Delhi District Court
Ruchi Gupta vs Krishna Devi on 18 December, 2024
IN THE COURT OF SH. DEEPANKER MOHAN
DISTRICT JUDGE-04, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No.: 260/2016
IN THE MATTER OF :-
Ms. Ruchi Gupta
D/o Sh. Dinesh Gutpa
R/o H.No.A-14,
Main Mandoli Road,
Jagat Puri, Shahdara,
Delhi-110093 ..... Plaintiff
Versus
Smt. Krishna Devi
W/o Sh. Raj Pal Singh
R/o H.No.461, Prabha Kunj,
Gali No.7, Chander Lok,
Shahdara, Delhi-110093 ..... Defendant
JUDGMENT
1. CS No. : 260/2016
2. Under Section : Suit for Specific Performance of
Agreement dated 06.04.2013 and
for compensation under Section
21 of the Specific Performance
Act or in the alternative for
recovery of Rs.19,28,250/-.
3. Date of Institution : 11/11/2013
4. Reserved for Judgment: 28/09/2024
5. Judgment : 18/12/2024
AND
MISC. DJ No.: 42/2020
IN THE MATTER OF :-
CS No. 260/ 16 & MISC DJ No.42/2020 Digitally
signed by
Page 1 of 52
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.12.18
17:39:11
+0530
Ms. Ruchi Gupta
D/o Sh. Dinesh Gutpa
R/o H. No. A-14,
Main Mandoli Road,
Jagat Puri, Shahdara,
Delhi-110093 ..... Non-Applicant/ Plaintiff
Versus
Smt. Krishna Devi
W/o Sh. Raj Pal Singh
R/o H.No.461, Prabha Kunj,
Gali No.7, Chander Lok,
Shahdara, Delhi-110093 ..... Applicant/ Defendant
1. MISC DJ No. : 42/2020
2. Under Section : Application for initiating enquiry
under Section 340 Cr.P.C. and
also initiate legal proceedings as
per law.
3. Date of Institution : 21/01/2020
4. Reserved for Judgment: 28/09/2024
5. Judgment : 18/12/2024
1. Vide this judgment, this court shall dispose of this suit for Specific Performance of Agreement dated 06.04.2013 and for compensation under Section 21 of the Specific Performance Act or in the alternative for recovery of Rs.19,28,250/-, filed by plaintiff against defendant on 11/11/2013 and application for initiating inquiry under Section 340 of the Code of Criminal Procedure, 1973 and also initiate legal proceedings as per law, filed by defendant/applicant against non-applicant/Plaintiff on CS No. 260/ 16 & MISC DJ No.42/2020 Page 2 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:39:18 +0530 21/01/2020.
AVERMENTS OF THE PLAINT
2. Defendant owns a built-up property No. B-30/603, Khasra No.786/529, Gali No.5, Chander Lok, Shahdara, Delhi-93, measuring 50 sq. yards and she entered into an agreement to sell dated 06.04.2013 with plaintiff in respect to her half portion of said property measuring 25 sq. yards for a total sale consideration of Rs.20 lakhs and for her rest of the half portion i.e. remaining 25 sq. yards the defendant entered into another agreement to sell with the plaintiff's brother Sh. Amit Gupta of even date i.e. 06.04.2013 for Rs.20 lakhs through the same property dealer. It is also averred that inadvertently in the request letter dated 14.09.2013, the consideration amount is wrongly mentioned as Rs.20,000/- and Gali No.1 through Gaurav Properties, A-66, Jagat Puri, Gali No.7, Near Nathu Colony, Delhi. It is also averred that both the agreements to sell are got prepared by the defendant herself from said property dealer, who is known to her.
3. Out of the total sale consideration of Rs.20 lakhs, defendant had already received a sum of Rs.12,50,000/- in cash through the father of plaintiff on her behalf. The balance sale consideration of Rs.7,50,000/- was agreed to be paid at the time of execution of the sale deed and other necessary documents as well as handing over the peaceful and vacant possession of the property was to be done on 05.10.2013, as per the terms of the agreement.
CS No. 260/ 16 & MISC DJ No.42/2020 Page 3 of 52
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.12.18
17:39:23
+0530
4. The Plaintiff sent a request letter dated 14/09/2013 to defendant through Speed post, Courier, Ordinary Post as well as by pasting at the doors of her house through her counsel, informing her about the transaction, date of execution of sale deed and asking her whether she will accept the balance sale consideration through cheque or in cash. The defendant refused to receive the speed post as well as courier request letters, however, the letter sent by ordinary post was not returned back.
5. The Plaintiff has visited the office of Sub-Registrar, Sunder Nagari, Delhi on 05/10/2013 with the demand draft of balance sale consideration amount of Rs.7,50,000/- but despite intimation, defendant did not turn up, for fulfilling her part of the contract, however, the appointed day i.e. 05/10/2013 was a holiday and a letter was again sent to defendant requesting her to be present at the office of Sub-registrar on 07/10/2013.
6. On 07/10/2013, plaintiff again went to the office of Sub- Registrar, Sunder Nagari, Delhi along with balance sale consideration amount as well other expenses for purposes of purchasing the stamp paper for execution of sale deed but defendant again failed to turn up. The plaintiff also tried to contact defendant on her mobile phone but defendant even avoided to talk with plaintiff.
7. Legal notice dated 08.10.2023 was sent to defendant thereby giving her a final opportunity to fulfill her obligation under the agreement. The speed post envelop returned back with CS No. 260/ 16 & MISC DJ No.42/2020 Page 4 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:39:29 +0530 the remarks "despite visiting again and again recipient did not meet intentionally and hence returned". The notice sent through courier and ordinary post did not return back. It is also averred that despite legal notice, defendant has failed to intimate the plaintiff the date (i) for receiving the balance sale consideration amount, which is lying in the account of plaintiff after getting the DD cancelled, (ii) for execution of the necessary documents as well (iii) for handing over the peaceful and vacant possession of the suit property, which clearly indicates that the defendant for oblique motives has no intention to fulfill her part of the contract, thus, the present suit for specific performance has been filed for the enforcement of the Agreement to Sell dated 06.04.2013.
8. It is also averred that plaintiff is still ready and willing to fulfill his part of the contract. The conduct of the defendant is showing that she is refusing to fulfill her part of the contract and she is bound under the law to fulfill her part of the agreement. The plaintiff has incurred thousands of rupees expenses due to the acts of omissions and commission of the defendant as submitted for getting the agreement enforced and as such defendant is also liable to pay the compensation as well as actual expenses incurred by plaintiff due to the acts of omissions and commission of the defendant and as such the plaintiff is entitled for compensation U/s 21 of the Specific Relief Act in addition to the decree of specific performance.
9. The agreement was executed between the parties and the defendant herself got prepared the agreement from her known CS No. 260/ 16 & MISC DJ No.42/2020 Page 5 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:39:34 +0530 property dealer through whom the transaction is entered into and is now backing out from the contract only because now the prices of property are high and defendant wants to dispose of the suit property for higher prices.
SERVICE OF SUMMONS
10. Summons were issued upon defendant vide order dated 12.11.2013, which were duly received on 21/12/2013 and subsequently, written statement was filed on 01.03.2014.
AVERMENTS OF THE WRITTEN STATEMENT FILED BY DEFENDANT
11. The defendant has pleaded that no such agreement dated 06.04.2013 was ever executed nor any payment of Rs.19,28,250/- was made by plaintiff to defendant. The plaintiff is playing fraud upon defendant by executing such false agreements. However, as earlier also on 30.05.2011, father of plaintiff Sh. Dinesh Gupta fraudulently obtained signature of plaintiff on a stamp paper of U.P. and some other documents just to grab the land of plaintiff at Baghpat Village, Liliyana Tehsil Khekra U.P. The father of plaintiff Sh. Dinesh Kumar Gupta in the name of plaintiff also obtained signature of defendant on a stamp paper of Rs.50/- on 25/03/2011 and then he further obtained the signature of defendant on back side on blank and then he showed Rs.8 lakhs, however, no payment was made by him.
12. On 03/06/2013, Sh. Dinesh Gupta brought two stamp paper and obtained her signature on the false pretext of Loan CS No. 260/ 16 & MISC DJ No.42/2020 Page 6 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:39:39 +0530 Paper. The signature was also obtained on another stamp paper in the name of Narender Goel. On 06/04/2013, Dinesh Gupta obtained signature of defendant forcibly as he was demanding Rs.1 lakhs back with interest @ 10% per month which was taken on 07/09/2010 but defendant had no money, hence, he forcibly obtained signatures of defendant. On 01/06/2011 Sh. Dinesh Gupta also sent another format for the signature of defendant.
13. On 07/09/2010, Sh. Dinesh Gupta has obtained signature of defendant in the name of Amit Gupta by showing Rs.2,50,000/-. On 25.03.2011, Sh. Dinesh Gupta obtained signature of defendant in the name of Sh. Amit Gupta by showing payment of Rs.8 lakhs. It is pleaded that only Rs.1 lakhs was taken on loan on 07.09.2010 but Sh. Dinesh Gupta calculated interest @ 10% per month on Rs.1 lakhs and made such a huge amount.
14. The defendant is an illiterate lady and she cannot read or write in Hindi, however, she can make signature. It is also pleaded that Sh. Dinesh Gupta tried to cheat the defendant in the name of Sh. Amit Gupta or Smt. Ruchi Gupta or Sh. Narender Goel.
15. On 13.04.2013, the cheque book containing blank signed cheque no.462311 to 462322 of PNB Durga Puri, Delhi of the account of Sh. Raj Pal were left somewhere for which a police complaint was lodged at PS M.S. Park. Later on, it was revealed that the said cheque book is lying with Sh. Dinesh Gupta and he raised threats to the defendant's husband for indulging him in CS No. 260/ 16 & MISC DJ No.42/2020 Page 7 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:39:49 +0530 false cases, hence, the plaintiff has filed the present suit just to blackmail the defendant.
16. On 13.04.2013, a big quarrel took place with Dinesh Gupta and defendant gave beatings to Dinesh Gupta with her slippers at his shop when she came to know about his forgery. The mob also gathered at the shop of Dinesh Gupta and Sh. Dinesh Gupta took out a bunch of documents at the instance of mob. The defendant snatched the copies of the same from Dinesh Gupta and thereafter defendant came to know about the fraud committed by Sh. Dinesh Gupta. In doing so, the cheque book of her husband was misplaced on 13.04.2013 however, prior to 13.04.2013, defendant had no knowledge about the nature of various documents and she only knew that she had signed loan paper of Rs.1 lakhs on interest. The present suit is based on fraud and concealment of material facts.
17. The property in part was purchased by defendant on 01/03/2007 from Sh. Khazan Singh and thereafter in 2010, the seller Khazan Singh & his associates trespassed into the property by breaking the wall. A FIR no. 380/2010 was registered against Khazan Singh for the offence punishable under Section 448 IPC. The defendant filed a suit for mandatory injunction and permanent injunction vide suit bearing No.107/2010 titled "Smt. Krishna Devi Vs. Sh. Khazan Singh & Anr.". Sh. Khazan Singh has also filed another suit against his son and defendant i.e. CS No.107/2010 titled "Sh. Khazan Singh Vs. Sh. Pushpanker & Smt. Krishna Devi". The defendant is not in physical possession CS No. 260/ 16 & MISC DJ No.42/2020 Page 8 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:39:54 +0530 of the suit property.
18. There is no privity of contract between plaintiff and defendant and the defendant cannot sell the property in question because since 2010 onwards litigation is going on in respect to suit property. The plaintiff has no valid cause of action to file the present suit. The defendant has not received payment of Rs. 12,50,000/- nor executed the agreement dated 06/04/2013. No letters and legal notice mentioned in the plaint has been sent or served upon defendant. The entire suit of plaintiff is based on fraud and concealment of material facts and the same deserves to be dismissed.
AVERMENTS OF THE REPLICATION
19. On 03.05.2014, replication was filed wherein plaintiff has denied the contents of the written statement and re-affirmed the averments of the plaint. The agreement to sell dated 06/04/2013 also bears signatures of husband and daughter of defendant besides other two witnesses namely Sh. Gopal Saxena and Sh. Hukum Chand. No explanation has been given by defendant in her written statement about the existence of signatures of her husband and daughter on the agreement to sell. The agreement to sell dated 06/04/2013 is not a single page document, therefore, the stand taken by defendant that she signed two stamp papers clearly seems to be false. The defendant has not given any explanation as to why she did not lodge any report to police regarding taking her signature by force by plaintiff's father. No complaint has been lodged by defendant or filed in support of her CS No. 260/ 16 & MISC DJ No.42/2020 Page 9 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:01 +0530 averments. The defendant herself got prepared the agreement dated 06/04/2013 and the agreement was already signed and thumb impressed by defendant and signed by her husband, her daughter and property dealer, when plaintiff along-with witness Hukum Chand and his brother Amit Gupta reached at the shop of the property dealer through whom the deal was materialized. The defendant being a clever and shrewd lady might have taken the photocopy of same prior to the signing of it by the plaintiff and another witness Mr. Hukum Chand without the knowledge of the plaintiff and now is trying to take advantage of her fraud/ clandestine act. The plaintiff has denied the incident of 13/04/2013. The Plaintiff admits the fact that her father and defendant had entered into an agreement on 30/05/2011 in respect to land at Baghpat Village Liliyana, tehsil Khekra, U.P., however, the said deal was not materialized and the said agreement was torn.
FRAMING OF ISSUES
20. Upon completion of pleadings, following issues were framed on 08.09.2015 which are mentioned as under:-
1. Whether plaintiff obtained signature of defendant forcibly on same documents on 06.04.2013? OPD
2. Whether defendant entered into an agreement to sell on 06.04.2013 with plaintiff in respect of half portion of property bearing No.B-30/603, Khasra No.786/529, Gali NO.5, Chander Lok, Shahdara, Delhi-93 measuring 25 sq. yards and plaintiff paid earnest money of Rs.12,50,000/-? OPP
3. If issue No.2 is decided in affirmative, whether plaintiff is CS No. 260/ 16 & MISC DJ No.42/2020 Page 10 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:05 +0530 entitled for specific performance of agreement dated 06.04.2013? OPP OR in alternative, Whether plaintiff is entitled to recover a sum of Rs. 19,28,250/- as prayed? OPP
4. Relief.
EVIDENCE LED BY THE PLAINTIFF
21. The Plaintiff to prove her case examined four witnesses i.e. (1). PW-1 Ms. Ruchi Gupta, (2) PW-2 Sh. Dinesh Gupta & (3) PW-3 Sh. Gopal Saxena.
22. On 08.12.2015, PW-1 Ms. Ruchi Gupta tendered his evidence by way of affidavit as exhibited as Ex.PW1/A and also relied on following documents i.e. (1) Ex.PW1/1- Original Agreement to sell bears his signature at point A and thumb and signature of defendant at point B on each page, (2) Ex.PW1/2- Request letter dated 14.09.2013 (3) Ex.PW1/3- Courier receipt of request letter dated 14.09.2013, (4) Ex.PW1/4- Postal receipt of request letter dated 14.09.2013, (5) Ex.PW1/5- Returned registered envelops, (6) Ex.PW1/6- Returned courier, (7) Ex.PW1/16- Returned envelop, (8) Mark A- Intimation letter, (9) Mark B- Postal receipt, (10) Ex.PW1/8- Original deposit receipt, (11) Ex.PW1/9 and Ex.PW1/10- Photocopy of inspection application and affidavit (objected to subject to mode of proof), (12) Ex.PW1/11- Copy of legal notice dated 08.10.2013, (13) Ex.PW1/12 and Ex.PW1/13- Postal and courier receipt of copy of legal notice dated 08.10.2013, (14) Ex.PW1/14- Returned CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 11 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:10 +0530 original envelop, (15) Ex.PW/15- Photocopy of draft, (16) Ex.PW1/16 and Ex.PW1/17(OSR)- Newspaper extract & (17) Ex.PW1/18 to Ex.PW1/29- Photographs. On 29.03.2016, 01.10.2016 and 18.03.2017 he was cross examined by Ld. counsel for defendant.
23. PW-1 deposed that she did not know whether the defendant is not in possession of the suit property or that two civil suits filed by Sh. Khajan Singh against defendant and defendant against Khajan Singh and both the said suits are still pending since 2010. She did not know whether there is stay order in respect of creating any third party interest of the suit property. She did not know whether defendant is not in possession of the suit property since 2009. She denied the suggestion that no such agreement to sell dated 06.04.2013 was ever been executed or signed by defendant. She denied the suggestion that the alleged payment of Rs.12,50,000/- was neither paid at any point of time to the defendant nor she was having any such amount at that time or that no such transaction in respect of suit property was ever conducted in any manner with defendant. She deposed that the payment was given in cash. She deposed that she was keeping the said amount with her on that day. She deposed that she had shown the said amount in his ITR. She deposed that she had not withdrawn the said amount of Rs.12,50,000/- from her bank account. She deposed that she had shown the cash amount of Rs.12,50,000/- in his ITR for the year 2014-2015. She deposed that the said amount in the column of investment in her balance sheet was reflected as Rs.12,50,000/- at point A. She deposed CS No. 260/ 16 & MISC DJ No.42/2020 Page 12 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:15 +0530 that in the balance sheet for the year ending w.e.f. 01.04.2012 to 31.03.2013 was reflected cash in hand under the column of current assets as Rs.14,42,711/- at point B. She deposed that in the balance sheet for the year ending w.e.f. 01.04.2013 to 31.03.2014 the cash in hand was under the column of current assets as Rs.3,11,453/-. She deposed that Sh. Gopal Saxena, the property dealer purchased the stamp paper of Rs.50/- Ex.PW1/1 but she did not know from whom and where he purchased the said stamp paper. She deposed that she had no knowledge who were present at the time of preparation of agreement Ex.PW1/1 as the same was already prepared. She deposed that when she reached there, Sh. Hukum Chand, witness, she herself and her brother signed the same and other persons had already signed the same. She deposed that all the signatures were obtained at the shop of property dealer. She admitted the suggestion that the deal was conducted between his father and defendant.
24. She deposed that she did not know whether the original document dated 20.05.2011 was signed by her father or not at point A. She voluntarily deposed that both the signatures are different. She denied the suggestion that Ex.PW1/1 was a forged document. She also denied the suggestion that her father and defendant were having illicit relations. She deposed that she did not know whether any stamp paper of UP was signed by defendant at the instance of her father or not. She voluntarily deposed that there was some deal between her father and defendant in respect of UP land. She has no knowledge whether there was any dealings in between her father and defendant on CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 13 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:21 +0530 25/03/2011. She admitted the suggestion that defendant is an illiterate lady and she could not write or read but she could only sign. She voluntarily deposed that the documents in question was not signed in her presence and the same was already signed. She deposed that she did not know whether on 13.04.2013, the cheque book of PNB Durga Puri Branch bearing No.462311 to 462322 signed by Sh. Raj Pal Singh was lost and the same was later on misused by her father or that her father distributed those blank cheques to various persons and they filed criminal complaints U/s 138 of NI Act at the instance of her father. She deposed that she did not know whether there was any status quo order in respect to property in question since 2010. She voluntarily deposed that had she be aware about it she would have not gone for the present deal. She denied that she had filed the present false suit at the instance of her father.
25. PW-2 Sh. Dinesh Gupta filed his evidence affidavit and on 08.12.2015, he tendered his evidence by way of affidavit as exhibited as Ex.PW2/A. On 04.07.2017, he was cross examined by Ld. counsel for defendant.
26. PW-2 deposed that he knew the defendant for last more than 12-13 years. He deposed that he did not know whether the suits between Smt. Krishna Devi and Khazan Singh are pending in the court since 2010 and onwards and till date. He deposed that he did not know whether there was a stay order in the said case since 2010 and the same is still pending in the court of Sh. Deepak Dabas, KKD Courts, Delhi. He denied that no amount CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 14 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:25 +0530 was ever settled between the parties as stated by him in para 5 of his affidavit. He admitted that there was no such firm M/s Gaurav Properties A-66, Jagat Puri, Gali no.7, Delhi-93. He voluntarily deposed that the said firm was earlier in existence when the transaction was took place. He deposed that he did not know who was the writer and whose hand writing was appearing on the agreement. He voluntarily deposed that it was already prepared by the defendant. He admitted that Mark A bear the signature of Smt. Krishna at point A and his signature at point B. He voluntarily deposed that he could not confirm the signature on Mark A however, the same were the similar signature of him. The said document was exhibited as Ex.PW1/D-1. He deposed that he could not identify the documents i.e. photocopies of various agreements without seeing the original. He denied that all the original of the documents were kept with him of which the photocopies of same are on record.
27. PW-3 Sh. Gopal Saxena filed his evidence affidavit and on 05.09.2023 he tendered his evidence by way of affidavit as exhibited as Ex.PW3/A. On the same day, he was cross examined by Ld. counsel for defendant.
28. PW-3 deposed that he is a property dealer. He deposed that he is not a registered property dealer. He deposed that he is acquainted to Dinesh Gupta since 1995, who dealt in business of milk. He admitted the suggestion that he knew Amit Gupta, who is son of Dinesh Kumar. He deposed that he is not not aware whether any dispute was pending between Smt. Krishna Devi CS No. 260/ 16 & MISC DJ No.42/2020 Page 15 of 52 DEEPANKER MOHAN Digitally signed by DEEPANKER MOHAN Date: 2024.12.18 17:40:35 +0530 and Khajan Singh. He denied the suggestion that he came alongwith Krishna Devi and Amit Kumar to make them meet counsel Sh. D.D. Pandey, Advocate. He deposed that he is aware about the address of the property to which he dealt with between Krishna Devi and plaintiffs, i.e. the property No. B-30/603, Gali No.5, Chanderlok, Delhi (suit property). He deposed that he had seen the original title documents of the said suit property. He deposed that the copy of the said title documents were not supplied to him by Smt. Krishna Devi. He deposed that no photographs or videography of the transaction was taken/made on 06.04.2013, at the time of execution of the agreement to sale. He denied the suggestion that agreement to sell dated 06.04.2013 is a fabricated document. He deposed that he had no documents pertaining to the property bearing No.B-30/603, Khasra No.786/529, Gali No.5, Chander Lok, Shahdara, Delhi, measuring 20 sq. Yards, mentioned in para-6 of his evidence affidavit Ex.PW3/A. He voluntarily deposed that the said property is part of the suit property. He deposed that he did not maintain register in his office pertaining to his business of sale and purchase of property. He denied the suggestion that no witness and parties were present in the office at the time of execution the alleged transaction dated 06.04.2013. He deposed that he has deposed being a witness in favour of Dinesh Gupta in some criminal case. He deposed that he is acquainted with the persons living in the same vicinity.
29. On 05.09.2023, plaintiff evidence was closed and the matter was listed for defendant's evidence.
CS No. 260/ 16 & MISC DJ No.42/2020 Page 16 of 52
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.12.18
17:40:40
+0530
EVIDENCE LED BY THE DEFENDANT
30. Defendant has examined six witnesses i.e. (1) DW-1- Defendant herself, (2) DW-2- Ms. Renu Yadav, (3) DW-3- Sh. Kamal Kishore Semwal, (4) DW-4- Sh. Kamal Singh (5) DW-5 HC Dinesh Kumar and (6) DW-6 Sh. Syed Faizal Huda.
31. DW-1 Defendant herself. On 05.10.2023, DW-1 tendered her evidence by way of affidavit as exhibited as Ex.DW1/A and also relied on following documents i.e. (1) Mark A- Copy of document dated 19.08.2010 (07.09.2010) (The said document is already exhibited as Ex.PW1/D1 during cross examination of PW-2), (2) Mark B- Copy of document on stamp paper dated 25.05.2011 (executed on 30.05.2011), (3) Mark C- Copy of document dated 25.03.2011, (4) Mark D- Copy of document dated 25.03.2011, (5) Mark E- Copy of document dated NIL (alleged payments shown on 11.10.2010 to 25.11.2012), (6) Mark F- Copy of document dated 06.04.2013, (7) Mark G- Copy of document dated 06.04.2013, (8) Mark H- Copy of document dated 03.06.2013, (9) Mark I- Copy of FIR No. 380/2010 dated 01.07.2010 in PS Shahdara. On 05.10.2023 and 17.10.2023, DW-1 was cross examined by Ld. counsel for plaintiff at length.
32. DW-1 admitted the suggestion that in the case between Sheel Chand Jain and her husband, the order of conviction was passed under Section 138 of NI Act and subsequently the matter was compromised after making the compromise. She voluntarily deposed that the above said case was filed by Sheel Chand Jain at the instance of Dinesh Gupta, father of the plaintiff. She admitted CS No. 260/ 16 & MISC DJ No.42/2020 Page 17 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:44 +0530 the suggestion that neither she nor her any family member registered any complaint against the plaintiff and her family members for forging her signatures on the documents filed and relied upon by plaintiff along with the plaint. She deposed that on 13.04.2013 she came to know first time about making her forged signatures and to prepare the forged documents dated 06.04.2013 Ex.PW-1/1. She admitted the suggestion that she had not filed any complaint before police after getting the knowledge of the documents Ex.PW-1/1. She admitted the suggestion that she had also not made any complaint before police or any authority for an action against the plaintiff on showing the payment of Rs.12,50,000/- to her on account of part payment of sale consideration in respect of her property bearing No.B-30/603, area 25 sq yards khasra No.786/529 Chander Lok, Gali No.5, Shahdara, Delhi-110032 in documents Ex.PW-1/1. She admitted the suggestion that on the last page of Ex.PW-1/1 at point C bears signatures of her daughter Renu Yadav and at point D bears signatures of her husband. She again deposed that she is an illiterate. She admitted the suggestion that signatures and thumb impression at point B on both the pages of Ex.PW-1/1 bears her signatures and thumb impression. She voluntarily deposed that she had signed on the blank papers and Dinesh Gupta used to take her signatures on blank papers.
33. She admitted the suggestion that she had not made any complaint to police for taking action against Dinesh Gupta for obtaining her signatures on blank papers. She deposed that at the time when Dinesh Gupta obtained her signatures on blank CS No. 260/ 16 & MISC DJ No.42/2020 Page 18 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:40:50 +0530 papers, one Gopal had been present at the place/spot. She deposed that Gopal is employee of Dinesh Gupta. She deposed that she could not tell whether she had mentioned in her written statement and evidence affidavit Ex.DW-1/A that Gopal was present at the time when Dinesh Gupta obtained her signatures on blank papers. She deposed that she did not demand in writing by way of notice the blank documents on which Dinesh Gupta had obtained her signatures. She voluntarily deposed that she had orally requested Dinesh Gupta to return those blank documents. She deposed that she did not have photocopy of the blank documents on which Dinesh Gupta had obtained her signatures. She voluntarily deposed that Sh. Dinesh Gupta never gave her copies of those documents. She admitted the suggestion that she did not have any document either original or photocopy thereof to show that her signatures were obtained on blank papers by Dinesh Gupta and thereafter it was converted into writing. She voluntarily deposed that on 13.04.2013, she went to the shop of Dinesh Gupta and snatched the copy of documents Mark A to Mark H. She deposed that she did not file any case against Dinesh Gupta on the basis of documents Mark A to Mark H. She admitted the suggestion that house bearing No.461, Prabha Kunj, Gali No.7, Chander Lok, Delhi-110093 was owned by her. She admitted the suggestion that on 14.09.2013, she was residing at house bearing No.461, Prabha Kunj, Gali No.7, Chander Lok, Delhi-110093.
34. She deposed that she did not know that on 05.10.2013 Amit Gupta and Ruchi Gupta affixed one document Mark A on CS No. 260/ 16 & MISC DJ No.42/2020 Page 19 of 52 DEEPANKER MOHAN Digitally signed by DEEPANKER MOHAN Date: 2024.12.18 17:40:55 +0530 her property/house bearing No.461, Prabha Kunj, Gali No.7, Chander Lok, Delhi-110093. She deposed that she did not remember whether Amit Gupta and Ruchi Gupta had sent a legal notice Ex.PW-1/2 to her on her residential address i.e. house bearing No.461, Prabha Kunj, Gali No.7, Chander Lok, Delhi-110093. She deposed that she did not know whether she had to visit Sub Registrar office on 07.10.2013 for getting the sale deed registered in respect to property bearing No.B-30/603, Khasra No.786/529, Gali No.1, Chander Lok, Shahdara, Delhi-110093 measuring area 25 sq. yards. She voluntarily deposed that she is not the owner of the said property. She again deposed that she had purchased this property in the year 2007 from Khazan Singh and the said property is under dispute and civil suit is also pending since 2010 regarding the said property. She deposed that she did not know whether Amit Gupta also called her on 07.10.2013 for visiting the office of Sub Registrar to accept the payment of Rs.7,50,000/- and for getting the sale deed registered.
35. She deposed that she had not received any notice dated 08.10.2013 Ex.PW-1/16. She deposed that she did not receive the copies of coloured photographs Ex.PW-1/7 to Ex.PW-1/11 showing the presence of Amit Gupta at the office of Sub Registrar on 05.10.2013 and 07.10.2013. After seeing the coloured photographs Ex.PW-1/4C to Ex.PW-1/4E, Ex.PW-1/19 to Ex.PW-1/21, she deposed that the door shown in the said photographs is not installed at her residential house i.e. House No.461, Prabha Kunj, Gali No.7, Chander Lok, Delhi-110093.
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She denied the suggestion that she had received the documents Ex.PW-1/4C to Ex.PW-1/4E, Ex.PW-1/19 to Ex.PW-1/21 but even thereafter she had not challenged/disputed the same.
36. After seeing the document Mark H, she replied that the photograph and signatures at points A, B and C are of her. She voluntarily deposed that she had signed on blank papers at point A, B and C of the document Ex.DW-1/PX1 and later on it was reduced in writing. She admitted the suggestion that on 06.04.2013 the sale deed dated 01.03.2007 pertaining to the property bearing No.B-30/603, Khasra No.786/529, Gali No.1, Chander Lok, Shahdara, Delhi-110093 was not cancelled and was in existence. She voluntarily deposed that she had not received the possession of the said property till date.
37. She denied the suggestion that documents Ex.DW-1/PX1 is the agreement to sell between her and Narender Goyal of the property No.B-30/603, Khasra No.786/529, Gali No.1, Chander Lok, Shahdara, Delhi-110093 against a total sale consideration of Rs.40,00,000/- out of which she had received Rs.27,43,000/- on 04.06.2013. She denied the suggestion that she had not received payment of Rs.27,43,000/- towards bayana agreement from Narender Goyal. She denied the suggestion that she had entered into an agreement to sell with Narender Goyal in respect of property bearing No.B-30/603, Khasra No.786/529, Gali No.1, Chander Lok, Shahdara, Delhi-110093. She deposed that she had not filed any complaint against Narender Goyal in respect to document Ex.DW-1/PX1 (earlier marked as Mark H) even after Digitally CS No. 260/ 16 & MISC DJ No.42/2020 signed by Page 21 of 52 DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:05 +0530 filing of her evidence affidavit Ex.DW-1/A before this Court.
38. She admitted the suggestion that she had mentioned herself as owner of the property bearing no.B-30/603, Khasra No.786/529, Gali No.1, Chander Lok, Shahdara, Delhi-110093 in the plaint filed in the suit bearing CS No.169/2010. She voluntarily deposed that the said suit was filed by her against Khazan Singh at the instance of Dinesh Gupta.
39. DW-2 Ms. Renu Yadav. On 25.11.2023, DW-2 tendered her evidence by way of affidavit as exhibited as Ex.DW2/A. On the same day, she was cross examined by Ld. counsel for plaintiff.
40. DW-2 deposed that she did not lodge any complaint to the police for action against Amit Gupta and Ruchi Gupta for misusing the documents under her signatures dated 02.04.2013.
She deposed that she did not know as to how many times her mother deals (Sale and purchase) with the property in question with other persons. She deposed that she and her parents did not file any complaint in respect of the incident dated 07.09.2010 against Dinesh Gupta before police or any authority. She voluntarily deposed that there was no any quarrel with Dinesh Gupta with them on 07.09.2010. She deposed that she had not made any call at 100 number on 13.04.2013 though she had made a written complaint to the police regarding the incident dated 13.04.2013. She again deposed that she had not made any complaint regarding quarrel with Dinesh Gupta regarding the incident dated 13.04.2013 though she had made a complaint CS No. 260/ 16 & MISC DJ No.42/2020 Page 22 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:10 +0530 against Dinesh Kumar Gupta regarding misuse of the cheque book of her father. She deposed that she could not tell the cheques number which were misused by Dinesh Kumar Gupta. Dinesh Kumar Gupta never filed any complaint/case under Section 138 of N.I. Act against my father. She voluntarily deposed that one Sheel Chand Jain has filed a false complaint case under Section 138 N.I. Act against her father by misusing the cheques of her father. She deposed that her father was convicted by the Ld. Trial Court in the complaint case filed by Sheel Chand Jain. She deposed that in appeal, the said matter was compromised/compounded before the Appellate Court and her father paid Rs.1,70,000/- or Rs.1,80,000/- to Sheel Chand Jain.
41. She deposed that neither she nor her father made any complaint against Dinesh Kumar Gupta and her mother regarding the relationship mentioned in the para no.4 of her evidence affidavit. She deposed that the documents of sale and purchase pertaining to property in question were not written and executed in her presence. She deposed that she had not deposed as a witness in case filed by Khazan Singh case as mentioned in para No.5 of evidence affidavit Ex.DW-2/A. She deposed that she did not know what reply her mother had filed in the case of Khazan Singh as mentioned in para no.5 of her evidence affidavit Ex.DW-2/A. She deposed that she was not party to the suit titled as "Khazan Singh Vs. Pushpankar Deo and others" as mentioned in para no.6 of her evidence affidavit. She deposed that she was also not party to the suit and appeal titled as "Krishna Devi Vs. CS No. 260/ 16 & MISC DJ No.42/2020 Page 23 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:15 +0530 Khazan Singh" as mentioned in para no.6 of her evidence affidavit.
42. DW-3 Sh. Kamal Kishore Semwal, Ahlmad in the Court of Sh. Kapil Kumar, Ld. ADJ-01, North-East District, Karkardooma Courts, Delhi, who was the summoned witness. On 09.12.2023, he had brought the original summoned record/judicial file of case bearing No.RCA/DJ/23/2023 titled as "Krishna Devi Vs. Khajan Singh (since deceased) through LR". Copy of the appeal accompanying with affidavit of Krishna Devi. Same was checked and verified from the original record brought by him. He had also brought copy of an application under Section 151 CPC for maintaining status quo accompanying with the affidavit. Same was checked and verified from the original record brought by him. He had also brought copy of order dated 18.08.2023 passed by Ld. ADJ-01, North-East District, KKD Courts, Delhi. Same was checked and verified from the original record brought by him. On the same day, he was cross examined by Ld. counsel for plaintiff wherein he deposed that he has no personal knowledge of the present case. He deposed that he was deposing on the basis of the summoned record/judicial file brought by him.
43. DW-4 Sh. Kamal Singh, Ahlmad in the Court of Sh.
Deepak Kumar-I, Ld. Senior Civil Judge, North-East District, Karkardooma Courts, Delhi, who was the summoned witness. On 12.01.2024, he had brought the original summoned record/judicial file of case bearing No.5582/15 titled as "Khazan Singh Vs. Pushpankar Deo and others". He deposed that he had CS No. 260/ 16 & MISC DJ No.42/2020 Page 24 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:20 +0530 compared the certified copies with the original records and submits that certified copies are the true and correct and are copies of original. (1) Ex.DW4/A(Colly.)- Photocopy of certified copy of amended plaint supported by affidavit, (2) Ex.DW-4/B (Colly.)- Photocopy of certified copy of amended Written Statement filed by Pushpankar Deo (Defendant No.1 in the said suit) supported by affidavit, (3) Ex.DW-4/C(Colly.)- Photocopy of certified copy of amended written statement filed by Krishna Devi (Defendant No.2 in the said suit) supported by affidavit, (4) Ex.DW-4/D(Colly.) - Photocopy of certified copy of replication filed on behalf of Khazan Singh (Plaintiff in the said suit) to the written statement of Pushpankar Deo, (5) Ex.DW-4/E (Colly.)-
Photocopy of certified copy of replication filed on behalf of Khazan Singh (Plaintiff in the said suit) to the written statement of Krishna Devi, (6) Ex.DW-4/F(Colly.)- Photocopy of certified copy of order of Sh. Ritesh Singh, Ld. Additional District Judge-01 dated 19.04.2012 and (7) Ex.DW-4/G (Colly.) - Photocopy of certified copy of order of Sh. Anil Kumar Sisodia, Ld. Senior Civil Judge dated 25.01.2011. On the same day, he was cross examined by Ld. counsel for plaintiff, wherein he deposed that he had no personal knowledge of the present case. He deposed that he was deposing on the basis of the summoned record/judicial file brought by him today.
44. DW-5 HC Dinesh Kumar, Belt no.372, PS Shahdara, Delhi, who was the summoned witness. On 08.02.2024, he had brought the original FIR bearing no.380/2010 dated 01.07.2010 registered at PS Shahdara for the offence punishable under CS No. 260/ 16 & MISC DJ No.42/2020 Page 25 of 52 DEEPANKER MOHAN Digitally signed by DEEPANKER MOHAN Date: 2024.12.18 17:41:25 +0530 Section 448/34 IPC Ex.DW5/1(OSR) (Running into 05 pages). On the same day, he was cross examined by Ld. counsel for plaintiff, wherein he deposed that he has no personal knowledge about the present case as well as consequence of the FIR.
45. DW-6 Sh. Syed Faizal Huda aged about 37 years S/o Sh. S.A. Huda, R/o H. No.H-42, Abul Fazal Enclave, Jamia Nagar, Okhla, New Delhi-110025, who was the summoned witness. On 09.04.2024, DW-6 tendered his evidence by way of affidavit as exhibited as Ex.DW6/A and also relied on following document i.e. (1) Ex.DW6/B(Colly.)(Running into 53 pages) (Page No.8 to
60)- His forensic report dated 28.02.2024. On the same day, he was cross examined by the Ld. counsel for plaintiff.
46. DW-6 admitted the suggestion that he did not collect the specimen signatures of Amit Gupta as on the date of lifting the signatures from the referred documents. He admitted the suggestion that he lifted the signatures of Amit Gupta from his mobile phone and only thereafter it was inserted in the device of the computer for the purpose of its enlargement. He admitted the suggestion that the questioned signatures examined by him pertaining to Amit Gupta on ikrarnama dated 06.04.2013 with the signatures of the other document from which he lifted the signatures of Amit Gupta was not of the same date i.e. 06.04.2013. He voluntarily deposed that he had examined the signatures of Sh. Amit Gupta on the ikrarnama dated 06.04.2013 with the original affidavit Ex.PW1/A dated 08.12.2015. He deposed that he had not lifted the signatures of Amit Gupta from CS No. 260/ 16 & MISC DJ No.42/2020 DEEPANKER Page 26 of 52 MOHAN Digitally signed by DEEPANKER MOHAN Date: 2024.12.18 17:41:30 +0530 the records of Oath Commissioner. He voluntarily deposed that he had lifted the signatures of Amit Gupta only from the judicial record. He deposed that as per his expertise and experience, his opinion in the present matter is definite and it would be similar, if examined by some other expert or other agency. However, he could not give any opinion regarding the competency of any other expert. He denied the suggestion that his opinion was based on the probabilities about similarity. He deposed that he had examined the signatures of Sh. Dinesh Gupta marked by him as Q4, Q5, Q6 and Q7 on ikrarnama Mark B dated 30.05.2011 placed in the file titled as "Amit Gupta Vs. Krishna Devi". He admitted the suggestion that the ikrarnama Mark B dated 30.05.2011 was the photocopy of the document and not the original. He deposed that he had used the latest method for the comparison of signatures i.e. photographic enlargement which was prepared by him after taking the photographs from the judicial record and after comparison of the same under high magnification, he had come to the above referred conclusion as given in his report Ex.DW6/B. He deposed that he used the software adobe photoshop at his Lenovo Laptop for the purpose of photographic enlargement and thereafter print outs of the photographs were taken out with the help of HP CP 1025 and HP 150 NW Printers.
47. He admitted the suggestion that the equipment utilized for preparation of the report of the questioned signatures had been exclusively in his possession with liberty to use the same as per his convenience w.e.f. the date the signatures were lifted till the CS No. 260/ 16 & MISC DJ No.42/2020 Page 27 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:36 +0530 filing of the report. He deposed that it was not possible to produce the chip before this Court because there was no external memory for storing and transferring the data in chip in his mobile phone. He deposed that he could produce the data in CD, if required at any stage. He admitted the suggestion that he had used the word "Laptop" in his certificate u/sec. 65-B. He voluntarily deposed that he had used the word computer. He admitted the suggestion that while giving the report on Ex.DW6/B, on the opening page of the documents, he had used the word "similar" not the word "same" "exact" and "perfect" as well as "definite" about the questioned signatures. He voluntarily deposed that the opening page was an index page in his report Ex.DW6/B showing the table of the script of the signatures, marking of the signatures and opinion so there was no need to give the detailed opinion on the front page. He further voluntarily deposed that he had further given detailed reasoning in continue pages and framed his opinion at page number 36 to 40 in 11 paras. He further deposed that the word "exact" and "perfect" was not used in the comparison of signatures or handwriting rather he had used the word "definite" in his report.
48. He deposed that he had not got any experience certificate from any agency under the government of India. He deposed that since he was running his own forensic agency namely "Forensic Services- India" so he need not to obtain any experience certificate from any agency as per his knowledge and experience. He deposed that there was no licensing authority established in India so far that can issue the license or experience certificate for CS No. 260/ 16 & MISC DJ No.42/2020 Page 28 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:41 +0530 private experts. He deposed that his reports had been relied upon by the Hon'ble Courts in numerous court judgments. He deposed that the way he adopted to examine the signatures using his own devices can be called "forensic examination". He further deposed that he had done the forensic examination of signatures. He admitted the suggestion that within a span of three years, little variation could come in the signatures. He denied the suggestion that at the time of lifting the signatures of Gopal Saxena, the signatures of Gopal Saxena was available on the agreement dated 06.04.2013. He voluntarily deposed that on agreement dated 06.04.2013 the original signatures was not available. He deposed that he had lifted the signatures of Gopal Saxena from the judicial record i.e. Ex.PW1/1 dated 06.04.2013. He denied the suggestion that the reason given by him for variation of the signatures in the report Ex.DW6/B pertaining to Amit Gupta, Gopal Saxena, Ruchi Gupta was not based on the scientific and forensic observation or that it was manipulated.
49. On 09.04.2024, DE was closed and the matter was listed for final arguments.
50. Final arguments were heard on 04.05.2024, 01.08.2024, 21.08.2024 and 28.09.2024.
51. On 22/03/2014 an application under Order I Rule 10 CPC was filed by Sh. Khajan Singh which was dismissed vide Order dated 29/10/2014.
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FINAL ARGUMENTS ON BEHALF OF THE PLAINTIFF
52. Ld. Counsel for the Plaintiff argued that defendant denied the execution of agreement to sell dated 06/04/2013, however, defendant in her written statement admit her signatures on the agreement but avers that the same were obtained by force. It is also argued that defendant has not filed any complaint or availed any legal remedy to challenge the said overt act of plaintiff's father. The defendant has failed to prove that her signatures on agreement to sell dated 06/04/2013 were obtained forcibly. It is also argued that the expert witness i.e. DW-6 also opined that the signature of defendant and her daughter are there on the agreement. It is further argued that defendant has taken false ground i.e. 'her signatures were obtained forcibly on blank papers', however, the signatures of her husband and daughter also appears on the said agreement and defendant has not given any explanation for the same. It is further argued that no incident dated 13/04/2013 has ever occurred, however, even if for sake of arguments it be considered that the incident happened on 13/04/2013 as stated in written statement then also defendant has not filed any complaint against Dinesh Gupta or plaintiff or her brother after 13/04/2013 which clearly proves that defendant is averring false and concocted stories. It is further argued that defendant has not pleaded that she was threatened or beaten or coerced by Sh. Dinesh Gupta. It is further argued that the defendant admits her competency to execute agreement as she admits that she purchased the suit property from Khajan Singh on 01/03/2007. It is further argued that the documents filed by the CS No. 260/ 16 & MISC DJ No.42/2020 Digitally signed by Page 30 of 52 DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:51 +0530 defendants are false and the same are also not proved in accordance with law. It is further argued that defendant has also not served notice under Order XII Rule 8 of the Code of Civil Procedure, 1908 or filed any application for seeking direction against plaintiff or against her father for production of original documents. It is further argued that defendant is the owner of the suit property and sale deed still exist in her favour. It is also argued that plaintiff is always ready and willing to purchase the suit property and she has also proved her readiness and willingness by leading positive evidence. It is further argued that defendant has not specifically denied the averments of Para No. 9,10, 12 and 14 of the plaint and therefore, as per Order VIII Rule 4 and 5 CPC, the averments of the said paragraph are deemed to be admitted. The presumption under Section 27 of the General Clause Act and Section 114 of the Indian Evidence Act also stands against defendant. It is admitted by the Ld. Counsel for plaintiff during the course of arguments that as on date, defendant is not in possession of the suit property and son of Sh. Khajan Singh is in possession of the suit property. The Ld. Counsel for plaintiff further argued that plaintiff has proved her case and is entitled for decree. He also relied upon the following judgements which are mentioned as under:-
i. M/s Top Filling Point Proprietor Rakesh Aggarwal versus State of U.P. and Anr., passed by the Hon'ble High Court of Uttar Pradesh at Allahabad. (Neutral Citation- 2023:AHC:198556) ii. The Deputy Commissioner of Police versus Score CS No. 260/ 16 & MISC DJ No.42/2020 Page 31 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:41:55 +0530 Information Technologies Ltd., F.A.O. (OS) (COMM) No. 357/2019, Date of Judgment:- 02/07/2024 passed by the Hon'ble High Court of Delhi.
iii. Priyanka Kumari versus Shailendra Kumar, Transfer Petition (Civil) No. 2090/2010, Date of decision: 13/10/2023 passed by the Hon'ble Supreme Court of India.
iv. Chander Bhan (dead) through LR Sher Singh versus Mukhtiar Singh & Ors., passed by the Hon'ble Supreme Court of India in Civil Appeal No. 2991/ 2024 arising out of SLP (Civil) No. 4134/ 2020, D.O.D.: 03/05/2024.
v. A.B. Govardhan versus P. Ragothaman passed by the Hon'ble Supreme Court of India in Civil Appeal Nos 9975-9976 of 2024 arising out of SLP (Civil) Nos. 5034-5035 of 2019, D.O.D.: 29/08/2024.
FINAL ARGUMENTS ON BEHALF OF DEFENDANT
53. Ld. Counsel for the Defendant argued that the agreement to sell dated 06/04/2013 is a forged, fake and fabricated document. It is further argued that the agreement to sell dated 06/04/2013 is an unregistered and unstamped document and the same cannot be said as an instrument on which Plaintiff can claim any right over the suit property. It is further submitted that defendant has purchased the suit property vide registered sale deed dated 01/03/2007 and was also put into possession but on 30/05/2010 she has been dispossessed from the suit property by Sh. Khajan Singh. It is further argued that the said fact is well within the knowledge of Sh. Dinesh Gupta, Plaintiff, her brother CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 32 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:00 +0530 Sh. Amit Gupta and Sh. Gopal Saxena and they in connivance with each other wants to grab the suit property. It is further argued that the said agreement cannot be enforced in the eyes of law and under the present facts and circumstances. It is further argued that the defendant has never received the amount of Rs. 12,50,000/- each from the plaintiff or her brother at any point of time. It is further argued that the said amount has also not been reflected in the ITR of Plaintiff for the relevant period. It is further argued that Plaintiff has failed to prove the source of fund from where she got Rs. 12,50,000/- in cash which she allegedly paid to defendant. It is further argued that PW-3 Gopal Saxena is an interested witness and his testimony cannot be relied upon. It is further argued that Plaintiff has not examined Sh. Hukum Chand, witness of the said agreement. It is further argued that DW-6 has opined that the signatures of plaintiff on the agreement to sell dated 06/04/2013 are different from the signatures on the plaint and the same are not matched. It is further argued that defendant has proved her defence and therefore, the case of the plaintiff is liable to be dismissed. It is further argued that plaintiff is liable to be prosecuted under Section 340 of Cr.P.C. Ld. Counsel for the defendant also relied upon the judgment passed by the Hon'ble Supreme Court of India in " Bidyut Sarkar & Anr. versus Kanchilal Pal (Dead) through LRs. & Anr." in Civil Appeal Nos. 10509-10510 of 2013, D.O.D.:- 28/08/2024.
APPRECIATION OF EVIDENCE AND DETERMINATION OF THE CASE ISSUE WISE CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 33 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:04 +0530 ISSUE NO. 1:- Whether plaintiff obtained signature of defendant forcibly on same documents on 06.04.2013? OPD
54. The onus to prove this issue is upon defendant. The Defendant has taken the defence that her signatures on the agreement to sell dated 06/04/2013 has been forcibly obtained by Sh. Dinesh Gupta, when he demanded repayment of Rs. 1 Lakh along-with interest @ 10% per annum, which she had taken on 07/09/2010, but defendant had no money to repay him.
55. The defendant in Para No. 4 of her evidence affidavit Ex. DW-1/A has deposed that "I further say that on 07/09/2010, the deponent had taken an amount of Rs. 1,00,000/- from said Dinesh Kumar Gupta and for which he got signed some documents. Later on, Dinesh Kumar Gupta started demanding his Rs. 1,00,000/- back along with interest @ 10% p.m. on Rs. 1,00,000/-, but the defendant had no money to repay, in these circumstances, he obtained signatures of the defendant on various documents on pretext of loan agreement ". The defendant has changed her stand taken in written statement and she has not mentioned in evidence affidavit Ex. DW-1/A that her signatures were obtained by Sh. Dinesh Kumar Gupta forcibly. The daughter of the defendant has deposed as DW-2 in the similar line as deposed by DW-1 Smt. Krishna Devi.
56. The defendant has also not filed any complaint on record in support of her averments pleaded in the written statement. It is noted that the agreement to sell dated 06/04/2013 Ex. PW-1/1 CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 34 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:09 +0530 also bears the signatures of Smt. Renu Yadav and Sh. Rajpal Singh, daughter and husband of defendant respectively. No explanation has been given by Defendant about the existence of the signatures of her daughter and husband on agreement to sell Ex. PW-1/1. Moreover, DW-2 Smt. Renu Yadav has also not denied her signature and signature of her father on the agreement to sell Ex. PW-1/1. DW-2 has not deposed that her signature and signature of her father were also forcibly obtained by Sh. Dinesh Kumar Gupta. It is also not the case of defendant that Sh. Dinesh Kumar Gupta has forcibly obtained her signatures on the agreement to sell Ex. PW-1/1 in presence of her daughter Ms. Renu Yadav and husband Sh. Rajpal Singh, therefore, the testimony of DW-2 is also not relevant and is mere hearsay.
57. The defendant has not produced any material on record which can establish that Sh. Dinesh Kumar Gupta has forcibly obtained her signatures on Agreement to sell Ex. PW-1/1, however during evidence, defendant has changed her stand and deposed that her signatures were obtained by Sh. Dinesh Kumar Gupta on various documents on the pretext of loan document. There is no iota of evidence which would infer that the signatures of defendant were forcibly obtained by Sh. Dinesh Kumar Gupta on agreement Ex. PW-1/1. Considering the material on record this Court comes to the conclusion that defendant has failed to prove the stand that her signatures on agreement Ex.PW-1/1 were obtained forcibly by Sh. Dinesh Kumar Gupta.
58. In view of the above discussion, Issue No. 1 is accordingly CS No. 260/ 16 & MISC DJ No.42/2020 Page 35 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:13 +0530 decided in favour of plaintiff and against defendant.
ISSUE NO. 2.:- Whether defendant entered into an agreement to sell on 06.04.2013 with plaintiff in respect of half portion of property bearing No.B-30/603, Khasra No.786/529, Gali NO.5, Chander Lok, Shahdara, Delhi-93 measuring 25 sq. yards and plaintiff paid earnest money of Rs.12,50,000/-? OPP And ISSUE No. 3.:- If issue No.2 is decided in affirmative, whether plaintiff is entitled for specific performance of agreement dated 06.04.2013? OPP OR in alternative, Whether plaintiff is entitled to recover a sum of Rs.
19,28,250/- as prayed? OPP
59. The contention of the defendant that the agreement Ex. PW-1/1 is inadmissible in evidence because it is an unstamped and unregistered document, has no substance because the agreement to sell without possession need not requires registration and stamping. The judgment of the Hon'ble Supreme Court of India passed in Bidyut Sarkar & Anr. versus Kanchilal Pal (Dead) through LRs. & Anr." in Civil Appeal Nos. 10509- 10510 of 2013, D.O.D.:- 28/08/2024, would be of no avail for defendant because the facts and circumstances of the said case is different from the facts of the present case and the agreement involved in the said case was coupled with possession, however in the present case, agreement Ex.PW1/1 is not coupled with possession.
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60. The onus to prove this issue No. 2 and 3 is upon plaintiff. To prove the said issue, plaintiff has examined three witnesses and also cross-examined the defendant's witnesses at length. It is the case of Plaintiff and her brother that they have entered into two agreements to sell dated 06/04/2013 with defendant for total sale consideration of Rs. 20 Lakh each and pursuant to the agreements, they have paid Rs, 12,50,000/- each in cash to defendant i.e. total amount of Rs. 25 Lakh was paid in cash jointly by Plaintiff and her brother. The defendant in her written statement has denied the execution of such agreements and receipt of part sale consideration amount of Rs. 12,50,000/- each in cash from plaintiff and her brother.
61. As the defendant has disputed the claim of plaintiff and her brother, it is for plaintiff to prove her case on the basis of preponderance of probabilities. It is settled law that Plaintiff has to stand on his own legs and cannot take benefit of weakness of defendant's case. This principle asserts that the burden of proof lies with the plaintiff, who must substantiate their claims with credible evidence, independent of the defendant's weaknesses.
62. In Kartik Chandra Pal v. Dibakar Bhattacharjee [AIR 1952 Cal 362]: ILR (1950) 1 Cal 350, a Division Bench of the Hon'ble High Court of Calcutta, however, after receiving a number of reported cases viz. Ranjit Singh v. Kalidasi Debi [ILR (1910) 37 Cal 57: 14 Cal WN 527: 5 IC 205], Madanmohan Singh v. Gaja Prasad Singh [(1911) 14 CLJ 159: 11 IC 228], Deonandan Prasad v. Janki Singh [(19020) 5 Pat LJ 314: 1 Pat LT 325: 56 IC CS No. 260/ 16 & MISC DJ No.42/2020 Page 37 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:22 +0530 322] and Atal Behary Acharya v. Barada Prasad Banerji [AIR 1931 Pat 179: 12 Pat LT 636: 131 IC 529], observed:
".... It is incontestable that in a suit for specific performance of contract for the sale of land it is open to the plaintiff to join in the same suit two prayers, one for the execution of the deed of transfer and another for recovery of possession of the land in question....
****** We ought to remember in this connection that no special form of decree in a suit for specific performance is supplied by the Civil Procedure Code. Chapter II, Specific Relief Act, deals with the various circumstances under which a contract may be enforced specifically and where it cannot be allowed. When a contract is to be specifically enforced, it means simply this that when the parties do not agree to perform the contract mutually the intervention of the Court is required and the Court will do all such things as the parties would have been bound to do had this been done without intervention of the Court. A sale of a property after payment of the consideration and upon due execution of the deed of sale presupposes and requires the vendor to put the purchaser in possession of the property. It cannot be suggested that when a party comes to Court for the specific performance of a contract be is to be satisfied with simply the execution of the document on payment of the consideration money. The Court when allowing the prayer for specific performance vests the executing court with all the powers which are required to give full effect to the decree for specific performance. By the decree CS No. 260/ 16 & MISC DJ No.42/2020 Page 38 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:27 +0530 of specific performance, the Court sets out what it finds to be the real contract between the parties and declares that such a contract exists and it is for the executing court to do the rest."
63. The above-said judgment was also referred by the Hon'ble Supreme Court of India in "Rohit Kochhar versus Vipul Infrastructure Developers Ltd. & Ors.", SLP (Civil) Nos. 10169- 10171 of 2008: Date of Decision: 29/11/2024.
64. The Court before passing a decree of specific performance, has to satisfy itself that the contract relied by parties is a valid contract and also that a real contract exist between the parties. The Plaintiff avers that she paid Rs. 12,50,000/- in cash as part sale consideration amount to defendant, however, she has failed to prove the sources from where she paid such a huge amount. During cross-examination recorded on 01/10/2016, PW-1/Plaintiff deposed that she had not withdrawn the said amount of Rs. 12,50,000/- from her bank account. However, she further deposed that she has shown the cash amount for Rs. 12,50,000/- in her ITR return for the year 2014-2015 and the said amount is also reflected in the balance sheet. The balance sheet is a self-serving document and moreover, the same is also not authenticated and proved in accordance with law. It is also noted that plaintiff has not shown the availability of said amount and payment made to defendant in her ITR return for the relevant period. It is pertinent to mention here that PW-1 also deposed that she had not shown any cash amount available with her in the return for the year 2012-2013 Ex. PW1/D3. The Plaintiff has not CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 39 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:32 +0530 given any explanation from where she had got the funds of Rs. 12,50,000/- on 06/04/2013, as mentioned in her balance sheet (self-serving document), particularly when the same were not available with her as per Ex. PW1/D3. Perusal of the Plaintiff's ITRs and testimony of plaintiff's witnesses, create doubts on the version of plaintiff that she was having sufficient funds of Rs. 12,50,000/- in cash on 06/04/2013. The plaintiff has not led any cogent and reliable evidence to establish that the funds of Rs. 12,50,000/- in cash was available with her on 06/04/2013 which she had paid to defendant. It is also noted that Plaintiff has not filed any receipt in support of payment of Rs. 12,50,000/- paid in cash.
65. It has come on record that there was a property deal between Sh. Dinesh Kumar Gupta and defendant in respect to a land at Village Liliyana, Tehsil Khekra, Bhagpat, U.P. on 30/05/2011 for a consideration of Rs. 30 Lakh, however, the same was not materialized. Interestingly, in the said agreement the part sale consideration amount of Rs. 24 Lakh was also paid in cash. It is deposed by PW-1 and PW-2 that the said deal was not materialized and the part sale consideration amount was returned by defendant to Sh. Dinesh Gupta and the said agreement was torn, however, the original agreement came on record during cross-examination of PW-2 as Ex. PW1/D-1 on 04/07/2017. It has also come on record, during cross-examination of PW-2 recorded on 04/07/2017, that Sh. Dinesh Gupta and defendant are known to each other for the last more than 12-13 years.
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DEEPANKER MOHAN
MOHAN Date:
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66. The father of Plaintiff has deposed as PW-2 in his evidence affidavit Ex. PW-2/A that since the property was near to his house so he agreed to purchase the property in the name of her children and all the negotiations were held with defendant through property dealer Sh. Gopal Saxena, PW-3. He further deposed that the payment of Rs. 12,50,000/- in cash was made to defendant through him on the date of execution of agreement i.e. on 06/04/2013. It is pertinent to mention here that the entire plaint is silent about the said fact that Sh. Dinesh Gupta was involved in the said dealing, all the negotiation was done by him and the payment was also made through him on 06/04/2013. It is pertinent to mention here that neither Plaintiff nor PW-3 Sh. Gopal Saxena depose that Sh. Dinesh Gupta was physically present on 06/04/2013 at the time of execution of the agreement to sell Ex. PW-1/1. It is also noted that if Sh. Dinesh Gupta was present at the time of execution of agreement to sell on 06/04/2013 then what prevented him to be a witness to the execution of said agreements, particularly when the said documents already reflect signatures of 4 person as witnesses.
67. PW-3 Sh. Gopal Saxena in his evidence affidavit PW-3/A has deposed that "I say that earlier also Mr. Dinesh Gupta had purchased a part of property bearing no. B-30/603, Khasra No. 786/529, Gali No. 5, Chander Lok, Shahdara, Delhi measuring 20 sq. yards from Smt. Krishna Devi, which was later on sold by him through Smt. Krishna Devi directly to the buyer in September, 2008. Accordingly, negotiation qua the aforesaid property took place between Mr. Dinesh Gupta and Smt. Krishna CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 41 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:43 +0530 Devi, who agreed to sell her property bearing no. B-30/603, Khasra No. 786/529, Gali No. 5, Chander Lok, Shahdara, Delhi- 110093 measuring 50 sq. yards (hereinafter described as Suit property) for a total sale consideration of Rs. 40,00,000/- and Mr. Dinesh Gupta agreed for the same. " This again shows that Sh. Dinesh Gupta and defendant are regularly dealing in properties with each other and also infers that Sh. Dinesh Gupta is having the knowledge of the actual status of property in question. It is pertinent to mention here that defendant deposed that she is not in possession of the suit property since 2010 and the erstwhile owner Sh. Khajan Singh is in possession of the same. During the course of arguments, the Ld. Counsels for plaintiff and defendant have admitted that LR of Sh. Khajan Singh is in possession of the suit property, after the death of Sh. Khajan Singh.
68. The defendant has also deposed that Sh. Khazan Singh has filed a suit for cancellation of the sale deed dated 01/03/2007 in favour of defendant and she has also filed a separate suit against Sh. Khajan Singh seeking possession of the suit property. The pleadings of the case filed by Sh. Khajan Singh i.e. C.S. No. 261/2016 has also been proved by DW-4 Sh. Kamal Singh, Ahlmad of the court as Ex.DW-4/A (Colly) to Ex. DW-4/E (Colly).
69. Plaintiff/PW-1 in her cross-examination recorded on 29/03/2016 deposed that she does not know whether the defendant is not in possession of the suit property. She also deposed that she has no knowledge about the litigations pending CS No. 260/ 16 & MISC DJ No.42/2020 Page 42 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:47 +0530 between defendant and Sh. Khajan Singh since 2010 and about the status quo order passed in respect of the suit property. It is note-worthy to mention here that Sh. Dinesh Gupta, defendant, Sh. Gopal Saxena and Sh. Khajan Singh are resident of the same vicinity, where the suit property is situated and considering the testimony of PW-3 that there was a dealing between defendant and Mr. Dinesh Gupta earlier in the year 2008 in respect to the part portion of the suit property, therefore, it can be inferred that Mr. Dinesh Gupta was having the knowledge about the fact that defendant was not in the possession of the suit property on 06/04/2013. Despite the fact that defendant is not in possession of the suit property and there are litigation pending in respect to suit property, Mr. Dinesh Gupta agreed to purchase the suit property in the name of his children i.e. Ruchi Gupta and Amit Gupta and paid an amount of 25 Lakh in total to defendant. The plaintiff has not served any notice or request letter upon defendant on the suit property which also clearly infer that it was very much in the knowledge of plaintiff that defendant is not in possession of the suit property. It is highly improbable that a person enters into an agreement to sell for an immovable property and pay an amount of Rs. 25 Lakh in cash i.e. about 70% of the total sale consideration amount, voluntarily and knowingly that the other party would not be in condition to deliver the possession of the said property or the title of the said person is under cloud.
70. Even for the sake of argument, if it is assumed that plaintiff and Mr. Dinesh Gupta were not aware about the factum CS No. 260/ 16 & MISC DJ No.42/2020 Page 43 of 52 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:52 +0530 of litigation and the fact that defendant is not in possession of the suit property since 2010 then in that case, it can be inferred that plaintiff and her father has not made any due diligence inquiry of the suit property prior to entering into an agreement to sell dated 06/04/2013. It is pertinent to mention here that during cross- examination, PW-2 Dinesh Gupta has deposed that he visited the suit property with Sh. Gopal Sexana, however, testimony of PW-3 Gopal Saxena does not corroborate the said fact. Even if it is considered that Sh. Dinesh Gupta had visited the suit property then he would surely get knowledge about the fact that defendant is not in possession of the suit property. It is noted that the plaintiff has not averred in the plaint that prior to entering into an agreement to sell on 06/04/2013, she has made reasonable enquiry with regard to the title and possession of defendant in respect to suit property. It is also noted that plaint also not disclose that plaintiff has seen the original sale deed dated 01/3/2007 and received a copy of the said sale deed prior to entering into an agreement Ex. PW-1/1. Though during the cross- examination, PW-3 has deposed that he has seen the original sale deed but defendant has not provided copy of the same. It is highly improbable that a property dealer mediates the transaction of sale and purchase of an immovable property, without getting copy of title documents of the seller. It is also unbelievable that a purchaser agreed to purchase an immovable property without perusing the originals and obtaining copy of title documents from seller and further make payment of Rs. 12,50,000/- in cash as part consideration amount i.e. 70% of the sale consideration, CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 44 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:42:58 +0530 without verifying and making enquiry regarding title and possession of the seller in respect to the subject property under sale. It is relevant to mention that neither original nor copy of sale deed dated 1/03/2007 has been placed on record either by plaintiff or defendant. The act and conduct of plaintiff and her father are doubtful, improbable and disentitled her for the relief of specific performance.
71. During the cross-examination of DW-1 Smt. Krishna Devi, Ld. Counsel for Plaintiff has put the document i.e. agreement to sell dated 04/06/2013, to her which was exhibited as ExDW-1/PX-1 (earlier was marked as Mark-H). It is noted that Ld. Counsel for plaintiff has put suggestions to DW-1 in respect to the agreement Ex.DW-1/PX-1 i.e. "The documents Ex.DW-1/PX1 is the agreement to sell between me and Narender Goyal of the property bearing no.B-30/603, Khasra No. 786/529, Gali No. 1, Chander Lok, Shahdara, Delhi- 110093 against a total sale consideration of Rs. 40,00,000/- out of which I have received Rs. 27,43,000/- on 04/06/2013. I have received payment of Rs. 27,43,000/- towards bayana agreement from Narender Goyal. I have entered into an agreement to sell with Narender Goyal in respect of property bearing no.B-30/603, Khasra No.786/529, Gali No. 1, Chander Lok, Shahdara, Delhi-
110093." The above-said 3 suggestions were denied by DW-1.
72. During cross-examination of DW-1, it has also come on record that Sh. Narender Goyal S/o Sh. Sushil Kumar Goyal, 3210, Badwala Chowk, Bahadurgarh Road, Azad Market, Digitally signed CS No. 260/ 16 & MISC DJ No.42/2020 by DEEPANKER Page 45 of 52 DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:43:02 +0530 Delhi-110006 is the relative of plaintiff (cousin/son of aunty/mausi). The said fact has not been refuted by plaintiff by putting suggestion to DW-1 that Sh. Narender Goyal is not her cousin brother.
73. Ld. Counsel for plaintiff also given suggestion to DW-1 that "she had entered into agreement to sell with the different people including plaintiff and Narender Goyal in respect to property bearing no. B-30/603, Khasra No.786/529, Gali No. 1, Chander Lok, Shahdara, Delhi- 110093 claiming to be owner of the said property by virtue of the sale deed dated 01/03/2007 and absurd the part sale consideration amount." The said suggestion was denied by DW-1. Interestingly, the said part sale consideration of Rs.27,43,000/- was also made by Sh. Narender Goyal to defendant in cash. The plaintiff is not denying the fact that Sh. Narender Goyal has also entered into an agreement to sell with defendant in respect to suit property. Perhaps she is suggesting to DW-1 that DW-1 has also absurd the amount of Rs. 27,43,000/- paid by Sh. Narender Goyal to her under the agreement Ex.DW-1/PX-1. The Plaintiff and Sh. Narender Goyal are cousin and it is again unbelievable that both of them enters into two different agreements with defendant in respect to suit property within a span of 2 months. The Plaintiff has neither denied the transaction mentioned in Ex.DW-1/PX-1 nor examined Sh. Narender Goyal. Sh. Narender Goyal is not resident of the locality where the suit property is situated and it is also not averred by plaintiff that she has no cordial relation with Sh. Narender Goyal, therefore, it cannot be believed that Sh.
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DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
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Narender Goyal would have entered into an agreement to sell with defendant in respect to suit property without knowledge and consultation with plaintiff, her brother and her father. This cannot be coincident that on 06/04/2013 plaintiff and her brother enter into two agreements to sell in respect to suit property (total 50 sq. yards) and make payment of Rs.25,00,000/- in cash to defendant and subsequently, after 2 months Sh. Narender Goyal, cousin brother of plaintiff, also enter into an agreement to sell with defendant in respect to suit property and make the payment of Rs.27,43,000/- in cash to defendant. It is also noted that the agreement Ex.DW-1/PX-1 is not witnessed by any person.
74. The plaintiff, her father, her brother Sh. Amit Gupta and her cousin brother Sh. Narender Goyal are so eager and willing to purchase the suit property, might be treating it as gold mine, that they paid the amount of Rs. 25 Lakh and Rs. 27,43,000/- both in cash to defendant without verifying the title and possession of the defendant in respect to suit property. Perusal of the material came on record clearly infers that father of plaintiff and defendant are indulge into various dealings/ transactions in respect to immovable properties by mode of cash. It is noted that despite the fact that some transactions were not materialized due to fault of defendant, even thereafter, plaintiff, her father and Sh. Narender Goyal agreed to enter into the sale transaction with plaintiff in respect to suit property. The acts and conducts of plaintiff, her brother and father do not seem to be probable and normal.
Digitally
signed by
DEEPANKER
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MOHAN Date:
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75. Plaintiff aver in the plaint that the property dealer i.e. PW-3 was known to defendant, however, during the cross- examination of PW-3, he deposed that he is acquainted with Dinesh Gupta since 1995 and his relation with defendant developed only because of the property in question. Plaintiff has also taken the stand that defendant, being a clever lady, has got the agreements to sell dated 06/04/2013 photocopied, prior to signing of agreements by Plaintiff and Sh. Hukum Chand. As per the case of Plaintiff, PW-3 was present at the time of signing of agreements by defendant, her daughter and her husband but he does not depose that defendant has got the agreements photocopied after putting her signature and signatures of her daughter, her husband and by PW-3. The said version of plaintiff is not corroborated by the testimony of PW-3 and the same remains unproved.
76. The Plaintiff in order to show her readiness and willingness has also pleaded that he has pasted a request letter dated 14/09/2013 at the house of defendant on 14/09/2013 through her Counsel. The defendant during her cross- examination has denied that the door on which the said letter was pasted, does not belong to her. The plaintiff has not proved that the door on which the letter was pasted, belong to defendant. It is noted that prior to pasting of request letter dated 14/09/2013, plaintiff has not mentioned about any communication with defendant in plaint. The plaintiff has not explained the reason for taking an extra-ordinary way to serve the request letter upon defendant which she has also done by sending the same through CS No. 260/ 16 & MISC DJ No.42/2020 Digitally Page 48 of 52 signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:43:17 +0530 speed post. The conduct of plaintiff i.e. pasting a request letter (1st communication after execution of agreement Ex.PW-1/1) on the door of defendant, is not normal and usual.
77. The Plaintiff has also not purchased the stamp papers and got prepared the draft of sale deed for the purpose of execution of sale deed. However, preparation of demand draft for an amount of Rs. 7,50,000/- would serve no purpose for plaintiff because the plaintiff has failed to prove that the agreement to sell Ex. PW-1/1 is a real and valid agreement duly executed between plaintiff and defendant and she was having sufficient means/ funds amounting to Rs.12,50,000/- which she allegedly paid to defendant on 04/06/2013.
78. The conduct of defendant is also not found to be probable. Issue no. 1 has already been decided against defendant. The defendant has not explained as to how the signature of her daughter and husband came on the agreement to sell Ex. PW-1/1. Defendant alleged that she was having illicit relations with the father of plaintiff, however defendant has failed to prove the said averment but it is also the fact that no women would allege such averments knowingly that such averments would destroy her entire life and matrimonial home. The material on record further establish that defendant and father of defendant were known to each other and were also indulge into various transactions, therefore, the probability that the said agreement Ex.PW-1/1 was got prepared by father of plaintiff and defendant in order to defeat purpose of litigation pending between defendant and Sh.
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Khajan Singh, in case Sh. Khajan Singh would have succeed in the said cases, cannot be ruled out.
79. In view of the above-discussion, this Court concludes that the agreement to sell Ex.PW-1/1 is not a real and valid agreement and plaintiff has failed to produce cogent, reliable and convincing evidence which would establish the agreement to sell Ex.PW-1/1 was executed in reality and validly between her and defendant. The Plaintiff has also not produced any reliable evidence to establish that she was having sufficient funds of Rs.12,50,000/- in cash on 06/04/2013 and she has paid the said amount to defendant in cash, making the agreement Ex.PW-1/1 valid and enforceable. The facts and circumstances of the cases mentioned in the judgments relied by plaintiff are different and distinguish from the facts and circumstances of the present case, therefore, the same are not relied upon.
80. Considering the facts, circumstances, material came on record and above-discussions, this Court hold that plaintiff has failed to prove her case and Issue No. 2 and 3 by leading cogent, reliable and positive evidence, therefore, the Issues No. 2 and 3 are accordingly decided against plaintiff and in favour of defendant.
81. The defendant has not led any evidence to establish that the agreement Ex. PW-1/1 is a false and forged document. The defendant has filed photocopies of some documents along-with her written statement, which were denied by the plaintiff except CS No. 260/ 16 & MISC DJ No.42/2020 Digitally signed Page 50 of 52 by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.12.18 17:43:27 +0530 copy of agreements to sell dated 06/04/2013. It is also averred that the originals of the said copies are lying with Sh. Dinesh Gupta. The defendant has not filed any application seeking direction from this Court against Sh. Dinesh Gupta to produce the originals. It is also relevant to mention here that defendant has also not sent any notice to Sh. Dinesh Gupta or plaintiff, asking them to produce the originals of the said photocopies. The defendant has also not filed any application for leading secondary evidence to prove the said photocopies. The defendant has also not made any complaints to police about the incident dated 13/04/2013 and about the alleged forgery. It is also relevant to mention here that Sh. Dinesh Gupta is not party to the present suit and he has not filed any document or its photocopies, therefore, this Court can also initiate any inquiry under the provision of Section 340 of Code of Criminal Procedure, 1973, against him. However, defendant has failed to prove any forgery or fraud by leading cogent, reliable and positive evidence. The defendant has also failed to establish that her signatures on the agreement Ex. PW-1/1 was obtained by Sh. Dinesh Gupta or plaintiff by force. In view of the above-observations and discussions and also considering the conduct of defendant, this Court is not inclined to initiate proceedings under Section 340 of Code of Criminal Procedure, 1973 against plaintiff, therefore, the application filed by the defendant is also stand dismissed, being meritless.
FINAL JUDGMENT
82. The suit of the plaintiff is hereby dismissed on merits.
Digitally signed CS No. 260/ 16 & MISC DJ No.42/2020 by Page 51 of 52 DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.12.18 17:43:32 +0530
Parties shall bear their respective cost.
83. The Application under Section 340 of the Code of Criminal Procedure, 1973 filed by defendant is also dismissed, being meritless.
84. The present suit and application under Section 340 of the Code of Criminal Procedure, 1973 are dismissed and accordingly disposed of.
85. Decree sheet be prepared accordingly.
86. File of the present suit and file of MISC DJ No.42/2020 be consigned to record room, after due compliance. The file of MISC DJ NO.42/2020 be attached with the file of main suit.
Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.12.18 17:43:42 +0530 Announced in the open Court (Deepanker Mohan) th on 18 December, 2024 District Judge-04 Shahdara District/KKD Courts/Delhi 18.12.2024 CS No. 260/ 16 & MISC DJ No.42/2020 Page 52 of 52