaintiff again sent the reminder through his counsel to the defendant to supply the photocopy of registry as well as chain of documents so that the plaintiff may verify the same and complete her part of contract on or before 05.05.2012 but defendant did not bother to comply with the same nor replied the same. Plaintiff further averred that plaintiff is entitled to receive the double of the bayana amount from the defendant because he failed to perform his part of contract, however, the plaintiff is only claiming the principle amount of Rs. 5,00,000/- with interest @ 24% per annum to which the defendant is legally bound to pay the same to the plaintiff. It is further averred by the plaintiff that the cause of action for filing the present suit arose in favour of the plaintiff and against the defendant as defendant represented himself to be the owner of the property and on 18/2/2012 the bayana amount of Rs. 5 lacs was received by the defendant from the plaintiff and defendant assured that he will provide the photocopy Suit No.543/12 Satwanti vs Kailash 4 of registry and its chain of documents of the property. The cause of action further arose when the plaintiff sent the legal notice to the defendant and defendant sent the reply along with the GPA set and further cause of action arose when on 30.04.2012, plaintiff sent the reminder to the defendant but defendant failed to supply the photocopy of registry and its chain of documents of the property and cause of action still continuing. Plaintiff also averred that plaintiff entered into bayana agreement at Palam Extension and also handed over the bayana amount to the defendant at Palam Extension and the cause of action also arose at Palam Extension, Delhi and this court has territorial jurisdiction to try and decide the present suit. 4 Defendant has been duly served and filed the written statement stating therein that plaintiff has not come to the court with clean hands and it is further contended that plaintiff has suppressed the true material facts, as such the plaintiff is not entitled for any relief. It is also contended by the defendant in WS that present suit has been filed by the plaintiff without any cause of action and on the basis of false and frivolous facts. In the WS, defendant also contended that he is the owner of premises i.e. Khasra No. 27/6/1, measuring 29 sq. yds situated at A-Block, Chander Vihar, Palam Extension, New Delhi on the basis of GPA, Agreement to sell, affidavit and receipt dated 26.12.2002 executed by the original owners Sh. Shiv Karan & Ram Suit No.543/12 Satwanti vs Kailash 5 Karan, R/o WZ-746/7, Palam Village, New Delhi from whom the defendant had purchased the said property and contended that defendant has never claimed the registered owner of the suit property. 5 In his WS, the defendant further contended that plaintiff had never come to the defendant and the deal was finalized by her husband Laxman Singh on 18.02.2012, who has taken her signatures on the bayana receipt at the belated stage. It is further contended by the defendant that defendant had tried his best to complete the contract on his part but it was the plaintiff who did not bother to comply with the same.
6 It is further contended in WS that vide reply to the notice/reminder letter dated 30.04.2012 of the plaintiff, defendant requested the plaintiff to make the balance payment of Rs. 24,00,000/- through DD on or before the last date i.e 05.05.2012, which she failed to comply. It is further contended by the defendant that amount of Rs. 5,00,000/- stands forfeited as the plaintiff has failed to make the further payment of Rs. 24,00,000/- upto 05.05.2012 or 07.05.2012. It is further alleged by the defendant in WS that the plaintiff did not reach to the office of Sub Registrar, Kapashera, New Delhi for registration of the documents on 05.05.2012 or on next working day i.e 07.05.2012 alongwith balance money. The defendant further contended in WS that suit of the plaintiff is liable to be dismissed. Suit No.543/12 Satwanti vs Kailash 6 7 Plaintiff has also filed the replication to the WS filed on behalf of the defendant. In the replication, plaintiff denied all the contentions and averments as made in the WS by the defendant and reiterated the averments of the plaint.
8 Thereafter, on 14/01/2013 on the basis of pleadings, following issues were framed:-
i) Whether the plaintiff is entitled to a decree for recovery of a sum of Rs.5,00,000/- from the defendant?.......OPP.
ii) Whether the plaintiff is entitled to interest, if so, to what extent?.....OPP.
iii)Relief.
9 So as to prove its case, plaintiff has examined herself as PW1 and she has tendered her evidence by way of affidavit vide Ex.PW1/A and also relied upon the documents i.e. Photocopy of original Bayana receipt Ex.PW1/1 (OSR), Photocopy of GPA dt. 26/12/2002 vide marked as Mark A, legal notice dt. 7/4/2012 Ex.PW1/2, Postal receipt Ex.PW1/3 and Ex.PW1/4 and reminder letter issued by the plaintiff to the defendant dt. 30/4/2012 Ex.PW1/5. PW1 has also been cross examined by the counsel for defendant at length.
10 Defendant has examined himself as DW1 and has tendered his evidence by way of affidavit Ex.DW1/A. DW1 has also relied upon the document i.e. Copy of general power of attorney, Suit No.543/12 Satwanti vs Kailash 7 agreement to sell, affidavit and receipt collectively exhibited as Ex.DW1/1(original seen and returned), copy of the bayana receipt Ex.DW1/2( OSR) and reply to the notice dt. 11/4/2012 Ex.DW1/3(OSR), photographs of the defendant vide Ex.DW1/4 (OSR). DW1 has also been cross examined by the counsel for plaintiff. 11 I have heard the final arguments on behalf of both the Ld. Counsels for the parties.
12 Ld. Counsel for plaintiff submits that the defendant represented himself as the owner of the suit property and on the misrepresentation of the defendant, the plaintiff entered into an agreement dt. 18/2/2012 with the defendant to purchase the suit property and also paid a sum of Rs.5 lacs as earnest money/bayana money on 18/2/2012 to the defendant vide bayana receipt. He also submitted that the date of execution of title document was fixed as 5/5/2012. He also argued that despite passing about two months, the defendant has not supplied the photocopy of registry as well as its chain of documents in respect of the suit property to the plaintiff, despite of many requests made by the plaintiff and as such, the plaintiff has sent legal notice dt. 7/4/2012 and thereafter, the defendant sent the reply to the said legal notice alongwith photocopy of GPA. Counsel for the plaintiff further argued that GPA has no value in the eyes of law and the defendant deliberately with the intention to Suit No.543/12 Satwanti vs Kailash 8 cheat the plaintiff has not supplied the photocopy of registry as well as chain of document in respect of the suit property to the plaintiff. Counsel for plaintiff also argued that the defendant has failed to perform his part of contract despite of advance money/bayana money paid by the plaintiff and the defendant also failed to supply the registered documents as well as the chain of documents of the suit property to the plaintiff. He also submitted that plaintiff has proved her case in evidence against the defendant and further submitted that the plaintiff is entitled to recover the amount claimed in the suit against the defendant.
13 On the other hand, ld. Counsel for defendant submits that the plaintiff is not entitled for any relief of recovery of the amount claimed in the suit, as the plaintiff has suppressed the material facts and also there is no cause of action accrued against the defendant. Counsel for the defendant argued that the bayana amount of Rs.5 lacs stands forfeited as the plaintiff has failed to make further balance payment of Rs.24 lacs upto 05/05/2012 and even on next working day i.e. 07/05/2012. He also vehemently argued that it was the plaintiff who did not reach to the office of Sub-Registrar, Kapashera, New Delhi for registration of the documents on 05/05/2012 and even on the next working day i.e.07/05/2012.The defendant's counsel submitted that as plaintiff failed to make the balance payment on or before the date fixed Suit No.543/12 Satwanti vs Kailash 9 for execution of document and also did not reach the Sub- Registrar office, Kapashera, for registration of the document on the aforesaid date fixed and as such, the plaintiff is not entitled for any amount from the defendant as the bayana amount stands forfeited, and hence, the suit is liable to be dismissed.
14 I have considered the submissions of ld. Counsels for the parties as well as gone through the evidence on record and perused the file.
15 My issue wise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to a decree for recovery of a sum of Rs.5,00,000/- from the defendant?.......OPP.
The onus to prove this issue is upon the plaintiff. So as to prove the aforesaid issue the plaintiff has examined herself as PW1 and she has filed her evidence by way of affidavit vide Ex.PW1/A. PW1 also proved the original bayana receipt vide Ex. PW1/1 and relied upon the photocopy of GPA dated 26.12.2002 marked as mark A. PW1 further proved the legal notice dated 07.04.2012 vide Ex. PW1/2, postal receipts EX.PW1/3 and Ex.PW1/4, and reminder letter dated 30.04.2012 issued to the defendant on behalf plaintiff, for supply of copy of registry of the suit property along with chain of document to the plaintiff vide EX PW 1/5. In the plaint as well as evidence by way of Suit No.543/12 Satwanti vs Kailash 10 affidavit Ex. PW 1/A the plaintiff stated that the defendant represented himself to be the registered owner of suit property. In her evidence by way of affidavit plaintiff while appearing as PW-1 deposed that on the misrepresentation of the defendant, the plaintiff entered into an agreement dated 18.02.2012 with the defendant to purchase the suit property bearing khasra no. 27/6/1 measuring 29 sq. yards, situated at A-Block, Chander Vihar, Palam, Extension, New Delhi, for a total sum of 29,00,000/- (Rupees Twenty Nine Lacs). Plaintiff in her evidence by way of affidavit Ex PW 1/A also deposed that out of the total consideration amount, she has given a sum of Rs.5,00,000/- ( Rupees Five Lacs) as bayana amount/ earnest money to the defendant on 18.02.2012 and the date of execution of title document was fixed as 05.05.2012 and to this effect a bayana receipt was also executed on 18.02.2012 vide Ex. PW1/1. Plaintiff has prove the bayana receipt Ex PW1/1 in her evidence. Defendant in his evidence by way of affidavit EX.DW1/A deposed that, the plaintiff through her husband namely Laxman Singh entered into the aforesaid agreement/bayana receipt dated 18.02.2012 with the defendant for purchase of the suit property and the defendant took Rs. 5 Lacs, towards earnest money/bayana and receipt was also executed for the same on 18.02.2012. Otherwise also, the defendant has admitted the fact of execution of bayana receipt Ex PW1/1. Further the defendant also admitted that the plaintiff has given Suit No.543/12 Satwanti vs Kailash 11 him bayana amount /earnest money of Rs. 5 Lacs, for purchase of suit property. Therefore, there is no dispute regarding payment of bayana amount of Rs. 5 Lac, to the defendant by the plaintiff for purchase of suit property and as well as execution of the bayana receipt.
16 The plaintiff while appearing as PW-1, in her affidavit Ex. PW 1/A also deposed that It was agreed between her and defendant that, the defendant will hand over the photocopy of the registry/ title document of the said property and its chain of documents to the plaintiff within 7 days from receiving of earnest/ bayana amount i.e., on or before 25.02.2012 but despite of passing of two months the defendant has not supplied the same to the plaintiff. The plaintiff has issued a legal notice dated 07.04.2012 vide Ex. PW1/2 to the defendant, whereby calling upon the defendant to hand over the photocopy of the registry in respect of the suit property. The plaintiff while appearing as PW1 has also proved the legal notice dated 07.04.2012, vide Ex.PW1/2 issued by the plaintiff to the defendant and also prove the RD receipts of the same. The defendant has also filed the reply dated 11.04.2012, vide Ex. DW1/3 to the legal notice sent by the plaintiff, wherein the defendant contended that photocopy of the title documents were given to Sh. Lakshman Singh, husband of the plaintiff on 18.02.2012 itself when the agreement/bayana receipt was executed. The defendant in his evidence by way of affidavit EX. DW1/A Suit No.543/12 Satwanti vs Kailash 12 also deposed that he has also sent the photocopies of all the documents to the counsel of the plaintiff, namely Sh. Sudhir Kumar Advocate, along with the reply of notice dated 11.04.2012. Defendant while appearing as DW-1 has also relied upon the documents such as GPA, agreement to sale, affidavit and receipt collectively Exhibited as vide Ex.DW1/1. The aforesaid documents i.e., GPA, agreement to sale, affidavit and receipt collectively Exhibited as vide Ex. DW1/1 can not be said to be the title documents in favour of the defendant. In the judgment titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and anr. 183 (2011) Delhi Law Times 1 (SC) wherein it was observed that the sale of immovable property can be made only by a registered instrument. Further in the aforesaid judgment, it was observed that power of attorney is not an instrument of transfer in regard to any right, title or interest in the immovable property. 17 Moreover, vide legal notice dated 07.04.2012 and reminder dated 30.04.2012 the plaintiff called upon the defendant to supply the registered title documents along with the chain of document to the plaintiff. Otherwise also, even in the present suit the defendant has not filed the registered title documents of the suit property in his name either in his WS or in his evidence. This itself shows that the defendant was not having the registered title document of the suit property, otherwise, the defendant would have filed the title Suit No.543/12 Satwanti vs Kailash 13 documents of the suit property. Defendant deposed, in his evidence by way of affidavit that the plaintiff did not reached to the office of sub- registrar Kapashera, New Delhi for registration of documents on 05.05.2012, as well as on 07.05.2012 as 05.05.2012 was holiday being Saturday. Defendant further deposed that he has requested to the plaintiff to appear before sub-registrar Kapashera, on 07.05.2012 but the plaintiff was neither present nor made remaining balance payment till 07.05.2012. The defendant also relied upon the photographs vide EX DW1/4 collectively whereby showing that he was present in the sub-registrar office IX on 05.05.2012 and 07.05.2012. Only taking photographs and showing that the defendant on the aforesaid dates on 05.05.2012 and 07.05.2012 was present in the office of sub-registrar IX, can not be said that the defendant had gone to the sub-registrar office IX along with the original registered title documents of the suit property for registration of the same in favour of the plaintiff. If, the defendant was so keen to execute and to make registry of the original registered title documents of the suit property in favour of the plaintiff then, he would have also shown any receipt etc., issued by the competent authority/official of the sub-registrar office IX showing that the defendant has appeared before them for registration of the documents in favour of the plaintiff.
18 The defendant in his cross examination also admitted Suit No.543/12 Satwanti vs Kailash 14 that there is no record pertaining to the suit property in his name in the land revenue record. Defendant further admitted in the cross examination that he is not having any chain of documents pertaining to the suit property except GPA, agreement to sale, affidavit, receipt and Khasra, khatoni photocopy. Defendant while appearing as DW-1 also admitted, in his cross examination that the sale deed regarding his property in Khasra no. 27/6/1 measuring 29 sq. yards, situated at A- Block, Chander Vihar, Palam Extension, New Delhi, i.e., suit property, is not registered by the sub-registrar till date. Defendant also admitted in his cross examination that he knew that the sale deed pertaining to suit property are not registered by the sub-registrar. Therefore, from the testimony of the defendant itself, makes it clear that the defendant was not having any registered title documents of the suit property in his name and suit property was not registered in the name of the defendant in the office of sub-registrar. As such there is force in the contentions of the plaintiff that defendant was not having the registered sale deed in his favour and due to that reason the defendant failed to supply the registered title documents of the suit property to the plaintiff.
19 Moreover, defendant in his evidence by way of affidavit Ex DW 1/A deposed that the plaintiff did not approach to the defendant on 05.05.2012 in the sub-registrar office, whereas the Suit No.543/12 Satwanti vs Kailash 15 defendant was present there. DW-1 further deposed in his affidavit that since 05.05.2012 was holiday being Saturday and as such the defendant requested the plaintiff to appear before the office of sub- registrar Kapashera on 07.05.2012. However, in cross examination defendant who appear as DW-1 denied the suggestion that the office of sub-registrar, Kapashera, New Delhi was closed being Saturday as holiday on 05.05.2012. DW-1 further deposed that the office was opened and he went inside the office however, he had not met anybody there. In his cross examination the defendant was confronted with the para 7 of evidence by way of affidavit, wherein the defendant has mentioned that since 05.05.2012 was holiday being Saturday and he requested the plaintiff to appear before the sub-registrar, Kapashera, New Delhi on 07.05.2012. Defendant in cross examination deposed that the contents of para 7 of affidavit, wherein it is mentioned that 05.05.2012 was holiday being Saturday and he requested to plaintiff to appear before sub-registrar, Kapashera on 07.05.2012 is wrong and his submission in cross examination that the office was opened is correct. Therefore, it is also apparent that there is glaring contradiction in the testimony of defendant in his evidence by way of affidavit and cross examination regarding the aspect whether on 05.05.2012 the office of sub-registrar, Kapashera was opened or not. This also creates strong doubt about the contention of the defendant Suit No.543/12 Satwanti vs Kailash 16 that he visited the office of sub-registrar, Kapashera on 05.05.02012 and 07.05.2012 with the sole purpose of registering the title documents of the suit property in favour of the plaintiff. Merely, placing photographs of defendant showing the defendant in the complex of sub-registrar, Kapashera on 05.05.2012 and 07.05.2012 does not give any inference or it does not prove that the defendant went to the office of sub-registrar for the purpose of execution of registry of title documents of the suit property in favour of the plaintiff. 20 Otherwise also, it is an admitted position that the plaintiff has sent legal notice dated 07.04.2012 vide Ex. PW 1/ 2 and reminder dated 30.04.2012 to the defendant thereby calling upon the defendant to supply the registered title documents as well as chain of documents of the suit property to the plaintiff, however, the defendant failed to supply the same to the plaintiff. Further, the defendant admitted in cross examination that the suit property has not been registered in his name in the sub-registrar office till date and also admitted that there is no record pertaining to the suit property exist in his name in the land revenue record. Therefore, it is amply clear that the defendant was not having the registered title documents of the suit property in his name and despite of legal notice and reminder, the defendant failed to supply the same to the plaintiff. As such the plaintiff is not at fault, indeed it is the defendant who has not complied Suit No.543/12 Satwanti vs Kailash 17 with the terms of agreement to sale/ bayana receipt dated 18.02.2012. The defendant in his cross examination admitted that he has not returned the sum of Rs. 5 Lacs to the plaintiff which was taken as bayana from the plaintiff. Though, in the bayana receipt EX.PW 1/1 it is mentioned that if the seller retracts from the agreement then the seller will pay the double of the bayana amount. However, the plaintiff has restricted her claim only to the bayana amount of Rs. 5 Lacs. Therefore, in these circumstances it is apparent that the defendant failed to provide the registered title documents as well as chain of documents of the suit of property to the plaintiff and as such failed to comply the agreement/ bayana receipt dated 18.02.2012. The plaintiff has been able to prove its claim against the defendant and plaintiff is entitled for recovery of the bayana amount of Rs. 5,00,000/- (Rupees Five Lacs) from the defendant. Hence, this issue is decided in favour of the plaintiff and against the defendant.
21 ISSUE NO.2
Whether the plaintiff is entitled to interest, if so, to what extent?.....OPP.
The onus to prove this issue is also upon the plaintiff. Plaintiff has claimed the pendent lite and future interest @ 24% per annum on the bayana amount. However, in the agreement/ bayana receipt EX. PW 1/1 there is no mention as to the interest to be paid by Suit No.543/12 Satwanti vs Kailash 18 the party who fails to comply the terms and conditions of the bayana agreement/ bayana receipt. In the plaint or in the evidence also the plaintiff has failed to show as to how the plaintiff calculated the interest @ 24% per annum. Moreover, the plaintiff has failed to put forth any cogent evidence on record that the defendant is liable to pay the interest @ 24% per annum on the bayana amount. Otherwise, also interest @ 24% as claimed by the plaintiff appears to be very excessive and higher side and also unreasonable. Therefore, interest of justice would be met if the rate of interest is quantified @ 6% per annum from the date of filing of the suit till the realization of the amount. Hence, the plaintiff is entitled for interest @ 6% per annum from the date of filing of the suit till realization of bayana amount. The issue no. 2 is accordingly decided in favour of the plaintiff and against the defendant. 22 Relief.
As discussed above both the issues no. 1 and 2 in the instant suit has been decided in favour of the plaintiff and against the defendant. While deciding issue no. 1, it has been held that the plaintiff is entitled for the bayana amount Rs.5,00,000/- (Rupees Five Lacs only) from the defendant and further in the issue no. 2, it has been held that the plaintiff is entitled for interest @ 6% per annum from the date of filing of the suit till realization of the decreed amount.
Therefore, accordingly the suit of the plaintiff is Suit No.543/12 Satwanti vs Kailash 19 decreed in favour of the plaintiff and against the defendant for recovery in the sum of Rs. 5,00,000/- (Rupees Five Lacs only) along with interest @ 6% per annum from the date of the filing of the suit till realization of the decreetal amount.
23 Plaintiff is also entitled to cost.
24 Decree sheet be prepared accordingly.
25 File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT ON 22/08/2014 (LAL SINGH) ADDL. DISTRICT JUDGE-03(SW) DWARKA COURTS, NEW DELHI Suit No.543/12 Satwanti vs Kailash 20 Suit No.543/12 Satwanti vs Kailash 22/08/2014 Present: Sh. Laxman Gautam, husband of the plaintiff.
Sh. S.P.S Tyagi, counsel for defendant alongwith defendant.
Vide my separate judgment of even date, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for recovery in the sum of Rs. 5,00,000/- (Rupees Five Lacs only) along with interest @ 6% per annum from the date of the filing of the suit till realization of the decreetal amount.
Plaintiff is also entitled to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(LAL SINGH) ADDL. DISTRICT JUDGE-03(SW) DWARKA COURTS, NEW DELHI Suit No.543/12 Satwanti vs Kailash