Delhi District Court
Jalaluddin Saifi vs Shyam Singh on 6 February, 2009
IN THE COURT OF SH. ANIL KUMAR, ACJ/ARC (NE),
COURT NO. 53, KARKARDOOMA COURTS, DELHI.
Suit no. 817/06
In the matter of :
Sakeena (deceased)
Through her Legal Heirs
1.Jalaluddin Saifi S/o Late Sh. Nasruddin R/o 1088, E-11, Gali No. 18, Nehru Vihar, Near Chand Masjid, Delhi - 94.
2. Humaira Begum W/o Sh. Abdul Aziz C/o Ekta Property Dealer, SC-12-E, Garima Garden, Pasonda, Ghaziabad, UP.
3. Sayra Begum W/o Sh. Shamim Ahmed R/o L-1, Budh Bazar-A, Green Velly Public School, Near Saini Farm, Sangam Vihar, Delhi.
4. Jamaluddin S/o Late Sh. Nasruddin
5. Jahira Begum W/o Sh. Ismail
6. Tahira Begum W/o Sh. Mobin ....Plaintiffs Versus
1. Shyam Singh S/o Sh. Kirpal Singh
2. Raj Kumar S/o Sh. Shyam Singh Both R/o Mohalla Kabil Gate, Near Bishambar Sahib Cold Storage, Failawada Road, Mawana, Meerut, UP.
3. The Branch Manager, Syndicate Bank, Mawana, Meerut, UP. ...Defendants Date of Institution of Suit : 23.12.2004 Date of Decision of Order/Judgment : 06.02.09 Order/Judgment :
- 3 - Sakeena Vs. Shyam Singh & Ors.
By this order I shall dispose of application dt. 29.04.05 filed by defendant no. 1 and 2 under order 37 rule 3 (5) r/w section 151 CPC and application dt. 13.04.05 filed by defendant no. 3 under order 37 rule 3 (5) r/w section 151 CPC for leave to defend the suit filed by plaintiff.
Plaintiff Smt. Sakeena filed the Suit for Recovery of Rs.1,38,000/-on the basis of Bank Draft bearing no. 267066 for Rs.1,38,000/- got issued by defendant no. 1 and 2 through defendant no. 3's bank. Brief facts of the case are that plaintiff sold her house no. 1404, Mohalla Munna Lal, Failawada Road, Mawana, Meerut (UP) to defendant no. 1 for sum of Rs.2,76,000/-. Defendant no. 2, who is the son of defendant no. 1 given the sale amount by way of bank draft drawn on defendant no. 3's bank,
- 4 - Sakeena Vs. Shyam Singh & Ors.
bearing 267067 for Rs.1,22,000/- in favour of son of plaintiff and draft bearing no. 267066 for Rs.1,38,000/- in favour of plaintiff and a sum of Rs.16,000/- was paid in cash. Draft of Rs.1,22,000/- encashed, but other draft of Rs.1,38,000/- could not be encashed and returned with remark "reported lost" vide memo dt. 23.01.2002. This draft of Rs.1,38,000/- was again deposited with the defendant no. 3's bank for encashment, but same could not be encashed and received back on 24.02.2002 with the same report. Thereafter, plaintiff served demand notice dt. 18.05.04 on defendant, but no payment has been received. Hence, present suit filed.
Defendant no. 1 and 2 sought leave to defend the suit stating that the draft in question was given to plaintiff for the sale of property bearing no. 1447, Mohalla Munna lal, Mawana District
- 5 - Sakeena Vs. Shyam Singh & Ors.
Meerut, but defendant Raj Kumar got stopped the payment against this bank draft when they enquired about the ownership of property no. 1447 and came to know that the plaintiff was not the owner of this property and this property was owned by one Sh. Aziz Ahmed. Defendant no. 1 and 2 have further stated that they had paid Rs.1,22,000/- vide draft no. 267067 on execution of the sale deed by the plaintiff of property bearing no. 1404-1405 situated at Mohall Munna Lal, Town Mawanakalan, Pargana Hastinapur, Tehsil Mawana, Distt. Meerut, UP. They have further stated that all the dealings and transactions were made in Mawana, UP and that plaintiff has committed fraud by handing over less area of property.
Defendant no. 3 has stated that on the request of defendant no. 2 two drafts bearing no. 267067 and 267066 for
- 6 - Sakeena Vs. Shyam Singh & Ors.
Rs.1,22,000/- and Rs.1,38,000/- were issued. In view of these facts, defendant no. 2 and 3 have sought leave to defend the suit filed by the plaintiff. Defendant no. 3 has stated that defendant no. 3 is not liable for any kind of recovery to the plaintiff and suit has been filed by plaintiff with collusion of defendant no. 1 and 2 to harass him.
During the pendency of suit plaintiff expired and her legal heirs were brought on record.
I have heard the Ld. Counsel for the parties and given my thoughtful consideration to their respective submissions. I have gone through the documents placed on record.
- 7 - Sakeena Vs. Shyam Singh & Ors.
Ld. Counsel for plaintiff has submitted that defendants have failed to disclose any triable issue involved in the present suit. Issuance of draft and stop payment of the same is not in dispute, hence defendants are not entitled for leave to defend the suit and suit is liable to be decreed. On the other hand, Ld. Counsel for defendant no. 1 and 2 have submitted that cheque in question was issued for purchase of property no. 1447, Mohalla Munna lal, Mawana District Meerut, UP, but payment was stopped on finding the fact that the plaintiff is not the owner of the suit property. Ld. Counsel for defendants have further submitted that this matter requires trial on the point of Agreement to Sell of property no. 1447, Mohalla Munna lal, Mawana District Meerut, UP. Ld. Counsel for defendant no. 1 and 2 has further submitted that this court has no jurisdiction to entertain the present suit as suit property is situated in UP and defendants are residing in UP and drafts were prepared in UP.
- 8 - Sakeena Vs. Shyam Singh & Ors.
Ld. Counsel for defendant no. 3 has submitted that defendant no. 3 has nothing to do with recovery of Rs.1,38,000/- by plaintiff. Payment against the draft in question was stopped at the request of defendants.
Plaintiff has placed on record certified copy of statement of witnesses and documents of criminal case instituted by plaintiff against defendant no. 1 in respect to the draft in question.
After going through material on record I am of considered opinion that there is no any triable issue and this suit is liable to be decreed under order 37 CPC against defendant no. 1 and 2 only.
- 9 - Sakeena Vs. Shyam Singh & Ors.
Defendant no. 1 and 2 have stated that draft in question was issued for the purchase of property no. 1447, Mohalla Munna lal, Mawana District Meerut, UP. It has been further stated by the defendants that the draft of Rs.1,22,000/- was paid to plaintiff for sale of property no. 1404-1405. I find that the payment of Rs.1,22,000/- by way of bank draft was paid for sale of property no. 1404-1405 to plaintiff only at the time of execution of the sale deed. There is nothing to belief as to why another draft of Rs.1,38,000/- was given by defendants to plaintiff without any agreement in writing to sell the another property. Material on record further show that both the drafts were applied at the same time and issued at the same time by the bank which clearly reflect that these were prepared for payment of consideration of sale of immovable property as stated by plaintiff. Further, I find that defendants got stopped the payment of draft by reporting about the
- 10 - Sakeena Vs. Shyam Singh & Ors.
loss of draft, but they have appeared before this court with different stand i.e., of stop payment on account of no title of subject matter. In these facts I don't have any hestiation to say that defendant no. 1 and 2 have appeared before this court with concocted story of defence. There is no any denial on the part of defendant no. 1 of his liability and issuance of draft by defendant no. 2 for the liability of defendant no. 1, hence both the defendant no. 1 and 2 are liable to pay the draft amount with interest to plaintiff jointly and severally.
I find no merit in the objection of defendant no. 1 and 2 regarding the jurisdiction of this court. This suit based on bank draft which was payable at Delhi and hence, this court is competent to entertain this suit.
- 11 - Sakeena Vs. Shyam Singh & Ors.
After going through material on record I further find that defendant no. 3 has been unnecessarily impleaded in the matter. There was no any privity of contact between the plaintiff and defendant no. 3. Defendant no. 3 is a Banker, who issued the draft in question at the request of defendants and further stopped the payment at the request of defendants. Hence, defendant no. 3 is not liable any how for payment to plaintiff. As such defendant no. 3 has been uncessarily dragged into the matter and he is entitled for costs.
In view of above discussion, applications for leave to defend the suit filed by defendants are dismissed. Suit decreed in favour of plaintiff and against the defendant no. 1 and 2 jointly and severally in the sum of Rs. 1,38,000/- along with pendente lite and future interest @ 10% per annum with costs. A cost of Rs.5,000/- imposed on plaintiff to be paid to defendant no. 3.
- 12 - Sakeena Vs. Shyam Singh & Ors.
Decree sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT Dt. 06.02.09 (ANIL KUMAR) ACJ/ARC (NE), COURT NO. 53, KKD COURTS, DELHI.