Delhi District Court
M/S. Ashlar Stones (P) Ltd vs M/S. Talwar Sons on 24 November, 2018
IN THE COURT OF SH. ANKUR JAIN: ADDL. DISTRICT
JUDGE-10 (CENTRAL): DELHI.
Suit no. : 258/17
New No. : 12742/16
M/s. Ashlar Stones (P) Ltd.
Through its director Sh. N.K. Lamba
S/o Shri S.R. Lamba
R/o S-46, Greater Kailash-I
New Delhi - 110048. ....Plaintiff
VERSUS
1. M/s. Talwar Sons
Through its partner Mr. Mehtab Singh
S/o Late Sh. Jagjit Singh
M-4, Greater Kailash Market
New Delhi - 110048
Also at
9/6047, Shivaji Street
Gandhi Nagar, Delhi.
2. Mrs. Harbans Rani Talwar (since deceased through Lrs)
A. Sh. Kuldeep Singh
S/o Late sh. Jagjit Singh
R/o 14/13, Ground floor, Krishna Nagar,
Delhi.
B. Ms. Meenu Ghosh
D/o Late Sh. Jagjit Singh
R/o 14/13, Ground floor, Krishna Nagar,
Delhi.
3. Mr. Harjit Singh
S/o Late Jawand Singh
R/o 9/6331, Netaji Street, Gandhi Nagar,
Suit no. : 258 of 2017 Page no. 17 of 17
Delhi.
4. Mr. Khusbir Singh
S/o Late Jawand Singh
R/o 40/28, CR Park,New Delhi.
5. Mr. Mehtab Singh
S/o Late Sh. Jagjit Singh
R/o 9/6047, Shivaji Street
Gandhi Nagar, Delhi.
6. Sh. Manmohan Singh
S/o Late Sh. Jagjit Singh
R/o 9/6047, Shivaji Street
Gandhi Nagar, Delhi.
7. Mrs. Geeta Talwar
W/o Late Sh. Bhagwan Singh
M-4, Greater Kailash-I (Market)
New Delhi - 110048. ....Defendants
Suit instituted on : 18.05.2001
Reserved for order : 25.09.2018
Order announced on : 24.11.2018
Suit for possession and for recovery of Rs. 3,69,000/- and
for Permanent Injunction
J U D G M E N T:-
01. The present suit has been filed by the plaintiff seeking possession of one shop in property bearing no. M4, G.K.-I (hereinafter referred to as suit property) which has been let out to defendant no.1. It is the case of the plaintiff that they had Suit no. : 258 of 2017 Page no. 17 of 17 entered into an agreement and a sum of Rs. 9,00,000/- was given to the defendant and a receipt-cum-agreement dated 19.04.1995 was executed. As per the agreement the plaintiff was to pay balance sum of Rs. 81,00,000/- at the time of vacating the property and it was agreed that in the event the defendant did not vacate the suit premises on or before 18.08.1995, the defendants would be liable to pay rent @ Rs. 9,000/- per month. It is the case of the plaintiff that defendant did not vacate the premises and were accordingly liable to pay rent @ Rs. 9,000/- per month. The rent having exceeded the amount of Rs. 3,500/- the premises did not come within the preview of Delhi Rent Control Act. The tenancy was terminated vide notice dated 13.01.2000 and despite service of notice defendant did not vacate the suit premises. Thus, the present suit came to be filed.
02. Joint written statement was filed by the defendant no. 1 to 7 wherein it is stated that defendants are the tenant under the plaintiff in respect of the suit premises at a monthly rent of Rs. 450/- and this court does not have the jurisdiction as the jurisdiction lies with the Civil Court. It was also stated that plaintiff has forged the receipt cum agreement dated 19.04.1995 by adding "the lessees shall pay Rs. 9,000/- per month as Suit no. : 258 of 2017 Page no. 17 of 17 rent w.e.f. 18.08.1995 in case of our not vacating the premises". The execution of the settlement between the plaintiff and defendant no. 1 was admitted barring the addition. The defendant also admitted that they had received a sum of Rs. 9,00,000/- from the plaintiff but the plaintiff never paid the balance amount of Rs. 81,00,000/- as per the agreement and therefore, the amount of Rs. 9,00,000/- was forfeited. The defendant also set up a plea that two sets of receipt-cum- agreement were prepared. One was in the possession of plaintiff and the other was with the defendant. The one in possession of the defendant did not contain the clause in respect of enhanced rent. Replication to the written statement was filed denying the contents of the written statement and reiterating the averments made in the plaint.
03. On the pleadings of the parties vide order dated 28.05.2002 following issues were framed:-
1. Whether the plaintiff is a private limited incorporated company and Sh. N.K. Lamba is authorized to sign and verify the pleadings?
2. Whether the plaintiff is the owner of the suit property as alleged?
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3. Whether the tenancy of the defendant has been validly terminated as alleged ?
4. Whether the plaintiff is entitled to the possession and the amount claimed in the prayer clause?
5. Relief.
04. In order to prove its case plaintiff examined Sh. N.K. Lamba as PW1, Mrs. R.K.Vij handwriting Expert as PW-2.
Thereafter PE was closed on 14.09.2005.
05. Defendant in its support has examined Sh. Mehtab Singh as DW-1, Sh. Kuldeep Singh as DW-2 thereafter DE was closed on 28.04.2007.
06. Vide order dated 20.10.2007, the predecessor of this Court had directed that Ex.PW1/6 (alleged receipt-cum- agreement) and Ex.DW1/16 (copy of the alleged receipt-cum- agreement) be sent to CFSL for comparison. The documents were sent to CFSL and Sh. D.R. Handa gave his report and was examined as a Court witness. Vide order dated 21.03.2009, again the documents were sent to CFSL alongwith the admitted Suit no. : 258 of 2017 Page no. 17 of 17 signatures and this time Dr. Reeta Rani Gupta gave her report and she was also examined as a court witness.
07. Ld. Counsel for the plaintiff has argued that only one receipt was prepared which is proved by the testimony of PW1 and once the execution of the receipt is proved, the defendant having not vacated the premises are deemed to have become the tenant at a monthly rent of Rs. 9,000/- per month. She has also argued that defendant herein had filed a standard rent petition before the Rent Controller in that petition, an amendment application was filed by the plaintiff herein, in reply thereto defendant filed another application u/o 11 rule 17 CPC wherein they had sought for the inspection of Ex. PW1/6 and also admitted that there is only one receipt-cum-agreement prepared. She thus submits that the defendant's plea that two sets were prepared is false and as such liable to be rejected. The tenancy was validly terminated vide legal notice, the receipt of which is not denied hence the plaintiff is entitled to Decree of possession and mesne profits.
08. On the other hand Ld. Counsel for the defendant has argued that the agreement Ex. PW1/6 even if it is taken at its face Suit no. : 258 of 2017 Page no. 17 of 17 value, the agreement has not been honored with by the plaintiff nowhere in the pleadings plaintiff has stated that he had tendered the balance amount to the tune of Rs. 81,00,000/- or he was ready or willing to do so. He has further argued that two copies of agreement was prepared and plaintiff has committed forgery by adding the lines and has relied upon the testimony of expert witness.
09. I have heard the Ld. Counsels of the parties and perused the record.
10. My issue-wise findings are as under:-
11. Issue no. 1:-
Whether the plaintiff is a private limited incorporated company and Sh. N.K. Lamba is authorized to sign and verify the pleadings?
PW-1 in his testimony has relied upon the Certificate of Incorporation which has been exhibited as Ex. PW1/1, the board resolution has been exhibited as Ex. PW1/2. There is no cross examination or suggestion to this witness whereby the authenticity of these two sets of documents have been Suit no. : 258 of 2017 Page no. 17 of 17 impeached in the cross examination. In fact no objection was taken by the defendant with respect to the mode of proof, when these documents were exhibited.
12. Both these documents stand proved. Once the Certificate of Incorporation is proved, then it is proved beyond reasonable doubt that plaintiff is an private limited company. The Board Resolution also stands proved, the perusal of Board Resolution clearly shows that Sh. N.K. Lamba was authorized to sign and verify the pleadings. Hence this issue is decided in favour of the plaintiff and against the defendant.
13. Issue no.2:
Whether the plaintiff is the owner of the suit property as alleged?
PW1 in his examination in chief has exhibited the sale deed as Ex. PW1/5. There is no cross examination or suggestion to this witness on this aspect moreover the defendant in their written statement have categorically admitted that plaintiff to be the owner of the property in question. This issue was not necessary for deciding the lis between the parties. Since, admitted facts need not be proved. Even, in any case defendant Suit no. : 258 of 2017 Page no. 17 of 17 is estopped from challenging the ownership of the plaintiff in view of Section 116 of the Indian Evidence Act. The issue is accordingly decided in favour of the plaintiff and against the defendant.
14. Issues no. 3 and 4.
Whether the tenancy of the defendant has been validly terminated as alleged ?
AND Whether the plaintiff is entitled to the possession and the amount claimed in the prayer clause?
It is the case of the plaintiff that he is entitled to Decree of possession as by virtue of Ex. PW1/6 an agreement was entered into between the plaintiff and defendant according to which defendants were to vacate the suit property after receipt of Rs. 90,00,000/- failing which the defendants were to become a tenant @ Rs. 9,000/- per month. The defence of the defendant is that plaintiff has forged the agreement Ex. PW1/6 by adding two lines where the rate of rent stood automatically enhanced to Rs. 9,000/- per month in the event of defendant not vacating the property..
Suit no. : 258 of 2017 Page no. 17 of 17
15. The defendant herein, had filed a petition under the provisions of Delhi Rent Control Act for fixation of standard Rent, during the pendency of the said petition, the plaintiff herein, moved an application under Order 6 Rule 17 CPC for amendment on the ground that agreement Ex.PW1/6 has been arrived at. Instead of filing a reply, the defendant herein, moved an application Under Order 11 Rule 17 CPC seeking production of inspection of "Receipt-cum-agreement". The plaintiff herein, thereafter, also filed an application under Sec.151 CPC, interalia with a prayer that they are not in the possession of the original agreement as the same was lying in Bank Locker and keys of the locker were misplaced therefore, the defendants herein should be directed to file the reply to the application under Order 6 Rule 17 CPC. The application was exhibited as Ex.PW1/7 and the contents of Para - 3 of the said application is reproduced as under :-
"That in this regard, it is to be submitted that the petitioners are having a copy of the receipt-cum-agreement dated 19th April, 1995, but they intentionally, willfully and deliberately not producing the same before this Hon'ble Court."
In reply thereto, the defendants herein submitted a reply which was exhibited as Ex.PW1/8, the contents are reproduced as under :-
Suit no. : 258 of 2017 Page no. 17 of 17 "Para -3 is absolutely false and is vehemently denied. It is denied specifically that the petitioners are having any copy of the alleged receipt-cum-agreement dated 19.04.1995 in their possession. They do not have any such copy. The allegations have been cooked up only with a view to side-attract the issue. The petitioners reiterate that they do not have, with them, any copy of the alleged receipt-
cum-agreement dated 19.04.1995."
16. Thus there is a cler admission on the part of the defendants herein that they do not possess copy of the receipt- cum-agreement, admission is the best piece of evidence against the matter thereof and as per the provisions of Section 58 of the Indian Evidence Act, a fact admitted need not be proved, however, the admission should be unequivocal.
17. Now coming to the testimony of Expert witness, as heavy reliance was placed by the Ld. Counsel for the defendant on the reports of the two CFSL Expert PW2 Mrs. R.K. Vij, Handwriting Expert was examined by the plaintiff and she gave her report Ex.PW2/1. PW2, had examined the disputed signature at MARK A on Ex.DW1/16, MARK A is the signature of N.K. Lamba on Ex.DW1/6. According to this witness, Ex.DW1/16 did not bear the signature of Sh. N.K. Lamba.
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18. Sh. Deepak Raj Handa, examined printed mark marked Q1, Q3, signatures marked A1 on Ex.PW1/6, faint printed matter marked S1 and English signature marked Q2 on Ex.DW1/16, as per his report Q1 on document Ex.PW1/6, which contains the portion "that lessee shall pay Rs.9000/- p.m. w.e.f. 18.08.1995, in case of not vacating the premises" was added later on.
19. In so far as faint printed matter on Ex.DW1/16, was concerned, he opined that it is similar to the printed matter on Ex.PW1/6 except the addition. No option could be expressed by him in so far as the signature which were marked as Q2 on Ex. DW1/6 as the material for comparing the signatures were insufficient.
20. The documents were again sent to CFSL and were examined by Dr. Reeta Rani Gupta, and she compared Q2, and admitted signatures of plaintiff, and gave an opinion that signatures are of the same person.
21. On perusal of the report of the two CFSL experts i.e. Dr. Reeta Rani Gupta and Dr. D.K. Handa, it leads to a conclusion that Suit no. : 258 of 2017 Page no. 17 of 17 two copies of Receipt-cum-agreement was prepared. In the cross examination, Dr. D.K. Handa admitted that C to C1 could have been added on the same day, but he could not say whether the same was added prior to or subsequent to the signatures appended by the parties. Therefore even if the testimony of Dr. D.K. Handa is to be believed; it still remains inclusive whether the portion was added prior to obtaining the signature of the defendants or subsequently.
22. Dr. Reeta Rani Gupta says that signatures on Q2 are similar to that admitted signatures of the plaintiff.
23. The evidence in civil cases are to be appreciated on the basis of preponderance of probabilities. On conjoint reading of the report, there is an irresistible conclusion that the theory set up by the defendant is true. However, the defendant herein in no uncertain term have admitted that they did not possess the receipt-cum-agreement when they filed their reply, which amounts to an admission, so the question which arises is whether the admission carries a higher evidentiary value or the reports of the expert?
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24. The Hon'ble Delhi High Court in Jagan Nath Sharma Vs. Kishan Chand Sharma 2017 (240) DLT 93 has held that:
"The opinion of an expert Under Section 45 of the Indian Evidence Act is merely an opinion and not a conclusive proof of the validity of the handwriting in question. Courts are therefore, not bound to follow the opinion of a handwriting expert, which is generally held to be a frail character. (Ref. Karnail Singh Vs. Kalra Brothers 2009 (4) SCC 110, Sandeep Dixit Vs. State 190 (2012) DLT 600, Ramo Devi & Ors. Vs. Vidya Rani & Ors. (2012) III AIC 450)
25. Keeping in view the principal of law and the fact that there are two contradictory report, in respect of the signatures of N.K. Lamba on Ex.DW1/16, the testimony of expert i.e. Dr. Reena Rani Gupta and Dr. R.K. Vij cannot be relied upon.
26. The bare perusal of Ex. DW1/16 shows that it is an unreadable document, thus no reliance can be placed on Ex. DW1/16, which in any case is in the teeth of the admission made by defendant.
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27. However, even if, it is assumed for the sake of arguments that Ex.PW1/6 contained the clause with respect to enhancement of rent, then also, plaintiff has nowhere pleaded that he had paid the balance amount of Rs.81,00,000. In fact, this fact has been admitted by PW1 in his cross examination. The clause would have come into operation only once the entire consideration was made which admittedly has not been made. Once the plaintiff has not fulfilled the terms of the agreement, he cannot take the benefit of the same.
28. Thirdly, even otherwise in the opinion of this Court such an agreement is void ab-initio as it is barred by Section 24 of the Indian Contract Act reads as under:-
"24. Agreement void, if consideration and objects unlawful in part- if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void".
29. Section 5 (3) of the Delhi Rent Control Act, 1958 read as under:-
"5. Unlawful changes not to be claimed or received-
(1) Subject to the provisions of this Act, no person shall Suit no. : 258 of 2017 Page no. 17 of 17 claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary.
(2) xxxxxxx (3) It shall not be lawful for the tenant or any other person acting or purporting to act on behalf of the tenant or a sub-tenant to claim or receive any payment in consideration of the relinquishment, transfer or assignment of his tenancy or sub-tenancy, as the case may be, of any premises.
(4) xxxxxx "
30. Under this provision a tenant or any other person claiming under him is not entitled to receive any payment in consideration of an assignment or relinquishment of the premises, such a payment is unlawful. Once the consideration become unlawful, the contract is void in view of Section 24 of the Indian Contract Act and this fact has been specifically pleaded by the defendants in their written statement. Resultantly the issues are decided against the plaintiff and in favour of the defendant.
30. Relief:
In view of my findings on issues no. 3 and 4, suit of the plaintiff is dismissed.
No orders as to cost.
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Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court on
24th November, 2018 Digitally signed
ANKUR by ANKUR JAIN
JAIN Date: 2018.11.28
10:11:23 +0530
(Ankur Jain)
Addl. District Judge (Central)-10
Delhi
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