Delhi District Court
Sh. Chander Shekhar vs Sh. Sunder Singh on 6 April, 2011
IN THE COURT OF MS. SEEMA MAINI :
ADDL. DISTRICT JUDGE03 : NORTH: DELHI
Suit No. : 134/2009
Unique Case ID No. 02401C0515772009
In the matter of:
Sh. Chander Shekhar
S/o Sh. Bhagwan Dass
R/o AK20, Shalimar Bagh,
Delhi110088. Plaintiff.
Versus
Sh. Sunder Singh
S/o Late Sh. Banarsi Dass
R/o C76, Reeds Line,
Delhi University, Delhi07
Also At :
Sunder Singh
Technical Assistant
C/o Sh. V.S. Parmar
Head of Chemistry Department,
Lab No. 6, North Campus,
Mourice Nagar, Delhi07 Defendant.
Date of institution of Suit : 12.11.2009
Date on which judgment reserved : 18.03.2011.
Date of judgment : 06.04.2011
Suit no. 134/2009 Page No. 1 / 22
SUIT FOR RECOVERY OF RS. 5,00,000/ ALONGWITH
PENDENTELITE AND FUTURE INSTEREST AND COST OF
LITIGATION.
APPEARANCE:
Sh. Rajesh Bhatia, counsel for the plaintiff.
Sh. Manish Makkar, counsel for the defendant.
JUDGMENT
1. The instant suit has been filed by the plaintiff Sh. Chander Shekhar against the defendant Sh. Sunder Singh for recovery of Rs.5,00,000/ alongwith pendentelite and future interest and cost of litigation.
2. The brief facts as stated in the plaint are that the plaintiff is a doctor by profession and being a peace loving person, was residing at the given address alongwith his family. The defendant, claiming himself to be the sole and absolute owner of the flat no. 402, Ground Floor, BlockD, Sector B2, Narela, Delhi, approached the plaintiff and showed his willingness to sell the said flat, As the plaintiff was interested in purchasing the same, he negotiated the terms and conditions of sale / purchase with the defendant and during the course Suit no. 134/2009 Page No. 2 / 22 of negotiations, the defendant convinced the plaintiff that the flat was initially allotted in the name of defendant's father namely Sh. Banarsi Dass and thereafter, after 'No Objection Certificate' and other relevant documents were furnished by the sisters of defendant the flat was mutated in the name of defendant, as the defendant was the only son of his late father Sh. Banarsi Dass.
3. It was stated that the plaintiff, believing the version of the defendant, agreed to purchase the said flat, and the terms and conditions agreed upon were reduced into writing vide Agreement to Sell dated 25.03.2008, which was signed by the plaintiff as well as by the defendant.
4. It was stated that as per the agreement to sell dated 25.03.2008, the plaintiff paid a sum of Rs. 2,50,000/ in cash to the defendant out of the total consideration of Rs. 2,60,000/, with further agreement that the balance sale consideration of Rs.10,000/ would be paid at the time of execution of the necessary sale documents. At the time of signing of the agreement and accepting the part sale consideration of Rs. 2,50,000/, the defendant handed over the original title documents Suit no. 134/2009 Page No. 3 / 22 of the flat to the plaintiff.
5. It was stated that some time after signing the agreement to sell dated 25.03.2008, the plaintiff came to know that the defendant had fraudulently got the flat mutated in his name from DDA by concealing the very important fact that his father had expired leaving behind another son namely Puran, besides the defendant and three daughters namely Anita Devi, Geeta and Bimla. The defendant had concealed the existence of his surviving brother Puran, from the DDA and fraudulently got the flat mutated in his name and thereafter entered into an agreement to sell with the plaintiff. The said brother Puran had already challenged the mutation of the flat in question, with the DDA.
6. It was stated that on coming to know about this fact, the plaintiff contacted the defendant and requested him to return the amount, which had been paid by the plaintiff to him as per agreement to sell dated 25.03.2008 but the defendant avoided the issue on one pretext or the other and did not return the amount. The plaintiff served a legal demand notice dated 11.07.2009 upon the defendant Suit no. 134/2009 Page No. 4 / 22 and his sisters but he did not comply with the same and hence the instant suit for recovery of an amount of Rs.5,00,000/ (double of Rs.2,50,000/ which were paid by the plaintiff to the defendant).
7. It was stated that the cause of action for filing of the suit arose on 25.03.2008 when the agreement to sell was signed by the parties and further arose when the plaintiff came to know that the defendant had got the flat fraudulently mutated in his name from DDA. It also arose when the legal demand notice dated 11.07.2009 was served upon the defendant but he failed to comply with the same and thereafter the cause of action still continues. The suit for the purposes of court fees and jurisdiction was valued at Rs.5,00,000/, on which the requisite court fees has been raid. The defendant resides and works for gain at Delhi University, Delhi, therefore this court has the territorial jurisdiction to adjudicate upon the matter.
8. It was prayed that a decree for a sum of Rs. 5,00,000/ be passed in favour of the plaintiff and against the defendant alongwith pendentelite and future interest, and the costs of the suit. Suit no. 134/2009 Page No. 5 / 22
9. Written Statement was filed by the defendant, wherein the preliminary objection was taken by the defendant stating that the plaintiff had not approached the court with clean hands, as no transaction as alleged was ever entered into between the plaintiff and the defendant and therefore the plaintiff did not have any cause of action to file the instant suit. It was also stated that the suit of the plaintiff deserved to be dismissed as it was filed on the basis of unregistered documents which could not be looked into as per law. It was also stated that the suit of the plaintiff was also bad for mis joinder and nonjoinder of necessary parties and therefore deserved to be dismissed.
10. On merits, it was denied that the defendant ever approached the plaintiff and showed his willingness to sell the suit property. It was denied that any agreement, either oral or in writing, was ever entered into between the parties or that any negotiations were ever held between them. It was stated that the plaintiff seemed to be interested in grabbing the suit property. It was admitted that the suit property was allotted initially to the deceased father of defendant late Sh. Banarsi Dass but it was denied that the property had not been Suit no. 134/2009 Page No. 6 / 22 transferred or mutated in the name of the defendant. It was stated that the defendant was in need of Rs. 25,000/ at that time and had therefore approached Mr. Jain, who was running a property dealing business and also used to come to the defendant and was having an evil eye on the property of the defendant's father. The defendant was trapped by Mr. Jain when he came to know that the defendant was in need of Rs.25,000/. Mr. Jain, having malafide intentions, offered Rs.25,000/ to the defendant and being in urgent need of the said amount, the defendant agreed to sign on blank papers, which formed the basis of this suit and then the defendant came to know that Mr. Jain had misused the papers by playing a fraud upon the defendant, in collusion with the plaintiff. It was further stated that the amount of Rs. 25,000/ had already been refunded to Mr. Jain but the Mr. Jain, who had the internal knowledge about the intersic facts, had made a misuse of that knowledge by telling each and every fact about the property of defendant's father to the plaintiff and thereafter filed a suit in collusion with the plaintiff.
11. Mr. Jain in collusion with the plaintiff had got the copies as well as the original document like indemnity bond relating to the Suit no. 134/2009 Page No. 7 / 22 property, from the defendant at the time of grant of loan. It was denied that the agreement to sell dated 25.03.2008 was ever executed by the defendant with the plaintiff. It was also denied that the plaintiff had paid Rs. 2,50,000/ in cash to the defendant or that the sale consideration of flat was ever fixed for Rs. 2,60,000/ or any other amount whatsoever. It was stated that the document placed on record in the shape of Agreement to Sell was a bogus, fabricated and sham document, which could not be relied upon.
12. It was denied that the defendant had got the flat mutated in his name from DDA by concealing the material facts and had thereafter duped to plaintiff and had received a sum of Rs.2,50,000/ from him as part sale consideration of the flat in question. It was denied that the plaintiff had ever approached defendant and asked him to return the money since he had never taken any amount from the plaintiff for any reason whatsoever. It was also denied that the cause of action had ever arisen in favour of the plaintiff to file the instant suit. It was prayed that the suit of the plaintiff be dismissed with exemplary costs.
13. No replication to the Written Statement of defendant was ever Suit no. 134/2009 Page No. 8 / 22 filed by the plaintiff.
14. On the basis of the pleadings of the parties, on 02.03.2010, the following issues were framed :
1) Whether plaintiff is entitled to recovery of Rs. 5 lakhs against the defendant as alleged? OPP.
2) Whether the plaintiff is entitled to interest on the said amount, if so, for what period and at what rate? OPP.
3) Whether the suit is not maintainable as alleged? OPD.
4) Whether the plaintiff has not approached this court with
clean hands? OPD
5) Whether the suit is bad for mis joinder and non joinder
of parties? OPD
6) Relief.
15. To substantiate his case, the plaintiff examined himself as PW 1, on affidavit which he proved as Ex. PW 1/A. He testified on oath all the averments made in the plaint and brought on record the Agreement to sell and purchase the property in question as Ex. PW 1/1, the copy of the legal demand notice dated 11.07.2009 as Ex. PW 1/2, while the postal receipts showing its dispatch as Ex. PW 1/3 to PW 1/7.
Suit no. 134/2009 Page No. 9 / 22
16. He further examined Mr. Rajender Kumar, one of the witnesses to the agreement to sell, as PW 2 on affidavit, which he proved as Ex. PW 2/A. He deposed that the agreement was executed between the plaintiff and the defendant in respect of the LIG flat no. 402, Ground Floor, BlockD, Sector B2, Narele, Delhi, which also bears his signatures. He also deposed that in his presence, the plaintiff had paid a sum of Rs. 2,50,000/ to the defendant, while the balance amount of Rs. 10,000/ was agreed to be paid at the time of execution of the sale documents.
17. After close of PE, no affidavits in DE were ever filed by the defendant nor did he himself enter the witness box to substantiate his case, despite sufficient opportunity granted. DE, was therefore, closed.
18. I have heard Sh. Rajesh Bhatia, counsel for plaintiff, perused the record, scrutinized the evidence adduced and have gone through the relevant provisions of law. No arguments were extended on behalf of the defendant despite sufficient opportunity granted. My Suit no. 134/2009 Page No. 10 / 22 issue wise findings are as under : ISSUE NO. 3, 4 and 5:
3) Whether the suit is not maintainable as alleged? OPD.
4) Whether the plaintiff has not approached this court with clean hands? OPD
5) Whether the suit is bad for mis joinder and non joinder of parties? OPD
19. The onus to prove the said issues was upon the defendant but he preferred not to enter the witness box nor did he examine any witness in support of his assertions and therefore failed to discharge the onus which was placed upon him to prove the said three issues.
20. The defendant, even in the Written Statement has not elucidated as to how the suit of the plaintiff was bad for mis joinder and non joinder and as to who were the necessary parties, who have not been joined.
21. As regards, the maintainability of the suit is concerned and as to whether the plaintiff has not approached the court with clean hands, no separate adjudication was, in any case, required as both Suit no. 134/2009 Page No. 11 / 22 these issues would be taken care of while deciding the issue no. 1 regarding the entitlement of plaintiff to recover the amount alleged. Therefore, since the onus to prove all the aforesaid three issues has not been specifically discharged by the defendant, all the three issues are decided against the defendant and in favour of the plaintiff.
22. ISSUE No. 1 :
1) Whether plaintiff is entitled to recovery of Rs. 5 lakhs against the defendant as alleged? OPP.
The plaintiff has filed the instant suit for recovery of Rs.5,00,000/ on the assertions that on defendant's approaching him with an offer to sell the LIG flat no. 402, Ground Floor, BlockD, Sector B2, Narele, Delhi, claiming that he was the absolute and sole owner of the property in question, an agreement to sell Ex. PW 1/1 was executed between the plaintiff and the defendant. As averred by the plaintiff and as clearly mentioned in the document Ex. PW 1/1, the defendant agreed to sell the property in question to the plaintiff for a total consideration of Rs. 2,60,000/, out of which Rs. 2,50,000/ was received in cash by the defendant , which acknowledgment finds a mention in the Agreement to Sell, itself. The preliminary objection Suit no. 134/2009 Page No. 12 / 22 in respect of this agreement to sell, which has been raised by the defendant, is that the same cannot be looked into as it was an unregistered document and therefore inadmissible in evidence.
23. To adjudicate upon this objection, the relevant provisions of law are Section 17 of the Registration Act and Section 53 A of the Transfer of Property Act, which are reproduced herein below for ready reference :
17. Documents of which registration is compulsory._ (1) The following documents shall be registered ................
.......................
.......................
.......................
1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such Suit no. 134/2009 Page No. 13 / 22 documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said section 53A."
"Section 53 A. Part performance._ Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contact, and the transferee has performed or is willing to perform his part of the contact, ...................."
24. The conjunctive reading of both the said sections makes it clear Suit no. 134/2009 Page No. 14 / 22 that an Agreement to Sell, of an immovable property would require compulsory registration as per section 17 (1A) of the Registration Act, only when the property was covered u/s 53A of the Transfer of Property Act, i.e. after the execution of the agreement to sell and after the payment of part consideration, the possession of the property has also been taken by the purchaser as part performance of the contract. No other agreement to sell, as per section 17 of the Registration Act, requires a compulsory registration.
25. In the case in hand, it is not the case of either of the parties that the possession of the suit property was ever taken over by the plaintiff after the payment of part consideration of Rs. 2,50,000/ to the defendant as part performance of the contract by the defendant. Therefore, the agreement to sell, even though unregistered, is admissible in evidence if duly proved and can be looked into for efficacious adjudication, of the case in hand.
26. The agreement to sell Ex. PW 1/1 has been duly proved by the plaintiff as well as by PW 2 Rajender Kumar, who was the attesting witness to the execution of the Agreement to Sell. PW 1 as well as Suit no. 134/2009 Page No. 15 / 22 PW 2 have categorically stated that the said Agreement to Sell was executed between the plaintiff and the defendant, who posed himself to be the sole and absolute owner of the suit property and received the part consideration of Rs. 2,50,000/ from the plaintiff, while agreeing to receive the balance amount of Rs.10,000/ at the time of execution of requisite sale documents. It is to be noted that the defendant has not denied his signatures on the agreement to sell, either in the Written Statement filed by him nor has he given any suggestion to this effect while cross examining PW 1. Further more, defendant did not bother to cross examine PW 2 and therefore the testimony of PW 2 remained totally unchallenged. Further more, the defendant did not bother to lead any evidence in rebuttal nor did he himself entered the witness box and hence the inference is adverse to the defendant.
27. It is to be noted that in his Written Statement, the defendant has churned out a vague and flimsy story of having taken a loan from one 'Mr. Jain', who had made him sign certain blank papers, and which as per him have been misused by 'Mr. Jain' in collusion with the present plaintiff. Who was this mysterious Mr. Jain, what was his full name and address or in what capacity did he come into the acquaintance of Suit no. 134/2009 Page No. 16 / 22 the defendant, has not been elucidated by the defendant at all. Even otherwise, no person would ever sign blank stamp papers either willingly and if he had been forced to do so, there would surely have been a simultaneous complaint made to the law enforcement authorities in this regard. It is to be noted, that as per the defendant, he had come to know about the misuse of the alleged blank papers by 'Mr. Jain' in collusion with the plaintiff after the filing of the suit, but even then no counter suit or any criminal complaint has been preferred by him against either the present plaintiff or 'Mr. Jain'.
28. A perusal of the Agreement to Sell Ex. PW 1/1 clearly shows that the signatures of the defendant appear at the point where the words 'First Party' are written. The signatures are exactly at the same point, where they should have been, if a person had signed such papers willingly and consensually. It is to be noted that when the signatures are put on blank papers, then the alignment of typed portion varies and signatures which have been obtained first and document is written later, the signatures appear, not at the proper place, but are rather out of place, generally. It is not so, in the instant case.
Suit no. 134/2009 Page No. 17 / 22
29. It is also to be noted that the stamp paper in question has also been purchased in the name of defendant Sunder Singh and it bears his residential address and therefore it is improbable that it was the mysterious 'Mr. Jain' who had made him sign on blank papers especially when the stamp paper had been purchased by the defendant himself.
30. Further more, even in the cross examination, PW 1 / plaintiff, on several questions being put to him on behalf of the defendant, was emphatic in stating that he had paid Rs. 2,50,000/ to the defendant as earnest money on 25.03.2008, but despite a long and grilling cross examination, the testimony of PW 1 could not be shaken at all.
It is further interesting to note that the defendant has not denied the service of the legal demand notice dated 11.07.2009 upon him nor did he give any explanation in that regard but merely questioned the plaintiff as to whether he had asked the defendant to execute the sale deed of the flat in his favour or not. However, when the plaintiff replied that he did not ask for the execution of the sale deed since he Suit no. 134/2009 Page No. 18 / 22 had come to know that there were some objections regarding the mutation of flat in question in the name of defendant from the DDA, and he had only asked for return of his money and to double the amount. The defendant has not suggested even once, that the objections before the DDA in respect to the flat in question were not pending or that the allotment of the flat was not in dispute. Since these suggestions were not forthcoming and it has already been proved that the defendant had voluntarily executed the Agreement to Sell, claiming himself to the sole and absolute owner of the flat in question, a fraudulent intention on behalf of the defendant in doing so, cannot be eliminated.
31. Therefore, it stands proved that the defendant posed himself to be the sole and absolute owner of the property in question and had received a sum of Rs. 2,50,000/ from the plaintiff as part consideration of the agreed amount, in presence of two witnesses including PW 2.
32. Due to some objection regarding mutation of the flat if any, in the name of defendant, the transfer of the property in the name of Suit no. 134/2009 Page No. 19 / 22 plaintiff could not be effected by the defendant, therefore the plaintiff is entitled to receive back the amount of Rs. 2,50,000/ from the defendant.
However, as regards the return of double the amount is concerned, I am of the opinion that the recovery of double the amount is not merited, especially since the fraudulent intention on behalf of the defendant could not be established as per the standard of proof required, there being a document from DDA Ex. PW 1/D1 having been brought on record by the defendant during the cross examination of plaintiff, which does talk about the transfer of the rights of the flat in question in favour of the defendant.
33. Accordingly, in view of my above discussion, issue no. 1 is decided in favour of the plaintiff and against the defendant, but to the extent that the plaintiff is entitled to recover a sum of Rs. 2,50,000/ from the defendant, which was paid by him as earnest money at the time of execution of the agreement to sell Ex. PW 1/1.
34. ISSUE No. 2 : Suit no. 134/2009 Page No. 20 / 22 In view of my above discussion, it has already been held that the plaintiff is entitled to recover Rs. 2,50,000/ from the defendant, which he had paid as part sale consideration to the defendant. The said amount was paid on 25.03.2008 but the defendant, for whatsoever reasons, did not execute the papers completing the sale in favour of the plaintiff, nor did he ever show his willingness to do so. He has, therefore, wrongfully retained and used the benefit of Rs.2,50,000/, which belonged to the plaintiff and which in the normal course of business or otherwise if kept in a bank, would have fetched interest, which the plaintiff has lost due to the transaction which he entered into with the defendant, the transaction not being completed due to the fault of the defendant who was not having a clear title in the suit property, which he had offered to sell. Therefore, the plaintiff is entitled to interest on the amount of Rs.2,50,000/ @ 8% per annum w.e.f. 25.03.2008 till its realization.
Accordingly, issue no. 2 is decided in favour of the plaintiff and against the defendant.
35. Relief : In view of my finding upon the issues No. 1 & 2, the suit of the plaintiff is decreed in his favour for a sum of Rs. 2,50,000/ alongwith Suit no. 134/2009 Page No. 21 / 22 interest @ 8% per annum from 25.03.2008 till the date of its realization. Costs of the suit are also awarded in favour of the plaintiff.
Decree Sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT on 06th of April, 2011.
(SEEMA MAINI) ADJ03(N) / DELHI.
Suit no. 134/2009 Page No. 22 / 22