Delhi District Court
Sh. Nizamuddin vs Sh. Mohd. Bilaluddin on 19 November, 2014
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 189/14
Case I.D. Number : 02402C0326192010
IN THE MATTER OF :
Sh. Nizamuddin
S/o Sh. Haji Shareef
R/o H. No. B156, Welcome,
SeelampurIII, Delhi110053. ........ Plaintiff
VERSUS
Sh. Mohd. Bilaluddin
S/o Sh. Zaheeruddin
R/o H. No. ZII/189,
Welcome, Seelampur III,
Delhi110053. ......Defendant
Date of Institution of suit : 23.11.2010
Received in this Court : 17.02.2014
Date of Arguments : 19.11.2014
Date of Judgment/Order : 19.11.2014
Decision : Suit dismissed with cost
CS No. 189/14 1 of 14
Nizamuddin V/s Mohd. Bilaluddin
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
SUIT FOR RECOVERY OF RS. 6,00,000/ ALONG WITH INTEREST.
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit for recovery of
Rs. 6,00,000/ along with interest @ 24 % per annum w.e.f. 16.08.10 filed by
the plaintiff against the defendant.
2. Brief facts as stated in the plaint are that the defendant approached the
plaintiff on 16.08.10 to sell property bearing No. ZII/157, measuring 22 ½ sq.
yards for Rs. 28,50,000/; Rs. 3 lakh was paid to him as earnest money by the
plaintiff and an agreement to sell was executed between the parties in the
presence of the witnesses and was notarized. The remaining consideration of
Rs. 25,50,000/ was payable by the plaintiff before 25.09.10 at the time of
execution of sale deed. On 25.09.10, plaintiff tried to contact the defendant to
execute the documents and pay the remaining consideration but the defendant
did not appear. The defendant promised to execute the sale deed on 27.09.2010
before subregistrar but of no avail as the defendant did not appear even on
27.09.10. Legal demand notice dated 30.09.10 was sent by the plaintiff but
defendant neither returned the double amount of earnest money nor executed
the documents. The Legal Notice was also not replied. Hence, this suit.
3. In the written statement, the defendant denied the averments as
mentioned in the plaint and contended that this suit is not maintainable and is
CS No. 189/14 2 of 14
Nizamuddin V/s Mohd. Bilaluddin
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
filed without cause of action; the suit is barred by Order 7 Rule 11 CPC, the
plaintiff committed fraud and got the sale documents executed in favour of
Mohd. Firoz/cousin of the plaintiff on the basis of agreement to sell dated
16.08.10. This suit is filed only to extort money without any basis, the same is
based on illegal transaction barred by Section 269 SS of the Income Tax Act .
The agreement relied by the plaintiff is unregistered and have no value.
While denying the rest of material contentions of the plaintiff in the plaint
along with liability, the defendants prayed to dismiss this suit with heavy cost.
4 Replication to the WS of defendant was filed by plaintiff wherein the
allegation made in WS have been denied in toto and contentions made in the
plaint have been reiterated as correct.
5. Vide order dated 18.01.2011, the following issues were framed in view
of pleading of the parties.
(i). Whether the defendant committed breach of agreement by non
performance of his part of agreement despite the fact that the plaintiff was
ready to act upon his own obligation cast upon him by the agreement to sell
dated 16.08.10 ?.( OPP).
(ii). Whether plaintiff's suit suffers from suppression of mat erial facts and,
if so, its effect ? OPD
(iii). Whether the plaintiff himself got the sale documents of property in
question executed from defendant in favour of one Sh. Mohd. Feroz, the cousin
brother of the plaintiff and therefore, the plaintiff cannot claim any relief in
CS No. 189/14 3 of 14
Nizamuddin V/s Mohd. Bilaluddin
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
respect of the transaction in question ?
(iv). Whether the plaintiff is entitled for recovery of the suit amount as
prayed in the plaint.
(v). Relief.
(vi). Costs.
6. The plaintiff has filed his affidavit by way of evidence Ex. PW1/1 and
examined himself as PW 1 who deposed regarding the case as mentioned in the
plaint. The witness has deposed nothing but the averments made in the plaint.
The witness has also deposed regarding the relevant documents i.e. Agreement
Ex. PW1/A, Stamp Paper dated 25.09.2010 Mark A, Receipt vide No. 6731
dated 27.09.2010 Ex. PW1/C, Legal Notice dated 30.09.2010 Ex. PW1/D,
Postal Receipt and UPC Receipt dated 30.09.2010 Ex. PW1/E and Ex. PW1/F
respectively.
The other witness Avtar Singh appeared from the office of Sub
registrarIV Seelampur, Delhi and proved the receipt Ex. PW1/C dated
27.09.2010.
As no other witness was examined/ remained to be examined by the
plaintiff, the PE was closed. The case was thereafter fixed for defendant
evidence.
7. The defendant failed to lead evidence despite repeated/ample
opportunities and imposition of the cost. The DE was accordingly closed.
CS No. 189/14 4 of 14
Nizamuddin V/s Mohd. Bilaluddin
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
8. I have heard the Ld. Counsel for the parties and perused the relevant
materials on record.
9. It is argued by the counsel for plaintiff that the case of the plaintiff is
duly proved as the testimony of the plaintiff remained unrebutted and plaintiff
has discharged the onus. It is further contended that the defendant failed to pay
due and outstanding amount to plaintiff without any ground. Learned counsel
for plaintiff further brought to the notice of the court the testimony of
witnesses alongwith material on records in support of contentions. Plaintiff
prayed to decree the suit in favour of plaintiff against the defendant.
10. The learned counsel for defendant on the other hand prayed to dismiss
the suit of plaintiff contending that this suit is filed only to extort money and
the agreement is not admissible being unregistered. The Ld. Counsel for the
defendant relied upon the judgment of Hon'ble High Court of Delhi in CRP
No. 19/2014 decided on 22 August, 2014.
11. I have considered the contentions and perused the relevant materials on
records. My finding on the abovesaid issues are as follow.
ISSUES No. I to IV
(i). Whether the defendant committed breach of agreement by non
performance of his part of agreement despite the fact that the plaintiff was
ready to act upon his own obligation cast upon him by the agreement to
sell dated 16.08.10 ?.( OPP).
CS No. 189/14 5 of 14
Nizamuddin V/s Mohd. Bilaluddin
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
(ii). Whether plaintiff's suit suffers from suppression of mat erial facts
and, if so, its effect ? OPD
(iii). Whether the plaintiff himself got the sale documents of property in
question executed from defendant in favour of one Sh. Mohd. Feroz, the
cousin brother of the plaintiff and therefore, the plaintiff cannot claim any
relief in respect of the transaction in question ?
(iv). Whether the plaintiff is entitled for recovery of the suit amount as
prayed in the plaint.
12. The brief and relevant facts for filing of the suit is mentioned at the
outset. It is reiterated that in this case, the defendant did not lead any evidence
and the plaintiff was also not completely crossexamined as the right to cross
examine the witness was closed vide order dated 08.05.13. It is well settled that
a suit has to be tried on the basis of the pleadings of the contesting parties
which is filed in the suit in the form of plaint and written statement and the
nucleus of the case of the plaintiff and the contesting case of the defendant in
the form of issues emerges out of that. Being a civil suit, this suit is to be
decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities. The
CS No. 189/14 6 of 14
Nizamuddin V/s Mohd. Bilaluddin
Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were
duly executed by the deceased Sh. Sohan Singh. The
Power of Attorney is after all a registered Power of
Attorney, and more importantly, the original title
documents of the subject property are in the possession of
the respondent No. 1 and which would not have been, if
there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit CS No. 189/14 7 of 14 Nizamuddin V/s Mohd. Bilaluddin Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities
13. Section 101 of the Evidence Act, 1872 defines " burden of proof" which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
CS No. 189/14 8 of 14 Nizamuddin V/s Mohd. Bilaluddin Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
14. In the present case, the plaintiff claims to have entered into one agreement to sell which is merely notarized and is not registered in accordance with the provisions of Registration Act. I have gone through the documents relied by the plaintiff in support of the claim. The witness/PW1 failed to answer as to whether the agreement Ex. PW1/A is signed by the defendant or not during his crossexamination. The agreement appears not bearing signature of the defendant nor it is categorically proved in view of hte testimony of PW1. There is inherent contradiction in the case of the plaintiff itself wherein in the Legal Notice Ex. PW1/D the sale consideration is mentioned Rs. 25,50,000/ but in the plaint it is mentioned Rs. 28,50,000/. The plaintiff failed to explain the contradictions in this respect. It is mentioned that due to inadvertent mistake of the counsel the amount was mentioned Rs. 25,50,000/ in the Legal Notice which is not acceptable keeping in view the provisions of 91 & 92 of the Indian Evidence Act, 1872. Moreover, no receipt is produced by the plaintiff regarding payment of any such amount nor any document is produced that the any amount was paid as earnest money. The remaining part of the CS No. 189/14 9 of 14 Nizamuddin V/s Mohd. Bilaluddin Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi testimony of the PW1 was totally shattered during crossexamination regarding the dates, call made by him to the defendant upon his not reaching to the registrar office, coming to his home, payment of the amount etc. As observed, the witness deposed during crossexamination in contrast to his examination inchief. The relationship of the plaintiff along with Mohd. Feroz is also proved in view of the testimony and therefore the contention of the defendant appears to be sustainable after examining the case on the basis of preponderance of probabilities. On the one hand he refused to acknowledge the relationship with Feroz but the documents proved contrary. The witness claimed to have made call to the defendant on 25.09.2010 but deposed that he cannot tell the mobile number of the defendant. Even his claim regarding known to the defendant is belied as he deposed that I was not having talking terms with the defendant. Further testimony of the witness was impeached during crossexamination.
15. The witness/plaintiff claimed to have approached the registrar office with cash sale consideration of Rs. 25,50,000/ which itself is unbelievable and also contrary to the provisions of law. This act and conduct appears to be suspicious and does not inspire confidence. There is no averments in the plaint nor any evidence to infer the capacity of the plaintiff for payment of such huge amount in cash nor there is anything as from where such large amount was arranged by the plaintiff in cash. The plaintiff failed to show the source of arranging such large money in cash. Moreover, even the alleged transaction of CS No. 189/14 10 of 14 Nizamuddin V/s Mohd. Bilaluddin Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi Rs. 3 lakh in cash made by the plaintiff is violative of the provisions of Income Tax Act. Section 269(SS) of the Income Tax Act prohibits any person from taking or accepting from any other person any loan or deposit in any other way than by cheque or bank draft where the amount is more than Rs. 20,000/. Similarly Section269(T) prohibits the repayment of any loan or deposit other than by way of cheque or bank draft, if amount is more than Rs. 20,000/.These provisions have been extended to loans between two individual as well and in such cases, the Income Tax assessing officer can levy penalty as high on the amount itself. The whole idea behind this clause is to counter act tax evasion. In this case, plaintiff failed to show any reason or ground for alleged transaction in violation of provisions of Income Tax Act. The plaintiff has not produced any corroborative evidence to show or prove that such amount was arranged or paid, whether such payment was reflected in the income tax return or any records maintained by the plaintiff. The plaintiff cannot be permitted to gain from the illegal act violating any law of the land. Further, merely oral averments is not sufficient to prove the case of the plaintiff for entitlement of the amount particularly when the transaction appears to be barred by the provisions of law. There is nothing on record except the bald averments of the plaintiff.
16. Plaintiff has not produced any income tax return to show that any payment was made and same was reflected in the return at the relevant time. Had the amount been actually given by plaintiff to defendant and same would CS No. 189/14 11 of 14 Nizamuddin V/s Mohd. Bilaluddin Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi have been shown by plaintiff in his income tax return at the relevant time and said fact would have been proved on record by examining the concerned official from Income tax department.
17. I have gone through the judgment titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) and ratio of the case squarely applies in the facts of this case. The relevant para No. 13 of the judgment reads as under: 13" In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year 2006 it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
18. I have gone through the judgment reported as (2003) 8 SCC 752. As held: CS No. 189/14 12 of 14 Nizamuddin V/s Mohd. Bilaluddin Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on CS No. 189/14 13 of 14 Nizamuddin V/s Mohd. Bilaluddin Sh. G. N. Pandey, Additional District Judge2( NE), KKD Courts, Delhi the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
19. In view of the aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiff has failed to discharge the onus and prove his case. The plaintiff categorically failed to prove any breach of agreement by the defendant along with entitlement of relief/amount as prayed in the suit. Plaintiff is accordingly not entitled for any relief as prayed in the suit. Issue No. I to IV are decided against the plaintiff.
Relief & Costs: In view of the above said discussions and findings, this court of the considered opinion that plaintiff is not entitled for the relief as prayed in the suit. The suit of the plaintiff is therefore dismissed with cost. The decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 19th day of November, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 189/14 14 of 14 Nizamuddin V/s Mohd. Bilaluddin