Delhi District Court
Sh Ram Naresh Verma vs Sh Ram Pal Verma on 21 April, 2018
1
IN THE COURT OF SH. RAKESH KUMARIV, ADJ06
WEST DISTRICT,TIS HAZARI COURTS
CS No.610209/16
Sh Ram Naresh Verma
S/o Sh Lal Chand Verma
R/o WZ1090/ Basai Darapur
Delhi110015 .........Plaintiff
Versus
Sh Ram Pal Verma
S/o Sh Babu Ram Verma
R/o C26 Rama Park, Uttam Nagar
New Delhi110059
...... Defendant
Date of Institution:26.11.2010
Date reserved for judgment: 17.03.2018
Date of Judgment: 21.04.2018
JUDGMENT
1.By filing the present suit plaintiff seeking to pass (a) decree of specific performance thus directing the defendant to perform his part of obligation under the agreement/ settlement deed dated 06.01.2010 CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 1/23 2 by selling the suit property bearing no. C26, Rama Park, Uttam Nagar, New Delhi 110059 ( herein after called property in question) to the plaintiff; (b) to pass a decree of Rs 25 lakhs alongwith pendentelite and future interest @ 18% per annum towards the compensation on breach of contract by defendant; (c) to pass a decree of mandatory injunction thus directing the defendant not to create any third party interest, right , title charge in respect to property and to handover the physical and peaceful/ vacant possession of property in question on the ground that plaintiff and defendant having relation with each other and defendant was known to the plaintiff through some common friends and relatives for the last about 25 years . Both plaintiff and defendant were residing in the same locality i.e Basai Darapur, Delhi since long and defendant was carrying the business of Goldsmith in the name and style of M/s Bhagwati Jewelers in the same area.
2. It is contented that defendant was running an association of persons (AOP) commonly known as "Committee" which was an organization of some known person who may invest their money on monthly basis in the form of 'chit fund' and can get the amount in the form of loan from the comiittee in the nature of self help. It is CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 2/23 3 contented that defendant who was the main organizer and head of the committee who is liable and responsible for conducting the smooth business and defendant is the person on whose guarantee and responsibility, people become the member of the committee and invest their had earned money.
3. It is contented that defendant induced/ approached to the plaintiff and requested the plaintiff to be the part of comittee and invest his amount on monthly basis. Moreover, defendant also requested plaintiff to bring some more members in the committee so that defendant can increase number of members of the committee. On the defendant's request, plaintiff agreed to become the member and also brought some of his relatives namely Smt Beena Verma(sister in law/ sali), Smt Santosh Verma ( Bhabhi) and Sh Dayanand ( friend) into the committee as members and started investing money on monthly basis in his own name and also in the name of said relatives and friends.
4. It is contented that a total amount of Rs 15 lakhs came to be deposited with the defendant till the month of September, 2006. It is also contented that neither the plaintiff nor any of his aforesaid CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 3/23 4 relatives and friends reeived any money from the committee in the form of loan etc since they never participated in the monthly bids.
5. It is contented that subsequently the defendant became dishones and fled away from the locality by selling out his house and shop by grabbing huge money of the people including plaintiff and his relatives/ friends and defendant was not traceable for more than two years. It is further contented that in the month of December 2009, plaintiff came to know that defendant is residing in the said property in question then plaintiff immediately approached the defendant and asking his as well as money of his relatives / friends invested by them in the committee but defendant showed his inability to pay the same due to paucity of funds but defendant assured to pay the said amount with interest in shortest possible time or would settle the matter with the plaintiff.
6. It is further contented that after discussion and due negotiation defendant offered to sell his house i.e property in question which is double storied built up house constructed in a plot of admeasuring 350 sq yards to the plaintiff for the total sale consideration of Rs 25 lakhs. It is further contented that it was agreed CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 4/23 5 and decided between the parties that the amount of Rs 15 lakhs already lying deposited with the defendant by the plaintiff and his relatives and friends in the form of contribution to committee as part payment to have been received by the defendant from the plaintiff against sale of suit property and plaintiff was required to pay balance of Rs 10 lakhs to the defendant within specific period of three months i.e latest by 05.04.2010 from the date of settlement which was reduced in writing vide agreement / settlement deed dated 06.01.2010 between the parties. Further, it was verbally decided between the parties that the defendant would receive a sum of Rs 2 lakhs through DD and balance of Rs 8 lakhs be paid in cash afterwards plaintiff agreed to buy the said property from the defendant.
7. It is further contented that defendant did not comply with the terms of the agreement and did not come forward to execute the title documents of the suit property in favour of plaintiff despite repeated reminders and requests, then plaintiff server a legal notice dated 08.04.2010 through his counsel to the defendant to execute the title documents of the said property in favour of plaintiff and to receive the balance amount of Rs 10lakhs and for this purpose the plaintiff fixed a date i.e 10.05.2010 on which defendant was requested CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 5/23 6 to remain present in the Office of concerned Sub Registrar II, District West, Delhi at 10am but despite service and due intimation defendant did not appear before the concerned Sub Registrar but the plaintiff was present at the said office and said time and wait till 1 pm alongwith balance of Rs 10 lakhs but defendant did not appear and no intimation has been received from him. Plaintiff also executed an affidavit in this behalf that he was present in the concerned office of Sub Registrar on 10.05.2010. On the same day, Plaintiff tried to contact the defendant on the said date but failed but subsequently in the afternoon on 10.05.2010 defendant himself contacted the plaintiff and assured him that he would be present before the Office of Sub Registrar on the next day i.e 11.05.2010 but again defendant did not appear.
8. It is further contented that defendant continuously failing to perform his duty, plaintiff again got served a legal notice dated 14.05.2010 upon the defendant in terms of agreement dated 06.01.2010 within a period of 15 days from the receipt of notice. It is also contented that in case defendant does not vacate the premises and does not handover the possession, then plaintiff would avail all legal remedies available to him on the entire cost and consequences of CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 6/23 7 defendant and would get the documents executed in terms of agreement / settlement deed dated 06.01.2010 through appropriate court of law. Further, legal notice dated 14.05.2010 was served upon defendant despite that after expiry of 15 days and further expiry of 6 months defendant failed to perform his party of agreement and not interested to execute the title documents of suit property in favour of plaintiff.
9. Moreover, it is contented that the cause of actio was first arisen in september 2006, when the total amount of Rs 15 lakhs was deposited with the defendant by the plaintiff. Further cause of action arose in November 2009, when defendant agreed to sale his residential house i.e property in question. Further it was arose on 06.01.2010 when agreement / settlement deed was executed, further on 04.04.2010 when notice was sent , on 10.05.2010 and 11.05.2010 when despite specific assurance defendant failed to execute and lastly arose on 14.05.2010 when again a legal notice was sent to the defendant but defendant has not fulfilled his part of agreement resulting into filing the present suit.
10. On the other hand written statement on behalf of CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 7/23 8 defendant in which preliminary objection has been taken that present suit is liable to be dismissed as it has been filed without cause of action. It is contented that suit for specific performance is not maintainable against defendant as there is no question of any agreement to sell to have been exeucted by the defendant. This agreement to sale is a forged, frivolous document which has been manipulated by the plaintiff. It is further contended that property in question ie C26 is not of 350 Sq yards. Again said, there would be no fool who would accept the Rs. 8 Lakh in cash and only Rs. 02 Lakh by draft. It is further contended that he is not the owner of the property in question and was not competent to execute any agreement to sell for the property as the property in question does not belong to him. It is contented that on first page of the agreement which is the stamp paper and the second page is the middle page does not bears the signature of parties which shows that this document has been manipulated by the plaintiff and even on the third page of the document, according to the plaintiff, parties have signed but the signature of defendant is either forged by some technique or might have been prepared on some blank paper during the proceedings by the plaintiff which were pending in the court of SEM Smt Jaswant Kaur , West Dist, Delhi pertaining to the case of Kalanadara u/s CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 8/23 9 107/150 Cr.P.C of PS Moti Nagar . It is contented further that police pressurized the defendant to compromise in the matter and got signed some paper alleging to be a compromise deed which was got prepared on behalf of plaintiff and police and obtained the signature of defendant on few papers referring those it to be a compromise between them. During that time, plaintiff obtained signatures from defendant on some papers and might have been used on the last paper / page of the agreement. The defendant only could sign in Hindi , could not read or write as is not educated.
11. On merits, all the contents of the plaint has been denied. It is admitted that defendant is the Goldsmith by profession whereas the plaintiff is more in the business of purchase of stolen ornaments and on that account, he was to remain in JC also in many cases including of case FIR no 352/05, U/s 356/379/411 IPC, PS South Rohini and FIR No 614/04, PS Moti Nagar. It is further admitted that defendant do not know any person by name of Smt Beena Sharma or Smt Santosh or Sh Dayanand but the fact is that Sh Dayanand used to claim to be a fast friend of plaintiff and Sh Dayanand has appeared as the surety of plaintiff before SEM. It is also admitted that Ms Khushboo Verma ( daugther of plaintiff ) and Sh Ashwani Verma CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 9/23 10 ( son of brother in law/ jeeja of defendant) got marrieed in Arya Samaj Mandir and started living together on which plaintiff lodged a complaint of missing of her daugther and on that Ashawani Verma and Khushboo Verma surrendered before the Court of Magistrate but since they both were major, the Police could not take any action. After that Plaintiff started harassing defendant, his family members and family of jeeja Sh Mohan Lal Verma. It is also admitted that defendant demanded Rs 15 lakhs as dowry for the daughter of plaintiff. The police also harrassing defendant and presurized to compromise with the plaintiff.
12. Plaintiff filed replication in which he reiterated all the contents of the plaint. It is specifically contended that on the one hand defendant claims that he does not know any person named Dayanand but on the other, he knows that he is the fast friend of plaintiff and he stood as surety for the plaintiff in some of the criminal case ie for Kalandara u/s 107/150 Cr.P.C before ld SEM, West, THC. Further contended by the plaintiff in response to averment made in para no.10 & 11 of WS, that it is the defendant who had disclosed all the facts and plaintiff had no other option but to accept the version of the defendant in respect to the status and title of the suit property.so far as CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 10/23 11 the foolishness in accepting the amount of Rs. 8 Lakh n cash and Rs. 02 Lakh in cheque/draft is concerned, it was the choice of the defendant and plaintiff had no objection to that.
13. After completion of pleadings, following issues were framed on 16.04.2012 :
1. Whether there is an agreement between the plaintiff and defendant regarding property no. C26, Rama Park, Uttam Nagar, New Delhi ? OPP
2. Whether the plaintiff has paid a sum of Rs 15 lakhs in the committee as alleged by him? OPP
3. Whether the present suit has been filed without cause of action ? OPD
4. Whether the agreement , as alleged by the plaintiff, dated 06.01.2010 is a false, frivolous and forged document ? OPD
5. Whether the plaintiff is entitled for the relief claimed ? OPP
6. Relief CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 11/23 12
14. To prove his case, plaintiff examined Sh Puran Chand as PW1 ; Smt Santosh Verma as PW 2 and plaintiff examined himself as PW 3 ; Smt Beena @ Shobha as PW 4 ( however inadvertently in the ordersheet dated 26.07.2016 name of PW4 Sh Dayanand has been mentioned instead of Smt Beena @ Shobha ) and on the request of proxy counsel for plaintiff, evidence has been closed vide order dated 26.07.2016.
15. In support of the case, defendant examined himself as DW1 and Sh Vivek Yadav as DW2 and on the request of counsel for defendant, evidence has been closed vide order dated 18.01.2018
16. I have heard the Ld Counsel for parties and perused the case file.
17. Prior to proceed further here it is important to note that: The consideration or object of an agreement is unlawful
(a) If it is forbidden by law. If the object or the consideration of an agreement is the doing of an act forbidden by law, the agreement is void. An act is forbidden by law when it is punishable by the criminal CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 12/23 13 law of the country or when it is prohibited by special legislation or regulations made by a competent authority under powers derived from the Legislature.
(b) If it is of such a nature that, if permitted, it would defeat the provisions of any law. If the object or the consideration of an agreement is such that, though not directly forbidden by law, it would defeat the provisions of any statutory law, the agreement is void.
(c) If it is fraudulent. An agreement which is made for a fraudulent purpose is void. Thus an agreement in fraud of creditors with a view to defeating their rights is void.
(d) It is involves or implies injury to the person or property of another. If the object of an agreement is to cause injury to the person or property of another, it is unlawful.
(e) If the Court regards it as immoral, or opposed to public policy. An agreement, the consideration or object of which is immoral or opposed to public policy, is unlawful [Sumitra Devi Vs. Sulekha Kundu, AIR (1976) Cal 197, 205].
18. As per section 46 of Indian Contract Act, 1872, Time for performance of promise, where no application is to be made and no time is specified - Where, by the contract, a promisor to perform CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 13/23 14 his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.
As per Section 47 of the Act, Time and place for performance of promise, where time is specified and no application to be made
- When a promise is to be performed on a certain day, and the promisor has undertaken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performed.
As per Section 50 of the Act, Performance in manner or at time prescribed or sanctioned by promisee The performance of any promise may be made in any manner or at any time which the promisee prescribes or sanctions.
As per Section 51 of the Act, Promisor not bound to perform, unless reciprocal promisee ready and willing to perform When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.
As per Section 54 of the Act ,Effect of default as to that promise which should be first performed, in contract consisting of CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 14/23 15 reciprocal promise When a contract consist of reciprocal promises such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it , such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non performance of the contract.
19. My issuewise finding is as hereunder :
ISSUE NO 1 , 2 and 5 :
1. Whether there is an agreement between the plaintiff and defendant regarding property no. C26, Rama Park, Uttam Nagar, New Delhi ? OPP
2. Whether the plaintiff has paid a sum of Rs 15 lakhs in the committee as alleged by him? OPP
5. Whether the plaintiff is entitled for the relief claimed ?
OPP CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 15/23 16 Since all these issues are interconnected, hence, are taken together. The onus to discharge these issue, plaintiff examined himself as PW3 by way of affidavit which is Ex PW3/A and Ms Beena as PW4 however, affidavit of Sh Dayanand also filed but has not been examined. Ms Beena and Sh Dayanand alongwith plaintiff was deposed / stated to be member of the committee (Chit fund) with the defendant. In the affidavit of Smt Beena , Ex PW4/A , it is deposed that she was also member of committee running by the plaintiff in respect to the two committees of Rs 2 lakhs in which the contribution of Rs 10,000/ each p.m. for 20 months, accordingly she had made 17 installments and total amount has paid as Rs 1,70,000/. She deposed that she was also member of another committee of Rs 1,50,000/ which was of 24 months in which she has paid Rs 3,74,000/ .
Further the plaintiff in his evidence reproduced all the contents of th plaint. In para no 8 of the affidavit it is deposed that towards the contribution of committee to the plaintiff had paid Rs 15 lakhs to the defendant till September 2006. Plaintiff in his evidence relied upon the document Ex PW3/1 to PW3/7 , also relied on Ex PW1/B and mark P1. Document Ex PW1/B is the agreement to sell upon which the present suit has been filed in which the factum of payment of Rs CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 16/23 17 15 lakhs on different occassions has been recorded which has been stated to be paid in respect to the installments of chit fund with the plaintiff. PW3/2 is the legal notice dated 08.04.2010; PW3/3 is the affidavit of plaintiff; PW3/4 is the receipt of Sub Registrar ; PW3/5 is the another legal notice of the plaintiff dated 14.05.2010; PW3/6 is the receipts of courier; PW3/7 is the receipt of Registered AD of legal notice dated 14.05.2010.
During cross examination of PW3, PW3 / plaintiff admitted the contention of defendant which is raised in the WS that initially the marriage was performed by my daughter with Ashwini Verma ( it was pleaded by the defendant that present suit has been filed against the defendant because of invengence as the daughter of the plaintiff got married with Ashwini Verma who is son of brother in law of defendant and plaintiff made complaint to the police agianst the marriage in which the name of the defendant also mentioned further, it is also admitted that during cross examination that agreement to sell in question ie Ex PW1/1 has been executed in Jan 2010 and the complaint against the defendant and others for alluring my daughtr for marriage was lodged before the agreement in question).
Bare perusal of the contents of the plaint and replication shows that it is admitted by the plaintiff that till September 2006 Rs 15 lakhs CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 17/23 18 as contribution of the committee has been deposited with the defendant and in between September 2006 and till the alleged execution of agreement to sell Ex PW1/B no document has been placed on record by the plaintiff which can substantiate or can be said acknowledged under Section 18 of Limitation Act. For the sake of arguments if the contention of the plaintiff is assumed to be correct still the decree of specific performace can not be passed becaused it is alleged that Rs 15 lakhs has been set of / stated to be consideration which has been paid towards the installments of chit fund which is otherwise can not be recovered because limitation period of recovery of Rs 15 lakhs have already been lapsed by September 2009 as per on pleadings of the plaintiff whereas the alleged agreement to sell Ex.PW1/1 has been executed on 06.01.2010. Even otherwise in the replication, plaintiff has admitted that status, title and ownership of the property in question is correct as mentioned and referred by defendant in WS.
Therefore, the agreement to sell itself is a contrary to the provision of Sec 23 Contract Act because admittedly the chit fund which is allegedly run by the defendant unregistered which is against the law of public policy. Moreover, in the present case defendant has denied the signature on the agreement to sell while alleging forgery CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 18/23 19 despite that plaintiff has not examined any handwriting expert in support of his contention. On the other hand, defendant has examined himself as DW1 by way of evidence by way of affidavit EX DW1/A and relied upon the document Ex DW1/1 to DW 1/17 and document mark A to D and during cross examination he remained firm on the point that the plaintiff was not the member of any chit fund of any committee and also remained firm that he has not executed any document including agreement to sell in respect to the sale of property in question which is otherwise in the name of his son Sh Deepak. However, it is come up on record that the property in question was sold to the Deepak in the year 2005.
After taking into consideration the facts and circumstances, evidence led by the parties as well as things/facts which has come on record, I am of the considered view that testimony of PW1 and PW4 are not trustworthy in respect to the fact that there were member of committee alongwith plaintiff and had contributed other share in the form of chit with the defendant. Even otherwise, running of chit/committee fund without registration is illegal and being contrary to provision of Section 23 of the Contract Act in respect to run of committee itself is not maintainable as agreement qua running of chit is void ab initio in the eyes of law. Moreover no evidence produced by CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 19/23 20 the plaintiff in respect to payment of Rs. 8 Lakh in cash and Rs. 02 Lakh through DD moreover this payment of Rs. 10 Lakh has been stated to be paid, it mean that payment had to be made/paid at the time of execution of agreement to sell but there is no agreement in respect to the adjustment of payment of contribution of plaintiff which can substantiate the contention of the plaintiff. In view of the above discussion, I am of the further view that plaintiff has completely failed to discharge the onus of issue no. 1,2 & 5 as failed to establish in respect to payment of Rs. 15 Lakh towards contribution of committee. Subsequently the contribution adjusment towards the payment and execution of agreement to sell as claim of plaintiff is time barred, hence all these issues are decided against the plaintiff and in favour of the plaintiff.
20. Issue no.4 Whether the agreement, as alleged by the plaintiff, dated 06.01.2010 is a false, frivolous and forged document ? OPD CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 20/23 21 The onus to discharge this issue has been casted upon the defendant. In the evidence of defendant, DW/defendant relied upon the document ie compromise deed between the plaintiff and Mohan Lal Verma in respect to averment made qua the fact that daughter of plaintiff got married with the son of Sh Mohan Lal who was brother inlaw/jija of defendant. Moreover defendant is/was also one of the party in the compromise deed Ex.PW1/17. Hence, I am of the considered view that averment/deposition made in the WS and affidavit qua the fact that agreement to sell Ex.PW1/1 was being mis used by the plaintiff as defendant himself admitted that during police proceedings on account of compromise, certain blank papers were got signed which has been misused by the plaintiff as such agreement to sell is forged and fabricated because document Ex.DW1/17 itself contrary to the submission/deposition of the defendant in respect to the fact that after obtaining signatures on the blank papers, agreement to sell was got prepared by the plaintiff and misused by filing the present suit but no evidence or document led/filed in support of contention, hence testimony in this regard is not trustworthy and reliable, accordingly this issue is decided against the defendant.
CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 21/23 22
21. Issue no.3 Whether the present suit has been filed without cause of action ? OPD The onus to discharge this issue has been casted upon the defendant. Defendant examined himself by way of affidavit Ex.DW1/A in which he reproduced all the contents of WS and objection taken against the present suit. In view of the findings given on issue no.1,2 &5, it is established on record that the present suit has been filed against the defendant without cause of action, rather, it appears that same has been filed invengence in respect to the marriage of daughter of plaintiff with the son of Mohan Lal, who was brother in law of defendant. Hence, this issue is decided against the plaintiff and in favour of defendant.
RELIEF
22. In view of the facts and circumstances, the findings given on the above captioned issues, the suit of the plaintiff is liable to be dismissed. Accordingly, the suit of the plaintiff is dismissed. No order CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 22/23 23 as to cost. Decree sheet be prepared. Original documents, if any, be returned to the parties on filing certified copies thereof.
File be consigned to record room as per rules.
Announced in the Open Court on 21.04.2018 (Rakesh KumarIV) Additional District Judge06 West District, THC CS No. 610209/16 Ram Naresh Verma Vs. Ram Pal Verma Page no. 23/23