Bangalore District Court
Maj.Gen.Vijai Pal Yadav vs Sri. Ismail Suhab on 11 November, 2020
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY [CCH84]
:Present:
Sri N.Sunil Kumar Singh, B.Com., LL.B.,
LXXXIII Addl. City Civil & Sessions Judge,
Bengaluru
Dated on this the 11th day of November 2020
COM.O.S.No.26081/2012
Plaintiff Maj.Gen.Vijai Pal Yadav,
S/o. Late. Sri. Daya Ram Yadav,
R/at. #203, Nirmal Apartment,
MEG offices colony, #33,
Banasawadi Main Road,
Bengaluru 560 033.
[By Sri. K.R.R, Advocate]
/v e r s u s/
Defendant: Sri. Ismail Suhab,
S/o. Mohd. Ibrahim,
Proprietor of Pyramids,
#26, BDA Complex Level 1,
HBR Colony,
Bengaluru 560 043.
[By Sri. Z.A, Advocate]
Date of Institution of the suit : 02/06/2012
Nature of the suit : Recovery of Money
Date of commencement of : 24/01/2017
recording of the evidence
Date on which the Judgment : 11/11/2020
was pronounced.
: Year/s Month/s Day/s
Total duration
08 05 09
2
CT 1390_Com.O.S.260812012_Judgment .doc
JUDGMENT
This suit is filed by the plaintiff against defendant for recovery of money and such other reliefs.
2. The facts in brief of the plaintiff's case is that plaintiff is retired Army Officer who has worked as Major General in senior rank in the Indian Army and he has got three daughters who are married and living separately. The plaintiff had 420 square meters of property at Gurgaon which was sold with the assistance of his soninlaw Indranil Mukherjee which was granted to the plaintiff by Haryana Urban Development Authority. The plaintiff sold said property in May 2009 and sale proceeds was deposited in capital gain account in the name of plaintiff and his wife. After sale of the said property, plaintiff was intended to purchase apartment for his residence in Bengaluru and at that time his soninlaw Indranil Mukherjee has introduced the defendant who will be the facilitator to acquire apartment in the name of plaintiff. The defendant has shown number of flats and a flat which was under construction at "Rich Heritage" was claimed to be the apartment constructing by the friend of the defendant. The defendant has promised plaintiff to provide an apartment through his friend and the defendant will be the facilitator to procure the said apartment. Hence plaintiff and defendant entered into Memorandum of Understanding in the presence of soninlaw of plaintiff Indranil Mukherjee on 04/06/2009. As per the 3 CT 1390_Com.O.S.260812012_Judgment .doc terms of agreement defendant being the facilitator undertaken to secure apartment at the required place of the plaintiff and defendant being the proprietor of Pyramids entered into such agreement and intended to provide an apartment. The plaintiff has accepted to pay Rs.1,00,00,000/ and for payment of the said amount Rs.74,00,000/ was paid to defendant by the plaintiff through D.D.No.286734 drawn in the name of M/s. Pyramids and defendant being the proprietor of the said firm received Demand Draft and through soninlaw Indranil Mukherjee plaintiff also paid Rs.26,00,000/ to the defendant. Thus totally plaintiff has paid Rs.1,00,00,000/ for procurement of the apartment in the name of plaintiff.
3. Later on behalf of defendant, soninlaw of plaintiff Indranil Mukherjee also received two cheques for Rs.30,63,194/. Out of which Rs.2,58,857/ was paid through Demand Draft and Rs.27,41,143/ was paid through cheques. Thus totally defendant has received Rs.1,30,63,194/ for procurement of the apartment in the name of plaintiff. In the meanwhile plaintiff has registered for dwelling unit with Army Welfare Housing Organization, White Field, Bengaluru and received intimation that plaintiff will be allotted dwelling unit of his choice by Army Welfare Housing Organization. The said unit to be allotted to the plaintiff for lesser price than the defendant procuring an apartment in the name of plaintiff. In September 2009 plaintiff met defendant 4 CT 1390_Com.O.S.260812012_Judgment .doc and informed the said facilitator for procurement of an apartment and he has decided to cancel the apartment to be procured by the defendant in the name of plaintiff and requested for refund of the amount received. But defendant has sought time to return the amount received. Despite of assurance of defendant he has not refunded the amount received from the plaintiff. It is also informed by the defendant that due to some business difficulty he was not in a position to repay the amount immediately and prays some time and he has agreed to pay 12% interest per annum on the said amount for delayed time. Likewise for few months defendant has paid interest @ 12% per annum on the amount received from plaintiff. Despite of several requests and demands, since the defendant not repaid the amount, the plaintiff has constrained to issue Legal Notice to defendant on 8/4/2010. The notice sent by RPAD was returned unclaimed, but notice sent to defendant Under Certificate of Posting was served. Despite of service of such notice, defendant neither replied nor complied and not repaid the amount to the plaintiff.
4. Despite of several demands, since defendant not repaid the amount which was received from the plaintiff. There was meeting convened in the office of the counsel for defendant in the presence of soninlaw of plaintiff Indranil Mukherjee and despite of efforts of plaintiff, defendant not repaid the amount. Thus plaintiff has constrained to file 5 CT 1390_Com.O.S.260812012_Judgment .doc complaint before Frazer Town Police Station, who have registered case against defendant in Crime No. 43/2011 for the offence U/S.420 and 406 of IPC. The defendant has preferred Criminal petition No.3322/2011 on the file of Hon'ble High Court of Karnataka U/S.482 of Cr.P.C for quashing the complaint and same was dismissed by Hon'ble High Court of Karnataka and despite of that defendant not paid amount to the plaintiff. Finally after investigation the jurisdictional police have filed chargesheet against defendant who is appearing in the criminal proceeding.
5. The defendant is liable to pay sum of Rs.2,40,00,000/ as on the date of filing of the suit which includes principal amount of Rs.1,30,63,194/ and the interest accrued from the date of borrowing till filing of the suit @ 9.5% per annum. Despite of repeated requests and demands, since defendant failed to repay the above said sum and it is prayed to decree the suit with a direction to the defendant to pay sum of Rs.2,40,00,000/ along with interest @ 9.5% per annum from the date of suit till realization.
6. The brief averments of written statement filed by defendant is that the present suit is filed by plaintiff with an ulterior motive to get unlawful gain, plaintiff is not entitled for any reliefs as claimed in the suit and there is no cause of action for the suit. Defendant not borrowed amount of Rs.1,30,63,194/ and he has not liable to pay interest 6 CT 1390_Com.O.S.260812012_Judgment .doc of Rs.1,09,36,806/. There was no such agreement or contract to pay interest @ 9.5% per annum as claimed in the suit. The plaintiff has created documents so as to get unlawful gain. Since the date of transaction is not definite, the present suit is filed on 04/06/2012 is barred by law of limitation. It is denied that plaintiff is retired Army Officer who has worked as Major General in the Indian Army and he has got wife and three daughters and his daughters are married and living separately. In fact, plaintiff is residing along with his soninlaw Indranil Mukherjee at Bengaluru City and said Indranil Mukherjee is the husband of Meenakshi Yadav who is the daughter of plaintiff herein.
7. It is denied that plaintiff has sold property measuring 420 square meters at Gurgaon, Haryana State in May 2009 and deposited the proceeds in the capital gains account of his wife and himself. It is also denied that plaintiff was intended to purchase apartment at Bengaluru and introduced the defendant through his soninlaw Indranil Mukherjee. It is admitted that defendant has shown some apartments to the plaintiff which was under construction at "Rich Heritage", Bengaluru. It is also admitted that defendant being facilitator to acquire apartment by the plaintiff entered into Memorandum of Understanding on 04/06/2009. The said MOU was entered into between plaintiff and defendant in April 2009 and there was no such witness present at that time. It is denied that plaintiff has paid sum of 7 CT 1390_Com.O.S.260812012_Judgment .doc Rs.1,00,00,000/ to the defendant for procurement of such apartment. It is denied that defendant has received Rs.74,00,000/ by way of D.D No.286734, drawn in the name of Pyramids and defendant is the proprietor of the said firm. It is also denied that Rs.26,00,000/ was received by the defendant from plaintiff for procurement of apartment. It is also denied that the defendant has issued receipt on 6/6/2009 in favour of plaintiff for having received said sum. The soninlaw of plaintiff Indranil Mukherjee is managing the affairs of Pyramids firm who is holding important post in the said business of defendant. The plaintiff has invested said money for improvement of business of his soninlaw Indranil Mukherjee and no such amount was paid to the defendant by plaintiff.
8. As per the understanding between plaintiff and defendant and MOU entered on 4/6/2009, defendant being the proprietor of M/s. Pyramids received three cheques bearing cheque No.464463 for Rs.25,00,000/, cheque No.4464464 for Rs.25,00,000/ and cheque No.464465 for Rs.24,00,000/ of Punjab Nation Bank, Frazer Town Branch, Bengaluru from the plaintiff during the month of June 2009. The said cheques were presented by defendant for encashment through his banker Vijaya Bank on 4/6/2009. But to the surprise to the defendant those cheques were dishonoured for "insufficient funds" in the account of plaintiff 8 CT 1390_Com.O.S.260812012_Judgment .doc on 07/04/2009. The said fact was informed by defendant to the plaintiff. But plaintiff and his wife prayed before the defendant and expressed their unwillingness to honour the said cheques for purchase of any apartment. Thus the Memorandum of understanding entered between plaintiff and defendant on 04/06/2009 was canceled.
9. The plaintiff with malafide intention due to some changes and fabricated Memorandum of Understanding claiming that defendant has received amount from him and not repaid the same. In June 2009 plaintiff has changed his mind and decided to invest amount of Rs.74,00,000/ in the business of Import & Export carried on by defendant through Pyramids at Bengaluru. The soninlaw of plaintiff Indranil Mukherjee who is incharge of import and export business of the defendant. Thus plaintiff has invested said sum of Rs.74,00,000/ through D.D.No.2867334 dated 6/6/2009 at Pyramids which is the proprietary concern of defendant herein. The soninlaw of plaintiff Indranil Mukherjee has collected two cheques and one DD for Rs.30,63,194/ from the plaintiff on behalf of defendant. Thus all the amount of Rs.1,30,63,194/ was invested in the business of soninlaw of plaintiff and not received by defendant for procurement of apartment. The amount was not paid to the defendant by plaintiff for procurement of apartment as claimed in the suit. Since defendant has not received any amount from the 9 CT 1390_Com.O.S.260812012_Judgment .doc plaintiff, he is not liable to repay the same and suit of the plaintiff is liable to be dismissed.
10. It is denied that plaintiff has registered his name for allotment of dwelling unit with Army Welfare Housing Organization, White Field, Bengaluru and received intimation of allotment. Thus he has canceled the contract given to defendant for procurement of apartment, since he is getting accommodation for the lesser price than the amount which is agreed by the defendant. There is no such contract between plaintiff and defendant for procurement of apartment. But false case was registered before police for unlawful gain. In the presence of defendant, soninlaw of plaintiff Indranil Mukherjee has agreed to pay interest @ 12% per annum towards amount invested by plaintiff in the import and export business and defendant is noway connected to the said transaction of plaintiff and his soninlaw. It is admitted that defendant has paid interest @ 12% per annum on the amount invested by plaintiff in the business of defendant's concern "Pyramids" from the profit calculated in the business of the firm and later Memorandum of Understanding was terminated and canceled. Hence defendant is not liable to pay principal amount nor interest as claimed by the plaintiff in the present suit. The defendant voluntarily agreed to pay interest @ 9.5% on the investment made by plaintiff in the business of the firm for some time. But due to loss in the business defendant could not able to pay interest as agreed 10 CT 1390_Com.O.S.260812012_Judgment .doc upon. Since the investment made by plaintiff in the business of his soninlaw, repayment of said amount do not arise at all, since "Pyramids" firm was running under loss.
11. It is admitted that the Legal Notice sent by plaintiff on 8/4/2010 was received by defendant, but it is not replied. Anyhow defendant is not liable to pay amount claimed by plaintiff in the present suit. The plaintiff's daughter Meenakshi Yadav and her husband Indranil Mukherjee have tarnished the image and reputation of defendant in the society by receiving amount from the plaintiff for investment in the defendant firm. The defendant is not received any amount from the plaintiff as claimed in the suit. After investigation police have closed the case against soninlaw of the plaintiff, but the demand notice was issued by plaintiff for unlawful gain. But plaintiff has filed false complaint before Frazer Town Police Station who have registered Crime No.43/2011 against this defendant U/S.420 and 406 of IPC and after investigation they have filed charge sheet in C.C.No.24647/2012 on the file of 11th ACMM, Bengaluru, which is pending for adjudication. It is admitted that after registration of such case against defendant on the complaint of plaintiff, the jurisdictional police have freezed the bank account of defendant and his passport. Due to freezing of such passport and bank account the defendant was unable to travel abroad for his business at Dubai. This defendant has filed suit in OS No.26019/2013 against defendant's banker 11 CT 1390_Com.O.S.260812012_Judgment .doc Vijaya Bank, Cox town Branch, Bengaluru for appropriate relief which is pending for adjudication.
12. This defendant has challenged criminal proceeding initiated against him in Crl. Petition No.3322/2011 U/S.482 of Cr.P.C for quashing the complaint in which the matter was stayed by Hon'ble High Court of Karnataka. The defendant has received summons in Crl. Petition No.3323/2011 and defendant has appeared in the said case. Later matter was referred to Mediation Centre, wherein the matter was not settled amicably. The defendant is carrying on business along with soninlaw of plaintiff Indranil Mukherjee and they have sustained loss in export and import business which can be attributed against plaintiff's soninlaw Indranil Mukherjee only.
13. The plaintiff himself is liable to pay Rs.18,00,000/ to this defendant and plaintiff has received Rs.9,00,000/ on two occasions through cheque No.111820 dated 16/04/2009 and cheque No.111821 for Rs.9,00,000/ each and this defendant also paid sum of Rs.5,41,610.64 to the plaintiff through cheque No.711720 dated 10/07/2009 and Rs.1,00,000/ was paid through cheque No.712738 dated 14/8/2009 and also paid sum of Rs.2,11,610.64 through DD No.434463 to the plaintiff. Thus plaintiff himself is liable to pay Rs.18,00,000/ to the defendant. Since plaintiff has invested money in the business of his soninlaw which was 12 CT 1390_Com.O.S.260812012_Judgment .doc lost, the question of repayment of said claim to the plaintiff by defendant do not arise at all. Hence it is prayed to dismiss the suit of plaintiff with cost.
14. On the above pleadings, following issues have been framed by my learned predecessor:
1 Whether the plaintiff proves that with an intention to own a suitable bigger apartment for his family at Bengaluru, he was searching for the same at the time his soninlaw Mr. Indrani Mukharji introduced defendant to him who is a builder of Rich Heritage who promised him to procure him required flat?
2 Whether the plaintiff proves that he had entered into MOU Dt.04/06/2009 with the defendant and has paid a sum of Rs. 1,30,63,194/ to the defendant towards purchase of flat?
3 Whether the plaintiff proves that since considerable time is lost for him in facilitating for procurement of flat, he told the defendant to cancel the deal and asked him to refund the said amount?
4 Whether the plaintiff proves that the defendant is liable to pay him a sum of Rs. 2,40,00,000/ with interest at 9.5% p.a.?
5 Whether the plaintiff proves that he is entitled to the relief"s of as sought for in the plaint?
6 What order or decree?13
CT 1390_Com.O.S.260812012_Judgment .doc
15. In order to prove the case of plaintiff, the wife of plaintiff being the Power of Attorney Holder of plaintiff got herself examined as PW.1 by filing her affidavit evidence and got marked documents Ex.P.1 to Ex.P.19 and got marked Ex.P.20 to Ex.P.23 by confronting to DW.1. Defendant got himself examined as DW.1 by filing affidavit evidence and got marked documents Ex.D.1 to D.6.
16. Heard arguments of both the sides and perused written arguments submitted on behalf of plaintiff and defendant.
17. My findings to the above issues are as under:
ISSUE No.1 : Affirmative.
ISSUE No.2 : Partly affirmative.
ISSUE No.3 : Affirmative.
ISSUE No.4 : Partly affirmative.
ISSUE No.5 : Partly affirmative.
ISSUE No.6 : As per my final order for the
following:
REASONS
18. ISSUES No.1 to 5 : Since these five issues are interconnected to each other, they have been taken together for my discussion in order to avoid repetition of facts and findings to be given thereunder.
19. The case of plaintiff is that plaintiff is retired Army Officer who has worked as Major General in senior rank of 14 CT 1390_Com.O.S.260812012_Judgment .doc Indian Army and he has got three daughters who are married and living separately. The plaintiff had 420 square meters of property at Gurgaon which was sold with the assistance of his soninlaw Indranil Mukherjee which was granted to the plaintiff by Haryana Urban Development Authority. The plaintiff sold said property in May 2009 and sale proceeds was deposited in capital gains account in the name of plaintiff and his wife. After sale of the said property, plaintiff was intended to purchase apartment for his residence in Bengaluru and at that time his soninlaw Indranil Mukherjee has introduced the defendant who will be the facilitator to acquire apartment in the name of plaintiff. The defendant has shown number of flats and a flat which was under construction at "Rich Heritage" was claimed to be the apartment constructing by the friend of the defendant. The defendant has promised plaintiff to provide an apartment through his friend and the defendant will be the facilitator to procure the said apartment. Hence plaintiff and defendant entered into Memorandum of Understanding in the presence of soninlaw of plaintiff Indranil Mukherjee on 04/06/2009. As per the terms of agreement defendant being the facilitator undertaken to secure apartment at the required place of the plaintiff and defendant being the proprietor of Pyramids entered into agreement and intended to provide an apartment. The plaintiff has accepted to pay Rs.1,00,00,000/ and for payment of the said amount Rs.74,00,000/ was paid to defendant by the plaintiff through D.D.No.286734 drawn in 15 CT 1390_Com.O.S.260812012_Judgment .doc the name of M/s. Pyramids and defendant being the proprietor of the said firm received Demand Draft and through soninlaw Indranil Mukherjee plaintiff also paid Rs.26,00,000/ to the defendant. Thus totally plaintiff has paid Rs.1,00,00,000/ for procurement of the apartment in the name of plaintiff.
20. Later on behalf of defendant, soninlaw of plaintiff Indranil Mukherjee also received two cheques for Rs.30,63,194/. Out of which Rs.2,58,857/ was paid through Demand Draft and Rs.27,41,143/ was paid through cheques. Thus totally defendant has received Rs.1,30,63,194/ for procurement of the apartment in the name of plaintiff. In the meanwhile plaintiff has registered for dwelling unit with Army Welfare Housing Organization, White Field, Bengaluru and received intimation that plaintiff will be allotted dwelling unit of his choice by Army Welfare Housing Organization. The said unit to be allotted to the plaintiff for lesser price than the defendant procuring an apartment in the name of plaintiff. In September 2009 plaintiff met defendant and informed the said facilitator for procurement of an apartment and he has decided to cancel the apartment to be procured by the defendant in the name of plaintiff and requested for refund of the amount received. But defendant has sought time to return the amount received. Despite of assurance of defendant he has not refunded the amount received from the plaintiff. It is also informed by the 16 CT 1390_Com.O.S.260812012_Judgment .doc defendant that due to some business difficulty he was not in a position to repay the amount immediately and prays some time and he has agreed to pay 12% interest per annum on the said amount for delayed time. Likewise for few months defendant has paid interest @ 12% per annum on the amount received from plaintiff. Despite of several requests and demands, since the defendant not repaid the amount, the plaintiff has constrained to issue Legal Notice to defendant on 8/4/2010. The notice sent by RPAD was returned unclaimed, but notice sent to defendant Under Certificate of Posting was served. Despite of service of such notice, defendant neither replied nor complied and not repaid the amount to the plaintiff.
21. Despite of several demands, since defendant not repaid the amount which was received from the plaintiff. There was meeting convened in the office of the counsel for defendant in the presence of soninlaw of plaintiff Indranil Mukherjee and despite of efforts of plaintiff, defendant not repaid the amount. Thus plaintiff has constrained to file complaint before Frazer Town Police Station, who have registered case against defendant in Cr.No. 43/2011 for the offence punishable U/S.420 and 406 of IPC. The defendant has preferred Criminal petition No.3322/2011 on the file of Hon'ble High Court of Karnataka U/S.482 of Cr.P.C for quashing the complaint and same was dismissed by Hon'ble High Court of Karnataka and despite of that defendant not 17 CT 1390_Com.O.S.260812012_Judgment .doc paid amount to the plaintiff. Finally after investigation the jurisdictional police have filed chargesheet against defendant who is appearing in the criminal proceeding.
22. The defendant is liable to pay sum of Rs.2,40,00,000/ as on the date of filing of the suit which includes principal amount of Rs.1,30,63,194/ and the interest accrued from the date of borrowing till filing of the suit @ 9.5% per annum. Despite of repeated requests and demands, since defendant failed to repay the above said sum, it is prayed to decree the suit with a direction to the defendant to pay sum of Rs.2,40,00,000/ along with interest @ 9.5% per annum from the date of suit till realization.
23. In order to prove the case of the plaintiff, SPA holder of plaintiff who is also wife of the plaintiff herein got herself examined as PW1 by filing her affidavit evidence, reiterated plaint averments and deposed that she is the wife of plaintiff herein and since her husband is not feeling well and suffering from age old ailments he could not able to appear before the court and depose. Hence he has authorized her to depose on his behalf by executing Special Power of Attorney which is marked as Ex.P.19. On going through the recitals of Ex.P.19 it pertinent to note that plaintiff due to suffering from age old aliments he could not able to appear before the court to depose. Hence he has authorized PW1 herein to depose on his behalf. Admittedly PW1 who is 18 CT 1390_Com.O.S.260812012_Judgment .doc witness to the transaction which was taken place between plaintiff and defendant herein. Hence she can depose on behalf of plaintiff in the present suit who has got personal knowledge about the transaction which was existed between plaintiff and defendant. In order to substantiate that plaintiff is undergoing treatment for his aliments. Copy of medical documents are marked as Ex.P.15 and Ex.P.16. The recitals of which clearly discloses that plaintiff was undergoing treatment for his aliments. Even otherwise there is no dispute with regard to plaintiff could not able to appear before the court to depose, since he is suffering from some aliments.
24. It is also deposed by PW1 that plaintiff has filed present suit against defendant for recovery of Rs.2,40,00,000/ along with accrued interest thereon. It is also deposed by PW1 that her husband who is the plaintiff herein was Major General worked in Indian Army in the Senior rank and they have got three daughters who are married and leaving separately. In order to substantiate the said fact copy of Identity Card of Exserviceman of plaintiff is marked as Ex.P.13 and for having awarded Veera Chakra to the plaintiff during his tenure of Major General in Indian Army. Copy of certificate is marked as Ex.P.14. Even otherwise there is no dispute with regard to plaintiff working in Indian Army as Major General and he was retired. PW1 further deposed that her husband who is the plaintiff herein was owning property in Gurgaon, Haryana State 19 CT 1390_Com.O.S.260812012_Judgment .doc measuring 420 Sq.Mtrs and he was intended to sell the said property and same was sold for valuable consideration and amount was kept in the capital gain account in the name of plaintiff and herself which is also not in dispute between parties to the suit. It is also deposed by PW.1 that her husband who is plaintiff herein was intended to own suitable big apartment in Bengaluru. Hence he was in search of apartment and plaintiff was introduced to the defendant through her soninlaw Indranil Mukherjee. It is also deposed by PW1 that defendant has undertaken to get suitable apartment for their convenience and he has shown flats under construction at "Rich Heritage" which belongs to the friend of defendant herein and in pursuance of the same Memorandum of Understanding was executed on 04/06/2009 between plaintiff and defendant and plaintiff has agreed to pay Rs. 1,00,00,000/ as advance amount and Rs.74,00,000/ was paid to the defendant. For which defendant has executed Memorandum of Understanding which is not marked in the present suit. But it is claimed by PW1 that for having received Rs. 74,00,000/ from the plaintiff, defendant has issued receipt which is marked as Ex.P.1. On going through the recitals of Ex.P.1, it is pertinent to note that defendant has received sum of Rs. 74,00,000/ through Demand Draft No. 286734 on 06/06/2009 from the plaintiff for procurement of suitable flat to the plaintiff. Admittedly defendant is the Proprietor of firm "Pyramids" as per recitals of Ex.P.1. The defendant examined as DW1 who 20 CT 1390_Com.O.S.260812012_Judgment .doc has not denied the receipt issued for Rs. 74,00,000/ as per the recitals of Ex.P.1 to the plaintiff. The signature of DW1 found in Ex.P.1 is also not denied by defendant while cross examining PW1 by defence counsel. It is suggested that defendant has received sum of Rs. 74,00,000/ and he is liable to pay Rs. 74,00,000/ to the plaintiff. The said suggestion of defence counsel to PW1 itself shows that defendant has received sum of Rs. 74,00,000 from the plaintiff as per recitals of Ex.P.1. The issuance of Ex.P.1 in the name of plaintiff is not disputed by DW1 in his evidence nor in the cross examination of PW1. In addition to Rs. 74,00,000/ defendant also received sum of Rs. 26,00,000/ as deposed by PW1. But admittedly said sum of Rs. 26,00,000/ was not paid directly to the defendant by the plaintiff. Since the defendant could not able to secure apartment to the plaintiff he was agreed to pay interest @ 9.5% per annum and for having paid interest for some time through cheques by "Pyramids" which is firm belong to the defendant herein has acknowledged is marked as Ex.P.2. The recitals of which clearly discloses that for some time defendant has paid interest to the outstanding balance amount to the plaintiff.
25. It is further deposed by PW1 that defendant has received additional sum of Rs. 30,63,194/ by way of Demand Draft in sum of Rs. 2,58,857/ and through two cheques in sum of Rs. 27,41,143/. Thus defendant has totally received 21 CT 1390_Com.O.S.260812012_Judgment .doc Rs. 1,30,63,194/ from the plaintiff. In order to substantiate the same acknowledgements received by "Pyramids" which is the firm of defendant herein are marked as Ex.P.3 to Ex.P.5. On going through the recitals of Ex.P.3 to Ex.P.5 even though they discloses that the firm "Pyramids" which is owned by defendant has undertaken to pay interest to the plaintiff on outstanding balance of Rs.1,30,22,193/. The said receipts Ex.P.3 to Ex.P.5 were signed by soninlaw of plaintiff Indranil Mukherjee. It is the claim of defendant that Indranil Mukherjee was the partner of his firm and the soninlaw of plaintiff herein has undertaken to pay interest as per recitals of Ex.P.3 to Ex.P.5. It is also the claim of defendant that since he could not able to secure apartment as undertaken in Ex.P.1, the plaintiff has invested entire amount of Rs.1,30,22,193/ in the business of his soninlaw who is also partner of "Pyramids" firm which is run by the defendant herein. But in order to prove that the defendant and sonin law of plaintiff Indranil Mukherjee were partners of the said firm "Pyramids" no such documents are produced on behalf of the defendant. It is the claim of defendant that he is liable to pay Rs. 74,00,000/ alone to the plaintiff and for balance amount he is not responsible, since he has not received the balance amount from the plaintiff. It is the claim of DW1 that the soninlaw of plaintiff herein has received balance amount on behalf of his firm "Pyramids" and there is no liability on him to pay balance amount as claimed by plaintiff. The hand written statement of account for having paid interest 22 CT 1390_Com.O.S.260812012_Judgment .doc periodically to the plaintiff by defendant, copy of statement is marked as Ex.P.6 which discloses that for certain time defendant has paid interest to the plaintiff towards outstanding balance of Rs.1,30,63,194/.
26. It is further deposed by PW.1 that plaintiff has applied for dwelling unit at Army Welfare Housing Organization, White Field, Bengaluru and received intimation that plaintiff was allotted dwelling unit of his choice at Army Welfare Housing Organization. It is also deposed by PW.1 that for the lessor cost than the apartment which has to be secured through defendant, plaintiff was accommodated with dwelling unit by Army Welfare Housing Organization. Hence in September 2009 plaintiff has requested defendant to refund amount received by him for procuring apartment in the name of plaintiff. It is also deposed by PW.1 that for some time defendant not complied to the request of plaintiff and not refunded the amount received. Hence plaintiff has lodged complaint before Pulakeshinagar Police Station on 22/11/2011 and copy of complaint is marked as Ex.P.7 and police have requested the plaintiff to produce documents pertaining to transaction which was existed between plaintiff and defendant by issuing notice which is marked as Ex.P.8 and despite of lodging such complaint, police have not taken any action, but they have directed plaintiff to produce certain documents which are produced through the counsel of plaintiff to the Station House Officer of Frazer Town Police 23 CT 1390_Com.O.S.260812012_Judgment .doc Station on 02/08/2012 and copy of said letter is marked as Ex.P.9. It is further deposed by PW.1 that despite of repeated requests and demands, since defendant not paid amount, plaintiff was constrained to issue Legal Notice to the defendant calling upon him to pay sum of Rs.1,30,63,194/ along with accrued interest on the outstanding balance and the copy of Legal Notice is marked as Ex.P.10 and notice sent to the defendant Under Certificate of Posting was served as per postal certificate produced. But RPAD cover returned unserved which is marked as Ex.P.18. But Ex.P.10 and Ex.P.17 are similar notice copies which are marked on behalf of the plaintiff.
27. PW.1 further deposed that after lodging complaint by the plaintiff, police have registered case in Crime No.43/2011 against defendant for the offence punishable U/S.420 of IPC and after investigation submitted chargesheet against defendant to the jurisdictional Magistrate in CC No.24647/2012 and copy of the ordershet in the said case where defendant has appeared as accused is marked as Ex.P.11. The recitals of Ex.P.11 clearly discloses that for having filed complaint by the plaintiff as per Ex.P.7, police have investigated the matter and filed chargesheet and defendant has appearing as accused in the said proceeding as per Ex.P.11 and admittedly the defendant herein has preferred Crl. Petition No.3323/2011 on the file of Hon'ble High Court of Karnataka to quash the proceeding initiated by 24 CT 1390_Com.O.S.260812012_Judgment .doc the police on the complaint of plaintiff as provided U/S.482 of Cr.P.C which was dismissed and copy of ordersheet in the said proceeding is marked as Ex.P.12 and copy of orders passed by Hon'ble High Court of Karnataka in Crl. Petition No.3323/2011 is also enclosed along with Ex.P.12. On going through the recitals of Ex.P.12 it is pertinent to note that Crl. Petition filed to quash the proceeding initiated by plaintiff against defendant for the offence punishable U/S.420 of IPC was dismissed by Hon'ble High Court of Karnataka, even otherwise there is no such dispute with regard to initiating such proceeding by the plaintiff against defendant herein for having cheated him by not refunded the amount received for procurement of apartment in the name of plaintiff. Even though PW.1 is cross examined by defence counsel at length nothing is elicited to prove that defendant has not received amount of Rs.74,00,000/ from the plaintiff for procuring an apartment in the name of plaintiff. For having paid balance amount to the defendant there is no specific document produced on behalf of plaintiff in the present suit. The evidence of PW.1 and his documents and admissions of DW.1 in the cross examination of plaintiff's counsel and also suggestion made to PW.1 by defence counsel in the cross examination of PW.1 clearly discloses that as per Ex.P.1 defendant has received sum of Rs.74,00,000/ for procuring an apartment in the name of plaintiff and not refunded the said sum despite of repeated requests and demands by the plaintiff. While cross examining DW.1 by plaintiff's counsel 25 CT 1390_Com.O.S.260812012_Judgment .doc two documents have confronted and marked as Ex.P.20 and Ex.P.21. Ex.P.20 is the Crl. Petition No.3323/2011 preferred by defendant on the file of Hon'ble High Court of Karnataka and Ex.P.21 is the objection filed by 2 nd respondent who is the plaintiff herein in the said proceeding and Ex.P.22 is the copy of Email sent by plaintiff notifying that they have changed the name of his firm "Pyramids" and Ex.P.23 is the mail sent by advocate for plaintiff with regard to meeting fixed for settlement of issue in the matter. Anyhow the evidence and documents of PW.1 clearly discloses that defendant has received sum of Rs.74,00,000/ under Ex.P.1 from the plaintiff and not returned the same despite of repeated requests and demands from the plaintiff at the regular intervals. The said fact is admitted in the evidence of DW.1 and also suggestion made to PW.1 in the cross examination by defence counsel. Hence plaintiff is entitled to recover sum of Rs.74,00,000/ from the defendant along with reasonable interest @ 9% per annum from the date of suit till realization.
28. In order to rebut the evidence and documents of PW.1 herein, defendant got examined himself as DW.1 by filing his affidavit evidence, reiterated written statement averments and deposed that he is the Proprietor of M/s. Pyramids which is Proprietorship Firm and plaintiff has filed present suit with malafide intention for wrongful gain for recovery of Rs.1,30,63,194/ along with interest of Rs.1,09,36,806/, totally for sum of Rs.2,40,00,000/ 26 CT 1390_Com.O.S.260812012_Judgment .doc along with interest @ 9.5% per annum. Even though the defendant is not liable to pay said sum to the plaintiff. It is also deposed by DW.1 that the present suit is not maintainable and liable to be dismissed. It is further deposed by DW.1 that plaintiff's soninlaw Indranil Mukherjee was introduced the plaintiff for procurement of flat and he has shown many flats in "Rich Heritage" and other villas in and around Bengaluru City and said Indranil Mukherjee who is husband of Meenakshi Yadav and Meenakshi Yadav is the daughter of plaintiff herein. After discussion with the plaintiff he has agreed to secure suitable apartment for residential purpose of plaintiff and his family members. In this regard Memorandum of Understanding was entered into between plaintiff and defendant as facilitator in the year 2009 and plaintiff not paid Rs.1,00,00,000/ as advance consideration. But on the date of execution of Memorandum of Understanding on 04/06/2009 consideration of Rs.74,00,000/ was not paid through cheques nor cash of Rs.26,00,000/ on 04/06/2009, but he has received Demand Draft No.286734 dated 9/6/2009 for Rs.74,00,000/ and he has issued receipt to the plaintiff on 6/6/2009 which is already marked as Ex.P.1. It is further deposed by DW.1 that he never received cash of Rs.26,00,000/. But plaintiff's son inlaw Indranil Mukherjee has received the remaining amount from the plaintiff which was not forwarded to the defendant herein. It is further deposed by DW.1 that plaintiff has issued three cheques on 04/06/2009 in the name of "Pyramids"
27CT 1390_Com.O.S.260812012_Judgment .doc which is firm managed by the defendant herein bearing Cheque No.464463 for Rs.25,00,000/, cheque No.464464 for Rs.25,00,000/ and cheque No.464465 for Rs.24,00,000/ of Punjab National Bank, Frazer Town Branch, Bengaluru and the said cheques were dishonoured when presented for encashment. But no such amount was paid later by plaintiff with regard to those cheques. It is further deposed by DW.1 that said cheques were dishonoured since plaintiff was not having any intention of purchasing flat as per Memorandum of Understanding. Hence Memorandum of Understanding executed on 04/06/2009 was treated as canceled.
29. DW.1 further deposed that after cancellation of such Memorandum of Understanding the amount paid through Demand Draft in sum of Rs.74,00,000/ was invested in the business of soninlaw of plaintiff with the defendant herein which is partnership firm carrying on export and import business. In order to substantiate the same Partnership Deed alleged to have been executed between DW.1 and others including soninlaw of plaintiff herein is marked as Ex.D.1. On going through the recitals of Ex.D.1 it is pertinent to note that the said Partnership Deed was incorporated at Dubai and soninlaw of plaintiff herein has got 16% share capital in the said firm. But for having invested Rs.74,00,000/ by the plaintiff in the said firm of his soninlaw there is no such material documents produced on behalf of defendant. It is 28 CT 1390_Com.O.S.260812012_Judgment .doc also deposed by DW.1 that there was some misunderstanding between daughter and soninlaw of plaintiff herein. For which daughter of plaintiff has filed private complaint on the file of XI ACMM, Bengaluru and copy of private complaint is marked as Ex.D.2 and FIR registered by police on the basis of complaint referred by the Jurisdictional Magistrate and copy of FIR is marked as Ex.D.3. For having filed chargesheet in the said proceeding against plaintiff and his wife copy of chargesheet is marked as Ex.D.4. It is also claimed by DW.1 that due to misunderstanding between plaintiff and his son inlaw and daughter the present suit is filed against defendant for unlawful gain which is not sustainable. In order to prove that DW.1 had financial transaction with daughter and soninlaw of plaintiff herein, the bank statements are marked as Ex.D.5 and Ex.D.6. On going through the recitals of Ex.D.2 to Ex.D.6 they are not relevant to consider here since the said documents are not related to the present suit on hand and the internal dispute between plaintiff and his daughter and soninlaw is noway connected with the present issue to be decided in the present suit.
30. It is further deposed by DW.1 that soninlaw of plaintiff herein has received Rs.2,58,857/ and Rs.27,41,143/ through cheques and Demand Draft from the plaintiff. For which soninlaw of plaintiff issued receipt as per Ex.P.3 to Ex.P.5 in the letterhead of the defendant herein and nowhere in Ex.P.3 to Ex.P.5 the present defendant has 29 CT 1390_Com.O.S.260812012_Judgment .doc signed for having received said sum from the plaintiff. But in the cross examination of DW.1 by plaintiff's counsel DW.1 has specifically admitted that he has received sum of Rs.74,00,000/ from the plaintiff. But due to cancellation of Memorandum of Understanding for purchase of apartment executed on 04/06/2009 the amount received was invested in the partnership business of defendant and soninlaw of plaintiff herein. Thus question of repayment of said sum do not arise at all, since the partnership business of DW.1 and soninlaw of plaintiff herein is running under loss. But in order to substantiate the same no such balancesheet of the firm and accounts of the partnership firm are furnished on behalf of the defendant. But while cross examining PW.1 by defence counsel it was specifically suggested that defendant is liable to pay a sum of Rs.74,00,000/ alone and defendant is not responsible for other amount which was claimed to be paid by plaintiff to the soninlaw of plaintiff herein. By these admissions of DW.1 it can be safely held that DW.1 has received sum of Rs.74,00,000/ as per recitals of Ex.P.1 from the plaintiff and since the contract undertaken by DW.1 to secure apartment was not materialized he ought to have returned the said money to the plaintiff. The recitals of Ex.P.2 and Ex.P.6 clearly discloses that for some time defendant has paid interest to the plaintiff for not having returned the said sum of Rs.74,00,000/, since he was not able to secure apartment to the plaintiff. On the other hand DW.1 claimed that the said amount of Rs.74,00,000/ which 30 CT 1390_Com.O.S.260812012_Judgment .doc was received under Ex.P.1 was invested in the business of DW.1 and soninlaw of plaintiff and for having invested said sum in the business of partnership firm of DW.1 and sonin law of plaintiff there is no such documents produced on behalf of defendant.
31. It is further deposed by DW.1 that a false complaint was foisted by plaintiff by registering case in Crime No.43/2011 at Frazer Town Police Station on the file of XI ACMM, Bengaluru. But admittedly DW.1 has preferred Criminal Petition No.3322/2011 as per Ex.P.12 which was dismissed by Hon'ble High Court of Karnataka and now DW.1 is facing trial after filing of chargesheet by the police as per recitals of Ex.P.11. Even though DW.1 has denied that he has to pay suit claim to the plaintiff, on the admission of DW.1 in his evidence and cross examination of plaintiff's counsel it can be safely held that defendant is liable to pay sum of Rs.74,00,000/ which he has received from the plaintiff under Ex.P.1 along with interest. In the present suit plaintiff has claimed interest of Rs.1,09,36,806/ from the date of transaction till filing of suit. But as per the recitals of Ex.P.1 or any document produced on behalf of plaintiff there is no written contract or agreement between parties to the suit, so as to enable the plaintiff to claim interest at 9.5% per annum from the date of transaction till filing of the suit. Hence plaintiff is precluded from claiming interest of Rs.1,09,36/806/. Admittedly after issuance of Legal Notice 31 CT 1390_Com.O.S.260812012_Judgment .doc by the plaintiff as per Ex.P.17 which was received by the defendant, but it was not replied. The said fact was conceded by DW.1 in the cross examination of plaintiff's counsel. As per the admission of DW.1 he is liable to pay sum of Rs.74,00,000/ to the plaintiff as per recitals of Ex.P.1 for not having secured apartment as required by the plaintiff. Taking into consideration the nature of transaction which was existed between plaintiff and defendant herein the plaintiff is entitled for reasonable interest @ 9% per annum from the date of suit till realization on the said sum of Rs.74,00,000/ and defendant is liable to pay said sum along with future interest to the plaintiff.
32. On going through the evidence of PW.1 and his documents, it is pertinent to note that plaintiff has received sum of Rs.74,00,000/ from the plaintiff as per the recitals of Ex.P.1 for securing apartment required for the accommodation of the plaintiff and since the said contract was not materialized defendant ought to have returned the said sum to the plaintiff. Despite of issuance of Legal Notice Ex.P.10 and Ex.P.17 and even though said notice was served on defendant he has not complied to the said notice nor replied. Despite of filing of present suit, defendant has not paid said sum to the plaintiff. On the other hand DW.1 claimed that the amount in sum of Rs.74,00,000/ received under Ex.P.1 from the plaintiff was invested in the business of DW.1 and soninlaw of plaintiff and the business was 32 CT 1390_Com.O.S.260812012_Judgment .doc running under loss, hence he is not liable to pay said sum to the plaintiff. But for having consented by plaintiff to invest sum of Rs.74,00,000/ in the partnership firm of DW.1 and soninlaw of plaintiff as per Ex.D.1 there is no such material document or evidence placed in the present suit by defendant. Hence on the basis of evidence of both the sides it can be safely held that the defendant is liable to pay sum of Rs.74,00,000/ to the plaintiff along with interest @ 9% per annum from the date of suit till realization. The plaintiff has failed to prove that he has paid remaining amount to the defendant as claimed in the suit. Hence plaintiff is not entitled to recover entire amount of Rs.1,30,63,194/. But on the other hand plaintiff is entitled to recover sum of Rs.74,00,000/ from the defendant as per recitals of Ex.P.1 along with interest as discussed above. Accordingly, I hold issues No.1 and 3 as affirmative and issues No.2, 4 and 5 as partly affirmative.
33. ISSUE No.6 : In view of my discussion on issues No.1 to 5 above, I proceed to pass following:
ORDER Suit of the plaintiff is partly decreed with cost.
Plaintiff is entitled to recover sum of Rs.74,00,000/ along with interest @ 9% per annum from the date of suit till realization from the defendant.33
CT 1390_Com.O.S.260812012_Judgment .doc Draw decree accordingly.
[Dictated to the Judgment Writer; transcript thereof corrected, initialed and then pronounced by me, in the Open Court on this the 11th day of November 2020] [N. Sunil Kumar Singh] LXXXIII Additional City Civil Judge.
BENGALURU.
ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff:
PW.1 Mrs. Vimla yadav
2. List of witnesses examined on behalf of the
Defendant:
DW.1 Sri. Ismail Suhab
3. List of documents marked on behalf of the Plaintiff:
Ex.P.1 : Receipt dated 6/6/2009.
Ex.P.2 : Statement of Pyramids
Ex.P.3to
Ex.P.5 : Three receipts dt.31/3/2010
Ex.P.6 : Hand written statement of account
Ex.P.7 : Letter dt. 22/2/2011.
Ex.P.8 : Letter dt. 31/7/2012.
Ex.P.9 : Letter dt. 02/08/2012.
Ex.P.10 : Legal Notice dt.8/4/2010
Ex.P.11 : C.C of proceedings in CC No.24647/2012
Ex.P.12 : C.C of ordersheet, petition, objections and
orders in Crl.Petition No.3323/2011.
34
CT 1390_Com.O.S.260812012_Judgment .doc Ex.P.13 : Defence ID Card (attached copy) Ex.P.14 : Merit Certificate and Honours (attached copy) Ex.P.15 : Attested copy of Medical Certificate.
Ex.P.16 : Attested copy of Medical prescription. Ex.P.17 : Copy of Legal Notice.
Ex.P.18 : Returned postal cover.
Ex.P.19 : Special Power of Attorney.
Ex.P.20 : C.C of Memorandum of Criminal Petition filed in Crl.Petition NO.3323/2011.
Ex.P.21 : C.C of objections statement filed by 2nd respondent in Crl. Petition No.3323/2011.
Ex.P.22 : Copy of Email dt. 24/11/2010.
Ex.P.23 : Copy of Email dt. 18/12/2010.
4. List of the documents marked for the defendants:
Ex.D.1 : Original Memorandum of Association dt.14/6/2009.
Ex.D.2 : C.C of private complaint in
PCR No.91/2011
Ex.D.3 : C.C of FIR in Crime No.330/2011.
Ex.D.4 : C.C of charge sheet in
CC No.24948/2012.
Ex.D.5 : Bank Statement of defendant in
Vijaya Bank.
Ex.D.6 : Bank Statement of defendant in
Vijaya Bank
[N. Sunil Kumar Singh]
LXXXIII Additional City Civil Judge.
BENGALURU.