Delhi District Court
Cs No. 8701/2016 (Rita Banerjee vs Shanta Rani & Ors) on 16 January, 2020
IN THE COURT OF MS VANDANA JAIN, ADDITIONAL DISTRICT
JUDGE07 (SE), SAKET COURTS NEW DELHI
MORE THAN SIX YEARS OLD
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors)
CS no.180/14/13 (Shanta Rani Vs Rita Banerjee)
In the matters of:
1st Matter
Rita Banerjee D/o Late Sh. Kalipada Banerjee
R/o House no. P2/A1, Batra Flat,
Sriniwaspuri Extension, New Delhi110065
...........Plaintiff
VERSUS
1. Smt. Shanta Rani W/o Late Sh. Kanwal Nain
2. Sh. Joginder Pal S/o Late Sh. Kamal Nain
3. Smt. Saroj Rani W/o Sh. Joginder Pal
All are resident of R/o M44, J.J.Colony,
Sriniwaspuri, New Delhi110065
4. Smt. Vishan Tuteja W/o Sh. Hansraj Tuteja
R/o House no. N42, Sriniwaspuri, New Delhi65
5. Sh. Amit Tuteja S/o Sh. Hansraj Tuteja
Proprietor of V. Care India
R/o House no. N42, Sriniwaspuri, New Delhi65
...................Defendants
nd
2 Matter
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors)
CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 1 of 56
Shanta Rani W/o Late Sh. Kanwal Nain
W/o M44, J.J.Colony, Sriniwaspuri, New Delhi 110065
........................Plaintiff
Versus
Rita Banerjee D/o Sh. Kalipada Banerjee
R/OP2/A1, Sriniwaspuri, New Delhi 110065
Defendant...............
Date of Institution : 10.12.2013 (In Rita Banerjee)
: 30.11.2013 (in Shanta Rani Case)
Date for reserving of order : 09.01.2020
Date of Judgment : 16.01.2020
JUDGMENT
1. I shall pass common judgment in suit titled as Rita Banerjee Vs. Shanta Rani & Ors and another cross suit titled as Shanta Rani Vs. Rita Banerjee.
2. The suit filed by plaintiff Rita Banerjee under section 31 and 34 of the Specific Relief Act is for cancellation and subsequent declaration of the agreement to sell dated nil alongwith the sale deed dated 05.02.2011 as illegal and void r/w section 151 CPC.
3. Brief facts of the case are that plaintiff is a senior citizen and owner of the flat bearing number House no. P2/A1, CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 2 of 56 Batra Flat, Sriniwaspuri Extension, New Delhi110065 (hereinafter referred to the said flat) and had purchased the same from its previous owner in the year 2000. It is stated that plaintiff is an unmarried lady and was a teacher at School and suffering from various ailments. Defendant no. 2 is a Chemist and is also a property dealer in the locality where the plaintiff resides for last many years and had been purchasing the medicines from the shop of defendant no. 2 since last seven to eight years and had got acquainted with him in such capacity.
4. It is further stated that defendant no. 2 is aware about the medical history of the plaintiff and is also aware that she does not have any immediate family member living with her as he had been interacting with her socially for many years.
5. Defendant no. 1 is the mother of defendant no. 2, defendant no. 3 is wife of defendant no. 2, defendant no. 4 is daughter of defendant no. 1 and defendant no. 5 is son of defendant no. 4.
6. It is further stated that defendant no. 2 and 3 had been gaining confidence of the plaintiff and had been very CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 3 of 56 respectful and considerate towards her and he used to say that plaintiff is like his mother. After few years, defendant no. 2 started suggesting that he would be able to take care of the plaintiff better, if the plaintiff started residing with his family. The defendant no. 2 alongwith defendant no. 3 emotionally blackmailed and pressurized the plaintiff to sell her flat to the defendants stating that in this manner they will be able to take care of the plaintiff. The defendant no. 2 suggested that due to her old age, the plaintiff would also face difficulties in climbing stairs it would be better for her to sell her flat to defendant no. 1 and live with his family later. Thus, he insisted that the best way for him to take care of the plaintiff would be for the plaintiff to sell the flat to defendant no. 1.
7. It is further stated that the plaintiff being an old, ailing and a single woman was in a very vulnerable position and hence, the plaintiff agreed to sell her flat to the defendants on the terms and conditions as may be agreed by the parties. The defendants became successful and used their undue influence to enter into transaction with the plaintiff.
8. It is further stated that the parties agreed to sell the flat for a sum of Rs. 15,25,000/ and agreed to write down the terms and conditions in writing and hence, sometime in the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 4 of 56 year 2009, the defendant no. 2 prepared an agreement to sell on a stamp paper of Rs. 50/ and agreed to effect the sale on the terms and conditions as were mentioned in the said agreement to sale. There was no time limit fixed for completing the transaction which clearly shows that defendants had unduly influenced the plaintiff.
9. It is further stated that defendant no. 2 repeatedly assured and represented that they will take care of the plaintiff and as a good will gesture, gave an advance (Bayana amount) which was agreed for Rs. 2 lacs. However, the defendant no. 2 convinced the plaintiff that the said agreement to sale should be executed with the mother of the defendant no. 1 Smt Shanta Rani so that she can later on transfer the property in the name of the daughter of defendant no. 2. The parties, sometimes in the middle of the year 2009, executed the agreement of sale with defendant no. 1 and defendant no. 2 at the time of the signing of the agreement to sale vide cheque bearing no. 170108 drawn on Punjab National Bank dated 15.03.2009 gave an amount of Rs. 1,00,000/ to the plaintiff and the remaining Rs. 1,00,000/ was paid in cash to the plaintiff. The token money of Rs. 10,000/ was initially paid in cash and another Rs. 90,000/ was paid later in cash again to the complainant CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 5 of 56 after a gap of one month. The cheque for Rs. 1,00,000/ had bounced due to insufficient funds and had to be represented at a later date, when it was later honoured.
10. The defendants after signing the agreement to sell did not fulfill the terms of the agreement and did not pay the rest of the money. She asked the respondent to cancel the agreement on many occasion but defendant pacified her and assured that they will comply with the terms and conditions.
11. It is further stated that defendants have never shown any disrespect to the plaintiff and have in fact shown love for the plaintiff so that they could gain the faith of the plaintiff under a predetermined plan. The defendant no. 2 asked the plaintiff is like a mother to him and said that he did not have the money to pay the consideration for the flat but circle rates were rising and he requested her to cooperate with the payment for circle rate before it rose as an act of kindness to him since he was like her family. He said he was arranging for the full consideration and that the agreement to sell could not be cancelled. He did not reveal that the payment of circle rate implies the final registration of the sale deed of plaintiffs flat and that after that she would have no ownership rights over her flat.
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12. It is further stated that on the night of 03.02.2011, the defendant no. 2 suddenly arrived at her house and insisted that she should sign the documents which were required to make the circle rate payment. The defendant no. 2 did not reveal to the plaintiff that the document was a sale deed. The plaintiff had been resting since she was feeling weak and ill. The defendant no. 2 told plaintiff to hurry and insisted that there was no need to read the papers and repeatedly told her that he was like her son. The next day, the defendant no. 2 simply sent an employee/driver of the defendant no. 5 on instructions of defendant no. 2 and defendant no. 5 who arrived at the plaintiff's work place and asked the plaintiff to accompany him immediately for the payment of the circle rate to the Registrar, again he assured her that this was an intermediate steps before the sale which can not be considered legally complete till full payment. It is stated that the defendant no. 2 did not give the plaintiff any time to even read the clauses of the sale deed, nor did he advise the plaintiff to bring any representative, legal or otherwise for vetting the contents of the sale deed that had been drafted. Defendant no. 2 further convinced the plaintiff that the sale deed would be registered in defendant no. 1's name who is defendant no. 2's mother since it would make it easier to gift CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 7 of 56 the flat later on to his daughter. The defendant no. 2 again assured her that since he had not paid the full consideration agreed upon vide the agreement to sell , the sale would only be completed when the entire consideration is paid to her by the defendants.
13. It is further stated that relying entirely on defendant no. 2's judgment, warranties and representations, plaintiff executed documents for the payment of the circle rate which was actually the alleged sale deed and thus on 04.02.2011 a sale deed was executed subsequent whereto it was stated that the said flat bearing no. A1, located on the first floor was being sold to defendant no. 1 Shanta Rani. It is further stated that the witnesses to the sale deed were the defendant no. 2 and one Sanjeev who is a friend of defendant no. 2. The plaintiff throughout was under an impression that she is executing some documents towards the payment of circle rates to the government authority and not a sale deed. The alleged sale deed was registered fraudulently by the defendants by misrepresentation and using undue influence on the plaintiff.
14. It is stated that how could the property which was agreed to be sold for 15,25,000/ under the alleged CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 8 of 56 agreement of sale in the year 2009 could be sold for an amount as little as Rs. 6,20,000/ under the alleged sale deed two years later when property prices have risen appreciably.
15. It is further stated that the alleged sale deed makes note that the cheque bearing no. 544095 and 544096 drawn on Punjab National Bank dated 04.02.2011 for an amount of Rs. 2,60,000/ each and an amount of Rs. 1,00000/ vide cheque bearing no. 170108 drawn on Punjab National Bank dated 15.03.2009 have been duly paid to the plaintiff and as on the date of registration of the alleged sale deed and thereafter nothing is due and payable to the plaintiff. She was asked by the defendant no. 2 not to deposit the cheques till he instructs the plaintiff to deposit them. It was falsely portrayed by the defendant no. 2 that the complete sale consideration has been paid by the defendants to the plaintiff in terms of the alleged sale deed. It is further stated that months later when plaintiff was allowed to deposit one of the cheques, it bounced and had to be represented and the second cheque was allowed to be deposited by the defendant no. 2 much later. If the plaintiff had realized that this was the final sale consideration for her flat and that in fact she had no intention of selling it and parting possession then she would not have deposited these cheques or have got the sale deed CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 9 of 56 registered. In fact she was made to believe that part payments to wards final sale are in the process of being made and she continues to be the owner of her flat. It was due to this reason that when defendant no. 2 pleaded with her to assist him financially since he was in great financial duress she returned the money to him vide cheques. She did not realize that she has been duped into registering a sale deed for her flat on the pretext of saving defendant no. 2 from increase in circle rate payment. Thus, the sale deed has been registered due to undue influence of the defendants particularly defendant no. 2 and 3 through misrepresentation, coercion and fraud. It is further stated that sale deed dated 05.02.2011 is illegal and liable to be set aside on this ground alone.
16. It is further stated that despite giving the plaintiff these cheques, defendant no. 2 would constantly tell plaintiff that she would have to check with him before depositing these cheques with her bank. One of the above cheques bounced when it was presented and was cleared only when she confronted defendant no. 2. The other cheque was allowed to be presented after 2 months of the sale deed being registered. Immediately thereafter the money was demanded back by the defendants.
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17. It is further stated that immediately after handing over of the aforementioned cheques the defendant no. 2 started asking plaintiff for money for his financial needs. He would emotionally blackmail the plaintiff by saying that he would obviously never run away with her money and the plaintiff was like a mother to him. As a result , plaintiff paid to V care , a company which defendant no. 2 is associated with alongwith his nephew Mr. Tuteja defendant no. 5, the following amounts via cheques: S.No. Cheque Date of issue Amount no./Drawn on 1 Cheque no. dated Rs.
17048 drawn 13.08.2011 2,20,000/
on BOI
2 Cheque no. dated Rs. 300000/
17046 drawn 23.08.2011
on BOI
Total Rs. 5,20,000/
18. It is further stated that the said sums were eventually returned almost after a year to the plaintiff but this was a sham as immediately thereafter the defendant no. 2,3, 4 started asking for some sums of money for financial help.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 11 of 56 Again trusting defendant no. 2 and being in a vulnerable position the plaintiff agreed to give them the amounts demanded and issued the following cheques in their favour: S.N Cheque Date of Issued Amount o no/Drawn no issue in favour of 1 Cheque no. 13.02.2012 Vishan Rs 2,60,000/ 17068 drawn Tuteja on BOI 2 Cheque no. 14.02.2012 Joginder Rs 1,60,000/ 17069 drawn Pal on BOI 3 Cheque no. 15.02.2012 Saroj Rs. 2,60,000/ 17067 drawn on BOI Total Rs. 5,20,000/
19. It is further stated that for each of the above amounts loaned to defendant no. 2, 3 and 4, they issued written acknowledgment receipts in favour of plaintiff. The bank account statement of the plaintiff reflect amounts received and loaned to the defendants.
20. It is further stated that in addition to the aforementioned amounts, the defendant no. 2 also asked for Rs. 75,000/ for his son's education which the plaintiff paid to CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 12 of 56 him through the post office amount no. 5669644 vide post office cheque bearing no. 493604 dated 21.07.2012.
21. It is stated that no original documents have been handed over to the defendants as is falsely mentioned in the alleged sale deed. The defendants have also not cared to make the remaining payments in terms of the alleged sale deed but have on the contrary have taken away the monies from the plaintiff in good faith. The plaintiff is incontinuous and regular possession of the suit premises till date and has been regularly paying all bills as are raised with regard to the usage of the utilities for the suit premises.
22. The defendant no. 2 started pressuring the plaintiff to vacate the flat and started abusing her and threatening her with dire consequences. He went to the extent to telling the plaintiff's neighbours that if she did not vacate the flat , he would transfer the property to thugs who would physically remove the plaintiff from the flat. The defendant issued a notice dated 10.09.2013 through lawyer and asked the plaintiff to vacate the flat and stated in the notice that plaintiff is living in the suit flat as a licencee with the permission from the defendant.
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23. A reply dated 23.09.2013 was sent by plaintiff through her counsel stating that the alleged Sale deed is illegal and plaintiff is in possession of the suit flat and paying electricity and water bills regularly. She also filed complaints to the police but no action was taken.
24. Defendant no. 1 has filed a suit for possession against plaintiff and therefore, the present suit has been filed for declaration the agreement to sell deed dated nil and subsequent sale deed 05.02.2011 be declared as null and void.
25. Written statement was filed by defendant no. 1 wherein she denied all the averments made in the plaint and stated that the transaction between the plaintiff and defendant no. 1 was purely a commercial transaction and status of the plaintiff in the suit flat was that a licencee after (registration of the sale deed and at present she is an unauthorised occupants as the licence has been terminated by defendant no. 1 vide legal notice dated 10.09.2013 but plaintiff failed to vacate the said flat even after the service of the said notice. It is further stated that the physical possession of the flat was CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 14 of 56 taken from the plaintiff by the defendant no. 1 on 04.02.2011 and she reentered in the said flat as a licencee on or after 10.02.2011. It is further stated that licence was created orally by defendant no. 1. But plaintiff failed to vacate despite several requests and receiving of notice issued by the defendant no. 1. It is further stated that defendant no. 1 had purchased the said flat from the plaintiff after making payment of Rs. 6,20,000/. It is further stated that agreement to sell filed by the plaintiff showing the sale consideration of Rs. 15.25 lacs is manipulated and forged by the plaintiff.
26. With respect to the cheque number 544096 , it is stated that said cheque was spoiled by the plaintiff herself. An affidavit to this respect was given by her on 28.06.2011 at the time of receiving of another cheque in place of the spoiled one. The sale consideration was received by the plaintiff and now she can not say that sale deed is liable to be set aside.
27. It is stated that the original documents were handed over to the defendant no. 1 by the plaintiff at the time of registration of the sale deed. The defendant no. 1 received the original copies of the previous title chain from the plaintiff. But due to over crowd at the Registrar Office, when the defendant no. 1 went for natural call, the documents CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 15 of 56 were kept in the bag of the plaintiff as the defendant no. 1 had not carried bag at the time of registration of the documents. After the registration of the sale deed both the parties went to their residence and in the meantime, the original documents which were kept in the bag of the plaintiff through the defendant no. 1 at the time of her natural call remained in the bag of the plaintiff. The abovesaid mistake was later on revealed by defendant no. 1. After contact with the plaintiff by the defendant no. 1 on mobile, the plaintiff promised to return the same to the defendant no. 1. Thereafter, on or after 10.02.2011, the plaintiff reentered the suit property as licencee and the original documents remained in the custody of the plaintiff. Plaintiff did not return the same despite the various requests made to her. The plaintiff always stated that when ever she would leave the suit property, she would handover the previous chain also.
28. Written statement separately filed by defendant no. 2 to 5, however on the same line. Apart from this, defendant no. 2 denied being the property dealer but he admitted that plaintiff was a regular customer of defendant no. 2 and used to purchase the medicines from his shop. Frequent visits of defendant no. 2 and 3 to the residence of plaintiff is also denied. It is denied that plaintiff is a old and ailing lady and CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 16 of 56 had agreed to sell the flat being in a vulnerable position. It is stated that she is a working lady in the age of 64 years and is hale and hearty. The defendant have specifically denied her averments that she never realized that she is executing the sale deed.
29. It is denied by defendants plaintiff executed documents for the payment of circle rate which was actually the alleged sale deed on the representations and warranties of defendant no. 2. It is submitted that the sale deed in question was prepared on 04.02.2011 in the presence of the plaintiff and the defendant no. 1 at the Registrar's office after consulting the same from both the parties and on the instructions of the both the parties. It is further stated that after typing the sale deed , the plaintiff had gone through the same and executed the sale deed finally. It is further stated that both the parties went to the Sub Registrar's office for the execution of the sale deed on 04.02.2011 and the same was registered vide order dated 05.02.2011. It is denied that plaintiff never realized that she is executing a sale deed as admittedly no final payment in terms of the agreement to sale were made by the defendants to the plaintiff. It is denied that plaintiff throughout was under the impression that she is executing some documents towards the payment of the circle rates to the Govt. Authority and not a sale deed.
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30. It is further stated that the plaintiff is an educated lady and well versed with the procedure of the registration of the sale deed as she had already would gone through the whole procedure at the time of purchase of the suit property from its previous owner. Hence, story of her ignorance about the registration of the sale deed in favour of the defendant no.1 is not maintainable. The plaintiff has knowledge that she was going to register a sale deed in favour of the defendant no. 1 and well acquainted with the consequences of the sale deed. The plaintiff has ample time to consult with anyone regarding the sale of the suit property as the agreement to sell was executed in the year 2009 and the sale deed was executed in the year 2011.
31. It is specifically denied that the defendants have maliciously, illegal and deliberately connived to cause illegal loss to the plaintiff and have made illegal gains. It is stated that contrary to that it is the plaintiff who has received Rs. 6,20,000/ from the defendant no. 1 and is also occupying illegally the suit property and enjoying the same. It is further denied that the agreement to sale was executed for Rs.15,25,000/. The agreement to sell which was executed between the plaintiff and the defendant no. 1 was for Rs.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 18 of 56 6,20,000/ only. It is denied that defendants have acted fraudulently with common intention to cheat and cause wrongful loss to the plaintiff.
32. It is denied that after registration of the sale deed, the plaintiff was again emotionally blackmailed and pressurized to part away with monies in favour of the defendants on one ground or the other and the plaintiff has till date given the amounts mentioned in this para to the respondent no. 2,3 and 4. It is stated that abovementioned amount was returned to the plaintiff in five installments : Rs. 30,000/ was given through three cheques of Rs. 10,000/ each by the defendant no. 2, Rs. 1,94,500/ was given on 07.05.2013 by the defendant no. 2 and Rs. 2,65,000/ was given on 15.05.2013 by the defendant no. 2. It is further stated that the last two payments were given to the plaintiff in the presence of the defendant no. 3.
33. It is further stated that it is denied that after registration of the sale deed, the plaintiff was again emotionally blackmailed and pressurized to part away with monies in favour of the defendants on one ground or the other and the plaintiff has till date given the amounts i.e. Rs. 5,20,000/ to the respondent no. 2, 3 and 4. It is stated that the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 19 of 56 abovementioned amount was returned to the plaintiff in five installments rs. 30,000/ was given through three cheques of Rs. 10,000/ each by the defendant no. 2, Rs. 1,94,500/ was given on 07.05.2013 by the defendant no. 2 and Rs. 2,65,000/ was given on 15.05.2013 by the defendant no. 2. the last two payments were given to the plaintiff in the presence of defendant no. 3. The plaintiff has been received Rs. 4,89,500/ from the defendant no. 2. The balance amount of Rs. 30,500/ has been stayed by the defendant no. 2 as the plaintiff refused to give the original receipts which were executed at the time of taking of aforesaid loan.
34. It is further stated that para no. 20 are not denied except that the cheque bearing no. 544095 and 544096 were never handed over to the plaintiff by the defendants either prior or on the date of execution of the sale deed. It is further denied that the said cheques were handed over to the plaintiff 45 days later with clear instructions to the plaintiff to wait till the defendant no. 2 permits her to deposit the same in her account. It is further stated that the abovesaid story is concocted one and nothing was happened as such as alleged by the plaintiff. The abovesaid cheques were handed over to the plaintiff in the Sub Registrar Office on 04.02.2011 at the time of execution of the sale deed. It is denied that CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 20 of 56 cheque bearing no. 544096 was spoiled by the defendant no.
1. It is stated that abovesaid cheque was spoiled by the plaintiff herself. An affidavit to this regard was given by the plaintiff on 28.06.2011 at the time of receiving of the other cheque in place of spoiled one. The sale consideration was received by the plaintiff and now she can not say that the sale deed is liable to be set aside on this ground only.
35. Replication to the written statement filed by the plaintiff wherein contents of the written statement were denied and contents of the plaint were reiterated.
36. The defendant no. 1 herein Ms Shanta Rani also filed a suit for possession against the plaintiff (Rita Banerjee) on the same averments and therefore, the contents of WS of defendant no. 1 are treated as contents of plaint of defendant no. 1 in the suit no.180/14/13 (Shanta Rani Vs Rita Banerjee) and plaint of the plaintiff Rita Banerjee is considered as the WS in this suit. The contents are not repeated herein for the sake of brevity. Both the suits were consolidated at the request of both the parties vide order dated 27.09.2014 by Ld. Predecessor of this court. The suit filed by Rita Banerjee was treated as main suit. The files of both the suits were tagged together.
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37. After completion of the pleadings, following consolidated issues were framed vide order dated 27.09.2014.
1. Whether Ms. Rita Banerjee was allured/enticed by Smt. Shanta Rani and its family member to enter into agreement to sell in the year 2009 qua suit property? OP Rita Banerjee?
2. Whether Ms. Rita Banerjee was allured/enticed by Smt.Shanta Rani and its family member to enter into sale deed dated 04.02.2011 qua suit property? OP Rita Banerjee?
3. Whether the entire alleged sale amount was never paid by smt. Shanta Rani to Smt. Rita Banerjee? OP Rita Banerjee.
4. Whether Smt. Shanta Rani and her family members have enticed/allured Smt. Rita Banerjee and took away the entire money? OP Rita Banerjee.
5. Whether the alleged sale deed dated 04.02.2011 qua suit property was not executed by Smt. Shanta Rani by playing fraud, misrepresentation and thus causing the effect of cheating upon Smt. Rita Banerjee? OP Rita Banerjee.
6. Whether Ms. Rita Banerjee is entitled for the decree of declaration seeking declaration to the effect to declare agreement to sale dated nil, qua suit property as void? OP Rita Banerjee.
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7. Whether Ms. Rita Banerjee is entitled for the decree of declaration seeking declaration to the effect to declare sale deed dated 04.02.2011 qua suit property as void? OP Rita Banerjee.
8. Whether Ms. Rita Banerjee has sold the property to Ms. Shanta Rani vide sale deed dated 04.02.211? OP Shanta Rani.
9. Whether Ms. Rita Banerjee has sold the suit property after taking full consideration amount? OP Shanta Rani.
10. Whether Smt. Shanta Rani have received the vacant possession of the suit property on 04.02.2011? OP Shanta Rani.
11. Whether Ms. Rita Banerjee again reentered the suit property and is in possession of the suit property as licensee? OP Shanta Rani.
12. Whether Smt. Shanta Rani is entitled for decree of possession of immovable property i.e. suit property? OP Shanta Rani.
13. Whether Smt. Shanta Rani is entitled for decree of permanent injunction as prayed seeking that Smt. Rita Benerjee shall not create any third party interest in the suit property? OP Shanta Rani.
14. Whether Smt. Shanta Rani is entitled for damages in the form of pendentlite and future mesne profit @ Rs. 35,000/ per month or at any other rate qua suit property? OP Shanta CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 23 of 56 Rani.
15. Relief.
38. During evidence, plaintiff Rita Banerjee examined herself as PW1 and relied upon documents i.e. agreement to sell, possession, letter, receipt, GPA, document, Will and affidavit executed by Sh. R.K.Btra with regard to the flat alongwith certified copy of passport of plaintiff duly marked as Annexure A is Ex. PW1/1 colly, original of various prescription /medical certificates of illness as Annexure B colly is Ex. PW1/2, copy of agreement to sell with original signatures in possession as Annexure C is Mark A, bank passbook showing the cheque no. 170108 for Rs. 1,00,000/ had bounced on 17.03.2009 and had to be represented at later date when it was honoured on 20.03.2009 as Annexure E is Ex. PW1/3, notification dated 04.02.2011 circle rates rose steeply from 08.02.2011 is Ex. PW1/4, certified copy of the alleged sale deed dated 03.02.2011 marked as annexure D is Ex. PW1/5, bills of Delhi Board, BSES Rajdhani Power Ltd and MTNK Marked as annexure Jcolly is Ex PW1/6, statement of account filed by the defendants in reply to notice to produce is Ex. PW1/7 (colly), cheque no.584096 for Rs. 2,60,000/ dated 07.04.2011 bounced on 08.04.2011 is Ex. PW1/8, lease agreement is Ex PW1/9, bank statement of CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 24 of 56 plaintiff showing entries from 01.03.2011 to 03.05.2012 containing transaction is Ex. PW1/10, receipts are annexed as Annexure G and Annexure F colly is Ex. PW1/11 to Ex. PW1/13 (colly), the passbook of deponent's post office account is attached as Annexure H in sealed cover is Ex. PW1/14, memo showing cheque of Rs. 10,000/ issued by defendant no. 2 to return some of money bounced as Annexure I (colly) is Ex. PW1/15colly, certified copy of Order dated 16.07.2015 & 25.07.2013 of Tribunal is Ex. PW1/18, copy of the petition filed before the Tribunal is Ex. PW1/19, complaint dated 22.06.2013 to PSAmar colony is Ex. PW1/21, complaint daed 31.08.2013 to PSAmar colony is Ex. PW1/22, original sale deed which has been tampered with by defendant no. 1 and 2 by changing the cheque no from 544095 to 584095 and 54096 to 584096 as submitted by defendant no. 1 is Ex. PW1/23. Exhibits marks are not put on Ex. PW1/16, Ex. PW1/17 and Ex. PW1/20 (marked in affidavit) on the ground that these documents are already admitted by opposite party.
39. Plaintiff also examined PW2 Sanjay Goswami, Record Attendant, Sub RegistrarV who produced the sale deed. Copy of the same is Ex. PW2/A. CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 25 of 56
40. Plaintiff also examined PW3 Deepti Joshi who has tendered her affidavit of evidence in support of case of plaintiff and was cross examined by counsel for defendants. Thereafter, PE was closed.
41. Defendant no. 1 Shanta Rani examined herself as DW
1. She relied upon documents Ex. DW1/1 to DW1/7 i.e.
(a) Site plan is Ex. DW1/1 which is also exhibited as Ex. DW2/1.
(b) Original sale deed in favour of Shanta Rani is Ex. DW1/2 which is also exhibited as Ex. DW2/2 and Ex. PW1/23.
(c) Original affidavit of Rita Banerjee is Ex. DW1/3 which is also exhibited as Ex. PW1/D1 and Ex. DW2/3.
(d) Certified copy of memo of parties alongwith application under section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is Ex. DW1/4 which is also exhibited as Ex. DW2/4.
(e) Certified copy of written statement on behalf of respondent no. 2 is Ex. DW1/5 which is also exhibited as Ex. DW2/5.
(f) Certified copy of ordersheet dated 16.07.2013 and 25.07.2013 is Ex. DW1/6 which is already exhibited as Ex. DW2/6.
(g) Legal notice dated 10.09.2013 is Ex. DW1/7 which is also CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 26 of 56 exhibited Ex. DW2/7.
42. Defendant no. 2 Joginder Pal examined himself as DW2 and relied upon same documents as were relied upon by DW1. Thereafter, DE was closed.
43. Defendant no. 4 Mrs. Vishan Tuteja has appeared as a witness on summoning by the plaintiff.
44. Defendant no. 5 Amit Tuteja has appeared as a witness on summoning by the plaintiff and he is examined as D5.
45. I have heard the arguments and have perused the record carefully.
46. It is argued by Ld counsel for plaintiff that plaintiff was duped by defendant no. 2 by acting in collusion with other defendants who are his family members and close relatives. It is argued that they had duped her for registration of the sale deed by her in favour of defendant no. 1 without any consideration. Ld. Counsel for plaintiff has argued that plaintiff is a single lady and living alone for 20 years and had purchased the suit property in the year 2000 for Rs. 4 lacs. She used to purchase the medicines from defendant no. 2 CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 27 of 56 who came to know the fact that she was alone and had no relatives nearby and with a view of deceive, he alongwith other family members (other than defendant no. 1) begin to visit her residence and treated her like his mother and gained her confidence. Defendant no. 2 and 3 also assured that they would look after her in her old age and they were regularly borrowing money from her and returning it due to which plaintiff developed trust upon him and she believed that they would be her refuge in her old age.
47. It is argued that in the year 2008, she became ill and defendant no. 2 approached her by assuring that they would make provisions for her to live with them in their own home in the ground floor or they could help he to search a house at the ground floor so that she would not have to climb stairs. Trusting the defendant no. 2, she agreed to sell her apartment for Rs. 15,25,000/ which was an amount less than to prevailing market price by entering into an agreement to sell in the year 2009. The defendant no. 2 made an agreement to sell in the name of his mother i.e. defendant no. 1 and the cheque bearing no. 170108/ of Rs.1,00,000/ was given by defendant at that time and that was bounced at the first instance and thereafter, it was cleared. It is argued that out of the said amount, Rs. 75,000/ was borrowed by the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 28 of 56 defendant no. 2 from the plaintiff which were never returned. Nothing happened for two years and the defendant made no attempt to complete the transaction. It is argued that after a period of two years , defendant no. 2 came to know about the drastic increase in the circle rate for which the notification dated 04.02.2011 was issued which is Ex. PW1/4 and on receipt of this information, he approached the plaintiff to go ahead with the documentation which would enable them to show the sale transaction of lower circle rate. He assured plaintiff that this would not prejudice her ownership as the sale deed is without any consideration. Believing defendant no 2, the plaintiff did not realize the fact that the circle rate valued in the sale deed would become a new sale price for her flat which was fixed at Rs. 6,20,000/ as she was assured by the defendant that till the time she do not receive the full consideration as per agreement to sell , the sale would not be completed. She did not realize that she was being duped and allowed the transaction under the blind faith of defendant no.
2.
48. It is argued that the cheques mentioned in the sale deed bearing number 544095 and 544096 were never given to her and the original documents continued to remain in her possession. She continued to remain in the possession of the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 29 of 56 property and is paying electricity and water bills and house tax.
49. Ld counsel for plaintiff has argued that story put forth by defendants that plaintiff is a licencee in the suit property is concocted.
50. It is further argued that no consideration was paid as can be seen from the statement of account of defendant no. 1 that on the date of execution of the sale deed, she did not have sufficient amount to clear the cheques of Rs. 2.6 lacs each allegedly issued to the plaintiff. It is stated that the sale deed has been got registered by the defendant, by defrauding the plaintiff and winning her trust and faith. It is argued that the sale deed is liable to be cancelled and is to be declared as null and void and suit for possession filed by defendant no. 1 Shanta Rani is liable to be dismissed.
51. On the other hand, Ld counsel for defendants have argued that the transaction was purely commercial in nature and the sale deed was registered in the presence of the witnesses by Sub Registrar and the plaintiff being educated lady can not duped in the manner as alleged by the plaintiff.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 30 of 56 It is argued that the plaintiff wanted to sell the property and therefore, this sale deed was executed , however, there was no agreement to sale as alleged by the plaintiff. He has further argued that property was verbally agreed to be purchased for Rs. 6,20,000/, out of which, amount of Rs. 1,00,000/ was given by cheque bearing no. 170108 dated 15.03.2009 and thereafter two cheques were given which were duly honoured and thereafter, the transaction is genuine. It is further argued that at time of the registration of sale deed , she handed over the keys to the defendant no. 1 and she requested defendant no. 1 to reside in the said property as her flat in Chhatarpur where she had to shift was being whitewashed. Defendant no. 1 allowed her to reside in the suit property as a licencee and when she retired from her job on 30.04.2013, she asked the plaintiff to vacate the suit property. Plaintiff became dishonest and started asking for extra money thereafter, notice was sent to the plaintiff but she failed to vacate the premises.
52. Ld counsel for defendant has argued that even if the prices towards the sale are not paid on the before the sale, the sale is still valid. Reliance is placed upon "Kaliaperumal Vs Rajagopal & Anr (2009) 4 Supreme Court cases 193 decided on 20.02.2009 wherein it has been observed that : CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 31 of 56 "17. It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of the Transfer of Property Act, 1882 ("the Act", for short) defines "sale" as " a transfer of ownership in exchange for a price paid or promised or part paid and part promised". If the intention of parties was that title should pass on (a) execution and registration , title would pass to the purchaser even if the sale price or part therefore is not paid. In the event of non payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He can not avoid the sale. He is , however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the (b) entire price, under Section 55 (4) (b) of the Act".
53. Ld counsel for the defendant further argued that the plaintiff has only sought a decree of declaration that sale deed be declared as null and void but she has not sought cancellation and has also not fixed the advalorem court fees for cancellation of sale deed on record and therefore, the suit is not maintainable.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 32 of 56
54. Ld counsel for defendant submits that suits filed by the plaintiff for the declaration is liable to be dismissed and suit filed by the defendant no. 1 for possession be decreed.
55. Application under section 340 Cr. PC has also been filed by the plaintiff against defendant for interpolations in the cheque numbers given in the sale deed dated 05.02.2011.
56. I shall deal with the issues one by one:
57. Issue no. 1 to 5 being interrelated are taken up together:
1. Whether Ms. Rita Banerjee was allured/enticed by Smt. Shanta Rani and its family member to enter into agreement to sell in the year 2009 qua suit property? OP Rita Banerjee?
2. Whether Ms. Rita Banerjee was allured/enticed by Smt.Shanta Rani and its family member to enter into sale deed dated 04.02.2011 qua suit property? OP Rita Banerjee?
3. Whether the entire alleged sale amount was never paid by smt. Shanta Rani to Smt. Rita Banerjee? OP Rita Banerjee.
4. Whether Smt. Shanta Rani and her family members have enticed/allured Smt. Rita Banerjee and took away the entire CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 33 of 56 money? OP Rita Banerjee.
5. Whether the alleged sale deed dated 04.02.2011 qua suit property was not executed by Smt. Shanta Rani by playing fraud, misrepresentation and thus causing the effect of cheating upon Smt. Rita Banerjee? OP Rita Banerjee.
There is a presumption in favour of execution of registered sale deed under section 114 (e) of the Indian Evidence Act, but the said presumption is rebuttable and the person who challenges it has to dislodge this presumption.
The present suit has been filed for cancellation of the sale deed dated 05.02.2018 executed by plaintiff in favour of defendant no. 1 on the ground that she was duped by the defendants and a fraud has been played upon her.
Since the plaintiff has used the word "fraud" in the plaint, it needs to be seen whether the material particulars setting out fraud have been given in the plaint. 'Fraud' is defined in Section 17 of the Indian Contract Act, 1872. A party to a contract, as defined in Section 17 of the Indian Contract Act is stated to have committed a fraud, when that party, with the intent to deceive another party or to induce him to enter into the contract, suggests something which is not true and CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 34 of 56 which act the other party would not do without believing the same to be true or a promise made without any intention of performing it or any other act fitted to deceive.
2. In "Bishundeo Narain Vs. Seogeni Rai, AIR 1951 SC 280", it was held that if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid; there can be no departure from them in evidence; general allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be.
4. The plaintiff has admitted the execution of the registered sale deed by her, however, she had categorically averred in the plaint that she did not know that document being executed by her was a sale deed.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 35 of 56 While Section 91 of Indian Evidence Act, 1872 prohibits proof of the terms of a contract or any other disposition of property reduced to the form of a document other than by the document itself, Section 92 of said Act bars evidence of any oral agreement or statement between the parties to the contract for the purpose of contradicting, varying, adding or subtracting from its terms when it has been proved in accordance with Section 91. The provisos to Section 92 however contain exceptions to the said bar/prohibition.
Proviso (1)Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law:
Proviso (2)The existence of any separate oral agreement as to any matter on which a document is silent, and which is not CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 36 of 56 inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3)The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4)The existence of any district subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5)Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of the description, may be proved. Provided that the annexing of such incident would not be CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 37 of 56 repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6)Any fact may be proved which shows in what manner the language of a document is related to existing facts.
58. The proviso can only be invoked if it is found that there is an ambiguity in the recital of the documents. Since the plaintiff wishes to get the sale deed cancelled, it has to be seen whether her case can be said to be falling under the proviso (1) to of Section 92 of the Indian Evidence Act, 1872.
4. In the decision reported as (1995) 1 SCC 198 Ramti Devi Vs. UOI, the Hon'ble Supreme Court held that-
"the recital of a document would be relevant with respect to an ambiguity therein. Further, the Supreme Court observed that to challenge a document which is a registered document, foundations have to be laid in the pleadings and CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 38 of 56 thereafter, keeping in view the provisions of the Evidence Act, relevant and admissible evidence brought on record. It was opined that till a document, avoidance whereof is sought is got cancelled by a proper declaration, the registered document binds the parties".
5. In "Kaliaperumal Vs. Rajagopal & Anr, (2009) 4 SCC 193" the Hon'ble Supreme Court of India held that-
"The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of the Evidence Act.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 39 of 56 With this background of law, let us dwell upon the facts of the case in order to determine whether the case put forth by the plaintiff falls within the proviso to section 92 of Indian Evidence Act, 1872 so as to consider the oral evidence led by the plaintiff and to see behind curtains the alleged fraud perpetuated upon the plaintiff by the defendants.
Certain admitted facts in the present case are that
(a) Plaintiff is an unmarried lady and was regularly purchasing medicines from the shop of defendant no. 2 who was running a chemist shop.
b) The plaintiff was the owner of the suit property and was residing there.
c) Defendant no. 1 is the mother of the defendant no. 2.
d) Defendant no. 3 is the wife of the defendant no. 2.
e) Defendant no. 5 is the son of the defendant no. 4. Though the plaintiff had stated that defendant no. 4 is a daughter of defendant no. 1 but defendant no. 1 had denied the same.
(f) Sale deed dated 05.02.2011 of which cancellation is sought, was executed by plaintiff in favour of defendant no 1 and defendant no. 2 and his friend stood as a witness to the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 40 of 56 said Sale Deed. Nobody from the plaintiffs side joined this process.
g) V.Care India was a proprietorship concern of defendant no. 5 as is admitted in the testimony of defendant no. 5.
(h) The lease agreement was executed between V. Care and the plaintiff in which defendant no. 2 stood as a witness.
59. The case of the plaintiff is that she was allured by defendant no. 2 in the year 2009 to enter into an agreement to sell in respect of the suit property and further got a sale deed executed by her on the pretext that she was executing a document for fixing circle rates. These facts were to be proved by the plaintiff in order to discharge the burden under section 106 of the Indian Evidence Act. The plaint filed by the plaintiff contains averments that the defendant no. 2 gained her trust and confidence and used to treat her like her mother. It is also stated that he used to borrow money regularly and then return it back so as to gain trust and since plaintiff was a single lady and had no relatives around, she gradually developed trust upon him. All these averments have been made in the plaint as well as in the affidavit of evidence of PW1 i.e. plaintiff. She being an unmarried lady and their being no relative around is not denied. The factum of purchasing medicines by the plaintiff from the shop of the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 41 of 56 defendant no. 2 has not been denied by the defendant no. 2. He admitted in the WS that the plaintiff was his regular customer and she used to purchase the medicines from his shop and he got acquainted with her in such capacity. He also admitted that they were residing in the same locality. The defendant had not put any suggestion to the witness during her cross examination with respect to not having such relation between them despite there being such averments in the affidavit of evidence of plaintiff. Even during her cross examination, the plaintiff stated that till 2013, her relation with defendant no. 3 were cordial and normal. Her statement regarding cordial relations is found to be true as she has placed her bank statement on record wherein giving and taking back of money on several occasions between plaintiff and defendants was taking place. There repeated transactions clearly show that plaintiff was advancing money to defendants unhesitatingly from which it can be gathered that she had faith on them. The relationship of defendants amongst each other have already been given in the admitted facts above. Therefore, the averment of defendants that the transaction was purely commercial in nature is not found to be true.
60. Plaintiff agreed to sell her property to the defendant no.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 42 of 56 2 but agreement to sell was executed with defendant no. 1 as per her version and she accepted a cheque bearing no. 170108 dated 15.03.2009 of Rs. 1,00,000/which is also mentioned in the sale deed dated 05.02.2011. The plaintiff has alleged that agreement to sell dated nil was executed between the plaintiff and defendant no. 1 for a total sale consideration of Rs. 15,25,000/ whereas the defendant no. 1 in her WS has stated that a verbal agreement to sell was only for Rs. 6,20,000/ and the final sale deed was also executed for same amount. Though, the plaintiff has produced one agreement to sell which was mark A however, it did not bear the signature of defendant no. 1 on all the pages. The signatures of defendant no 1 are there only on last page. It is not ever signed by any witness. The agreement to sell filed by the plaintiff does not stand proved. Be the case as it may, the amount of Rs. 1,00,000/ was admittedly paid by defendant no. 1 and received by the plaintiff towards the sale of the property in the year 2009 . It is strange to note that plaintiff in her plaint stated that she received Rs. 2 lacs, 1 lac by cheque and Rs. 1 lac by cash out of which Rs. 75,000/ were again taken by defendant no. 2 but defendants stated that only Rs. 1 lac was paid by cheque in 2009. The fact that plaintiff agreed to sell the property in the name of defendant no. 1 and defendant no 1 agreed to purchase the same have CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 43 of 56 not been disputed. The record further shows that there had been no transaction for two years regarding the suit property i.e. from payment of Rs.1,00,000/ in March 2009 till execution of sale deed in February 2011. Suddenly on 04.02.2011/05.02.2011, sale deed was registered for an amount of Rs. 6,20,000/ including Rs.1,00,000/ already paid in the year 2009. The record shows that no amount was paid by defendant no. 1 to plaintiff on the date of execution of sale deed but the sale deed records so in clause 2. The sale deed has been produced by the defendant no. 1 which shows that payment of Rs. 6,20,000/ was made through three cheques, one of which was of year 2009 of Rs. 1,00,000/ , remaining Rs. 5,20,000/ was paid by two cheques of Rs. 2.6 lacs each bearing no. 584095 and 584096. The careful perusal of these cheques numbers shows that there has been an interpolation in the number "8" in both the cheques number in the sale deed produced by the defendant. The plaintiff during her evidence summoned the record from the Office of Sub Registrar, Mehrauli and the witness produced the sale deed kept in the office of Sub Registrar, wherein it was found that the cheque number of two cheques of Rs. 2.6 lacs each was mentioned as 544095 and 544096 and not 584095 and 584096 (as given in sale deed produced by defendant). Neither defendant no. 1 nor defendant no. 2 had CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 44 of 56 given any explanation with respect to the said interpolation in the cheque number in the sale deed produced by the defendant. The further careful perusal of the documents filed on record by the plaintiff shows that the cheque given by the defendant to the plaintiff were the ones which were mentioned in the sale deed filed by the defendant (interpolated cheque) and not the ones which were mentioned in the sale deed produced by the witness from Sub Registrar's Office, meaning thereby, no such cheque were given or no payment was made on that day and that's why plaintiff had no reason to suspect the foul transaction or that she was executing a sale deed. She has categorically stated that she was not given time to read the sale deed and no copy was ever provided to her.
61. The defendant failed to produce any evidence to show that sale deed produced by him containing interpolated cheque number was genuine and sale deed produced from the office of Sub Registrar Mehrauli was the manipulated one. Section 114 (e) of the Indian Evidence Act 1872, raises a presumption "that judicial and official acts have been regularly performed". This presumption is rebuttable but the defendant has not led any evidence to dislodge this presumption. Therefore, there is no reason to disbelieve the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 45 of 56 sale deed produced by witness from the office of Sub Registrar.
62. The interpolation in the cheque number in the sale deed in possession of the defendant clearly shows that the cheques mentioned in the sale deed produced by the witness from the Sub Registrar office were never given to the plaintiff at the time of registration of the sale deed , thereby, making this court believe the averment made by the plaintiff in her plaint to the effect that she was told that the documents is being executed to fix the circle rates and she did not know at that time that she was executing a sale deed in favour of defendant no. 1. She had clearly averred that she did not know the nature of document executed by her. Since she did not receive any consideration amount at that time, she had no reason to suspect defendant no. 2 who had fully gained her confidence. The contentions of plaintiff that she was under an impression that only circle rates were being fixed and no sale deed was being executed are further proved from the recitals of the sale deed which are contrary to the reality.
63. In clause (2) of the sale deed in question, it is stated that the plaintiff has delivered vacant physical possession to the defendant no. 1. The defendants has failed to prove that CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 46 of 56 defendant no. 1 at any point of time had received the vacant physical possession of the flat and the plaintiff had vacated the same on or after the registration of the sale deed. Though it is stated that the keys were handed over to the defendant no. 1 at the Sub Registrar's office only but defendant no. 1 in her evidence failed to prove the same. There is no evidence on record that plaintiff vacated the house on 04.02.2011 and was again inducted as a licencee in the property by defendant no. 1 on 10.02.2011. There is neither any lease agreement nor any oral witness has been examined to prove this averment of defendants. Further, clause 10 of Sale deed provides that plaintiff had delivered original documents to the defendant no. 1. It is a matter of record that original ownership documents has been filed by the plaintiff in the present suit and not by the defendants. With respect to this averment, defendant no. 1 in para no 26 of the reply on merits in the written statement has stated " the original documents were handed over to the defendant no. 1 by the plaintiff at the time of registration of the sale deed. The defendant no. 1 received the original copies of the previous title chain from the plaintiff. But due to over crowd at the registrar office, when the defendant no. 1 went for natural call, the documents were kept in the bag of the plaintiff as the defendant no. 1 had not carried bag at the CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 47 of 56 time of registration of the documents. After the registration of the sale deed both the parties went to their residence and in the meantime the original documents which were kept in the bag of the plaintiff through the defendant no. 1 at the time of her natural call remains in the bag of the plaintiff. The abovesaid mistake later on revealed by the defendant no. 1. After contact with the plaintiff by the defendant no. 1 on mobile, the plaintiff promise to return the same to the defendant no. 1. Thereafter, on or after 10.02.2011, the plaintiff reentered in the suit property as licensee and the original documents were remain kept in the custody of the plaintiff as the plaintiff does not return the same despite the various requests to return the same from the defendant no.
1".
64. However, in the cross examination of defendant no. 2 , he has stated that " my mother took the original documents from Rita Banerjee (vol. When my mother left for natural call then Rita Banerjee took the original from her bag).
Time when the Rita Banerjee took the original from my mother 's bag, I was sitting away from my mother and Rita Banerjee".
65. There are contrary statements with respect to original documents in the WS of defendant no. 1 and testimony of CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 48 of 56 defendant no. 2 wherein the defendant no. 2 has attempted to say that plaintiff had stolen the original documents from the bag of defendant no. 1. There is no complaint of contempory period or of any time showing that the defendant have made complaint with respect to stealing the documents by the plaintiff from the bag of defendant no. 1 which is a very serious accusation. Even after these kind of allegations/accusations, the defendants state that they inducted plaintiff as a licensee in the said property on or after 10.02.2011 which does not seem to be probable at all and is apparently a false and a concocted story.
66. The discussion made above clearly shows that though the sale deed dated 04.02.2011 was got executed by the plaintiff in favour of defendant no. 1, however, neither the payment was made to her on that date which is against the usual practice of sale and and purchase, nor the original documents were handed over to alleged vendee by plaintiff and further most importantly, no possession was given. The discussion made above shows that the averments made by Rita Banerjee are found to be true. Even if the judgment relied upon by Ld counsel for defendant Kaliaperumal (supra) is taken to be applicable, the non payment of consideration on the date of execution of sale deed is only CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 49 of 56 one aspect in this case, rest remains as has been discussed above regarding not handing over possession and original documents.
67. Further scrutiny of the record shows that Rs. 5,20,000/ was paid to the plaintiff by way of two cheques bearing no. 584095 dated 13.04.2011 for an amount of Rs. 2.6 lacs and another cheque bearing no. 584098 which was given in lieu of cheque bearing no. 584096 of Rs. 2.6 lacs which was cleared finally on 11.07.2011, though the sale deed was executed in February 2011. This payment of Rs. 5.2 lacs was made in April 2011 and July 2011. It is shocking to notice that immediately after making the said payment, the said amount was withdrawn by one V.Care by two entries of Rs. 2.2 lacs on 18.11.2011 of Rs. 3 lacs on 23.08.2011. Passbook of the plaintiff shows that this amount was withdrawn in the name of V.Care. Though , defendant no. 2 clearly denies having any knowledge about V. Care however, defendant no. 5 who is the son of defendant no. 4 (cousin sister of defendant no. 2) admits that he is the proprietor of V.Care. The plaintiff was duped and a lease agreement was executed between the plaintiff and V. Care in which defendant no. 2 stood as a witness. All these facts have been admitted by defendant no. 5 during his cross examination by the Ld. CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 50 of 56 Counsel for plaintiff. It is pertinent to mention her that when defendant no. 2 was cross examined by counsel for plaintiff, he categorically denied having knowledge about any lease agreement between V. Care and plaintiff and stated that he is not aware of any connection between V. Care and defendant no. 5 but he was found to be a witness to said lease agreement. From these facts, it can be seen that plaintiff was trapped by all the defendants from all the sides. Defendant no. 2 can be seen to be making false statements during his cross examination. Further, after withdrawing the same amount of Rs. 5,20,000/ by V.Care, it was again deposited by V. Care in the account of plaintiff by way of two cheques of Rs. 2 lacs and 3.2 las on 09.02.2012. The same amount (5.2 lacs) was again withdrawn by defendant no. 2, 3 and 5 by way of three cheques of Rs. 1.6 lacs , 1.6 lacs and 2 lacs respectively on 13.02.2012, 14.02.2012 and 15.02.2012 respectively. This amount of Rs. 5,20,000/ was never returned to the plaintiff and defendant has no evidence to show that this amount was ever returned and therefore, after scrutinizing all these transactions, it is clear that this amount of Rs. 5,20,000/ was taken back from the plaintiff and no amount was paid as consideration towards the sale deed dated 05.02.2011. The defendants have failed to prove anything to the contrary. The collusion of defendants can be CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 51 of 56 seen clearly with naked eyes. The repeated transactions were done by the defendants in order to create confusion in the mind of plaintiff and to take back the amount of Rs. 5.2 lacs. The defendants including defendant no. 1 who is also an old lady and has acted on the instructions of her son (defendant no. 2), have played a calculated fraud upon the plaintiff by conspiring with each other by taking advantage of her old age and her loneliness and after knowing pretty well that she had no relatives around. Had there been no bank transactions, it would have been impossible to unfold this conspiracy and calculated fraud. It is very unfortunate to note the entire conduct of defendants who in greed of property have put a senior citizen to so much of hardship and difficulty at such as stage of her life when she deserved a peaceful and a decent life. This kind of evidence proved before the court can not be ignored. This case surely falls within the ambit of proviso to section 92 of Indian Evidence Act , 1872 and can be taken note of, in order to give relief to the old woman, who has been cheated by the unscrupulous defendants.
In view of the discussions made above, issue no. 1 to 5 are decided in favour of plaintiff and against the defendants.
68. Issue no. 8 :
8. Whether Ms. Rita Banerjee has sold the property to CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 52 of 56 Ms. Shanta Rani vide sale deed dated 04.02.211? OP Shanta Rani.
In view of the findings a issue no. 1 to 5, it is clear that Rita Banerjee had sold the suit property to Shanta Rani however, the same were sold under the influence of defendants who had played fraud upon her. This issue is decided accordingly.
69. Issue no. 9:
9. Whether Ms. Rita Banerjee has sold the suit property after taking full consideration amount? OP Shanta Rani.
In view of the discussions made in issue no. 1 to 5 , it is held that plaintiff had sold the property without receiving any sale consideration. This issue is decided against Shanta Rani.
70. Issue no. 10 and issue no. 11:
10. Whether Smt. Shanta Rani have received the vacant possession of the suit property on 04.02.2011? OP Shanta Rani.
11. Whether Ms. Rita Banerjee again reentered the suit property and is in possession of the suit property as licensee? OP Shanta Rani.
As already discussed in issue no. 1 to 5, the defendant no. 1 never received the vacant possession of the suit property on 04.02.2011, therefore, there was no occasion CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 53 of 56 for her to re enter the said property as a licencee. Both the issues are decided against Shanta Rani.
71. Issue No. 12 to 14: Issue No. 12. Whether Smt. Shanta Rani is entitled for decree of possession of immovable property i.e. suit property? OP Shanta Rani.
Issue No. 13. Whether Smt. Shanta Rani is entitled for decree of permanent injunction as prayed seeking that Smt. Rita Benerjee shall not create any third party interest in the suit property? OP Shanta Rani.
Issue No. 14. Whether Smt. Shanta Rani is entitled for damages in the form of pendentlite and future mesne profit @ Rs. 35,000/ per month or at any other rate qua suit property? OP Shanta Rani.
In view of findings on preceding issues, issues no. 12 to 14 are decided against the defendant Shanta Rani.
72. Issue no. 6:
6. Whether Ms. Rita Banerjee is entitled for the decree of declaration seeking declaration to the effect to declare agreement to sale dated nil, qua suit property as void? OP Rita Banerjee.
Since the plaintiff was not able to prove the agreement to sale dated nil, as already discussed in CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 54 of 56 issue no. 1 to 5, therefore, there is no need to pass any decree of declaration with respect to the same. This issue is decided accordingly.
73. Issue no. 7:
7. Whether Ms. Rita Banerjee is entitled for the decree of declaration seeking declaration to the effect to declare sale deed dated 04.02.2011 qua suit property as void? OP Rita Banerjee.
Ld. Counsel for defendant has argued that relief of declaration can not be granted without seeking relief of cancellation and since advalorem court fees has not been paid, the relief of cancellation can not be granted. The record shows that advalorem court fees of Rs. 18,600/ has been paid by plaintiff therefore, it appears that in the plaint, it has been inadvertently mentioned that fixed court fee was paid. Therefore, argument of Ld counsel for defendant in this regard is met. As far as second argument of seeking relief of cancellation is concerned, it is stated that since advalorem court fee has been paid, so nomenclature of relief is not important, the substance has to be seen. Moreover, plaintiff has sought relief under section 31 and 32 of Specific Relief Act,in the title of the suit which covers relief of cancellation. Hence, this issue is decided in favour of Rita Banerjee.
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 55 of 56 Relief
74. A decree of cancellation of sale deed dated 05.02.2011 in respect of property bearing number R/o M44, J.J.Colony, Sriniwas Puri, New Delhi 110065 registered at Sub Registrar Office bearing registration no. 2069 in Book no. 1, Vol no. 10913 on pages 1623 executed in favour of Smt Shanta Rani is passed accordingly. Intimation be sent to the Sub Registrar office for making the necessary endorsement of cancellation. Suit of Rita Banerjee is decreed accordingly with cost of the suit.
75. Suit of Shanta Rani is dismissed with cost of Rs. 1,00,000/ to be paid to plaintiff.
76. Application u/s 340 Cr. P.C moved by plaintiff is also disposed off in terms of the judgment passed above.
77. Decreesheet be prepared accordingly.
78. File be consigned to Record Room.
Digitally signed by VANDANA VANDANA JAIN
Announced in the open JAIN Date: 2020.01.31
17:04:45 +0530
court on 16.01.2020 (VANDANA JAIN)
ADJ07/SE/SAKET COURTS/
NEW DELHI/16.01.2020
CS No. 8701/2016 (Rita Banerjee VS Shanta Rani & Ors) CS no.180/14/13 (Shanta Rani Vs Rita Banerjee) Page 56 of 56