Delhi District Court
Vimla Sharma vs Santosh Sharma on 30 November, 2022
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 609836/2016
Vimla Sharma,
w/o Sh. R.C Sharma,
r/o 360-F, Pocket -II,
Mayur Vihar-I,
Delhi-110092. ...Plaintiff
Versus
1. Santosh Sharma
w/o Sh. G. D Sharma
2. Kuldeep Sharma, (Proceedings abated
S/o Sh. G.D Sharma, vide order dated 05.12.2012)
3. Atul Sharma,
S/o Sh. G. D Sharma,
All r/o 45, Gandhi Sadan,
Panchkuian Road, New Delhi.
4. Vijender Sharma (Through LRs)
(4a) Asha w/o Sh. Vijender Sharma,
(4b) Madhusudan s/o Sh. Vijender Sharma,
(4c) Vajanti d/o Sh. Vijender Sharma,
(4d) Sumit s/o Sh. Vijender Sharma,
(4e) Pradeep s/o Sh. Vijender Sharma
5. Ram Phool Singh, (Proceedings abated
vide order dated 10.11.2022)
All r/o Tilla Mohalla Silani Gate,
District Jhajjar, Haryana. ...Defendants.
CS No. 609836/2016
No. 1 of 27
(Parveen Singh)
ADJ-11/Central/THC/Delhi/30.11.2022
Date of Filing : 21.08.2001.
Date of Arguments : 19.11.2022.
Date of Judgment : 30.11.2022.
SUIT FOR RECOVERY OF RS. 14,99,740/- AND FOR PERMANENT
INJUNCTION AND MANDATORY INJUNCTION
JUDGMENT
1. The present suit for recovery, permanent and mandatory injunction has been filed by the plaintiff against the defendants.
2. Briefly stated, the case of the plaintiff is, that in April 1996, she had purchased one shop no. D-22, Pandav Nagar, Delhi. She had also imported one set of Noritsu Mini colour lab model QSS 1201V/450L with standard accessories worth Rs.16 lacs and started a business under the name and style of M/s Shipika Color Lab in the above said shop. On 01.05.1996, the plaintiff had also purchased one flat no. 360F, Pocket II, Mayur Vihar for a total consideration of Rs.80,000/- from defendant no. 1 and obtained physical possession of the flat.
3. It is further the case of plaintiff that in the month of May 1996, on the insistence/ assurance of Sh. Ramphool Singh, who is proforma defendant no. 5, she allowed defendants no. 2 to 4 to look after her entire business on her behalf. Without any written document, the plaintiff delivered full charge of the shop and machinery to defendants no. 1 to 4. However, the defendants became dishonest and for the months from June to August 1996, they only paid Rs.5000/- per month to plaintiff on account of profits and promised to settle the accounts later on. It is further the case of plaintiff that sometimes in the year 1996, her father in law Sh. R.P Singh visited her house and got some hand written documents signed from her. He CS No. 609836/2016 No. 2 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 also assured that he would send the final stamped copy of the documents. However, the same were not sent. Later differences arose between the plaintiff and the defendants. Defendants started referring that document and then plaintiff demanded the said document from her father in law. She was surprised to see that in the said document, it was falsely stated that the plaintiff had sold the color lab with equipments and premises no. D-22, Pandav Nagar, Delhi to the defendants. It was also falsely stated in the document that plaintiff had received Rs.1 lac as advance and Rs.2 lacs would be paid for the above said shop by the buyers namely Kuldeep Sharma, Atul Sharma, Vijender Sharma. However, these amounts were never received by the plaintiff. It was also falsely stated in the said document that M/s Shipika Lab had been sold to Sh. Atul Sharma, Kuldeep Sharma, Vijender Kumar and Chander Mohini in equal shares for a consideration of flat no. 360-F, Pocket II, Mayur Vihar and Rs. 5 lacs. It was mentioned that plaintiff had received Rs.1 lac through cheque and Rs.4 lacs would be paid to her on or before August 1996. However, nothing had been paid to the plaintiff. It is further the case of the plaintiff that when she demanded her immovable and movable assets with profits, the defendants started quarreling with her for which several complaints were lodged against them. It is further submitted that plaintiff is legally entitled to recover Rs.7.50 lacs towards cost of color lab machine, Rs.4.35 lacs towards profits earned during past three years, Rs. 50,000/- towards the cash taken by the defendants from her shop, Rs.25,000/- towards the construction done by her and Rs.4,000/- towards the typewriter of plaintiff which was taken by the defendants. It is also submitted that plaintiff was entitled for restoration of electric meter. It is further the case of plaintiff that CS No. 609836/2016 No. 3 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 on 29.12.2000, plaintiff came to know that her costly color lab machines etc. had been removed from the shop. In this regard, she lodged an FIR and also served a notice upon the defendants requested them to restore her properties. However, defendants refused to comply with the notice. Hence, the present suit.
4. On being served with the summons, the defendants no.1 and 2 to 4 filed their written statements.
5. In the written statement filed on behalf of defendant no. 1, a preliminary objection was taken that defendant no. 1 had no concern with plaintiff with respect to the disputed color lab. A further preliminary was taken that the suit was bad for misjoinder of parties and defendant no. 1 had been wrongly impleaded in the suit. It was further submitted that by representing herself as owner of flat no. 360F, Pocket II, Mayur Vihar, plaintiff had illegally obtained the possession of the said flat from the court of Sh. Chandra Bose. Defendant had also cancelled the power of attorney, which was forged by the plaintiff, by way of publication in newspaper Rashtriya Sahara and Dainik Jagran. It is further submitted that in the year 1994, defendant had let out the above said flat to one Umesh Kumar. In June 1996, the said Umesh Kumar had filed a complaint u/s 448/380/34 IPC against plaintiff and defendant. Plaintiff approached the defendant and on the pretext of moving an application for grant of anticipatory bail and obtained the signatures of defendant on around 5-6 blank papers. However, plaintiff did not use those papers for bail application and used them for preparing GPA, Agreement to Sell and receipt etc. On coming to know of this fact, defendant moved an application u/s 340 Cr.P.C against plaintiff. It is further submitted that plaintiff had not only filed the civil suit by forging CS No. 609836/2016 No. 4 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 the signatures of the defendant but had also filed a criminal petition. The said criminal writ petition was also not signed by the defendant. Plaintiff had filed the said writ petition without the knowledge and consent of the defendant to establish her claim over property of the defendant. Thus, plaintiff had filed the present suit with dishonest and malafide intentions just to harass and blackmail the defendant. It was further submitted that defendant no. 2 had also lodged a complaint against the plaintiff, Ram Chander Sharma and Savita with regard to theft of articles of defendant of her shop no. D-22, Pandav Nagar.
6. On merits, it is admitted that defendant no. 5 was the father of defendant no. 1. It was denied that Smt. Vimla Sharma purchased flat no. 360-F, Pocket II, Mayur Vihar, Phase I, Delhi for a total consideration of Rs.80,000/-and obtained physical constructive possession of the premises. It was submitted that plaintiff had been residing at 24-C/8, Rohini alongwith her husband, children and in-laws since 1991. It was submitted that defendant no. 1 had never purchased the colour lab machine from the plaintiff. The entire transaction of colour lab was between plaintiff and defendants no. 2 to 4 and not with the defendant no. 1. It was submitted that defendant no. 1 had never signed any agreement in respect of her flat in favour of plaintiff. Defendant no. 1 had nothing to do with the color lab machine. Defendant no. 1 was a teacher and had no interest in the commercial activities. It was further submitted that defendant no. 1 was not liable to pay any amount as stated because she had no connection/ agreement with the color lab machine or with plaintiff. The suit filed by plaintiff against defendant no. 1 was without any cause of action and thus, same was liable to be dismissed.
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7. In the written statement filed on behalf of defendants no. 2 to 4, a preliminary objection was taken that the suit of plaintiff was barred by limitation. It was submitted that plaintiff had sold the colour lab machine to defendants no. 2 to 4 vide agreement dated 25.06.1996 and had filed the present suit after a lapse of five years. On 25.06.1996, a written mutual agreement was signed by plaintiff as well as by defendants no. 2 to 4 in presence of the witnesses which was written by defendant no. 5. After obtaining the consideration for sale of color lab machine alongwith shop, plaintiff had handed over the possession of the colour lab machine to the defendants in terms of the agreement and since then, the defendants were in possession of the color lab machine. It was further submitted that the present suit was bad for non joinder/ mis joinder of the parties. Defendant no. 1 was not a necessary party in the suit. It was further submitted that plaintiff had never raised any objection to the written mutual agreement dated 25.06.1996 and thus, in view of the agreement, the suit was liable to be dismissed.
8. On merits, it was submitted that on 25.06.1996, plaintiff had entered into an agreement / settlement whereby she decided to sell her colour lab machine to defendants no. 2 to 4 and also decided to hand over the possession of the colour lab machine as well as shop no. D-22(1) to the defendants no. 2 to 4 and thus, question of running the colour lab machine by her husband did not arise. It was further submitted that plaintiff got the possession of the shop in April 1996 and made an advance payment of Rs.1 lac to landlord Vinod Kumar. The remaining balance of Rs.2 lacs was paid by Vijender Kumar, Rs. 1 lac was paid by Kuldeep Sharma and Rs. 1 lac was paid by Atul Sharma. Thus, all these persons also became the owner of CS No. 609836/2016 No. 6 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 the shop No. D-22, Pandav Nagar but Smt. Vimla Devi mischievously and with malafide intention took the GPA and other documents in her favour. It was denied that 90% of the physical possession of the flat was already with plaintiff. It was further submitted that at the time of agreement, Sh. Umesh Sharma was a tenant in flat no. 360-F, Pocket II, Phase-I, Delhi. It was denied that Sh. R.P Singh in the year 1996 had induced the plaintiff to sign on hand written documents and plain paper and promised that he would send the final stamped copy of documents. It was submitted that defendants no. 2 to 4 had paid the entire consideration in cash for which no receipt was issued and physical possession of the colour lab as well as shop was handed over to defendants no. 2 to 4. It was denied that the answering defendants were liable to pay any amount to plaintiff because the answering defendants had purchased the machines from the plaintiff vide agreement dated 25.06.1996. It was further submitted that since the defendants had purchased the color lab machines, the question of removing machines with or without permission of the plaintiff did not arise. Rest of the averments made in the plaint were denied.
9. During the trial defendant no. 5 had expired and vide order dated 05.12.2012, the proceedings against defendant no. 5 stood abated.
10. During the trial defendant no. 2 had also expired and vide order dated 10.11.2022, the proceedings against defendant no. 2 stood abated.
11. Thereafter, during the trial an application for filing additional written statement was moved on behalf of LRs of deceased defendant no. 4 and the same was allowed vide order dated 05.05.2014.
12. In the additional written statement filed by LRs of deceased CS No. 609836/2016 No. 7 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 defendant no. 4, it was submitted that the plaintiff had no locus to file the present suit as she had sold the complete business of colour lab to defendants no. 2 to 4. It is further submitted that counsel for plaintiff in the present suit filed other suit bearing no. 93/2003 titled as Smt. Savita Sharma v. Sh. Kuldeep Sharma & Ors and in the said suit, plaintiff appeared and filed vakalatnama of her husband. It was further submitted that plaintiff had lodged a false FIR no. 36/96 against Rajat Singhal and his father u/s 406/34 IPC on the basis of false and fabricated agreement dated 13.04.1995. The said case was closed/ cancelled as per the report of the IO and the said report of the IO was accepted by the court.
13. In para wise reply, it was submitted that Sh. Rajat Singhal, who was one of the partners of said firm had invested a sum of Rs.8.65 lacs in the alleged machines of partnership firm and rest of the payments were made by the husband of the plaintiff from other sources. It was further submitted that the plaintiff had filed a false and fabricated agreement of the alleged machine, dated 13.04.199,5 for a total sale consideration of Rs.16 lacs. It was submitted that the alleged machines were sold by the same machine agent to the partners of the said partnership firm M/s Rohini Colour Photo for a total sale consideration of Rs.19 lacs. It was further submitted that plaintiff had no locus standi to file suit against the defendants because she had waived her right/ interest over the alleged shop and machines in question. It was further submitted that in view of the agreement dated 25.06.1996, plaintiff had no right to serve any legal notice upon the defendants.
14. Thereafter, from the pleadings of the parties, vide order dated 27.02.2004, following issues were framed:-
CS No. 609836/2016 No. 8 of 27(Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022
1. Whether the suit is bad for misjoinder of parties? OPD
2. Whether the plaintiff had played fraud upon the defendant and had obtained the possession of the suit property in the said manner? OPD
3. Whether the plaintiff is entitled to recovery of a sum of Rs.7,50,000/- as prayed for? OPP
4. Whether the plaintiff is entitled to recovery of a sum of Rs.4,35,000/- being the profit earned during the last three years as prayed for? OPP
5. Whether the plaintiff is entitled to a sum of Rs.50,000/- as prayed for? OPP
6. Whether the plaintiff is entitled to a sum of Rs.25,000/- for repairs and reconstruction of the wall of the shop, as prayed for? OPP
7. Whether the plaintiff is entitled to recovery of a sum of Rs.4000/- or in the alternative, possession of Remington typewriter, as prayed for? OPP
8. Whether the plaintiff is entitled to restoration of electric meters? OPP
9. Relief.
15. Thereafter, the parties led their respective evidence. The plaintiff examined herself as PW1. On the other hand, defendants examined Atul Sharma as DW1, Smt. Santosh Sharma as DW2, Vijender Kumar as DW3, Kuldeep Sharma as DW4, Birma Wati as DW5, Promila Bhargava as CS No. 609836/2016 No. 9 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 DW6 and Madhusudan Sharma as DW7.
16. I have heard learned counsels for the parties and carefully perused the record. My issue wise findings are as under:-ISSUE NO. 3
3. Whether the plaintiff is entitled to recovery of a sum of Rs.7,50,000/- as prayed for? OPP
17. There has been a lot of pleadings by either side with regard to many transactions including the property bearing no. 360F, Pocket II, Mayur Vihar. However, the real bone of contention between the parties is with regard to Noritsu Mini Colour lab machine which according to the plaintiff she had imported and was then misappropriated by the defendants.
18. The claim of the plaintiff was that the said machine was imported for Rs.16 lacs but in the present suit she is only claiming Rs.7.50 lacs after deducting its depreciation.
19. The defendants denied the ownership of plaintiff and took many defences but the main defence raised on behalf of the defendants is, that plaintiff had already sold the said machine to defendants vide agreement dated 25.06.1996 and in pursuance to the said agreement, apart from flat no. 360F, Pocket II, Mayur Vihar, a sum of Rs.5 lacs had been paid to plaintiff in cash and thus, she was left with no claim with regard to the said machine.
20. Plaintiff had also mentioned this agreement in her suit and had outrightly denied executing this agreement and submitted that defendant no. 5 (since deceased) had obtained her signatures by inducing her to sign upon hand written drafts on a plain paper and promising to send final CS No. 609836/2016 No. 10 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 stamped copy. When she finally asked for the documents, she realized that it was in fact a document for sale of the colour lab machine.
21. There is no dispute that defendants no. 2 to 4 had come into possession of the said machine lawfully. Therefore, the question which needs to be decided whether the defendants had misappropriated the said machine or, had purchased it and had paid the consideration as alleged by defendants? Thus, the question which needs to be decided first is whether, there was an agreement dated 25.06.1996 which was executed between the parties?
22. Plaintiff appearing as PW1 deposed that in the year 1996, defendant no. 5 (since deceased) visited her house and obtained her signatures on plain paper (mark A) written by him on which no witness or other person had signed. On 30.12.2000 when differences arose, she made a complaint with PS Trilok Puri / Pandav Nagar. The complaint was Ex.PW1/18. She came to know about paper mark A. She further deposed that all the contents written in the draft/ document dated 25.06.1996 were totally false, wrong and concocted by the defendants under a criminal conspiracy to grab her property.
23. On this account, she was cross examined at length.
24. During her cross examination, she denied that the lab machine had been sold by her (to) Kuldeep Sharma and Atul Sharma and another for a sum of Rs.6,00,000/- . She also denied that she had received Rs. 5 lacs in cash. She further denied that the cheque for Rs.1 lac was later on returned by her in lieu of cash which was given to her by the purchasers or, that after receiving Rs.6 lacs, she had delivered the lab machine to the purchasers.
She denied that on 25.06.1996, she had entered into an agreement with CS No. 609836/2016 No. 11 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 Vijender Kumar, Atul Sharm, Kuldeep Sharma and Chander Mohini through her guardian Birmawati or, that according to the agreement, she had received a sum of Rs.1 lac in respect of the lab and Rs. 5 lacs in respect of machine from defendant no. 4. She also denied that she had also taken in exchange flat no. 360F, Pocket II, Mayur Vihar from defendants no. 2 and 3 and another sum of Rs.1 lac from them. During her cross examination, she was shown agreement dated 25.06.1996 and she deposed that the agreement had her signatures at points A and B. She deposed that the initials at point C were not hers. The document was then exhibited as Ex.PW1/D1. Thereafter, she volunteered that her father in law had got her signatures on a blank paper single sheet at point B on Ex.PW1/D1. In response to a court question, she deposed that she had signed at point A on Ex.PW1/D1 on the same day. In fact her father in law was in the process of writing this document when he had obtained her signatures on the same. She then admitted that her father in law had brought a hand written document and had obtained her signatures in a hurry. In response to a court question, she deposed that since the year 1982, she was a practicing advocate at Tis Hazari Court. She denied that she had sold the machine vide agreement dated 25.06.1996. She further deposed that she came to know on 30.12.2000, that the document dated 25.06.1996 was forged and on the same day, her father in law was present in the police station.
25. Now the aforesaid testimony of the plaintiff would reveal that she has consistently denied that vide agreement dated 25.06.1996, she had agreed to sell machine in question to Vijender Kumar, Atul Sharma, Kuldeep Sharma and Chander Mohini as stated therein. However, when she was confronted with the said agreement exhibited as Ex.PW1/D1, she CS No. 609836/2016 No. 12 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 admitted that this agreement had her signatures at points A and B and in explanation, she voluntarily stated that her father in law had obtained her signatures on a blank paper single sheet at point B on Ex.PW1/D1. However, on being questioned by the court, she deposed that she had signed at point A on Ex.PW1/D1 on the same day and in fact her father in law was in the process of writing the document when he obtained her signatures on that. She then admitted that her father in law had brought a hand written document and obtained her signatures in a hurry. Therefore when this testimony of the plaintiff is considered, it is evident that she had been trying to consistently improve upon her statements in order to deny any liability as per this agreement. Initially she stated that her father in law had obtained her signatures on a blank paper at point B. Therefore, she deposed that she, on that day, had signed on one piece of paper and even that was a blank paper. Then she stated that when she signed at point A on Ex.PW1/D1, her father in law was in the process of writing the same. Thus, here she admitted signing on the papers because, signatures at points A and B on Ex.PW1/D1 are on different papers. Thereafter, she admitted that her father in law had brought a hand written document and obtained her signatures in a hurry. This clearly implies that when she had signed, Ex.PW1/D1 was a written document and neither was it a blank paper, nor was it a document in the process of being prepared at the time when she appended her signatures. Therefore, there is a clear admission that when she signed this document, it was already written but then she tried to wriggle out of the situation by saying that she had signed the document in a hurry. Therefore, she had been questioned again by the court and she deposed that she had been a practicing advocate at Tis Hazari Court since CS No. 609836/2016 No. 13 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 1982. Hence, it is highly improbable that plaintiff was not aware of the legal repercussions of signing a document and it can also not be accepted that the plaintiff would not know the contents of the document. I accordingly find that by preponderance of probabilities, the defendants have succeeded in proving that there was an agreement dated 25.06.1996 which is Ex.PW1/D1, which was executed between the plaintiff and defendants no. 2 to 4 for the sale of lab machine. Resultantly, the plaintiff has failed to prove that the defendants, after being lawfully put in possession of the machine, had misappropriated it and thus, are liable to pay the depreciated value of the machine to the tune of Rs.7.50 lacs as had been claimed by the plaintiff.
26. As document Ex.PW1/D1 has been proved, the plaintiff's claim could only be limited to the consideration amount as per the said document.
27. However, it has been contended on behalf of the defendants that it is not the case of the plaintiff that the plaintiff is claiming on the basis of this document and once her claim that the defendants had misappropriated her machine fails, she is not entitled to any amount.
28. However, I find that admittedly the defendants are in possession of the machine in question and law cannot allow anyone to gain unjust enrichment. Therefore, even though the plaintiff may have failed to prove her claim of misappropriation but the defendants themselves have accepted that the machine belonged to the plaintiff and they had purchased it vide agreement Ex.PW1/D1 and cannot wriggle out of their liability.
29. On this account, defendants have further claimed that entire amount of consideration as stated in Ex.PW1/D1 stood paid and the CS No. 609836/2016 No. 14 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 plaintiff had denied receiving any such payment. The question which therefore needs to be decided is whether the defendants have succeeded in proving this assertion.
30. Plaintiff was consistently suggested during her cross examination that she had received the said payment and she had denied it. She was suggested that she had received the cheque of a sum of Rs.1 lac and the balance amount of Rs.5 lacs in cash and she denied this suggestion. She further denied that the cheque for Rs. 1 lac was later on returned in lieu of cash which was given to her by the purchasers. She further denied that after receiving Rs. 6 lacs, she had delivered the lab machine to the purchasers. Therefore, it cannot be accepted that by merely suggesting to the plaintiff that she had received the payment, defendants had proved that they had paid the consideration as per Ex.PW1/D1.
31. DW1 Atul Sharma deposed that the defendants no. 2 to 4 had paid the consideration and obtained the possession of colour lab machine in terms of agreement dated 25.06.1996. No further details were provided by this witness in his examination in chief.
32. However, during his cross examination, he deposed that the entire consideration amount was given in cash on his behalf. Though the said consideration was paid by him in cash but he did not remember how much cash was paid by him to the plaintiff. No payment was made either through cheque or draft. He further deposed that at the time of said sale transaction, he, his brother and his maternal uncle were present there. His mausi and mama Devender Kumar were also present.
33. At a later stage, during his cross examination, he deposed that they had purchased shop no. D-22, photo printing machine model no. 1201, CS No. 609836/2016 No. 15 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 450L developing machines with all other equipments in the said shop. He further deposed this his mama Vijender Sharma had paid a cheque of Rs. 4 lacs and Rs.1 lac in cash. The said cheque was issued by his mama Vijender Kumar from his own account. The terms and conditions were to be fulfilled by 31.08.1996 which were fulfilled. He did not remember as to how much payment was made by him and his brother jointly by them.
34. DW2 Santosh Sharma also deposed that vide agreement dated 25.06.1996 (Ex.PW1/D1), plaintiff had sold the machine in question.
35. During her cross examination, she stated that she knew about the agreement of 1996. The said agreement was not written in her presence and therefore, she could not depose about the terms and conditions of the agreement. She further deposed that she was not involved in any of the agreement with plaintiff after the year 1996. She did not know about any compromise dated 30.12.2000 which was entered into between plaintiff and his son Atul Sharma, Kuldeep Sharma and his brother Vijender Sharma. She did not know anything with regard to the sale purchase of the machine and equipment of shop no. D-22 and payment if any made by Kuldeep Sharma, Atul Sharma and Vijender Sharma. She again said that her brother handed over one cheque to the plaintiff but it was returned by the plaintiff on the pretext that she might be in trouble in income tax department. The said cheque was returned immediately when the said cheque was delivered to the plaintiff.
36. DW3 Vijender Kumar deposed that the agreement / sale deed dated 25.06.1996 (Ex.PW1/D1) was drafted by the proforma defendant no. 5 on the request of the plaintiff and the defendants. Defendant no. 4 had made the payment as per the aforesaid agreement to the plaintiff before the CS No. 609836/2016 No. 16 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 time of aforesaid agreement.
37. During his cross examination, he admitted about the compromise dated 30.12.2000 arrived at PS Pandav Nagar and that the said compromise had taken place after 25.06.1996. He admitted that defendants no. 1, 2 and 3 gave flat no. 360F, Mayur Vihar and Rs. 1 lac to the plaintiff. The said amount of Rs.1 lac was paid in cash by defendants no. 1, 2 and 3. He denied that no payment was made to Smt. Vimla Sharma, plaintiff at any point of time.
38. DW4 Kuldeep Sharma deposed that after obtaining the consideration of sale, the plaintiff had delivered the possession of colour lab and shop in terms of the agreement and since then the defendants no. 2 to 4 are in possession.
39. During his cross examination, he admitted that he had purchased the machine in question. He had not idea for how much consideration the said machines were purchased and volunteered that he had given one flat no. 360F as consideration already paid to the plaintiff. Rs. 1 lac was also paid in cash to the plaintiff. He had made the payment of consideration amount from 25.06.1996 till the date mentioned in the agreement Ex.DW4/X1. He deposed that his mama Vijender Kumar issued a cheque and volunteered, that the said cheque was returned and cash payment was made in his presence after 2-3 months of the said agreement. He further deposed that Bijender Kumar made payment of Rs.1 lac and Rs.5 lacs for the shop. He again said that Rs. 1 lac was given for flat and Rs. 5 lacs were given for machine. He further deposed that some of the payments were made at Jhajjar and some were made at his residence as mentioned in the affidavit.
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40. DW5 Birma Wati deposed that pursuant to agreement Ex.PW1/D1, defendant no. 4 had paid Rs. 6 lacs to the plaintiff through his father i.e. proforma defendant no. 5. Defendants no. 2 and 3 had paid Rs. 1 lac in cahs in exchange of flat no. 360F, Mayur Vihar, Phase I, Pocket II to the plaintiff.
41. During her cross examination, she deposed that part payment as mentioned in Ex.PW1/D1 was made at Delhi and the remaining was made at Jhajjar. She did not remember how much amount was paid at Delhi or how much was paid at Jhajjar. She further deposed that Vijender had paid Rs. 6 lacs to the plaintiff and Atul and Kuldeep had also paid Rs. 1 lac and Kuldeep had also given flat no. 360F, Mayur Vihar to plaintiff as per agreement dated 25.06.1996. The said agreement was executed in her presence. She had not signed the agreement as a witness.
42. DW6 Promila Bhargava deposed that she was a witness to the agreement dated 25.06.1996 (Ex.PW1/D1) and that pursuant to the agreement plaintiff had sold the machine in question and had received Rs. 6 lacs in cash and one flat no. 360F Mayur Vihar. She further deposed that plaintiff as also received Rs. 1 lac in cash from Kuldeep Sharma and Atul Sharma as per terms and conditions of the agreement.
43. During her cross examination, she deposed that agreement dated 25.06.1996 was executed in her presence and that agreement dated 25.06.1996 was executed at Panchkuian Road. She was present at Panchkuian Road due to her routine visit. She further deposed that Ex.DW4/X1 was not executed in her presence. She further deposed that on 25.06.1996, one cheque was given by Vijender to the plaintiff and volunteered, that the cheque was returned by the plaintiff against the cash CS No. 609836/2016 No. 18 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 received from Vijender. She denied that she had intentionally told a lie that Rs. 1 lac was paid by Vijender to the plaintiff.
44. From the aforesaid evidence, the admitted position which appears is, that no payment/ consideration was delivered to the plaintiff on the day of execution of agreement Ex.PW1/D1 i.e. 25.06.1996. Though it finds mentioned in this document that one cheque of Rs. 1 lac was given, however all the witnesses have consistently stated that no payment was made through cheque and the said cheque was returned in lieu of cash. Apart from orally stating that the plaintiff had received the payment in cash from the defendants, no documentary evidence of such payment has been placed on record.
45. It is to be seen that not even the date, time or place where the said payment was made is mentioned. All the defendants mentioned is, that the payment was to be made upto 31.08.1996 and the payment was made before 31.08.1996. This appears to be a very weak evidence to raise a probability of the payment, the burden to establish was upon the defendants.
46. This brings me to another document which has been exhibited by the plaintiff as Ex.PW1/27.
47. Plaintiff appearing as PW1 had deposed that there was a police complaint between the parties on 30.12.2000 and on 30.12.200 at PS Pandav Nagar, a compromise was arrived between the parties and copy of the said agreement was Ex.PW1/27.
48. There was no cross examination of the plaintiff on this part of her testimony and therefore, her testimony to the extent that this agreement was executed on 30.12.2000 stands unrebutted and therefore has to be CS No. 609836/2016 No. 19 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 relied upon.
49. Her testimony is corroborated by examination in chief of DW1 and DW4 who in para 24 of their examinations in chief have deposed that the plaintiff again entered into agreement dated 30.12.2000 with defendants no. 2 and 3 at the police station.
50. DW3 in his cross examination had admitted that a compromise dated 30.12.2000 with regard to the dispute of shop no. D-22, Pandav Nagar and machines and equipments again took place after 25.06.1996. Therefore, he also referred to the said document and did not deny its validity.
51. Therefore, the existence of the said agreement and its execution stands proved and as there has been no challenge either at the time of is exhibition or during the cross examination of the plaintiff that Ex.PW1/27 was not the said agreement, I find that by preponderance of probabilities, the plaintiff has succeeded in proving that on 30.12.2000, agreement Ex.PW1/27 was executed between the parties.
52. This agreement was executed between two parties. Atul Sharma (DW1) and Kuldeep Sharma (DW4) on the one side and plaintiff on the other side. This agreement goes on to state that on 30.12.2000, both the parties in a sitting with their relatives had entered into a family settlement without any pressure or without being misled. The terms of the agreement go on to state that the first party i.e. Atul Sharma and Kuldeep Sharma would give Rs. 2 lacs to the second party i.e. to the plaintiff. It further goes on to state that machine no. 1201 printer processor (subject matter of the suit) is in the name of the second party and from then on, it would remain with the first party and for this after the aforesaid payment CS No. 609836/2016 No. 20 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 was made, a receipt would be prepared.
53. This agreement is significant for two reasons. First being the claim of the defendants that they had made the entire payment as per agreement dated 25.06.1996, Ex.PW1/D1. As discussed above apart from baldly stating that the payment as per Ex.PW1/D1 was made, defendants have not brought forward any evidence of payment of any amount and the significance of the agreement Ex.PW1/27 is that this agreement reflects that the first party i.e. Atul Sharma and Kuldeep Sharma had agreed to make payment of Rs. 2 lacs for this machine and therefore, it raises a probability that as the payment as per agreement Ex.PW1/D1 was not made either fully or partially, this agreement had to be entered into and therefore as on 30.12.2000, the defendants no. 2 and 3 admitted their liability with regard to the machine to the extent of Rs. 2 lacs.
54. This brings me to the second significance of this document Ex.PW1/27. The defendants have claimed that the plaintiff's claim was barred by time because as per Ex.PW1/D1, entire terms and conditions including the payment for the machine were to be complied with by 31.08.1996 and therefore, if the defendants had defaulted in making that payment, the limitation to seek specific performance of that contract or the recovery of the amount would expire in September 1999.
55. This far the contention of defendants cannot be faulted with. I say so because I have already found that Ex.PW1/D1 was validly executed and the plaintiff had agreed to sell the machine in question for Rs. 6 lacs plus whatever was stated in that agreement. Therefore, if the defendants, who admittedly were and are in possession of the said machine failed to make the outstanding payment, it was for the plaintiff to sue them for the CS No. 609836/2016 No. 21 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 said amount and the same could have only be done within the period of 03 years which would start to run from 31.08.1996 but the present suit was filed in the year 2001.
56. However, by virtue agreement Ex.PW1/27, two defendants i.e. defendants no. 2 and 3 acknowledged that the machine till that date belonged to the plaintiff and in order to attain the ownership of the said machine, they agreed to pay Rs. 2 lacs to the plaintiff. Therefore, the right of the plaintiff to recover this Rs. 2 lacs would accrue from the date of this new agreement between her and defendants no. 2 and 3. Thus, for claim on the basis of this agreement, the suit, which is filed in the year 2001, is within the period of limitation.
57. However, as far as defendant no. 1 and LRs of defendant no. 4 are concerned, they were not a party to this agreement and therefore, as far as they are concerned, the claim of the plaintiff with regard to the original agreement would be time barred. However, the defendants no. 2 and 3, who have themselves admitted execution of this agreement in their examinations in chief and have not contested the claim of the plaintiff or genuinty of this agreement which is Ex.PW1/27 would become liable to pay that amount for which there is no claim that it has been paid and therefore, I find that the defendants no. 2 and 3 were liable to pay for the amount which they undertook to pay vide Ex.PW1/27.
58. However, an argument has been raised that the claim of the plaintiff was not based upon this agreement or agreement Ex.PW1/D1 but was based on the ground that her machine had been misappropriated, it has been contended that a false claim had been raised by the plaintiff and therefore, no relief can be granted to her on the basis of these agreements.
CS No. 609836/2016 No. 22 of 27(Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022
59. I find that when a party establishes a right, that right has to be protected by the court. In equity, nobody can be allowed to unjustly enrich herself/ himself and the court requires justice to be done in substantive manner and once there is an admission of the parties as is there in the present case, the plaintiff cannot be denied her hard earned money for a property which has been taken from her without making the payment. I accordingly find that the plaintiff is entitled to recovery of Rs. 2 lacs but only from the defendants no. 2 and 3 and not from the defendants no. 1 and 4 or his LRs against whom it has been found that the claim of the plaintiff is time barred. The issue no. 3 is accordingly decided. ISSUE NO. 4.
4. Whether the plaintiff is entitled to recovery of a sum of Rs.4,35,000/- being the profit earned during the last three years as prayed for? OPP
60. The onus to prove this issue was upon the plaintiff. The plaintiff appearing as PW1 deposed that she was entitled to receive Rs.4.35 lacs being the profit earned during the past three years at a minimum rate of Rs.15,000/- per month from 01.08.1998 to 30.12.2000 when she received back the possession of her shop with the help of police.
61. The plaintiff has claimed this amount @ Rs.15,000/- per month. Therefore, it was for the plaintiff to show that what was the profit from that shop. However, the plaintiff has failed to prove what was the profit earned in that shop and what was her share in the profit. Thus, I find that only mere assumptions of the plaintiff that she was entitled to receive Rs.4.35 lacs as profit would not become an evidence. In absence of any evidence, I find that the plaintiff has failed to prove that she is entitled to receive Rs.4.35 lacs as profit w.e.f. 01.08.1998 to 30.12.2000. The issue is CS No. 609836/2016 No. 23 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 accordingly decided against the plaintiff.
ISSUE NO. 55. Whether the plaintiff is entitled to a sum of Rs.50,000/- as prayed for? OPP
62. The onus to prove this issue was also upon the plaintiff. The plaintiff has claimed Rs.50,000/- stating that this amount was taken by the defendants from her shop on 26.02.2001.
63. The plaintiff appearing as PW1 deposed that on 08.02.2001, she had withdrawn Rs.50,000/- from her bank i.e. Bank of Baroda, Patparganj and kept it in her shop. To prove this withdrawal, she had prove bank certificate as Ex.PW1/22.
64. However, it was for the plaintiff to prove that this amount was taken by the defendants from her shop. She claimed to have withdrawn this amount from her account and the proof of such withdrawal was placed by her on record. However, she has failed to prove the fact that such an amount was taken away by the defendants from her shop. Thus, in absence of any documentary evidence, the oral evidence of the plaintiff that the defendants had taken Rs.50,000/- from her shop cannot be believed especially in view of the fact that it has already been found that the plaintiff herself has not come to the court with clean hands. The issue is accordingly decided against the plaintiff.
ISSUE NO. 66. Whether the plaintiff is entitled to a sum of Rs.25,000/- for repairs and reconstruction of the wall of the shop, as prayed for? OPP
65. The plaintiff appearing as PW1 deposed that she had spent CS No. 609836/2016 No. 24 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 Rs.25,000/- for constructing the wall twice on 30.12.2000 and on 26.02.2001.
66. However, the plaintiff has not brought anything on record to prove that what kind of and from whom this reconstruction work was done or how much amount she had paid to masons. No bills whatsoever for this reconstruction work were filed on behalf of the plaintiff. Thus, I find that in absence of any evidence, only on the oral deposition of the plaintiff, this amount cannot be given to the plaintiff. The issue is accordingly decided against the plaintiff.
ISSUE NO. 77. Whether the plaintiff is entitled to recovery of a sum of Rs.4000/- or in the alternative, possession of Remington typewriter, as prayed for? OPP
67. The onus to prove this issue was also upon the plaintiff. The plaintiff appearing as PW1 deposed that on 26.02.2001, the defendants had stolen a Remington typewriter worth Rs.4,000/-.
68. However, apart from orally stating that a typewriter worth Rs.4,000/- was taken by the defendants, the plaintiff has failed to bring anything on record to show even the existence of this typewriter. She had not placed on record any invoice of purchase of this typewriter or what was the cost of the said typewriter. Thus, in absence of any evidence, I find that this amount cannot be given to the plaintiff. The issue is accordingly decided against the plaintiff.
ISSUE NO. 88. Whether the plaintiff is entitled to restoration of electric meters? OPP
69. The plaintiff has sought restoration of electricity meter no. LN CS No. 609836/2016 No. 25 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 503-1228040 in the shop. However, I find that the defendants cannot be directed for restoration of electricity meter and it is for the plaintiff who has to apply with the concerned department. The issue is accordingly decided.
ISSUE NO. 11. Whether the suit is bad for misjoinder of parties? OPD
70. From the evidence, it is clear that defendant no. 1 had no concern whatsoever with the colour lab machine. The entire dispute, as per record, was between the plaintiff and the defendants no. 2 to 4. Therefore, as far as defendant no. 1 is concerned, it is ordered that the she was not a necessary party to the suit. However, merely because an unnecessary party has been made a party to the suit, the suit cannot fail in its entirety if it is otherwise proved against other defendants as has been found in earlier part of the discussion on issue no. 3. Issue no. 1 is accordingly disposed.
ISSUE NO. 22. Whether the plaintiff had played fraud upon the defendant and had obtained the possession of the suit property in the said manner? OPD
71. No arguments on this issue were advanced by either side.
72. I also fail to fathom this issue because the property in question is a Noritsu Mini Color lab machine and admittedly the same had been and is in possession of the defendants. Therefore, the plaintiff could not have played fraud upon the defendants and obtain the possession of the said property. However, if the issue was referring to flat no. 360F, Pocket II, Phase I, Mayur Vihar, the same is not a subject matter of this lis. Further the defendants have not led any evidence to show which property they were referring to and which had been fraudulently obtained and could have been CS No. 609836/2016 No. 26 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022 subject matter of this suit. The issue is accordingly decided against the defendants.
RELIEF
73. In view of my findings on issue no. 3, I find that the the suit of the plaintiff is liable to be dismissed against the defendant no. 1 and LRs of defendant no. 4. I further find that the plaintiff will be entitled to a decree for recovery of Rs. 2 lacs against the defendants no. 2 and 3.
74. However, the suit has already been abated against the defendant no. 2, therefore, the plaintiff is only entitled to a decree for recovery of Rs. 2 lacs against the defendant no. 3. As the defendant no. 3 had been withholding legally recoverable money of the plaintiff since December 2000, the defendant 3 is also liable to pay interest thereupon.
75. Considering the prevalent rate of FDR at that time, I find that it will be appropriate that the defendant 3 be ordered to pay interest @ 8% per annum from January 2001 till the date of realization of decreetal amount.
76. Hence, a decree for an amount of Rs.2 lacs with an interest @ 8% per annum from January 2001 till the date of realization of the decreetal amount is passed in favour of the plaintiff and against the defendant no. 3. Considering the peculiarity of the facts of the case, the parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (PARVEEN SINGH) on 30.11.2022. ADJ-11, Central District, (This judgment contains 27 pages and Tis Hazari Court, Delhi each page bears my signature.) CS No. 609836/2016 No. 27 of 27 (Parveen Singh) ADJ-11/Central/THC/Delhi/30.11.2022