Delhi District Court
Jatinder Pal Singh vs Surjan on 9 July, 2018
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IN THE COURT OF SH. VISHAL GOGNE, ADDL. DISTRICT
JUDGE02 : SOUTHWEST DISTRICT: DWARKA COURTS :
NEW DELHI
CS No. 426783/2016
1.Jatinder Pal Singh S/o Late Sardar Singh R/o WZ566, Gali No. 19 Shiv Nagar, Delhi110058 ........Plaintiff VERSUS
1. Surjan S/o Sh. Sobha Ram
2. Suman W/o Sh. Surjan Both R/o D130, Janak Puri Near Bindapur New Delhi110059.
3. Harkishan S/o Late Sardar Singh
4. Gurmeet Kaur W/o Sh. Harkishan Singh Both R/o Plot No. 26, Ghasipura Extension Near Nangli Dairy Nazafgarh, New Delhi CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 2
5. Santosh Devi W/o Narsing Dass Sharma R/o D130, Janakpuri New Delhi110059 ....... Defendants Date of institution of the suit : 16.02.2012 Judgment reserved on : 05.06.2018 Date of pronouncement : 09.07.2018 JUDGMENT
1. Defendants no.3 and 4 are the brother and sister in law respectively of the plaintiff. It is claimed in the suit that plaintiff No.3, without any title to the suit property, first transferred the same in favour of defendant no.5 i.e. Santosh Devi on 02.05.2002 and Santosh Devi then transferred the same property in favour of the wife of defendant no.3 i.e. defendant no.4 on 06.09.2003. Both transactions were through documents in the nature of GPA etc. Defendants no.1 & 2 are the purported purchasers of the suit property from defendant No.4, again through GPA etc dated 30.12.2009.
2. The suit property bears No. D130, Back Gali, Janak Puri, Bindapur, Delhi.
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3. The version of the plaintiff is that he himself purchased the suit property in the year 1989 through some registered documents. The plot in question was constructed to a small extent by the plaintiff. Defendant no.3, being the younger brother of the plaintiff now made a request to the plaintiff to permit him to stay in the said house. The plaintiff acceded to this request on account of love and affection for his brother who was inducted as a licencee in the suit property without any consideration.
4. The plaint records the averment that 23 years prior to the filing of the suit (in the year 2012) defendant no.3 started avoiding the plaintiff and refused to vacate the house. On the plaintiff threatening to approach the police, defendant no.3 sought time for few months to vacate the suit property. The suit property was found to be locked for six years prior to the institution of the suit.
5. In November, 2011, the plaintiff saw defendant no.1 in the suit property who revealed that defendant no.3 had handed over the property to him for living in the same. Defendant no.1 refused to provide the address of defendant no.3 to the plaintiff. Defendant no.2 is the wife of defendant no.1.
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6. Defendants No.1 and 2 now started denying the title of the plaintiff over the suit property and infact threatened to transfer the same to a third person if the plaintiff initiated legal proceedings to take possession. When defendant no.1showed the papers relating to the suit property, the plaintiff realised the transfer of the same from defendant No.3 to defendant no.5 and then to defendant no.4, finally ending in the transfer from defendant no.4 to defendant no.1. The plaint maintains that possession of the suit property never travelled to defendant no.5 and all documents reflecting transfer between the defendants are illegal.
7. The possession not having been handed over by defendant no.1 despite service of the notice dated 02.02.2012 sent by the plaintiff, the present suit was filed for the following reliefs.
(a) A decree of possession of the suit property against defendants no.1 and 2.
(b) Declaration of the GPA etc dated 02.05.2002, the GPA etc dated 06.09.2003 and also the GPA etc dated 30.12.2009 as null and void.
(c) A permanent injunction restraining defendants no.1 and 2 from selling or dispossessing the suit property.
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(d) Damages @ Rs. 5,000/ per month against defendants
No.1 and 2.
8. The suit was contested only by defendants No.1 and 2.
Defendants No.3 and 4 were served by way of publication and the suit was heard exparte when they failed to join proceedings. Similarly, defendant no.5 did not join the proceedings despite service and the suit was heard exparte qua her too.
9. The defence emerging from the written statement of defendants No.1 and 2 was that the plaintiff was not the owner of the suit property as no registered documents had been filed by him. The valuation of the suit was also challenged by the said defendants. Defendants No.1 and 2 denied that their possession was illegal and also denied that the chain of documents in their favour was voidable. They maintained that their documents were registered and it were the documents of the plaintiff which were forged and fabricated. The chain of documents from defendant no.3 to defendant no.5 and then to defendant no.4, culminating in defendant no.1 and 2 was thus relied upon by defendants No.1 and 2.
10. The court may note that the suit was originally filed only against defendant no.1 and the amendments related to CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 6 incorporation of defendants no.2 to 5 and the documents in their favour were made in the plaint as the said chain of title had been revealed only in the written statement of defendants no.1 and 2.
11. The suit was tried on the following issues.
1. Whether plaintiff is entitled for possession of the suit property, as shown in Red colour in the site plan, as prayed for? OPP
2. Whether the plaintiff is entitled to declaration declaring the documents i.e., GPA, agreement to sell, affidavit, receipt, possession letter and will dated 02.05.2002 executed by the defdt no.3, the documents dated 06.09.2003 executed by defendant no.5 and the documents dated 30.12.2009 executed by defdt no.4 in respect of the suit property, as null and void? OPP
3. Whether plaintiff is entitled for permanent injunction restraining the defendants no.1 and 2 their agents, associates, family members from selling, alienating or disposing of the suit property, as prayed for? OPP
4. Whether the plaintiff is entitled for mesne profits and damages from defendants no.1 and 2, as prayed for? If yes, at what rate and for which period? OPP
5. Whether the suit is barred by limitation, as contended in the W.S? OPD
6. Whether there is no cause of action in favour of the plaintiff and against the defendants? OPD
7. Whether the suit is not property valued for the purposes of court fee and jurisdiction? OPD CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 7
8. Relief.
12. The witnesses for the plaintiff included himself and a police official from PS Dabri (PW1 and PW2) respectively.
13. Apart from reiterating the contents of the plaint, the plaintiff (PW1) brought on record the site plan, GPA, agreement to sell, affidavit and registered receipt dated 07.04.1989 qua the suit property executed in his favour by one Harish Sharma as Ex. PW1/A to Ex. PW1/E. The legal notice dated 02.02.2012 and postal receipt of the same were Ex. PW1/F and Ex.PW1/G.
14. PW2 SI Mukesh Kumar produced the certified copy of the GPA, agreement to sell, receipt, affidavit dated 07.04.1989 as Ex. PW2/A to Ex. PW2/D whereas the FIR No. 196/13 under section 420/468/471 PS Dabri was Ex. PW2/E. The previous chain of title i.e. the agreement to sell, receipt and affidavit executed by one Jai Bhagwan in favour of Harish Sharma qua the plot No. 130, Khasra No. 598, Bindapur, Janakpuri were marked as Ex. PW2/F.
15. The witnesses for the contesting defendants were the said defendants themselves i.e. defendants No.1 and 2 who deposed as DW1 and DW2 respectively. DW1 cited the GPA, CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 8 Affidavit, Agreement to sell, receipt, possession letter and will dated 30.12.2009 (Ex. DW1/2 to Ex. DW1/7) executed in favour of defendant no.2 and himself by defendant No.4 (who was ex parte). He also brought on record the previous chain of title i.e. the GPA, agreement to sell, affidavit, receipt, possession letter and will dated 02.05.2002 (ExDW1/8 to Ex. DW1/13) executed by defendant No.3 in favour of defendant No.5 (both exparte) and the GPA, will, affidavit, agreement to sell, receipt and possession letter dated 06.09.2003 (Ex. DW1/14 to Ex. DW1/19) executed by defendant No.5 in favour of defendant No.4.
16. DW1 also cited the receipt of development charges and water connection in favour of defendant No.4 (Ex. DW1/20 to Ex. DW1/22) apart from the electricity connection (Mark DW1/23).
17. DW2 reiterated the version of DW1.
18. During the course of final arguments, the ld counsel for the plaintiff submitted that the documents in favour of defendants No.1 and 2 were without any legal effect as the predecessor in title was defendant No.3 who was not the owner of the property in question. It was submitted that the documents were contrived as there was no title existing in defendant no.3 for transferring CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 9 the same. It was agitated that the documents of the plaintiff were better evidence of title.
19. In reply, the ld counsel for defendants No.1 and 2 submitted that the said defendants were relying on a registered chain of documents starting from defendant No.3 and continuing through defendants No.5 and 4.
20. The court has considered the submissions made by the respective counsels in light of the evidence on record.
21. The issues are adjudicated as under.
Issue no.5 Whether the suit is barred by limitation, as contended in the W.S? OPD
22. The objection in the written statement on the aspect of limitation was apparently directed against the relief of declaration of the chain of documents of the defendant as null and void. Limitation in the present facts would be governed by Article 58 of the Schedule to the Limitation Act, 1963 which provides that the period of limitation, being three years, would run from the time when the right to sue first accrues.
23. Neither during the course of evidence nor during submissions could defendants no.1 and 2 establish that the plaintiff was in the know of these documents at any stage prior to CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 10 the time frame indicated in the plaint i.e. November 2011 when the plaintiff first saw defendants no.1 and 2 in the suit property.
24. The court finds the suit to be within limitation.
25. Issue no.5 is decided in favour of the plaintiff and against the defendants.
Issues No.1, 2 and 6.
1. Whether plaintiff is entitled for possession of the suit property, as shown in Red colour in the site plan, as prayed for? OPP
2. Whether the plaintiff is entitled to declaration declaring the documents i.e., GPA, agreement to sell, affidavit, receipt, possession letter and will dated 02.05.2002 executed by the defdt no.3, the documents dated 06.09.2003 executed by defendant no.5 and the documents dated 30.12.2009 executed by defdt no.4 in respect of the suit property, as null and void? OPP
6. Whether there is no cause of action in favour of the plaintiff and against the defendants? OPD
26. The present suit is essentially one for possession on the basis of competing documents in the nature of GPA, agreement to sell etc. Undoubtedly, such documents do not convey title in the classical manner or in terms of section 54 of the Transfer of Property Act,1882. The decision in Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1 (SC) also CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 11 conveys the same position of the law. Neither party has laid claim to title on the basis of a sale deed/registered conveyance deed.
27. However, it is also a well recognised principle of law relating to possession that the relief of possession can be decided on the basis of better title when the title of neither party is perfect. In another view, since a court of civil jurisdiction is required to decide disputed questions on the preponderance of probabilities, the question of possession can be decided on the preponderance of probabilities in favour of the title of one party over the other, even if defective in its own right. Hence, the documents in the nature of GPA etc relied upon by the respective parties in the present suit are not devoid of legitimacy in determining the question of possession.
28. Besides, a GPA entails rights in terms of section 202 of the Contract Act, 1872 whereas an agreement to sell does create rights, especially in the context of section 17(1A) of the Registration Act, 1908 read with section 53A of the Transfer of Property Act (reference may be made here to the decisions of the Hon'ble High Court in Ramesh Chand vs. Suresh Chand and Anr. 188 (2012) DLT 538.
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29. Thus seen, the court would render a finding on the question of entitlement of the present plaintiff to recovery of possession on the basis of his documents versus the documents of defendants No.1 and 2, both being in the nature of GPA etc.
30. The first question relates to the aspect of registration. The chain of documents relied upon by the defendants are all registered whereas the plaintiff has relied on unregistered documents. The court would comment that there is nothing particularly special about a registered GPA in the matter of conveying rights in an immovable property. Unlike an agreement to sell which has been made registrable under section 17(1A) of the Registration Act qua section 53A of the Transfer of Property Act, no such amendment or mandate exists for compulsory registration of a GPA.
31. Registration, even at best, would only denote that the parties appeared before the sub registrar for purpose of paying registration fee and stamp duty. Both a registered as well as and unregistered GPA would be defective in the matter of conveying perfect title under section 54 of the Transfer of Property Act. The court, therefore can only address the question of better title on the basis of respective GPAs relied upon by the CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 13 parties to the present suit.
32. To elaborate on the rights which do flow from a GPA, if a GPA under section 202 of the Contract Act has been executed against consideration, the same is irrevocable. Such legal effect would follow from both a registered as well as unregistered GPA.
33. The exercise, therefore, is to determine the genuineness per se of one GPA versus the other and not to treat the registration of one viz a viz the unregistered status of the other as indicative of genuineness.
34. Consequently, the court would see the evidence led by the parties through the prism of antecedent title rather than registration.
35. It is apparent on the above touch stone that the documents relied upon by the defendants betray round tripping, to borrow a term from the murky world of money laundering. The chain of documents relied upon by defendants No.1 and 2 are essentially a round trip between the defendants without conveying the particulars of antecedent title.
36. Now, the plaintiff and defendant No.3 are real brothers and both claim to be the owners of the same property i.e. the suit CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 14 property. However, the documents relied upon by the plaintiff go back two vendors i.e. Harish Sharma, who executed GPA, agreement to sell, receipt and affidavit dated 07.04.1989 (Ex. PW2/A to Ex. PW2/D) in favour of the plaintiff and Jai Bhagwan who executed similar documents (Ex. PW2/F) in favour of Harish Sharma. The admissibility in evidence and status of these documents as proved is certainly not in doubt in as much as the counsel for the defendants did not object to the mode of proof of either of these documents of the plaintiff during the deposition of PW1 and PW2. The objections regarding mode of proof are thus deemed to be waived as laid down in the decision in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami and V. P. Temple & Anr. AIR 2003 SC 4548.
37. Though registration of these documents in favour of the plaintiff is by itself inconsequential as discussed in the earlier part of the judgment, it is still relevant that at least one of these documents i.e. a receipt (Ex. PW2/C) was indeed registered. Now, a receipt regarding proceeds of the transaction qua immovable property may also be optionally registered under section 18 (b) of the Registration Act. Resultantly, the registration of the receipt Ex. PW2/C does add credibility to the CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 15 said transaction when it is coupled with the fact that the plaintiff has adduced a chain of title stretching back two previous owners i.e. Harish Sharma and Jai Bhagwan.
38. The ld counsel for the defendant had contended that this receipt could not be treated as having a nexus with the other documents in the chain of documents relied upon by the plaintiff as it did not mention the property number or even a transaction for transfer of any immovable property from Harish Sharma to Jitender Pal Singh.
39. It is one of the guiding principles of relevancy of facts in the scheme of Indian Law that facts which form part of the same transaction are relevant. Section 6 of the Indian Evidence Act 1872 recognises the principle of res gestae to provide as under:
6. Relevancy of facts forming part of same transaction: Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
40. Thus seen, though the receipt, as a stand alone document would not convey any particular transaction between the executant i.e. Harish Sharma and the plaintiff i.e. Jitender Pal Singh, the said receipt does become relevant if it is seen as part CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 16 of the transaction recorded in the other documents i.e. GPA, affidavit and agreement to sell (Ex. PW2/A, Ex. PW2/D and Ex. PW2/B respectively). Whereas the GPA does not record any specific date, its stamp paper was apparently purchased on 07.04.1989 by Harish Sharma (as apparent from the stamp on the reverse side of this document). The affidavit was infact dated 07.04.1989 and also purchased by Harish Sharma on 07.04.1989. Lastly, the agreement to sell also records the date of execution as 07.04.1989 with the stamp paper being purchased on the same date. Since the receipt records the date of 07.04.1989, it is to be concluded on reasonable principles of interpretation of evidence that this receipt was part of the same transaction as recorded in the GPA, affidavit and agreement to sell. Section 7 of the Evidence Act also leads the court to the same inference qua the receipt.
41. Here, a reference to the status of defendants no.3 to 5 in the present proceedings would be apposite. The proceedings have been conducted ex parte qua these defendants.
42. Since defendants no.3 to 5 did not join proceedings and there are no pleadings or cross examination of the plaintiff's witnesses on their behalf, they are deemed to have admitted the CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 17 plaint and the deposition of PW1 and PW2.
43. However, their exparte status did not entirely dilute their utility towards the present proceedings. Since defendants no.1 and 2 had claimed ownership through documents executed by defendant no.4 and placed reliance on the previous chain emanating from defendant no.3 in favour of defendant no.5 followed by alienation by defendant no.5 in favour of defendant no.4, it was incumbent upon defendants no.1 and 2 to at least attempt to secure their deposition. That defendants No.3 to 5 were exparte was essentially a circumstance of trial operating viz a viz the plaintiff. Any benefit of the said exparte status of defendants No.3 to 5 would naturally flow to the plaintiff. The plaintiff was thus not required to seek their presence after they were proceeded exparte. However, defendants No. 1 and 2 could still have moved to summon them as witnesses in their behalf. The consequence of non examination of these probable witnesses was that the question of the antecedent title of defendant No.3 remained unanswered. As noted, the plaintiff has furnished a chain going back two owners whereas defendant no.3 seemed to have transferred the property to defendant no.5 without any title in himself.
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44. Thus, on the analogy of illustration (g) to section 114 Evidence Act, the court draws the inference that defendants no.1 and 2 were privy to the circuitous transfer of property between defendants no.3, 5, 4 and finally in favour of defendants no.1 and 2 and that the examination of defendants no. 3 to 5 would have exposed adverse evidence against defendants no.1 and 2.
45. The court finds that the present plaintiff derived better title in the suit property than defendants No.1 and 2 by virtue of the documents dated 07.04.1989 executed in his favour by Harish Sharma and is thus entitled to recover possession of the suit property from defendants No.1 and 2.
46. The preponderance of probabilities dictate the conclusion that the documents dated 02.05.2002 executed by defendant No.3 in favour of defendant No.4, the documents dated 06.09.2003 executed by defendant No.5 in favour of defendant No. 4 and the documents dated 30.12.2009 executed by defendant No.4 in favour of defendants No.1 and 2 are contrived documents. Since defendant No.3 did not have any antecedent right to own or possess the suit property, he could not have transferred the same or any interest in the same to defendant No.5. The said CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 19 transaction as well as the subsequent transfers between defendant No.5 and defendant No.4 as well as between defendant no.4 and defendants no.1 and 2 are thus void too.
47. These documents are declared to be null and void.
48. Issues No.1, 2 and 6 are decided in favour of the plaintiff and against all defendants.
Issue No.3 Whether plaintiff is entitled for permanent injunction restraining the defendants no.1 and 2 their agents, associates, family members from selling, alienating or disposing of the suit property, as prayed for? OPP
49. Since issues No.1, 2 and 6 have been decided in favour of the plaintiff and against defendants no.1 and 2, the said defendants do not have any vested right to alienate the suit property. Their continued disputing of the rights of the plaintiff raises the fair apprehension that they may create third party interest in the suit property. The plaintiff is thus entitled to the permanent injunction prayed for.
50. Issue no.3 is decided in favour of the plaintiff and against defendants no.1 and 2.
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Issue No.7 Whether the suit is not property valued for
the purposes of court fee and jurisdiction? OPD
51. During the course of evidence, no particular evidence was led to fault or controvert the valuation of the reliefs in the suit by the plaintiff.
52. Issue no.7 is decided in favour of the plaintiff and against the defendants.
Issue No.4. Whether the plaintiff is entitled for mesne profits and damages from defendants no.1 and 2, as prayed for? If yes, at what rate and for which period? OPP
53. The suit prayed for damages @ 5,000/ per month from defendants No.1 and 2 for their occupation of the suit property.
54. The court has already found in the adjudication of issues No.1 and 2 that defendants No.1 and 2 do not have any right in the suit property and the documents in their favour are null and void. Hence, their occupation of the suit property can be fairly described as unauthorised. The claim of the plaintiff is that he first saw the said defendants in occupation of the suit property in November 2011. The defendants rather contend that they CS No. 426783/16 Vishal Gogne ADJ2, Dwarka, N.Delhi/09.07.2018 21 purchased the suit property vide documents dated 30.12.2009. It is appropriate that the defendants are subjected to pay damages from the date asserted by the plaintiff i.e. November 2011. Considering the small size of the suit property i.e. 17 sq. yards which bears construction only in the form of one room, the court deems it fit that damages @ Rs. 1,000/ per month are paid by defendants No. 1 and 2 to the plaintiff from the period November 2011 onwards.
55. As to the question of any appreciation in the market rates of rent so as to make out a case for enhanced damages, the court would note that no specific evidence was led by the plaintiff in this regard. Hence, employing the only parameter for reference i.e. the provisions of the Delhi Rent Control Act inter alia section 6A, the court would grant enhanced damages @ 10% over and above Rs. 1,000/ after a period of three years i.e. from November 2014 onwards. The plaintiff is thus entitled to recover damages @ Rs. 1,000/ per month from November 2011 to October 2014 and damages @ Rs. 1100/ from November 2014 till the date of handing over of possession of the suit property by defendants No.1 and 2 to the plaintiff.
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56. Issue no.4 is accordingly decided in favour of the plaintiff and against defendants No.1 and 2.
RELIEF
57. In view of the findings upon issues No.1,2,3 and 4, the suit is decreed in favour of the plaintiff and against defendants No.1 and 2 for a decree of possession of the suit property bearing No. D130, Back Gali, Janakpuri, Bindapur, New Delhi as reflected in the site plan Ex. PW1/A. The said defendants are permanently restrained from creating any third party interest in the suit property. The plaintiff is also awarded damages against defendants no.1 and 2 @ Rs. 1,000/ per month from November 2011 to October 2014 and damages @ Rs. 1100/ from November 2014 till the date of handing over of possession of the suit property by defendants No.1 and 2 to the plaintiff.
58. The following documents are declared null and void:
a. GPA, agreement to sell, affidavit, receipt, possession letter and will dated 02.05.2002 executed by the defendant no.3 in favour of the defendant No.5.
b. The documents i.e. GPA, agreement to sell, affidavit, receipt, possession letter and will dated 06.09.2003 executed by the defendant no.5 in favour of the defendant no.4.
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c. The documents i.e. GPA, agreement to sell, affidavit,
receipt, possession letter and will dated 30.12.2009 executed by the defendant no.4 in favour of the defendant no.1 & 2 in respect of the suit property bearing no. D130, Back Gali, Janak Puri, Bindapur, Delhi.
59. The plaintiff is also awarded proportionate costs of the suit.
60. Let decree sheet be drawn up accordingly.
61. File be consigned to record room.
Pronounced in the (Vishal Gogne)
open court on 09.07.2018 Addl. District Judge02/SouthWest,
Dwarka Courts Complex, New Delhi
Digitally signed
by VISHAL
VISHAL GOGNE
GOGNE Date:
2018.07.10
14:29:05 +0530
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