Delhi District Court
Lakhan Singh Saini vs Chander Bhan on 12 December, 2019
IN THE COURT OF SHRI RAJ KUMAR: ADDITIONAL DISTRICT
JUDGE, WEST(01) DELHI
Suit No. 608395/16(Old Suit no. 1541/11)
Lakhan Singh Saini
s/o Sh. K.R. Saini
R/o J-9, Vikas Puri,
New Delhi 110 018 ........... Plaintiff
VERSUS
Chander Bhan
S/o Late Sh. Shri Ram
R/o Village and Post Office
Nizampur, Delhi 110 081 ......... Defendant
Date of institution of the suit : 15.09.2011
Date on which order was reserved : 25.11.2019
Date of decision : 12.12.2019
SUIT FOR MONEY RECOVERY OF RS.17,00,000/-(SEVENTEEN
LACS ONLY) WITH PENDENTELITE INTEREST
JUDGMENT
1 The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the defendant executed an agreement to sell dated 28.09.2009 with Mr. Vikas Saini, the son of the plaintiff with regard to land measuring 9 Bigas 8 Biswas in khasra no. 73/21 and 81/1 situated in the area of Village Nizampur Kanjhawala Delhi, for a total consideration of Rs. 82 lacs 82 thousand per killa(Acre). It has been further stated that Mr. Vikas Saini paid Rs. 2 lacs to the defendant and it was settled that the amount of Rs. 6 lacs would be paid on 13.09.2009 as part payment. It has been further Suit No. 608395/16 Page No. 1/29 stated that as per the said agreement, it was also settled that the balance amount of 10% was to be paid by Sh. Vikas Saini within a period of three months and rest of the amount was to be paid on or before 21.09.2010 at the time of execution of GPA and other documents. It has been further stated that Mr. Vikas Saini also paid Rs. 8 lacs on 29.09.2009 as per the abovesaid agreement to sell to the defendant and the defendant issued the receipt for the same. 1.1 It has been further stated that the plaintiff also paid Rs. 17 lacs to the defendant(Rs. 12 lacs in cash and Rs. 5 lacs by way of cheque dated 21.12.2009) and the defendant executed the receipt for the amount of Rs. 17 lacs in favour of the plaintiff. It has been further stated that as per the abovesaid agreement to sell dated 28.09.2009 whenever the plaintiff would pay the costs of 1000 sq. yards or above, the defendant would execute GPA/Sale deed in favour of the plaintiff. 1.2 It has been further stated that the GPA dated 13.11.2009 was executed by the defendant in favour of the plaintiff for the land measuring 1000 sq. yards out of the abovesaid khasra situated in the area of Village Nizampur, Kanjhawala together with rest of the documents on payment by the plaintiff of the costs of 1000 sq. yards. The plaintiff has stated that he paid the amount of Rs. 18 lacs to the defendant and the defendant also executed the possession letter on 13.09.2009 but he failed to handed over the physical possession of the land in question to the plaintiff. Similarly, the plaintiff has alleged that the defendant executed the GPA, Will, Possession Letter on 03.05.2010 in respect of land measuring 750 sq. yards. It has been further stated that the defendant issued the receipt of Rs. 15 lacs on 29.05.2010 in respect of 750 sq. yards of the land but the defendant failed to deliver the physical possession of the land of the plaintiff. It has been further stated that similarly the defendant executed GPA, Agreement to Sell, Suit No. 608395/16 Page No. 2/29 Affidavit, Possession Letter in respect of land measuring 3430 sq. yards out of the abovesaid khasra on 03.05.2010. It has been further stated that the plaintiff paid Rs. 63,70,380/- by way of two cheques bearing no. 636656 and 636658 as full and final payment but the defendant failed to deliver the physical possession of land in question to the plaintiff. It has been further stated that the physical possession of the land in question was not handed over by the defendant to the plaintiff and as such, the plaintiff got stopped the payments of the abovesaid two cheques regarding the land measuring 3430 sq. yards.
1.3 It has been further stated that on 03.05.2010 as well, the plaintiff paid Rs. 34 lacs by way of cheque bearing no. 636655 as full and final payment for the purchase of land measuring 1700 sq. yards. It has been further stated that on 03.05.2010, the plaintiff paid Rs. 34 lacs by way of two cheques bearing no. 636659 and 507387 as full and final payment for the purchase of land measuring 2600 sq. yards. It has been further stated that the defendant failed to hand over the actual and physical possession of the land measuring 1000 sq. yards and the land measuring 750 sq. yards to the plaintiff, the plaintiff got stopped the clearance of the abovesaid cheques.
1.4 It has been further stated that in the month of February 2011, the defendant filed a suit for Declaration and Permanent Injunction against the plaintiff by concealment of material facts. It has been further stated that on 21.08.2010, the plaintiff visited the house of the defendant and requested him to execute the sale deed but he failed to do so. It has been further stated that on 05.08.2011, the defendant flatly refused to execute the sale deed and hence, the present suit for the amount of Rs. 17 lacs.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree for an amount of Rs. 17 Suit No. 608395/16 Page No. 3/29 lacs along with pendente-lite interest from 28.09.2009.
3. The defendant has filed on record the detailed written statement taking various preliminary objections such as that this court has no territorial jurisdiction to entertain and try the present suit, the plaintiff has no locus standi to file the present suit, there is no privity of contract in between the parties to the present suit, the present suit does not lie as the plaintiff has the other efficacious remedy of specific performance, the present suit is barred by Order 2 Rule 1 and 2 of the CPC, the present suit is barred by the provisions of Contract Act, 1872, that the receipt replied upon by the plaintiff was never signed by the defendant and the defendant never received the amount of Rs. 17 lacs from the defendant.
3.1 On merits, the defendant has admitted that he is the Bhumidar/Owner and in physical possession of land measuring 9 bigha 9 biswas out of khasra no. 73/21 and 81/1 situated in the revenue estate of village Nizampur, Delhi along with other properties which fall in other khasra numbers. It has been further stated that at the request of the plaintiff, the defendant agreed to sell the abovesaid land to the plaintiff for a total consideration of Rs. 2.25 crores out of which, the plaintiff paid the amount of Rs. 5 lacs as bayana/earnest amount through cheque and the same was duly received and encashed by the defendant. It has been further stated that at the time of paying of bayana/earnest amount through cheque, the plaintiff had got thumb impression of the defendant on some blank papers, certain stamp papers and certain photographs of the defendant were also taken by the plaintiff.
3.2 It has been further stated that the plaintiff had agreed to pay the balance amount of Rs. 2.20 crores within the period of 13 months and he had also agreed to pay Rs.1 crore to the defendant Suit No. 608395/16 Page No. 4/29 within a period of 6 months from the date of the agreement to sell. 3.3 It has been further stated that on 03.05.2010, the plaintiff handed over two post dated cheques bearing no. 636656 dated 30.11.2010 for the amount of Rs. 33,70,280/- and cheque bearing no. 636658 dated 30.11.2010 for Rs. 30 lacs, both drawn on State Bank of India, Vikas Puri Branch, Delhi and again, he got thumb impression of the defendant on some typed, some blank papers and blank plain papers.
3.4 It has been further stated that in the month of June 2010, the plaintiff handed over one more post dated cheque bearing no. 032468 dated 15.06.2010 for the amount of Rs. 19 lacs drawn on ICICI Bank, Vikas Puri Branch Delhi and again, he got thumb impression of the defendant on some typed, some blank papers and blank plain papers.
3.5 It has been further stated that in the month of August 2010 the plaintiff handed over one more post dated cheque bearing no. 636655 dated 30.08.2010 for the amount of Rs. 34 lacs drawn on State Bank of India, Vikas Puri Branch Delhi and again, he got thumb impression of the defendant on some typed, some blank papers and blank plain papers.
3.6 It has been further stated that however, as per the own undertaking of the plaintiff when the defendant deposited the abovesaid two cheques in the account of the defendant, both the cheques were dishonoured with the remarks "Payment Stopped by Drawer". 3.7 It has been further stated that in the month of October 2010, the plaintiff handed over two cheques bearing no. 636659 dated 10.10.2010 for the amount of Rs. 15 lacs and cheque bearing no. 507387 dated 10.10.2010 for the amount of Rs. 19 lacs both drawn on State Bank of India Vikas Puri Branch Delhi and again, he got thumb Suit No. 608395/16 Page No. 5/29 impression of the defendant on some typed, some blank papers and blank plain papers.
3.8 It has been further stated that ultimately the plaintiff failed to hand over the balance sale consideration of Rs. 2.20 crores to the defendant and as such, the only amount, which has been received by the defendant from the plaintiff is the amount of Rs. 5 lacs. It has been alleged by the defendant that the plaintiff had cheated the defendant who is an illiterate and old aged person. It has been further stated that the time period to pay the balance amount has already expired in the month of October 2010 and hence, the earnest amount stands forfeited. 3.9 It has been further stated that all the papers ie GPA dated 03.05.2010, other typed stamp papers, blank stamp papers, blank plain papers etc were cancelled by way of legal notice dated 11.11.2011 as the same were without any consideration.
3.10 It has been further stated that the plaintiff has already filed two other matters which are pending adjudication before Rohini Courts. The defendant has denied the execution of the agreement to sell dated 28.09.2009 with Sh. Vikas Saini. The defendant has denied that he had received the amount of Rs. 17 lacs from the plaintiff. Rest of the contents of the plaint have been denied by the defendant and it has been prayed that the suit of the plaintiff be dismissed with costs.
4. Replication has been filed by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement of the defendant.
5. From the pleadings of the parties, the following issues were framed by this court on 13.11.2013:-
1. Whether the plaintiff is entitled to recover a sum of Rs. 17 lacs with pendentelite from the defendant as prayed? OPP 2 Relief.Suit No. 608395/16 Page No. 6/29
EVIDENCE :
6. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex.PW1/A, he has placed on record the receipt dated 21.12.2009 as Ex.PW1/1.
6.1 In the cross-examination, PW1 states that he is running a public school by the name and style of Bharat Public School, Vikas Nagar, Vikas Puri, Delhi since 2004. PW1 further states that he has not shown the dealing of Rs. 17 lacs in respect of the present suit in his income tax returns. PW1 admits that he is an income tax assessee. PW1 further states that he used to run the business of property dealing alone. PW1 states that his son works in the abovesaid school with him and that he is not doing any other job/business. PW1 admits it to be correct that two other cases titled as Lakhan Singh Vs. Chander Bhan are pending in the court of Sh. Prashant Kumar, Ld. ADJ, Delhi. PW1 has admitted it to be correct that the amount of Rs. 33 lacs which is involved in the said suits has not been shown by him in his income tax returns. PW1 further states that his son Vikas Saini is the Director in his school since 2004.
6.2 PW1 further states that the payment of Rs. 2 lacs was paid by his son to the defendant as per the agreement to sell dated 28.09.2009. By way of volunteer, PW1 states that this payment of Rs. 2 lacs was given by him to his son for payment of the same to the defendant. PW1 further states that the agreement dated 28.09.2009 was executed in between his son and the defendant. PW1 states that he does not remember whether his son paid 10% of consideration amount to the defendant within three months of agreement to sell dated 28.09.2009 as agreed between them. By way of volunteer, PW1 states Suit No. 608395/16 Page No. 7/29 that his son Vikas Saini paid Rs. 2 lacs and thereafter, Rs. 6 lacs to the defendant. PW1 states that his son Vikas Saini has not paid any amount to the defendant after aforesaid payment of Rs. 2 lacs and Rs. 6 lacs.
6.3 PW1 further states that he paid Rs. 17 lacs to the defendant on 28.09.2009 as per the agreement to sell in between his son Vikas Saini and the defendant. PW1 further states that he paid Rs. 17 lacs in cash to the defendant as part payment of the abovesaid agreement on behalf of his son. PW1 further states that he had arranged the amount of Rs. 17 lacs from his known persons but he does not remember the names of those persons. PW1 further states that he had arranged the amount of Rs. 18 lacs from his known persons but he does not remember the names of those persons and the amount was paid by him to the defendant as part payment of the agreement to sell dated 28.09.2009. PW1 further states that he also got executed some documents ie GPA, Agreement to sell , Affidavit, Receipt and Possession Letter from the defendant in respect of land measuring about 1000 sq yards out of khasra no. 73/21 and 81/1. 6.4 PW1 further states that he had filed a civil suit against the defendant in respect of Rs. 18 lacs paid by him to the defendant and the same is pending before the court of Sh. Prashant Kumar, Ld. ADJ, Delhi but the same was for the amount of Rs. 17 lacs. 6.5 PW1 further states that the defendant had also executed GPA etc in respect of plots measuring 3430 sq. yards, 3400 sq. yards and 2600 sq.yards. PW1 further states that he had the original papers in respect of these three plots. PW1 further states that he had given the payments through cheques for these three plots to the defendant. PW1 further states that he does not remember as to in how many banks, he had his bank accounts. PW1 further states that he had given these Suit No. 608395/16 Page No. 8/29 cheques from his account. PW1 further states that all these cheques were not honoured/encashed as the defendant did not hand over possession of two plots measuring about 1000 sq. yards and 750 sq. yards to him. PW1 further states that the defendant could not arrange the NOC also from the concerned authority. PW1 further states that he stopped the payment of the abovesaid cheques as he had got information that there were some other co-sharers in the abovesaid plots and they were minor at that time.
6.6 PW1 further states that he does not remember the date and month when he requested the defendant to execute the sale deed in his favour. PW1 further states that there was only one agreement to sell/bayana agreement dated 28.09.2009 in respect of land measuring 9 bigha 8 biswas part of khasra no. 73/21 and 81/1 and the same was executed in between his son and the defendant. PW1 admits it to be correct that he had received the legal notice from the defendant which was duly replied and the copy of the said legal notice has been exhibited as Ex.PW1/DX1 and the reply as Ex.PW1/DX2.
7. The plaintiff has further examined Sh. Vikas Saini as PW2. PW2, in his evidence by way of affidavit Ex.PW2/A has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. 7.1 In the cross-examination, PW2 states that he was not doing any kind of property dealing. PW2 further states that his father is a property dealer by profession but he does not remember the month and year when his father started to work as a Property Dealer. PW2 further states that he does not remember whether he and his father have filed any other suit against the present defendant Sh. Chander Bhan. By way of volunteer, PW2 states that some cases are pending against the defendant in the Rohini Courts.
7.2 PW2 further states that he met the defendant first time on Suit No. 608395/16 Page No. 9/29 28.09.2009 and before that he never met the defendant. PW2 further states that he did not check the revenue records of the suit land in the name of the defendant before the execution of agreement to sell dated 28.09.2009.
7.3 PW2 admits it to be correct that no money was paid to the defendant before 28.09.2009 by him. PW2 further states that he does not know that if any amount was paid by his father to the defendant before 28.09.2009. PW2 further states that he does not know if his father paid Rs. 5 lacs through a cheque to the defendant on 28.09.2009 as Bayana of the agricultural land bearing Khasra No. 73/21 and 81/1 admeasuring 9 bigha 8 biswa situated in the Revenue Estate of Village Nijampur, Delhi. PW2 further states that he does not remember whether the defendant executed any GPA, Agreement to sell, Affidavit, Will, Receipt and Possession Letter in his favour in respect of the agricultural land bearing Khasra No. 73/21 and 81/1 admeasuring 9 bigha 8 biswa situated in the Revenue Estate of Village Nijampur, Delhi.
7.4 PW2 further states that the Bayana agreement dated 28.09.2009 was executed in the house of defendant. PW2 further states that at the time of execution of the bayana agreement dated 28.09.2009, he and his father, his one or two friends, defendant and his one or two friends were present in the house of defendant. PW2 further states that he does not know where the Bayana Agreement dated 28.09.2009 was typed as the same was got typed by his father. PW2 further states that he does not remember if he had made any payment to the defendant by cheque.
7.5 PW2 admits it to be correct that the defendant never filed any suit against him till date. PW2 states that the payment of Rs.2 lacs of Bayana was handed over to the defendant in his house.
Suit No. 608395/16 Page No. 10/297.6 PW2 further states that he had paid 10% of balance amount to the defendant within 3 months as agreed between them but he does not remember the date, month and year. By way of volunteer, PW2 states that he had made payment of Rs.8 lacs to the defendant. PW2 further states that the payment of 10% of balance payment was made to the defendant by his father. PW2 further states that the payment of Rs. 2 lacs for bayana agreement dated 28.09.2009 and payment of Rs. 8 lacs as aforesaid was included in 10% of balance payment which was made to the defendant by his father within 3 months of bayana agreement and this payment of Rs. 10 lacs was given in his presence by his father.
7.7 PW2 further states that the payment of Rs. 17 lacs written in his affidavit may be true but his father is well aware of all his dealings. PW2 further states that he had made the payment of Rs.17 lacs to the defendant (Rs. 12 lacs paid in cash and Rs. 5 lacs by way of cheque on 28.09.2009). PW2 further states that his father is having knowledge about the receipt of Rs. 17 Lacs.
7.8 PW2 further states that he accompanied his father to the house of defendant only twice when his father made payment of Rs.2 lacs and Rs. 8 lacs to the defendant. By way of volunteer, PW2 states that he does not remember about his visit at the time of remaining payment. PW2 further states that he does not remember when he visited the house of defendant lastly.
7.9 PW2 further states that he does not know whether he had sent any legal notice to the defendant before filing of the present suit against him. By way of volunteer, PW2 states that his father knows all about the same. PW2 further states that he never met or contacted the defendant for return of his payment of Rs. 10 lacs or in lieu of executing the sale deed in his favour. By way of volunteer, PW2 states that his Suit No. 608395/16 Page No. 11/29 father contacted the defendant in the year 2010 for getting the payment or sale deed in his favour but he does not know the date or month of his visit. PW2 has denied the suggestion that the defendant had received only Rs. 5 lacs through cheque as bayana. PW2 has denied the suggestion that they failed to make the balance payment to the defendant and so the defendant forfeited the bayana amount of Rs. 5 lacs.
8. The defendant has examined Sh. Satbir Singh Chahal, Sr. Judicial Assistant from Record Room Rohini Courts as DW1 and this witness has brought in the court the file pertaining to CS no. 64/11 titled as Chander Bhan Vs. Lakhan Singh, Ghoshwara no. 291, Civil date of decision 03.04.2014 and he has placed on record the certified copy of the order sheets, plaint, written statement and list of documents along with photocopies of documents as Ex.DW1/1.
8.1 This witness has not been cross examined by the plaintiff.
9. The defendant has further examined Sh. Ankesh Kumar, Customer Assistant, from SBI, Vikas Puri as DW2 and this witness has brought the statement of account of Lok Lahar Times bearing account no. 30261076808 and statement of account of Lakhan Singh Saini bearing account no. 10634368425. DW2 states that as per the record, Sh. Lakhan Singh Saini made an application to stop payment of cheques bearing no. 636655, 636656 and 636659 dated 12.06.2010 and the copy of the said statement of account along with covering letter is EX.DW2/1(colly).
9.1 This witness has not been cross examined by the plaintiff.
10. The defendant has further examined Sh. Jail Pal Singh Nandal, Ahlmad from the court of Sh. Manish Gupta, Ld. ADJ, North West, Rohini Courts as DW3 and this witness has brought on record the original case file titled as Lakhan Singh Vs. Chander Bhan in CS no.
Suit No. 608395/16 Page No. 12/29575835/16 and he had compared the certified copies of the order sheet dated 04.04.2016. DW3 has further compared the cross-examination of Sh. Lakhan Singh Saini dated 05.12.2015, 04.04.2016 and 14.10.2016 from the original case file brought by him and the said certified copies have been exhibited as Ex.DW3/1(colly).
10.1 This witness has also brought on record the original case file titled as Lakhan Singh Vs. Chander Bhan in CS no. 575372/16 and he had compared the cross-examination of Sh. Vikas Saini dated 28.01.2017 and 27.05.2017 from the original case file brought by him and the said certified copies have been exhibited as Ex.DW2/D1(colly).
11. The defendant has further examined his daughter in law namely Ms. Seema as DW4 and this witness in her evidence by way of affidavit Ex.DW4/A on record, has reiterated and reaffirmed the stand as taken by the defendant in its written statement. She has placed on record the certified copy of the plaint titled as Vikas Saini Vs. Chander Bhan in suit bearing CS no. 611691/16, the copy of the agreement to sell, the evidence by way of affidavit of Sh. Vikas Saini and the cross- examination of PW1 as Ex.DW4/1(colly), the copy of the cross- examination of PW2 as Ex.DW4/2.
11.1 In the cross-examination, DW4 admits it to be correct that agreement to sell/bayana agreement between Lakhan Singh Saini and Chander Bhan was executed in her presence. DW4 further states that she and her husband were there at the time of the execution of the agreement to sell/bayana agreement. DW4 further states that Sh. Lakhan Singh got the thumb impressions on typed, blank papers and blank stamp papers of her father in law Chander Bhan in her presence. DW4 further states that the total consideration amount of the transaction was Rs. 2.25 crores. DW4 further states that she does not know the rate of the land per bigha. DW4 further states that she can not Suit No. 608395/16 Page No. 13/29 tell the name of the bank, on which the cheque for the amount of Rs. 5 lacs which was given by Sh. Lakhan Singh to Chander Bhan was drawn.
11.2 DW4 further states that her husband was in jail. DW4 further states that the remaining cheques were not encashed as Lakhan Singh Saini got the payment of the said cheques stopped from his account.
12. The defendant has further examined Sh. Rakesh Kumar S/o Sh. Hari Narayan Thakur, Assistant Manager, ICICI Bank, G-2, Vikas Puri, New Delhi as DW5 and this witness has brought the bank statement of the Account no. 629601513457 which is in the name of Lakhan Singh Saini. DW5 has placed on record the attested copies of the same as Ex. DW5/1. DW5 further states that as per their record, the payment of cheque bearing no. 032469 for an amount of Rs. 19 lacs was stopped by the account holder Lakhan Singh Saini and he has placed on record the attested copy of cheque details report as Ex. DW5/2.
12.1 This witness has not been cross examined by the Ld. Counsel for the plaintiff.
13. The defendant has further examined his son namely Sh. Rajender Kumar as DW6 and this witness in his evidence by way of affidavit Ex.DW6/A on record, has reiterated and reaffirmed the stand as taken by the defendant in his written statement. 13.1 In the cross-examination, DW6 states that the thumb impressions were affixed by his father Chander Bhan in his physical presence on the blank stamp papers and blank plain papers. DW6 further states that the cheque for the amount of Rs. 5 lacs was issued by the plaintiff in favour of his father at the time of execution of the initial agreement to sell. DW6 admits it to be correct that on the initial Suit No. 608395/16 Page No. 14/29 agreement to sell, his father had affixed the thumb impressions. DW6 further states that the plaintiff was told that one of his brothers had expired. DW6 further states that the NOC was not obtained from the wife and children of his deceased brother. By way of volunteer, DW6 further states that the land was in the name of his father and there was no need to obtain the NOC from the legal heirs of his deceased brother. 13.2 DW6 further states that no NOC was obtained even from the sisters. By way of volunteer, DW6 states that his all the four sisters are married and settled. DW6 states that his father did not sign or put his thumb impression on the documents for Rs. 2 lacs or Rs. 8 lacs. DW6 further states that neither his father nor he himself lodged any complaint against the plaintiff for allegedly obtaining the thumb impression of his father. By way of volunteer, DW6 states that his father instituted a court case. DW6 states that no criminal case was however instituted. DW6 states that he had not come out of the jail on parole. By way of volunteer, DW6 states that he had been acquitted. 13.3 The affidavit of the defendant Sh. Chander Bhan was also filed but he failed to produce himself for his cross-examination as it was stated before the court that he was under going treatment of hearing loss and as such, his evidence cannot be read.
14. I have carefully gone through the entire material available on record and heard the rival submissions of both the Ld. counsels for the parties. I have also meticulously perused the written arguments filed on record by the Ld. Counsel for the defendant.
15. My issue wise findings on the abovesaid issues is as under:
Issue no. 1
16. Issue no.1 pertains to the prayer clause of the present suit and as such, the onus to prove this issue has been placed upon the Suit No. 608395/16 Page No. 15/29 plaintiff.
17. The main aspects of the factual controversy involved in the present suit and the crux of the evidence led by both the parties has already been narrated herein above.
18. During the course of final arguments, Ld. Counsel for the plaintiff has argued that the suit of the plaintiff is based upon the agreement to sell dated 28.09.2009. It has been further argued that there are contradictions in the testimonies of DW4 and DW6. It has been further argued that DW6 is the son of the defendant and DW4 is the daughter-in-law of the defendant and there are material contradictions in their testimonies. It has been further argued that DW4 and DW6 have admitted the execution of sell dated 28.09.2009. It has been further argued that the plaintiff has been able to prove the receipt for the amount of Rs. 17 lacs Ex.PW1/1. It has been further argued that the defendant failed to produce himself in the witness box and that is why, the case of the plaintiff stands proved.
19. Whereas on the other hand, in the written final arguments, the defendant has relied upon the following authorities:-
1 Case titled as Indira Rai Vs. Bir Singh reported in 176(2011) DLT 301 of the Hon'ble High Court of Delhi.
2 Case titled as Satish Batra Vs. Sudhir Rawal reported in 2012 STPL(Web.) 614 decided by the Hon'ble Supreme Court of India. 3 Case titled as Mamta Goyal Vs. Ramgopal reported in 2016(2) CCC 176 (SC) decided by the Hon'ble Supreme Court of India. 4 Case titled as Sidhartah Tayal Vs. Dinesh Goel and Anr. Reported in 237(2017) DLT 733 decided by the Hon'ble High Court of Delhi.
20. Ld. Counsel for the defendant during the course of the arguments has vehemently argued that the receipt Ex.PW1/1 has not been proved at all. It has been further argued that there are vital Suit No. 608395/16 Page No. 16/29 contradictions in the testimonies of PWs. It has been further argued that not only the agreement to sell dated 28.09.2009 but the receipt Ex.PW1/1 has also been categorically denied by the defendant. It has been further argued that the plaintiff has not been able to prove that he has any source of income. It has been further argued that the testimony of PW1 and that of his son, who has been examined as PW2 is in stark contravention to each other. It has been further stated that the plaintiff has placed on record the certified copies of the pleadings and the evidence of other suits in between the parties to the present suit showing that the stand of the plaintiff as contained in the present suit is entirely different from the stand of the plaintiff as contained in other suits. It has been argued that the suit of the plaintiff is liable to be dismissed.
21. The suit of the plaintiff is squarely based upon the alleged agreement to sell dated 28.09.2009 and the receipt for the amount of Rs. 17 lacs which was allegedly executed by the defendant Ex.PW1/1 on record. As per the own submission of the plaintiff, the agreement to sell dated 28.09.2009 was executed in between his son Vikas Saini and the defendant herein. The said agreement to sell, admittedly, was not executed in between the plaintiff and the defendant herein.
22. Be that as it may. The vital question to be considered by this court is as to whether the plaintiff has been able to prove that he had handed over the amount of Rs. 17 lacs to the defendant on 21.12.2009 and that the receipt Ex.PW1/1 was duly executed by the defendant in favour of the plaintiff.
23. The plaintiff, in his cross-examination, has categorically admitted that he has not shown the amount of Rs. 17 lacs in his income tax returns despite the fact that he is an income tax assessee. PW1 has further stated in his cross-examination that the amount of Rs. 17 Suit No. 608395/16 Page No. 17/29 lacs was paid by him in cash to the defendant as part payment of the abovesaid agreement on behalf of his son and he had arranged the amount of Rs. 17 lacs from his known persons but he does not even remember the names of those persons. Needless to mention that the abovesaid alleged persons from whom the amount of Rs. 17 lacs was arranged by PW1 have not been examined at all by the plaintiff.
24. The agreement to sell dated 28.09.2009 has not been placed on record at all by the plaintiff in the present matter. In the plaint, in his evidence by way of affidavit as well as in his cross- examination, PW1 has categorically asserted that time and again, GPA, Agreement to Sell, Possession Letter were executed by the defendant in his favour but the same have neither been proved on record nor the same have been exhibited by PW1 in his affidavit or in the affidavit of PW2.
25. If the testimony of PW2 is carefully gone through, to my mind, it becomes evidently and apparently clear that his testimony is in stark contravention to the testimony of his own father, who has been examined as PW1. The cross-examination of PW2, in the considered opinion of this court, makes it amply clear that his testimony cannot be relied upon at all as his evidence, at the most can be considered as an hearsay evidence. PW2 is not aware as to whether his father had paid the cheque for the amount of Rs. 5 lacs on 28.09.2009. PW2 is not aware as to whether the bayana agreement dated 28.09.2009 got typed. He does not remember whether 10% of the balance amount was paid within 3 months of the bayana agreement.
26. PW2 in his cross-examination states that he does not know if any amount was paid by his father to the defendant before 28.09.2009. PW2 does not know if his father paid Rs. 5 lacs through cheque to the defendant on 28.09.2009 as earnest money of the Suit No. 608395/16 Page No. 18/29 agricultural land falling in khasra no. 73/21 and 81/1 situated in the area of Village Nizampur Kanjhawala Delhi admeasuring 9 bigas 8 biswas. PW2 states that he is not aware as to whether the defendant had executed GPA, Affidavit, Receipt, Possession letter etc in favour of his father. PW2 further states that he does not remember if he has made any payment to the defendant by way of cheque. PW2 further states that the payment of Rs. 17 lacs which has been written in his affidavit may be true but his father is well aware of the dealings. PW2 further states that he had made payment of Rs. 17 lacs to the defendant but PW1 states that he had made the payment of Rs. 17 lacs to the defendant.
27. During the course of the arguments, Ld. Counsel for the plaintiff has relied upon the certified copy of the judgment dated 06.08.2018 in civil suit bearing Lakhan Singh Vs. Rajbir Singh and has argued that the abovesaid suit was decided in favour of the plaintiff for the amount of Rs. 5 lacs together with the interest which was based on the similar facts.
28. I have gone through the certified copy of the abovesaid judgment. I am of the opinion that the factual matrix involved in the abovesaid suit is entirely different from the factual matrix involved in the present suit.
29. DW4 and DW6 are the son and daughter-in-law of the defendant. Both these witnesses have been cross examined in detail by the plaintiff but the receipt Ex.PW1/1 has not been confronted at all to both the abovesaid witnesses by the plaintiff during their entire cross- examination. As such, I am of the opinion that the plaintiff has utterly failed to put his case to the material witnesses of the defendant during their cross-examination.
30. It is true that the defendant has failed to appear in the Suit No. 608395/16 Page No. 19/29 witness box but it has to be seen that the evidence by way of affidavit of the defendant was filed and his affidavit was also tendered but on account of hearing loss, he failed to appear before the court.
31. Needless to mention that none of the attesting witnesses to the receipt dated 21.12.2009 Ex.PW1/1 has been examined at all by the plaintiff. I am of the opinion that in the written final arguments filed on record by the defendant, it has been rightly argued that in the reply to the legal notice dated 29.01.2011, the plaintiff has stated that the total amount of the land was settled at Rs. 1.65 crores but in para no.1 of the preliminary objections in the written statement filed by the plaintiff herein ie by Sh. Lakhan Singh in the case titled as Chander Bhan Vs. Lakhan Singh, the total amount of the land has been stated as Rs. 1,00,82,000/-. Needless to mention that the payment of the cheques which were allegedly given by the plaintiff to the defendant was got stopped except the admitted payment of Rs. 5 lacs by way of cheque which was handed over by the plaintiff to the defendant and which was received by the defendant.
32. In the light of the abovesaid discussion, I have no hesitation to hold that the plaintiff has utterly failed to prove the receipt Ex.PW1/1 for the amount of Rs. 17 lacs.
33. Ld. Counsel for the defendant has argued that there are contradictions in the testimonies of DW4 and DW6. If the cross- examination of DW4 and DW6 is carefully gone through, to my mind, it becomes apparent that the thumb impression of the defendant on the initial agreement to sell dated 28.09.2009 have been admitted but, the payment of the amount of Rs. 2 lacs and Rs. 8 lacs by the son of the plaintiff and the payment of Rs. 17 lacs by the plaintiff stand categorically denied.
34. Civil cases are decided by applying the test of Suit No. 608395/16 Page No. 20/29 preponderance of probabilities. It is true that the thumb impressions of the defendant on the initial agreement to sell dated 28.09.2009 have been admitted by DW6 but, if the cross-examination of PW2 is carefully gone through, to my mind, it is apparently clear that he has utterly failed to prove the payment of Rs. 2 lacs or the payment of Rs. 8 lacs. PW2, in the cross-examination states that he had paid 10% of the balance amount to the defendant within 3 months but he does not remember the date, month and year. PW2 further states that he had made the payment of Rs. 8 lacs to the defendant. PW2 again states that the payment of 10% of the balance payment was made to the defendant by his father. PW2 again states that the payment of Rs. 2 lacs for the bayana amount dated 28.09.2009 and the payment of Rs. 8 lacs was inclusive in 10% of the balance payment which was made to the defendant by his father.
35. To my mind, the abovesaid cross-examination of PW2 and the cross-examination of PW1 also is sufficient in itself to demolish the entire stand of the plaintiff. The plaintiff has utterly failed to prove either the payment of Rs. 2 lacs or the payment of Rs. 8 lacs by his son or the payment of Rs. 17 lacs by him to the defendant.
36. Though the defendant has taken the stand that the amount of Rs. 5 lacs has been forfeited by him as the plaintiff failed to perform his part of the contract but the fact remains that the defendant has admitted the receipt of the amount of Rs. 5 lacs in clear cut and unequivocal terms by way of cheque.
37. In the judgment dated 18.08.2015 passed in CS (OS) no. 2049/2011 titled as Sh. Ranbir singh & Anr. Vs. Sh. Bhup Singh & Ors. , the Hon'ble High Court of Delhi in paras no.3,4 and 7 held as under:-
Para no.3 The aforesaid order was passed that even assuming the plaintiffs/proposed buyers are Suit No. 608395/16 Page No. 21/29 guilty of breach of contract and have failed to go ahead with the agreement to sell by getting the sale deed executed in favour of the plaintiffs, yet. In view of the two Supreme Court judgments stated in the Order dated 15.07.2015, the defendants/proposed sellers cannot forfeit the entire amount inasmuch as seller is entitled to forfeit the amount paid as liquidated damages by virtue of Section 74 of the Indian Contract Act, 1872, the liquidated damages only as the upper limit of the amount which can be forfeited and that too after pleading and proving the loss and further that in case the amount forfeited is in the nature of penalty, forfeiture cannot be made.
Para no. 4 The Constitution Bench of the Supreme Court in the judgment in the case of Fateh Chand Vs. Balkishan Dass, AIR 1963 SC 1405 has held that mere breach of contract is not actionable but loss caused on account of breach of contract is actionable. This is also the language of Section 73 of the Indian Contract Act. Putting it differently, unless loss is caused, a seller who has received the amount under the agreement to sell is not entitled to forfeit the complete amount received. In a contract to sell an immovable property, only a nominal amount can be forfeited and if an amount higher than a nominal amount is sought to be forfeited, then in view of the fact that the nature of such a contract is such that loss can be proved(bu difference in market Suit No. 608395/16 Page No. 22/29 value of the property on the date of breach as compared to the agreed price) hence the issue of damages claimed by forfeiture of advance amount paid can only arise if loss is pleaded and proved by the seller who seeks to forfeit the advance amount paid by the buyer to the seller. The relevant paras in Fateh Chand's case (supra) read as under:-
"8. The claim made by the plaintiff to forfeit the amount of Rs 24,000 may be adjusted in the light of Section 74 of the Indian Contract Act, which in its material part provides:- "When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or as the case may be, the penalty stipulated for."
The section is clearly an attempt to eliminate the sometime elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties: a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation.
The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law, by enacting a uniform principle Suit No. 608395/16 Page No. 23/29 applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty.
10. Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a contract containing a covenant of forfeiture of deposit for due performance of a contract falls within the first class.
The measure of damages in the case of breach of a stipulation by way of penalty is by Section 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the Court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the Court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the Court duty to award compensation according to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract, whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of "actual loss or damage"; it does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted, because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breach.
15. Section 74 declares the law as to liability upon breach of contract where compensation is by Suit No. 608395/16 Page No. 24/29 agreement of the parties pre-determined, or where there is a stipulation by way of penalty. But the application of the enactment is not restricted to cases where the aggrieved party claims relief as a plaintiff. The section does not confer a special benefit upon any party; it merely declares the law that notwithstanding any term in the contract predetermining damages or providing for forfeiture of any property by way of penalty, the court will award to the party aggrieved only reasonable compensation not exceeding the amount named or penalty stipulated. The jurisdiction of the court is not determined by the accidental circumstance of the party in default being a plaintiff or a defendant in a suit. Use of the expression "to receive from the party who has broken the contract" does not predicate that the jurisdiction of the court to adjust amounts which have been paid by the party in default cannot be exercised in dealing with the claim of the party complaining of breach of contract. The court has to adjudge in every case reasonable compensation to which the plaintiff is entitled from the defendant on breach of the contract. Such compensation has to be ascertained having regard to the conditions existing on the date of the breach.
16. There is no evidence that any loss was suffered by the plaintiff in consequence of the default by the defendant, save as to the loss suffered by him by being kept out of possession of the property. There is no evidence that the property had depreciated in value since the date of the contract provided; nor was there evidence that any other special damage had resulted. The contact provided for forfeiture of Rs 25,000 consisting of Rs, 1039 paid as earnest money and Rs 24,000 paid as part of the purchase price. The defendant has conceded that the plaintiff was entitled to forfeit the amount of Rs 1000 which was paid as earnest money. We cannot however agree with the High Court that 13 percent of the price may be regarded as reasonable compensation in relation to the value of the Suit No. 608395/16 Page No. 25/29 contract as a whole, as that in our opinion is assessed on an arbitrary assumption. The plaintiff failed to prove the loss suffered by him in consequence of the breach of the contract committed by the defendant and we are unable to find any principle on which compensation equal to ten percent of the agreed price could be awarded to the plaintiff. The plaintiff has been allowed Rs 1000 which was the earnest money as part of the damages. Besides he had use of the remaining sum of Rs 24,000, and we can rightly presume that he must have been deriving advantage from that amount throughout this period. In the absence therefore of any proof of damage arising from the breach of the contract, we are of opinion that the amount of Rs 1000 (earnest money) which has been forfeited, and the advantage that the plaintiff must have derived from the possession of the remaining sum of Rs 24,000 during all this period would be sufficient compensation to him. It may be added that the plaintiff has separately claimed mesne profits for being kept out possession for which he has got a decree and therefore the fact that the plaintiff was out of possession cannot be taken, into account in determining damages for this purpose. The decree passed by the High Court awarding Rs.11,250 as damages to the plaintiff must therefore be set aside."
Para no. 7 In view of the above, a substantial amount of Rs. 20,71,000/- cannot be forfeited by the defendants/sellers simply on the ground that there is such clause entitling forfeiture in the contract. There cannot be forfeiture once there is no pleading of any loss being caused to the defendants on account of breach of contract by the plaintiffs. In my opinion, the defendants at best be entitled to forfeit only a nominal amount of the advance amount paid and therefore I allow the defendants forfeiting the 10% of the amount paid of Rs.20,71,000/-. Therefore, the defendants are liable to pay to the plaintiffs a sum of Rs.18,63,900/- and a decree for this amount is Suit No. 608395/16 Page No. 26/29 passed in favour of the plaintiff. Since the defendants have enjoyed the money of the plaintiffs, plaintiffs will also be entitled to interest at 6% per annum simple pendente lite and future till payment of this amount of Rs.18,63,900/-. I may note that the defendant no.1 had died during the pendency of the suit and counsel for the plaintiffs admits that since the legal heirs of defendant no.1 were not brought on record, the suit will stand abated as against the legal heirs of defendant no.1 and thus the decree will only be passed and executed against defendant nos. 2 and 3. Decree sheet be prepared accordingly.
Perusal of the said judgment dated 18.08.2015 passed by the Hon'ble High Court of Delhi reveals that the defendant was allowed to forfeit 10% of the amount paid which was Rs. 20.71 lacs.
38. Keeping in view the ratio of the above stated authority, I am of the opinion that the defendant is allowed to forfeit 10% of the amount, out of the total amount of Rs. 5 lacs, which has already been paid by the plaintiff to the defendant ie Rs. 50,000/- and the plaintiff is held entitled for recovery of the balance amount of Rs. 4.50 lacs. The plaintiff shall also be entitled for the interest @ 9% per annum simple pendentelite and future interest from the date of the filing of the suit till the date of the payment of the decreetal amount. Issue no.1 stands decided accordingly.
RELIEF:
39. In the light of my findings on the foregoing issues, the suit of the plaintiff is decreed for an amount of Rs. 4.50 lacs along with the interest @ 9% per annum from the date of the filing of the present suit till the date of the realization of the decreetal amount. The costs of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader, after Suit No. 608395/16 Page No. 27/29 payment of the additional court fees, if any.
File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR) on this 12th day of December 2019. ADDITIONAL DISTRICT JUDGE (WEST) Tis Hazari Courts, Delhi.
RAJ
KUMAR
Digitally signed by
RAJ KUMAR
Date: 2019.12.19
10:04:46 +0530
Suit No. 608395/16 Page No. 28/29
CS no.608395/16
12.12.2019
Present : None.
Vide my separate judgment of even date, announced in the open court today, the suit of the plaintiff has been partly decreed for the amount of Rs. 4.50 lacs along with interest @ 9% per annum from the date of the filing of the present suit till the date of the realization of the decreetal amount. Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly by the Reader. File be consigned to record room after necessary compliance.
(Raj Kumar) ADJ (West) Delhi/12.12.2019 Suit No. 608395/16 Page No. 29/29 Suit No. 608395/16 Page No. 30/29