Delhi District Court
Suit No. 1152/11/06 vs Sh. Ram Kishore Prasad Gupta on 5 September, 2012
IN THE COURT OF SH. PRANJAL ANEJA, CIVIL JUDGE-06 (North)
TIS HAZARI COURTS, DELHI
Suit No. 1152/11/06
Ms. Pinki,
D/o Sh. Upendra Prasad Singh,
R/o P-4/277, Sultanpuri,
Delhi-86. .......... Plaintiff.
Vs.
Sh. Ram Kishore Prasad Gupta,
S/o Sh. Jagdish Prasad Gupta,
R/o P-4/268, Sultanpuri,
Delhi-82. ........... Defendant.
Date of Institution: 02.06.2008
Date of order reserved for Judgment: 29.08.2012
Date of Judgment: 05.09.2012
Suit for specific performance
JUDGMENT
1. The present suit has been filed by plaintiff seeking the relief of specific performance of contract in respect of mortgage deed and receipt both dated CS No. 1152/11 Pinki Vs. Ram Kishore Prasad Gupta Page No. 1 of 8 15.10.2007 against the defendant with cost of litigation.
2. The brief facts of the case are that the plaintiff states the defendant to be her neighbour having good friendly terms. That the plaintiff, at the request of defendant, advanced Rs. 1,50,000/- to him on 15.10.2007 at an interest of 2% per month for 2 and half months. Against the security of the said loan amount, the defendant has pledged the titled documents of his property bearing no. P4/268, Sultanpuri, Delhi with the plaintiff and also executed a mortgage deed and receipt both dated 15.10.2007 and as per the terms of the said mortgage deed the defendant shall pay the amount of Rs. 1,57,500/- (principle Rs. 1,50,000/- and interest Rs. 7,500/-) upto 31.12.2007 and in case of failure to pay the said amount within the stipulated period, then the defendant shall transfer the said mortgaged property in favour of the plaintiff and shall hand over its peaceful possession to the plaintiff. On failure of the defendant to pay the said amount upto 31.12.2007 and even thereafter, the plaintiff approached the defendant but the defendant did not pay any amount. The plaintiff also served a legal notice dated 01.02.2008 vide registered AD dated 02.02.2008 upon the defendant but the defendant sent false and bogus reply dated 12.02.2008 through his counsel. That the suit is valued for the purpose of court fees and jurisdiction at Rs. 1,57,500/- and the advelorum court fees upon it has been paid. Thus, the plaintiff is entitled to decree of specific performance against the CS No. 1152/11 Pinki Vs. Ram Kishore Prasad Gupta Page No. 2 of 8 defendant thereby directing the defendant to comply his part of contract as per the mortgage deed and receipt both dated 15.10.2007 ie. Either to pay the amount of Rs. 1,57,500/- with an interest of 24% per annum from 01.01.2008 till realisation or to transfer and hand over the possession of the above mentioned property in favour of the plaintiff along with costs.
3. WS has been filed on behalf of defendant denying the averments of the plaintiff. It is stated in the WS that plaintiff has suppressed the material facts and has not come clean hands. That on 17.05.2005 the defendant had taken Rs. 7,500/- as loan from Sudhir for medical treatment of his son and the father of the plaintiff introduced the defendant with the said Sudhir. That the plaintiff and her father are having bad eyes over the property of the defendant and therefore, in collusion with the father of the plaintiff the said Sudhir has taken the signature of the defendant on some blank papers and stamp papers and also taken the original papers ie. GPA, possession/ allotment slip in respect of the defendant property by the said Sudhir. That now the plaintiff in collusion with her father Sh. Upender Pratap Singh and the said Sudhir, is misusing the said blank papers and stamp papers signed by the defendant. That the defendant is the absolute owner and in possession of the suit property. That the suit of the plaintff is liable to be dismissed as it is based upon fake and concocted story. The defendant also lodged complaint with police authorities but police has not CS No. 1152/11 Pinki Vs. Ram Kishore Prasad Gupta Page No. 3 of 8 taken any action.
4. Replication was filed by the plaintiff wherein the averments of the WS have been denied and those of the plaint have been reiterated.
5. Vide order dated 05.11.2009 my ld. Predecessor framed the following issues:-
(i) Whether the plaintiff is entitled to a decree of specific performance as prayed for along with costs of the suit? OPP.
(ii) Whether the suit of the plaintiff is not maintainable in its present form? OPD.
(iii) Whether the plaintiff has not approached the court with clean hands and has suppressed the material facts from this court? OPD.
(iv) Whether the suit of the plaintiff is not property valued for the purpose of court fees and jurisdiction? OPD.
(v) Relief.
6. To substantiate her case, the plaintiff herself appeared in the witness box as PW-1 and filed her evidence by way of affidavit as Ex PW 1/A1. The plaintiff also examined two other witnesses Sh. Vikram Goswami as PW-2 and Sh. Om Prakash Chaudhary as PW-3. In documentary evidence, the plaintiff filed mortgage deed and receipt as Ex PW 1/A and Ex PW 1/B respectively, legal notice Ex PW 1/C, UPC and speed post receipt as Ex PW 1/D and Ex PW 1/E respectively, reply to legal notice Ex PW 1/F. Plaintiff also filed other documents such as possession slip, GPA, affidavit, agreement to sell and receipt but the same were neither relied upon in her evidence by way of affidavit nor exhibited CS No. 1152/11 Pinki Vs. Ram Kishore Prasad Gupta Page No. 4 of 8 in evidence. On the other hand, the defendant did not appear to cross-examine any of the PWs and on account of non-presence he was proceeded Ex-parte.
The application for setting aside the ex-parte order was allowed on 25.04.2011 but the defendant again did not cross-examined the plaintiff's witness and therefore, the right of the defendant to cross-examine PW was closed vide order dated 08.11.2011 and the matter proceeded for final arguments.
7. I have heard the arguments of ld. Counsel for the plaintiff and perused the record.
8. My issue-wise disposal of the present suit is as under:-
Issue No. (i) Whether the plaintiff is entitled to a decree of specific performance as prayed for along with costs of the suit? OPP.
The onus to prove this issue is upon the plaintiff. It is the case of the plaintiff that at request of defendant she granted a loan of Rs. 1,50,000/- to him @ 2% per month interest for a period of 2 and half months against which the defendant pledged the title documents of his property and also executed a mortgage deed and receipt both dated 15.10.2007 and as per the mortgage deed the defendant had to repay Rs. 1,57,500/-, which includes interest, to the plaintiff upto 31.12.2007 failing which the defendant shall transfer the mortgaged property in favour of the plaintiff and shall also hand over vacant possession to her. Plaintiff has averred that the defendant has failed to repay the abovesaid loan amount with interest and has also not performed his part of the contract i.e. mortgage CS No. 1152/11 Pinki Vs. Ram Kishore Prasad Gupta Page No. 5 of 8 deed. Even upon serving the legal notice, the defendant has failed to perform his part on the contract and has falsely replied to the said notice. The defendant has in his WS denied to the fact of taking loan from the defendant and has rather alleged that he had taken Rs. 7,500/- from one Sudhir who was introduced to him by the father of the plaintiff and it is in collusion with the father of the plaintiff that the said Sudhir had taken signatures of the defendant on some blank papers and stamp papers and also taken the original papers in respect of the property in question. Thus, the plaintiff is taking benefits out of those documents.
9. The plaintiff has based the present suit for specific performance upon the alleged mortgage deed and receipt both dt. 15.10.2007 which are Ex PW 1/A and Ex PW 1/B respectively. But it is pertinent to note here that the said mortgage deed and receipt are unregistered documents. As per section 17(1) of the Registration Act, 1908 the said documents ie. mortgage deed and receipts were to be compulsorily registered and therefore, the said documents cannot be read/ received in evidence in view of the provision as contained in section 49 of Registration Act. Thus, the terms of the mortgage deed and receipt such as amount of loan granted and the property mortgaged etc. which are essential terms of a mortgage deed cannot be read/ received in evidence in a case where the said documents are unregistered. It is the case in hand wherein the terms of CS No. 1152/11 Pinki Vs. Ram Kishore Prasad Gupta Page No. 6 of 8 the said mortgage deed and receipt ie. Ex PW 1/A and 1/B respectively cannot be read in evidence. Plaintiff has also examined PW-2 & PW-3 who are attesting witnesses to the said documents Ex PW 1/A and 1/B. Their depositions are also of no use as they have been called to prove the said documents which are unregistered. In respect of the loan granted to the defendant, the plaintiff has not brought any other evidence independent of the said documents ie. Mortgage deed and receipt which could show that she had granted a loan of Rs. 1,50,000/- to the defendant on 15.10.2007 @ 2% interest per month for a period of 2 and half months. Thus, the plaintiff has failed to prove the facts as mentioned in her plaint. It is also to be noted that plaintiff has not relied upon or mentioned in her affidavit any other document such as possession slip, GPA etc. filed by her on record. Although, defendant only filed WS and did not led any evidence to prove his averments, but the plaintiff has to stand on his own legs and prove his case by cogent, reliable and independent evidence, which the plaintiff has failed to do in the present case. Thus, this issue is decided against the plaintiff.
Issue No. (ii) Whether the suit of the plaintiff is not maintainable in its present form? OPD.
Issue No. (iii) Whether the plaintiff has not approached the court with
clean hands and has suppressed the material facts
from this court? OPD.
Issue No. (iv) Whether the suit of the plaintiff is not properly valued for
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the purpose of court fees and jurisdiction? OPD.
The onus to prove the above three issues was upon the defendant but the defendant did not filed any evidence and therefore, did not discharge his onus. Hence, these issues are decided against the defendant.
10. RELIEF.
In light of the above findings on various issues, the plaintiff has failed to establish her case and therefore, the present suit is dismissed. File be consigned to record room.
Announced in open court (PRANJAL ANEJA)
on 05.09.2012. CIVIL JUDGE-06, NORTH,
THC/Delhi/05.09. 2012.
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