Delhi District Court
Adish Goel vs Vinod Kumar on 16 December, 2014
IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE (WEST)
TIS HAZARI : DELHI
C.S. No.: 390/14/13
1. Adish Goel
S/o late Dr. K.K. Goel
2. Raj Rani Goel
W/o late Sh. Dr. K.K. Goel
3. Vinita Singhal (Seema Goel)
D/o late Sh. Dr. K.K. Goel
4. Ayushi Garg (Monica Goel)
D/o late Sh. Dr. K.K. Goel
5. Vikrant Goel
S/o late Sh. K.K. Goel
All resident of
G11, Shyam Park,
Nawada, Uttam Nagar,
Delhi.
.....Plaintiffs
VERSUS
1. Vinod Kumar
2. Raj Kumar
both R/o Sh. Mukhtayar Singh
R/o L12, Shyam Park,
Nawada, Uttam Nagar,
Delhi.
Pages 1 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
....Defendants
Date of filing the suit : 21.05.2013
Date of reserving the Judgment/Order : 04.12.2014
Date of passing the Judgment/Order : 16.12.2014
JUDGMENT:
Plaintiffs no.1 to 5 have filed the present suit for recovery for a sum of Rs.16 lacs, mainly stating therein that plaintiffs no.1 to 5 are the only legal heirs of late Dr. K.K. Goel and plaintiff no.1 has been authorized by plaintiffs no.2 to 5 to sign, verify and institute the present suit.
2 Further stated that defendant no.1 is claiming to be the owner of the property bearing No.L12, Sham Park, Nawada, Uttam Nagar, Delhi i.e. the suit property, while defendant no.2 is brother of defendant no.1 and is alleged to have been acting in concert with defendant no.1 in their dealings with the plaintiffs. 3 Further alleged that in or around November 2012, defendants approached the plaintiffs' father and plaintiff no.1, and defendant no.2 claiming to be the lawful owner of the property assured that they both had clear and markable title over the suit property measuring 100 Sq.Yds. and they wanted to sell the said property at a reasonable price. Since plaintiffs' father and plaintiff no.1 showed their interest to buy the property, they demanded to see the complete set of chain of title documents as a pre condition, but go ahead with the deal.
Pages 2 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr. 4 However, though the defendants failed to produce the chain of title
documents, they still persuaded the plaintiff no.1 giving assurances and plaintiff no.1 and his father believing the assurances of the defendant, agreed to purchase the property, however, again subject to production of a clear proof of their own ownership over the suit property.
5 Agreement to Sell dated 16.11.2012 is alleged to have been entered into between plaintiffs' father on one side and defendant no.1 on the other for a total sum of Rs.97 lacs, out of which, an amount of Rs.8 lacs was paid as an earnest money at the time of signing of the agreement. Out of the said sum, Rs.7,90,000/ was paid by the cheque or the balance Rs.10,000/ was paid by the cash. The agreement in question is stated to have been executed in the presence of defendant no.2. 6 Further alleged that plaintiffs' father fell seriously ill and passed away on 28.01.2013, due to which, plaintiff no.1 was not able to pursue the matter with the defendants for the supply of documents. Plaintiff no.1 even asked for documents in writing vide letter dated 11.02.2013, but there was no response to that letter. Plaintiff no. 1 became suspicious regarding the claim of ownership of defendant no.1 and as such, the plaintiff no.1 alongwith plaintiff no.5 visited the site physically and measured the area of the property as well and was shocked to find that the area of the property was only 75 Sq.Yds. approximately as against 100 Sq.Yds. which defendant no.1 was claiming to intend to sell. Thus, the defendant no.1 was having an intention to cheat the plaintiffs' Pages 3 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
late father into an agreement and to part with a sum of Rs.8 lacs as earnest money. 7 Further alleged that plaintiff no.1 sent a letter dated 06.03.2013 asking the defendant no.1 to clarify about the difference in measurement of the land and also called upon the defendants to produce the chain documents of the ownership of the suit property, but even in spite of that letter there was no response. It is only after numerous personal visits by the plaintiff no.1 to the defendants, after which the chain of title documents was supplied but which documents were themselves quite dubious and doubtful. However, defendant did not give any clarification regarding area of the suit property.
8 Further alleged that on the contrary, plaintiff no.1 received a legal notice dated 30.04.2013 as issued by on behalf of defendant no.1. In this notice again, the area of the property was misrepresented as 100 Sq.Yds and the contents of the said legal notice were factually incorrect and same were also denied by the plaintiffs. 9 Further alleged that later on plaintiffs came to know that defendants were in active negotiations regarding the same property with some other persons and intended to create a third party interest in the said property. Plaintiffs had already paid Rs.8 lacs to the defendant no.1. As per the plaintiffs, it is due to deliberate misrepresentation by the defendants regarding the area of the land that defendants failed to execute any sale documents in favour of the plaintiffs, the area of the property being 75 Sq.Yds, whereas the area of the property mentioned in the agreement to sell was 100 Sq.Yds.
Pages 4 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr. 10 The defendants thus, committed a breach of the agreement. Plaintiff no.1 is
alleged to have even lodged a complaint with concerned area SHO. However, the concerned authorities failed to take any action in accordance with law. Plaintiff no.1 is alleged to have filed a case u/S 156 (3) Cr.P.C. for directions.
As such, by the present suit, the plaintiffs sought a money decree in the sum of Rs.16 lacs besides interest thereon @ 24% p.a. 11 Defendants in their WS raised several preliminary objections. Firstly that the suit was not maintainable in as much as, there was no privity of contract between the plaintiffs and defendants nor any cause of action accrued in their favour as against the defendants.
12 It has further been elaborated that defendant no.2 Mr. Raj Kumar is neither a family member in the family of defendant no.1 nor he was a signatory to the agreement and nor he had entered into an agreement with the plaintiff or with the alleged predecessor in interest of the plaintiffs. Further alleged that name of defendant no.2 is liable to be deleted from the array of parties.
13 Further it is stated that it is Mr. K.K. Goel, the father of the plaintiffs who had not been able to make any payment and as such he had abandoned his rights under the agreement and the earnest money paid or rightly forfeited as per the agreement. 14 Further alleged that on the contrary, it is the defendant no.1 who has suffered financial losses due to failure on the part of Mr. K.K. Goel (the father of the Pages 5 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
plaintiffs) and his alleged successors for nonpayment of money. The suit as filed is claimed to be false. For these same reasons, the defendants have denied their liability under the law. As such, though it is not disputed that an agreement to sell had taken place. Though it is not disputed that an earnest money amounting to Rs.8 lacs had been paid by the father of the plaintiffs (predecessor in interest), the stand taken by the defendants is that the predecessor in interest of the plaintiff or the plaintiffs failed to pay up the balance amount due to which, agreement stood canceled and earnest money was correctly forfeited.
15 Regarding the difference in the area, defendant has denied that there was any such difference and further elaborated that the area of the property was mentioned throughout in all the documents since beginning and which area was 100 Sq.Yds and not 75 Sq.Yds.
16 Defendant no.1 is alleged to have been always ready and willing to execute the documents and to handover the possession subject to payment of the balance sale consideration, and which the balance was never paid by the plaintiff or their predecessors in interest.
Further stated that plaintiffs failed to show that as on 16.11.2012 or on 16.02.2013, they were actually in possession of Rs.89 lacs i.e. the balance consideration. 17 Replication was filed, reiterating the averments in the plaint. Accordingly, on the basis of the pleadings, issues were framed by the Ld. Predecessor on 03.02.2014, Pages 6 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
and matter was listed for PE 16.05.2014. However, on 16.05.2014, matter was transferred and received in this Court on transfer.
18 None appeared for the plaintiff on that day, but in the interest of justice, matter was adjourned for PE again to 20.08.2014. On 20.08.2014, in spite of repeated calls, neither the plaintiff nor any witness appeared, and nor any affidavit even was being filed.
19 Ld. Counsel for plaintiff was citing some personal difficulty, but taking a note of the entire period from 03.02.2014, when the issues were framed, on 20.08.2014 also when this matter was listed for PE second time, in the interest of justice, matter was again adjourned subject to terms, after making necessary observations 20 On 31.10.2014, which was already the third date for evidence, once again, none appeared for the plaintiff whatsoever in spite of repeated calls, neither the plaintiff nor the counsel and nor any witness and nor any affidavit had been filed till that date, and nor any advance copy given.
21 After making certain observations about the record, ultimately the opportunity for leading PE was closed by Order. Even plaintiff did not bother to comply with the terms imposed on the previous date for adjournment and to deposit the cost. In other words, plaintiff was continuously disobeying the Orders of the Court, and not leading his evidence.
22 Reference is had to the detailed Order dated 31.10.2014, same is being
Pages 7 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
reproduced here, as under:
"31.10.2014
Present: None for the plaintiff.
Sh. N.S. Negi, Counsel for both the defendants alongwith defendant no. 2.
Matter is listed today for PE, however, none has appeared on behalf of the plaintiff even on this second call, and matter had been kept awaited since morning. Even no affidavit has been filed on behalf of the plaintiff whatsoever nor any advance copy given to the opposite counsel present, and nor any witness is present or summoned. Ld. Counsel for defendant submits that this is already the third date for PE.
I have perused the record.
It is seen that issues were framed way back on 03.02.2014, and thereafter, matter was received by way of transfer to this Court on 16.05.2014, and thereafter, this matter again listed for PE on 20.08.2014. However, on 20.08.2014 also, counsel for plaintiff had expressed some personal difficulty, and one more opportunity was extended in the interest of justice, however, subject to terms. However, neither the said cost imposed vide Order dated 20.08.2014 has been paid till date, nor any step taken by the plaintiff to lead his evidence, and even after two months from the last date i.e. today, position is the same. In view of the conduct of the plaintiff, there is no reason to extend any further opportunity to the plaintiff, and as such, PE stands closed.
However, since the onus of issue no. 1, which seems to be the most Pages 8 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
important issue in this case, has been placed upon the defendants in view of his WS. Ld. Counsel for defendants, at this stage, seeks opportunity to lead DE, if any.
However, it is made clear to the defendant/Ld. Counsel that only one opportunity is being extended for DE, if any, and no further opportunity shall be extended for this purpose. In case of any affidavit, advance copy thereof, must be furnished to the opposite counsel at least one week before the NDOH, on acknowledgment.
Put up for DE, if any, on 22.11.2014.
Sd/
(SUJATA KOHLI)
Additional District Judge
SK West: Delhi:31.10.2014"
Matter was, however, adjourned for DE, if any.
23 On 22.11.2014, when the matter was listed for DE i.e. about 22 days after
passing of the Order against the plaintiff, plaintiff came up with an application U/S 151 CPC to recall the previous Order. The application was accompanied by some copy of cause list. An affidavit had been filed by the defendant in evidence, and even an advance copy stated to have been dispatched to the opposite counsel, however, on that date, a new counsel for plaintiff appeared, and filed an application U/S 151 CPC to recall the previous Order. However, neither the Advocate moving the application nor file any Vakalatnama, and nor the plaintiff/applicant appeared on this application even.
Pages 9 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr. 24 The affidavit in support of the application, was shown to have been signed
by the plaintiff himself on the same date i.e. 22.11.2014, which showed that plaintiff was very well available that day in the Courts Complex, but he did not bother to appear before the Court on this application.
25 Advocate who appeared was not authorized and her submissions, could not even be entertained. The main counsels in this case i.e. Mr. Rajat Kumar and Mr. Yogesh Dahiya, had not been discharged by the Court, nor any discharge has been sought by them, and therefore, there was no reason to entertain a new counsel in this manner, who was not even duly authorized. New Counsel for the plaintiff simply sought an adjournment to file her Vakalatnama bearing the 'NOC' of the previous counsel. 26 In the interest of justice, copy of the application was supplied to the opposite counsel, and matter was listed for arguments on this application on 04.12.2014 subject to NOCD by previous counsel. However, today again, all that the new counsel sought was an adjournment, stating that she needed time to inspect the file, and that on account of lawyer's strike, she was not able to inspect the judicial file. 27 Further, as earlier recorded, the Vakalatnama of the 'so called' new counsel, was not acceptable, as neither the previous counsels had been discharged, nor they had sought any discharge from representing the plaintiff, and nor they had issued any 'NOC' in favour of the new counsel.
28 It was strongly opposed and pointed by Ld. counsel for defendant that Pages 10 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
lawyer's strike had started only on 09.12.2014, and therefore, there was an ample period from 22.11.2014 till 08.12.2014, and in fact, even before moving of the application itself to have inspected the file.
As already stated that lawyer's strike has commenced only on 09.12.2014, and as such, ground as taken is not relevant at all.
29 The casual attitude of the plaintiff in the conduct of the case, wherein PE has already been closed seems to have been quite casual, with the plaintiff not to have moved an application, even at the very first instance, but to have waited till 22.11.2014 and secondly, even in spite of more than sufficient opportunity, the counsel who kept appearing, failed to produce her Vakalatnama, and failed to file objection by any 'NOC' from the previous counsels. Previous counsels failed to appear, and so did the plaintiff. 30 Even though, plaintiff got his affidavit attested on 22.11.2014, but he did not bother to appear before the Court, though it was kept pending, however, 'new counsel' for plaintiff was not ready to address any arguments.
31 The application, ultimately, was dismissed for nonprosecution itself, with the result that the matter, has been taken up to pass judgment forthwith. 32 Plaintiff failed to step into the witnessbox and to examine himself and any other witnesses in support the averments in the plaint.
33 It is evident that plaintiff, who came to Court, had to prove his entitlement for recovery of Rs. 16 lacs, as claimed by them, and that matter has been fixed for PE, Pages 11 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.
and since plaintiff failed to lead any evidence in spite of more than sufficient opportunities, the plaintiff has failed to prove their entitlement.
Suit dismissed.
Decree Sheet be prepared.
File be consigned to Record Room.
ANNOUNCED IN THE OEPN COURT (SUJATA KOHLI)
TODAY i.e. ON 16th DECEMBER, 2014 Additional District Judge: (West)
THC/Delhi:16.12.2014
Pages 12 to 12 Adish Goel & Ors. Vs. Vinod Kumar & Anr.