Delhi District Court
Sh. Dheeraj Duggal vs Sh. Mahesh Kumar Sharma on 15 May, 2012
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no:582/07
ID NO.02402C0162972005
Sh. Dheeraj Duggal
S/o Sh. Naresh Kumar Duggal
R/o 220-C, Pocket-B, Mayur Vihar Phase-II,
Delhi-110091. .... Plaintiff
Versus
Sh. Mahesh Kumar Sharma
S/o Sh. Ram Kishan Sharma
R/o H.No.614-A, Gali Bagichi, Vishwas Nagar,
Shahdara, Delhi-32
.... Defendant
SUIT FOR RECOVERY OF AN AMOUNT OF Rs.2,00,000/-
AND PERMANENT INJUNCTION
Date of institution of the Suit : 11.03.2005
Date on which judgment was reserved : 04.05.2012
Date of decision : 15.05.2012
Decision : Suit Decreed
Counter Claim decreed
JUDGMENT
This is a suit for recovery of an amount of Rs. Two Lacs only and permanent injunction. The version of the plaintiff is that the defendant is the absolute owner and in possession of a built up property, measuring 150 sq. yards, out of khasra No.770-771, bearing property no.
CS no:582/07 Page No: 1/23 614, situated at village Chandrawali in the abadi of block no.4, Bagichi Gali, Vishwas Nagar, Illaqua-Shahdara and bounded as under:
East - Boundary wall of temple West - Gali 8 ft. wide North - Road 20 ft. wide South - Mandir Gali
2. It is further the case of the plaintiff that the defendant had entered into an agreement to sell dated 30.09.2004 with the plaintiff for sale of the suit property to the plaintiff for a sum of Rs. 4 Lacs only. On the same day the plaintiff paid a sum of Rs. 2 lacs in cash to the defendant as earnest money which was duly received by the defendant and a receipt was duly executed. The defendant also handed over the original documents relating to the suit property to the plaintiff. It was further agreed that the balance amount of Rs. 2 lacs would be paid to the defendant by the plaintiff at the time of execution of the sale deed and possession would also be delivered to the plaintiff at that time. The sale deed was to be executed on or before 31.01.2005.
3. It is further the case of the plaintiff that on 25.01.2005, the plaintiff contacted the defendant and reminded him to execute the sale CS no:582/07 Page No: 2/23 deed in respect of the suit property in favour of the plaintiff. The defendant also falsely assured the plaintiff and instructed him to wait till 31.01.2005. The plaintiff again made a telephonic call to the defendant on 30.01.2005 and reminded him to appear before the office of Sub- Registrar on 31.01.2005. On 31.01.2005 the plaintiff alongwith his witnesses reached at the office of the Sub Registrar and waited till 3.30 p.m., however the defendant did not turn up.
4. It is further the case of the plaintiff that in the evening on 31.01.2005 the plaintiff revisited the suit property and found that the suit property was sealed. The defendant kept on evading the issue. The plaintiff finally requested the defendant to return his earnest money, however the defendant did not accede to his request. The plaintiff issued Legal notice dated 08.02.2005 to the defendant, however the defendant sent a false and irrelevant reply dated nil. to the said legal notice. The plaintiff thereafter issued a rejoinder notice dated 28.02.2005.
5. The plaintiff has further averred that the defendant has not complied with the terms and conditions of the agreement to sell and is therefore liable to refund the earnest money to the plaintiff. The plaintiff CS no:582/07 Page No: 3/23 has prayed for recovery of an amount of Rs. 2 lacs along with pendente lite and future interest @ 18% per annum. The plaintiff has also prayed for a permanent injunction restraining the defendant from creating any third party interest in the suit property.
6. The defendant appeared before the court pursuant to service of summons and filed his written statement alongwith counter claim. The defendant averred that he had never entered into any agreement to sell with the plaintiff in respect of the suit property. The defendant further denied that the plaintiff paid a sum of Rs. 2 lacs to the defendant on 30.09.2004.
7. The defendant pleaded that he had taken a loan of Rs. 20,000/- from Sh. Naresh Kumar and Sh. Tarun Kumar of M/s. Yamuna Enterprises, C-6/273, Yamuna Vihar, Delhi on 30.09.2004 and not from the plaintiff. The plaintiff deposited his original title deed in respect of the suit property with Sh. Naresh Kumar and Sh. Tarun Kumar in connection with the said loan transaction. The said loan was to be repaid in 12 installments of Rs.2466/- each. The defendant also paid two installments on 28.10.2004 and 30.11.2004 and two receipts were issued.
CS no:582/07 Page No: 4/23 The said Sh. Naresh Kumar and Sh. Tarun Kumar had also obtained the signatures of the defendant on blank stamp papers and blank papers and had also taken some blank signed cheques from the defendant.
8. The defendant further pleaded that the intentions of Sh. Naresh Kumar and Sh. Tarun Kumar turned malafide and they gave the blank signed non judicial stamp paper and other blank signed papers to the plaintiff because the plaintiff is the son of Sh. Naresh Kumar and the plaintiff prepared forged and fabricated agreement dated 30.09.2004 and receipt with their connivance. They also handed over the original title deed of the suit property to the plaintiff. The defendant further stated that he had never agreed to sell the suit property to the plaintiff and the alleged the agreement to sell and receipt are forged and fabricated documents. The defendant further pleaded that the alleged agreement to sell is not a properly stamped document and is therefore inadmissible in evidence.
9. The defendant further stated that the plaintiff had issued a false legal notice dated 08.02.2005 after cooking up a false story. The defendant further denied that the plaintiff had requested him to reach the CS no:582/07 Page No: 5/23 office of the Sub Registrar. The defendant further stated that the plaintiff has not pleaded that he had reached the office of the Sub Registrar with the balance amount of Rs.2 Lacs. The defendant further stated that the contents of the notice dated 08.02.2005 and the contents of the plaint are totally contradictory. The defendant denied his liability to make the payment of an amount of Rs. 2 lacs and the interest claimed. The defendant prayed for dismissal of the suit.
10. The defendant further made a counter claim for a mandatory injunction directing the defendant to return the original sale deed dated 23.07.2004 in respect of the suit property to the defendant which the plaintiff illegally acquired from Sh. Naresh Kumar and Sh. Tarun Kumar.
11. Plaintiff filed replication and denied the averments of the written statement of the defendant and simultaneously reiterated and reaffirmed the contents of the plaint. The plaintiff prayed that the suit be decreed in his favour and the counter claim be dismissed.
12. Vide order dated 23.01.2008, on the basis of the pleadings CS no:582/07 Page No: 6/23 of the parties the following issues were framed in this case:
1. Whether plaintiff is entitled to a sum of Rs.2,00,000/- as prayed for in the plaint? OPP
2. Whether the plaintiff is entitled to any interest? If so, at what rate and for what period? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in the plaint? OPP
4. Whether the agreement to sell, receipt dated 30.09.2004 are forged and fabricated documents? OPD
5. Whether the defendant is entitled to a decree for mandatory injunction as prayed for in the counter claim? OPD
6. Relief
13. Vide order dated 03.03.2010 an additional issue was framed on the application under Order 14 Rule 5 CPC moved on behalf of the defendant which is as under:
" 5A. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD"
14. In order to prove his case plaintiff examined himself as PW-1 and deposed on the lines of the plaint. The plaintiff further examined his father Sh. Naresh Kumar Duggal as PW-2 and one Sh. Sanjeev Sabherwal, the attesting witness of the Agreement to Sell as CS no:582/07 Page No: 7/23 PW-3. PW 2 and PW 3 supported the version of the plaintiff. On the other hand the defendant examined himself as DW-1 and deposed on the lines of the written statement.
15. I have heard the Counsel for the parties and have given due consideration to the rival contentions of the parties and carefully perused the record. My issue-wise findings are as follows:
Issues no.1 & 4
16. The question to be answered is as to whether the plaintiff is entitled to recover an amount of Rs. 2 lacs from the defendant.
17. PW-1 has deposed on the lines of the plaint. PW-1 has deposed that the defendant being the owner of the suit property had entered into an agreement to sell dated 30.09.2004 with the plaintiff. The agreement to sell is Ex. PW-1/1. PW 1 further deposed that the defendant had also received earnest money of an amount of Rs. Two Lacs from the plaintiff and had executed a separate receipt in respect of the same and the receipt is Ex. PW-1/2. The date of execution of the sale deed was fixed as 31.01.2005.
CS no:582/07 Page No: 8/23
18. PW1 further deposed that the plaintiff gave several reminders to the defendant in this respect and reached at the office of the Sub Registrar on 31.01.2005 but despite an advance telephonic call the defendant did not turn up at the office of the Sub Registrar. The plaintiff issued legal notice dated 08.02.2005 sent on 10.02.2005 to the defendant. Copies of the legal notice and postal receipt are Ex. PW-1/3 and Ex. PW-1/4. Reply dated nil issued on behalf of the defendant is Ex. PW-1/5. Rejoinder dated 28.02.2005 Ex. PW-1/6 was issued by the plaintiff. The plaintiff has claimed recovery of the earnest money of Rs. 2 lacs.
19. The defence of the defendant is that he had taken a loan of an amount of Rs. 20,000/- from one Sh. Naresh Kumar and Sh. Tarun Kumar of M/s. Yamuna Enterprises on 30.09.2004 and not from the plaintiff and DW 1 deposed in this respect. DW 1 further deposed that the said amount was to be repaid in twelve installments of Rs.2466/- each. The defendant also paid two installments to Sh. Tarun Kumar and Sh. Naresh Kumar on 28.10.2004 and 30.11.2004 and they issued receipts in this respect which are Ex. DW-1/1 and Ex. DW-1/2. The CS no:582/07 Page No: 9/23 visiting card of M/s. Yamuna Enterprises is Ex. DW-1/2A.
20. DW 1 further deposed that the said Sh. Naresh Kumar and Sh. Tarun Kumar had also obtained the signatures of the defendant on blank stamp papers and blank papers and had also taken some blank signed cheques and the original sale deed dated 23.07.2004 of the suit property from the defendant. DW 1 further deposed that the intentions of Sh. Naresh Kumar and Sh. Tarun Kumar turned malafide and they gave the blank signed non judicial stamp paper and other blank signed papers to the plaintiff because the plaintiff is the son of Sh. Naresh Kumar and the plaintiff prepared forged and fabricated receipt and agreement dated 30.09.2004 with their connivance. They also handed over the original title deeds of the suit property to the plaintiff.
21. DW 1 further deposed that Sh. Naresh Kumar and Sh. Tarun Kumar had also taken two signed blank cheques no. 441117 and 441118 from the defendant which were misused by them. The legal notices, their replies and postal receipts in this respect are Ex. DW-1/7A and Ex. DW-1/13. DW 1 further deposed that he had not entered into any agreement to sell with the plaintiff nor he had taken an amount of CS no:582/07 Page No: 10/23 Rs. 2 lacs from the plaintiff.
22. PW 1 has deposed in respect of the agreement to sell and the receipt and exhibited them as Ex. PW-1/1 and Ex. PW-1/2. In his cross examination DW-1 also admitted that the agreement to sell Ex. PW-1/1 bears his signatures at points A & B and the receipt Ex. PW-1/2 bears his signatures at point C.
23. The plaintiff further examined Sh. Sanjeev Sabherwal the attesting witness to the Agreement to Sell Ex. PW-1/1 executed on 30.09.2004 as PW-2. PW 2 deposed that defendant has received an amount of Rs. 2 lacs in cash from the plaintiff and had executed the receipt Ex. PW-1/2. He further deposed that defendant had also executed agreement to sell Ex. PW-1/1. Counsel for the defendant also could not elicit anything substantial in his cross examination so as to discredit his testimony.
24. Thus the plaintiff has been able to prove the Agreement to Sell and receipt Ex. PW 1/1 and Ex. PW 1/2. The counsel for the defendant raised an objection tha the agreement to sell is a deficiently CS no:582/07 Page No: 11/23 stamped document and therefore the same is in admissible in evidence.
25. However in the judgment titled as Javer Chand v. Pukhraj Sharma reported as AIR 1961 SC 1655 it was held that where a deficiently stamped document has been tendered in evidence, exhibited and used in examination/ cross examination of witnesses then such admission cannot be called in question in view of section 36 of the Indian Stamp Act.
26. In the present case also the agreement to sell and receipt were tendered in evidence, exhibited and used in examination/ cross examination of witnesses without any objection and hence now this issue cannot be reopened and the the documents are to be read in evidence.
27. The defence of the defendant is that he had taken a loan of Rs.20,000/- from Sh. Naresh Kumar and Sh. Tarun Kumar and they had taken his signatures on blank stamp paper and blank papers and they had also taken the original sale deed of the suit property and two signed blank cheques. First of all it is not believable that for a loan of a meager amount of Rs. 20,000/- the defendant had submitted so many blank CS no:582/07 Page No: 12/23 signed papers, blank signed cheques and original sale deed to Sh. Naresh Kumar and Sh. Tarun Kumar.
28. Secondly no independent evidence has been adduced by the defendant to establish his defence. No independent witness has been examined by the defendant. He has examined himself as the only witness.
29. Thirdly the defendant has contended that the said Sh. Naresh Kumar is the father of the plaintiff and the plaintiff has forged the agreement and receipt in collusion with him. The plaintiff during his evidence examined his father as PW-2 who stated that his name was Naresh Kumar Duggal S/o Sh. Devender Lal Duggal. He deposed that he has no concern with the defendant. He further stated that he was working as Senior Manager in Syndicate Bank. Counsel for the defendant could not elicit anything substantial in his cross examination so as to discredit his testimony. The defendant could not establish any link of PW-2 with M/s Yamuna Enterprises or Sh. Tarun Kumar.
30. On the contrary DW-1 has categorically admitted in his CS no:582/07 Page No: 13/23 cross examination that he had no dealing with Sh. Naresh Kumar Duggal, the father of the plaintiff. The defendant described the said Naresh Kumar with whom he had dealt with as Sh. Naresh Mehta S/o Sh. Y.P. Mehta. Thus it is clear that the said Sh. Naresh Kumar with with whom the defendant had allegedly dealt with was someone else and not the father of the plaintiff. The defendant could not establish any link between the said Sh. Naresh Kumar Mehta with the plaintiff. Therefore the defence being propounded by the defendant has not been established.
31. Thus the agreement to sell Ex. PW-1/1 and receipt Ex. PW-1/2 have been duly proved by the plaintiff. The onus to prove that the said documents are forged and fabricated was on the defendant. No cogent and viable evidence has been led by the defendant in this respect. The story involving Sh. Naresh Kumar Mehta and his connection with the present plaintiff has not been proved by the defendant.
32. Further a perusal of the agreement to reveals that the same runs into two pages. The defendant has put his thumb impression on the stamp paper. The stamp paper also bears the photographs of the plaintiff and the defendant. The defendant has also put his thumb impression on CS no:582/07 Page No: 14/23 the 2nd page of the agreement. The stamp paper has been purchased in the name of the defendant. The agreement is signed by the defendant. The receipt is also duly signed by the defendant. The defendant has signed over the revenue stamp paper and put his thumb impression also over the revenue stamp on the receipt Ex. PW-1/2.
33. It is also seen that the defendant has signed in English language. The signatures are clear and fluent which shows that the defendant is not an illiterate person. Evidence has also come on record that the defendant was also having some previous litigation where he had been appearing in the court. Therefore it cannot be said that the defendant did not understand the meaning and import of putting his signatures and thumb impressions on stamp papers and other documents. It is not believable that the defendant had put his thumb impression and signatures on so many documents without going through the same. The copy of the sale deed and original sale deed are also stated to be in possession of the plaintiff.
34. It is well settled that the standard of proof in civil cases and criminal cases is different. In civil proceedings, a mere CS no:582/07 Page No: 15/23 preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt. The plaintiff in a civil suit has to merely establish his case on the touchstone of preponderance of probabilities. As per Section 3 of the Evidence Act, a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The court has to weigh the conflicting probabilities and decide whether the preponderance is in favour of the fact asserted by the plaintiff. Thus if the evidence of the plaintiff outweighs that of the defendant and persuades the court to believe the same to be more probable and true than that of the defendant then it can be held that the plaintiff has proved his case by preponderance of probability. Reference may be made to the judgments titled as N.G. Dastane, Dr. v. S. Dastane, reported as AIR 1975 SC 1534 and Syad Akbar v. State of Karnataka reported as AIR 1979 SUPREME COURT 1848.
35. Further the Hon'ble Supreme Court in the judgment titled CS no:582/07 Page No: 16/23 as "R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple" reported as AIR 2003 SUPREME COURT 4548 held:
" ......Being a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assur-
ance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus the plaintiff's burden of proof can safely be deemed to have been discharged....."
36. In these facts and circumstances the plaintiff has proved by preponderance of probabilities that the plaintiff had entered into an agreement to sell with the defendant in respect of the suit property and the defendant has failed to establish that the said agreement and receipt are forged and fabricated. Under the said agreement and receipt the defendant had received an amount of Rs.2 Lacs from the plaintiff.
37. There is nothing on record which shows that the said loan transaction of Rs.20,000/- had any connection with the plaintiff. DW-1 has admitted in his cross examination that various legal notices and CS no:582/07 Page No: 17/23 replies placed on record have no connection with the plaintiff. DW-1 further admitted that he had not filed any suit for cancellation of the agreement to sell Ex. PW-1/1. He further admitted that he has not filed any suit against Sh. Naresh Mehta and Sh. Tarun Kumar.
38. The transaction has not materialized and the sale deed has not been executed. There is nothing on record to establish that the agreement to sell could not materialize because of any fault on the part of the plaintiff. Accordingly, the plaintiff is entitled for refund of the earnest money.
39. The net result is that the plaintiff is entitled to recover an amount of Rs.2 lacs from the defendant.
40. These issues are accordingly decided in favour of the plaintiff and against the defendant.
Issue no.2
41. The question to be answered is as to whether the plaintiff is entitled to any interest.
CS no:582/07 Page No: 18/23
42. There is nothing on record to show that the transaction in question was connected with the trade, business or industry of the defendant and hence the same cannot be classified as a commercial transaction. No agreement for payment of interest at any particular rate has been proved. Pre suit interest has not been claimed by the plaintiff.
43. Therefore the ends of justice would be met in case the plaintiff is awarded pendente lite and future interest @ 6% p.a. on the decretal sum adjudged from the date of institution of the suit till the date of realization.
44. This issue is therefore decided in favour of the plaintiff and against the defendant in these terms.
Issue no.3
45. The question to be answered is as to whether the plaintiff is entitled to a decree of permanent injunction as prayed for.
46. The plaintiff has claimed a permanent injunction restraining the defendant from creating any third party interest in the suit CS no:582/07 Page No: 19/23 property. The plaintiff has only filed a suit for recovery of the earnest money and not a suit for specific performance. Accordingly no interest is created in favour of the plaintiff in respect of the suit property. The plaintiff is therefore not entitled for any permanent injunction in respect of the suit property.
47. This issue is therefore decided in favour of the defendant and against the plaintiff.
Issue no.5
48. The next question to be answered is as to whether the defendant is entitled to a decree for mandatory injunction as prayed for in the counter claim.
49. The defendant has made a counter claim for mandatory injunction directing the defendant to return the original sale deed dated 23.07.2004 in respect of the suit property to the defendant.
50. Although the defendant has not able to establish that he had deposited the sale deed with Sh. Naresh Kumar and Sh. Tarun CS no:582/07 Page No: 20/23 Kumar and they handed over the same to the plaintiff however it is the admitted case of the plaintiff and the defendant both that the plaintiff is in possession of the original sale deed in respect of the suit property. Copy of the sale deed was placed on record. Now the agreement to sell dated 30.09.2004 has not materialized. The plaintiff has only filed a suit for recovery of the earnest money and not a suit for specific performance. Accordingly no interest is created in favour of the plaintiff in respect of the suit property. The earnest money paid by the plaintiff has to be refunded.
51. The plaintiff is therefore not entitled to retain the original sale deed in respect of the suit property. The defendant is therefore entitled to a mandatory injunction directing the plaintiff to hand over the original sale deed dated 23.07.2004 in respect of the suit property to the defendant. The counter claim of the defendant therfore deserves to be allowed.
52. This issue is therefore decided in favour of the defendant and against the plaintiff.
CS no:582/07 Page No: 21/23 Issue No. 5A
53. The question to be answered is as to whether the suit is not properly valued for the purpose of court fees and jurisdiction.
54. The plaintiff has filed a suit for recovery of an amount of Rs. Two Lacs and permanent injunction. The suit has been valued at an amount of Rs. 2 lac for the relief of recovery and on which requisite court fee of Rs. 4296/- has been paid. For the purpose of the relief of permanent injunction the suit has been valued at Rs. 130/- and the requisite court fees of Rs.13/- has been paid. I do not find any flaw in the valuation. There is nothing on record which shows that the suit has not been properly valued for the purpose of court fees and jurisdiction.
55. This issue is therefore decided in favour of the plaintiff and against the defendant in these terms.
RELIEF
56. The suit is therefore decreed in favour of the plaintiff and against the defendant for an amount of Rs. 2 lacs along with pendente lite and future interest @ 6% p.a. on the principal sum adjudged from the CS no:582/07 Page No: 22/23 date of institution of the suit till the date of realization.
57. The counter claim of the defendant is also allowed and a decree of mandatory injunction is granted in favour of the defendant and against the plaintiff thereby directing the plaintiff to hand over the original sale deed dated 23.07.2004 in respect of the suit property to the defendant.
58. The suit and the counter claim are both decreed in the aforesaid terms. Parties are left to bear their own costs. Decree Sheet be accordingly prepared. File be consigned to Record Room thereafter.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 15.05.2012 CCJ/ARC(East)
(Judgment contains 23 pages.) KARKARDOOMA COURTS,
DELHI
CS no:582/07 Page No: 23/23