Delhi District Court
Sh. Vijay Prakash @ Vijay Kumar vs Sh. Naresh Kumar on 31 October, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 354/2013
Unique I. D. No. 02401C0620012013
Sh. Vijay Prakash @ Vijay Kumar,
S/o Sh. Chanderbhan Sharma,
R/o 694, Sector6, R.K. Puram,
New Delhi110022.
......Plaintiff
Versus
Sh. Naresh Kumar,
S/o Sh. Tara Chand,
R/o 327A, Shalimar Bagh Village,
New Delhi110088.
Also at : 694/7 Conductor Colony,
Burari, Delhi110084.
.......Defendant
SUIT FOR RECOVERY OF MONEY, PERMANENT
INJUNCTION AND FORECLOSURE, SALE AND
REDEMPTION UNDER ORDER XXXIV CPC
CS354/2013
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Date of institution of suit : 05.12.2013
Date of conclusion of arguments : 20.10.2015
Date of pronouncement of judgment : 31.10.2015
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for recovery of Rs. 3 Lakh alongwith pendentelite and future interest @ 18% per annum till realization, permanent injunction, foreclosure, sale and redemption under order XXXIV of The Code of Civil Procedure (in short CPC). Adumbrated in brief the facts of the case of plaintiff are as follows. Defendant approached the plaintiff through their common friend and asked the plaintiff to provide him with the financial assistance of Rs. 3 Lakhs as defendant was in urgent need of funds to discharge his random liabilities. Defendant assured the plaintiff that he would repay the said amount up to July 2012 and would mortgage his property/plot (partly built up) from ground to sky, bearing Khasra No. 694/7, measuring 74 sq. yds. situated at Conductor Colony, Burari, Delhi (in short suit property), purchased from Sh. Sukhdev Raj Sharma, in security. Defendant also CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 2 of 18 assured the plaintiff that he would handover all the relevant documents i.e., Registered General Power of Attorney, Registered Will, Affidavit, Possession Letter, Receipt and Agreement to Sell to the plaintiff for his satisfaction. Although, plaintiff was not having the financial strength, yet, plaintiff, however arranged the money from his relatives and gave Rs. 3 Lakhs to defendant in cash on 28.11.2011, for which defendant had executed a receipt dated 28.11.2011 and an agreement/mortgaged deed dated 29.11.2011 in favour of plaintiff in respect of suit property as security towards the repayment of afore said payment. At the same time, defendant also handed over the afore mentioned original registered documents of the suit property to the plaintiff. Despite repeated requests of plaintiff, defendant failed to repay the said amount. Defendant evaded and neglected the said payment on one false pretext or the other. Plaintiff served legal demand notice dated 24.09.2013 upon defendant. It is further averred that on receipt of legal demand notice, defendant started threatening to the plaintiff, since defendant was in touch with several property dealers to sell the property in order to defeat the legitimate claim of plaintiff. Defendant further threatened the plaintiff that he would be going to transfer his rights vested in the mortgaged CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 3 of 18 property to someone else. More particularly, defendant threatened the plaintiff on 11.11.2013 that he had made all preparations to get the mortgaged property transferred in favour of a property dealer, located at Burari, Delhi. Resultant had been this suit.
2. In the filed written statement, defendant took preliminary objections viz., (i) suit was bad in law and plaintiff had concealed the material fact regarding the entire payment and therefore plaintiff had no locus standi to file the suit; (ii) case was not maintainable under Order VII Rule 11 of CPC as no cause of action had ever arisen. Plaintiff did not mention the correct fact and with the purpose to extort money from defendant filed the suit by misusing the documents; (iii) plaintiff had received the entire payment in presence of his brotherinlaw, namely Sh. Satya Prakash Sharma and two eye witnesses Sh. Vijay Pal Dahiya and Sh. Ishwar Singh (Panir wala) and therefore no question had arisen regarding any arrear and the plaintiff with purpose to misuse the documents, which was to be returned; (iv) defendant had also filed written complaint, which was under investigation and also filed a complaint case for the misuse of the documents as alleged; and CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 4 of 18
(v) plaintiff did not execute any document in favour of defendant intentionally and had concealed the fact from this Court. Suit was liable to be dismissed due to misjoinder and nonjoinder of parties. Defendant denied of having approached the plaintiff through a common friend to ask the plaintiff to provide him with the financial assistance of Rs. 3 Lakhs. Rest of the averments of the plaint have been denied by the defendant parawise. Defendant prayed for dismissal of the plaint.
3. Plaintiff filed rejoinder/replication to the written statement of the defendant to controvert the contentions of the written statement and to reiterate the averments of the plaint.
4. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 11.09.2014 : ISSUES
1) Whether the plaintiff has cause of action to bring the present suit? OPP CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 5 of 18
2) Whether the plaintiff is entitled to recover the suit amount from the defendant? OPP
3) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for?
OPP
4) Whether the plaintiff is entitled to preliminary decree of foreclosure, sale and redemption of mortgaged property u/o 34 CPC? OPP
5) Relief.
5. Plaintiff examined himself as PW1 vide affidavit Ex PW1/A. PW1 relied upon documents viz., (i) Agreement dated 28.11.2011 exhibited as Ex PW1/1; loan agreement dated 29.11.2011 exhibited as Ex PW1/2; (iii) mortgage deed dated 29.11.2011 exhibited as Ex PW1/3; (iv) legal notice dated 24.09.2013 exhibited as Ex PW1/4;
(v) speed post receipts exhibited as Ex PW1/5; (vi) courier receipts exhibited as Ex PW1/6; (vii) Registered General Power of Attorney, Registered Will, Receipt, Agreement to Sell, Affidavit in favour of CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 6 of 18 defendant in respect of suit property collectively exhibited as Ex PW1/9 (colly). PW1 was crossexamined.
6. Defendant also examined himself as DW1 vide affidavit Ex DW1/A. DW1 was crossexamined.
7. I have heard arguments addressed by Sh. A.K. Bansal, Ld. counsel for plaintiff; Sh. V.K. Jha, Ld. counsel for defendant and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, written arguments filed on behalf of parties and have also examined the record of the case. Ld. Counsels for both the parties argued in terms of averments of their pleadings.
8. My issue wise findings are as under : Findings on Issues No(1) & (2)
1) Whether the plaintiff has cause of action to bring the present suit? OPP CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 7 of 18
2) Whether the plaintiff is entitled to recover the suit amount from the defendant? OPP Narrating facts in affidavit Ex PW1/A, plaintiff has reiterated the averments of plaint, elicited in para1 above. PW1/plaintiff has stood his ground during the course of cross examination asserting having advanced financial assistance of Rs. 3 Lakhs to defendant against mortgage of suit property. Said sum of Rs. 3 Lakhs were paid in cash by plaintiff on 28.11.2011 to defendant. PW1 has also proved the execution of agreement Ex PW1/1 on 28.11.2011 by defendant and execution of loan agreement Ex PW1/2, dated 29.11.2011; mortgage deed Ex PW1/3, dated 29.11.2011 by defendant, in his favour.
9. In the written statement, it has been the stand of defendant that plaintiff has received the entire payment in the presence of his brotherinlaw Sh. Satya Prakash Sharma and two other witnesses Sh. Vijay Pal Dahiya and Sh. Ishwar Singh (Panir wala); therefore, no question arose regarding any arrears and the plaintiff misused the documents, which were to be returned; so plaint was liable to be dismissed.
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10. After completion of evidence of plaintiff/PW1 on 07.04.2015, later thereto on 06.05.2015, defendant through Counsel moved application for amendment of written statement. Following is the relevant extract of the order dated 06.05.2015, whereby aforesaid application, seeking amendment in written statement filed by defendant, was dismissed : "In aforesaid application seeking amendment in written statement, the foremost averment of applicant/defendant is to delete para3 of preliminary objections in written statement wanting to insert new para3 in preliminary objections. Para3 of preliminary objections of written statement of defendant dated 19.04.2014 filed on 22.04.2014 reads as under: " That the plaintiff have received the entire payment in presence of his brother in law namely Satya Prakash Sharma in presence of two eye witness Vijay Pal Dahiya and Ishwar Singh (panir wala) and therefore no question are arising regarding any arrear and the present plaintiff with purpose to misuse the document which was to be return and therefore the present plaint is liable to be dismissed."
In place of above elicited para3 of written statement of defendant, now the defendant wants to insert the following para3 in the preliminary objections: CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 9 of 18 " That the plaintiff has not come to this Hon'ble Court with clean hands and has concealed the true and correct material facts from this Hon'ble Court. It is submitted that the defendant was in urgent need of money and approached to the plaintiff to given a loan of Rs. 1,00,000/ and they plaintiff to give the said loan to the defendant and thereafter on 29.11.2011 the plaintiff asked the defendant to accompany him to Tis Hazari Courts, Delhi for completing the formality of the loan and the defendant alongwith plaintiff and his two witnesses reached to Tis Hazari Courts, Delhi the plaintiff gave Rs. 1,00,000/ to the defendant as loan and the plaintiff took the signatures of the defendant on various blank and printed papers and stamp papers for the security of the loan in the presence of the witnesses of the defendant and when the defendant asked the plaintiff to get signed as one witness of the defendant on the said papers, the plaintiff told to the defendant that this is only a formality of the loan so there is no need of any witness from the side of the defendant. The defendant was in urgent need of money so the defendant could not pressurize to the plaintiff to sign as witness from his side. It is submitted that thereafter the defendant returned the said loan amount of Rs. 1,00,000/ and Rs. 16,000/ as interest at the rate of 2% per month to the plaintiff in the presence of witnesses namely Vijay Pal Dahiya and Ishwar Singh Paneer wala in the first week of July, 2012 and when the defendant asked the plaintiff to return title deed of his property and to return the signed documents which were obtained by the plaintiff at the time of granting the loan, the plaintiff did not return the same by saying that the above said documents are missing in the house and he will return the same at the CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 10 of 18 earliest. It is submitted that thereafter the plaintiff did not return the same on one pretext or the another and became dishonest and started blackmailing and demanding Rs. 1,00,000/ more from the defendant and this is the main bone of the dispute between the parties and thereafter the plaintiff filed the present suit with malafide intention and ulterior motive to extort more and more money from the defendant by manipulating the documents as per his own convenience and he wrongly mentioned the loan amount as Rs.
3,00,000/ in place of Rs. 1,00,000/ and in the garb of the alleged loan agreement and mortgaged deed. It is submitted that the defendant never received Rs. 3,00,000/ from the plaintiff at any time and never executed the alleged loan agreement and mortgaged deed but the plaintiff has forged, fabricated and manipulated the said documents as per his own convenience and the plaintiff is not returning the title deed of the property of the defendant and the other papers, stamp papers on which the plaintiff obtained the signature of the defendant for the security of the loan. It is submitted that no amount is due upon the defendant as alleged, hence, the suit of plaintiff is liable to be dismissed with costs". With context of afore elicited averments in proposed para3 of preliminary objections, the defendant also wants to add similar facts as they are contained in proposed para3 of preliminary objections to be added in the end of para2 of reply on merits and also to delete four lines in paragraph 11 of reply on merits and seeks to insert the following lines at the end of para 11: CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 11 of 18 "defendant has not paid the borrowed amount. It is submitted that the defendant has already paid/returned the loan amount with interest to the plaintiff in the presence of the witnesses. It is submitted that the suit is without any cause of action as no amount is due upon the defendant." In the course of submissions of ld. counsel for defendant despite my query, ld. counsel for defendant could not show in the earlier filed written statement any averment of any need of defendant or defendant having approached the plaintiff to give loan of Rs. 1,00,000/ and the version of incident at Tis Hazari Courts, Delhi or advancing of loan of Rs. 1,00,000/ by plaintiff to defendant. The entire sequence of events in the proposed new paragraph of written statement simplicitor is introducing the entirely different new case and seeking to displace the plaintiff completely from admission made by defendant in written statement, as elicited herein before in the averments made in para3 of preliminary objections of written statement dated 19.04.2014 filed on 22.04.2014. Such an amendment had been held liable to be rejected in catena of decisions of Apex Court including those in M/s Modi Spinning and Weaving Mills Co. Ltd., and another v. M/s Ladha Ram and Co., AIR 1977 Supreme Court 680(1) and Heeralal v. Kalyan Mal and Others, AIR 1988 Supreme Court 618.
In this fact of the matter, I find the application seeking amendment in written statement lacking merits, not maintainable, also in the backdrop of it being not accompanied by any proposed amended written statement, so the same is accordingly dismissed."
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11. Despite afore elicited dismissal of prayer for amendment in written statement, defendant as DW1 filed affidavit Ex DW1/A asserting facts per contra to his averments of written statement and in consonance with the declined plea of amendment in written statement. Ex DW1/A contained the fact that defendant approached plaintiff to give Rs. 1 Lakh as loan, which he returned with interest of Rs. 16,000/ in presence of Sh. Surender Sharma and Sh. Ishwar Singh Paneer wala in the first week of July 2012 and despite asking plaintiff did not return title deed of his property. Said facts being contrary to pleadings of written statement, elicited herein before, are extraneous and defendant cannot be permitted to assert them. Defendant also cannot be permitted to displace the plaintiff completely from the admission made in written statement and/or to introduce the entirely different new case. Despite opportunities, defendant did not bring in witness box the witnesses before whom he claims to have returned the loan amount taken from plaintiff. In cross examination of PW1, defendant through Counsel also suggested to PW1/plaintiff that defendant had returned Rs. 3 Lakhs to plaintiff in presence of Sh. Vijay Pal Dahiya and Sh. Ishwar Singh (Panir wala), CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 13 of 18 which suggestion was specifically and categorically denied by PW1. Even, such suggestion is per contra to facts asserted by DW1 in Ex DW1/A, elicited hereinabove.
12. So far as the execution of loan agreement Ex PW1/2 and mortgage deed Ex PW1/3 is concerned, same is not in dispute. Neither defendant has placed on record any material/documents for repayment of loan sum of Rs. 3 Lakhs nor proved the same. Also, defendant has not examined any witness of such repayment of loan amount of Rs. 3 Lakhs received from plaintiff to defendant. There is no justification proved on record as to why defendant after alleged payment of loan amount did not ask for return of documents with respect to mortgaged property. By preponderance of probability, defendant has miserably failed to prove repayment of any amount, either Rs. 1 Lakh or Rs. 3 Lakhs, by him towards repayment of the loan sum to plaintiff. Despite service of notice Ex PW1/4, dated 24.09.2013, sent by plaintiff through Counsel vide postal receipts Ex PW1/5, dated 25.09.2013, the defendant did not repay the demanded loan sum, so there existed cause of action in favour of plaintiff to bring the present suit. Plaintiff is held entitled to recover the CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 14 of 18 claimed amount of Rs. 3 Lakhs, sum of loan advanced, from defendant. Interest has to be granted keeping in view the economic standards of country and the conduct of the parties. In my view, accordingly, interest @ 18% per annum from date of filing of suit till realization would be appropriate and reasonable. Accordingly, issues no. 1 and 2 are decided in favour of plaintiff and against the defendant.
Findings on Issue No(4) Whether the plaintiff is entitled to preliminary decree of foreclosure, sale and redemption of mortgaged property u/o 34 CPC? OPP
13. In the course of crossexamination of defendant/DW1, defendant/DW1 admitted that he had kept the documents of suit property with plaintiff at the time of taking of loan from plaintiff. Execution of agreement Ex PW1/1, loan agreement Ex PW1/2, mortgage deed Ex PW1/3 and delivery of documents, viz., registered General Power of Attorney, registered Will, Possession Letter, Receipt, Agreement to Sell, Affidavit, all collectively Ex PW1/9 (colly), executed by predecessor in CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 15 of 18 interest of suit property in favour of defendant; availing of loan by defendant from plaintiff are facts which are not disputed but in fact proved by plaintiff/PW1 on record. Accordingly, on availing loan sum of Rs. 3 Lakhs in November 2011, the defendant deposited the afore elicited deeds/documents collectively Ex PW1/9 (colly) and created mortgage of suit property vide deed Ex PW1/3 by such deposit of documents within the meaning of Section 58 and to a charge within the meaning of Section 100 of the Transfer of Property Act, 1882, in terms of Rule 15 of Order XXXIV of CPC. Accordingly, plaintiff is entitled to preliminary decree of foreclosure with respect to mortgaged suit property in the event of nonpayment of the decretal sum by defendant within granted period. Issue no4 is decided in favour of plaintiff and against the defendant accordingly.
Findings on Issue No(3) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for?
OPP CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 16 of 18
14. Plaintiff had sought recovery of Rs. 3 Lakhs, given on loan basis to defendant vide loan agreement Ex PW1/2, dated 29.11.2011, when mortgage deed Ex PW1/3 was also executed and original documents Ex PW1/9 (colly) of the suit property were handed over by defendant to the plaintiff to secure the repayment. Defendant has failed to prove of return of the loan sum, as elicited in detail, herein above in findings of issues no. 1 and 2, above. Interest of the plaintiff needs to be protected and in view of the findings on issue no4, since plaintiff has been held entitled to preliminary decree of foreclosure of the mortgaged suit property, the plaintiff is held entitled for restraint of defendant from transferring, alienating or creating third party interest in mortgaged suit property till payment of decretal sum. Issue no3 is decided in favour of plaintiff and against the defendant.
RELIEF
15. In view of my findings on issues no. 1 to 4, the suit of the plaintiff is decreed in terms that a sum of Rs. 3 Lakhs with interest @ 18% per annum from the date of filing of the suit till realization with CS354/2013 Vijay Prakash @ Vijay Kumar Vs. Naresh Kumar Page 17 of 18 costs is payable by defendant to plaintiff. Plaintiff is held entitled for the preliminary decree of foreclosure of the mortgaged suit property. It is also directed that if defendant pays into the Court the afore elicited amount, held payable to plaintiff with costs and interest, within one month hereof, then the documents afore elicited Ex PW1/9 (colly) shall be delivered to defendant on filing their certified copies, failing which the plaintiff shall be entitled for taking appropriate steps in terms of Order XXXIV of CPC for obtaining final decree and sale thereof of suit property, besides the remedy to obtain decretal sum from defendant in execution by attachment of other properties, movable or immovable, as permissible in law. Defendant is also restrained from transferring, alienating or creating third party interest in mortgaged suit property till payment of decretal sum to plaintiff. Decree sheet be prepared accordingly and file be consigned to record room. Announced in open Court (GURVINDER PAL SINGH) st on 31 Day of October, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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