Delhi District Court
Vijay Kumar vs Meera on 27 February, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS NO.89/2016
CNR NO.DLNE01-000 4712016
VIJAY KUMAR
S/O DESH RAJ
R/O B-11, GALI NO.1
SHUKRA BAZAR, SADATPUR EXTN.
DELHI-110094
.... PLAINTIFF
V
1. MEERA
W/O VIRENDER SINGH
2. ABHISHEK VERMA
R/O H.NO.4243, ARYAPURA
SUBZIMANDI
DELHI
.... DEFENDANTS
INSTITUTION: 04.02.2016
ARGUMENTS: 19.02.2020
JUDGMENT:27.02.2020 SUIT FOR RECOVERY OF RS.40,00,000/-
JUDGMENT
1. The plaintiff filed the present suit for recovery of Rs.40,00,000/- against the defendants by pleading as under:-
Karam Pal Singh introduced the defendant no. 2 to the plaintiff as son of the defendant no.1. The defendant no. 2 and Karam Pal Singh represented the defendant no.1 as owner of plot bearing no.A-16, measuring 200 sq. yards out of khasra no.45/7/2, Village Karawal Nagar, Illaqa Shahdara, Delhi (hereinafter referred as "the plot") and the defendant no.1 was CS 89/2016 VIJAY KUMAR V MEERA & ANOTHER 1/11 willing to sell the plot which is free from all encumbrances. The plaintiff met with defendant no. 1 and after negotiations the plaintiff has agreed to purchase the plot for sale consideration of Rs.80,00,000/- and an Agreement to Sell was executed on 22.08.2014 between the defendant no.1 and the plaintiff which was witnessed by the defendant no.2 and Sh. Karampal Singh as attesting witnesses. The plaintiff paid Rs.5,00,000/- in cash to the defendant no.1 on 22.08.2014 at the time of signing Agreement to Sell. The plaintiff also paid Rs.25,00,000/- in cash to the defendants on 30.08.2014 and the defendants duly acknowledged receipt of Rs. 25,00,000/- at the back side of Agreement to Sell by putting their respective signature and thumb impression.
Thereafter, the plaintiff paid Rs.10,00,000/- to the defendant no.1 through cheques. The balance payment of Rs.40,00,000/- as per Agreement to Sell was agreed to be paid at the time of execution and registration of sale deed on or before 31.12.2014. The plaintiff reached at Office of Sub Registrar, Seelampur, Delhi for the execution of sale deed with balance amount of Rs.40,00,000/- in cash but defendant no.1 did not turn up before Sub Registrar Office, Seelampur, Delhi. The defendants were not willing to execute the sale deed in favor of the plaintiff and as such cheated the plaintiff. The plaintiff came to know that the defendant no.1 was not the owner of the plot and a civil suit filed by Karan Singh, father of the defendant no.1 was pending. The actual owner of the plot was found to be Roshan Lal who sold the plot to Bhim Singh Tyagi vide registered Sale Deed dated 15.01.2011. The plaintiff also came to know that a FIR baring no.117/2011 under section 420/467/468/471/506/120-B IPC was also registered at Police Station Khajoori Khas on the complaint of Roshan Lal against Karan Singh, the father of defendant no 1. The plaintiff sent a complaint dated 17.04.2015 to the Commissioner of Police, Deputy Commissioner of Police and SHO. The defendants have to pay double amount of the earnest money to the plaintiff as per the Agreement to Sell as the defendants have failed to execute the sale deed. The defendants are liable to pay Rs.80,00,000/- to the plaintiff. The plaintiff sent a legal notice dated 17.01.2005 through Advocate to the defendants but the defendants neither replied the notice nor complied the notice. The plaintiff being aggrieved filed present suit for recovery of Rs. 40,00,000/- and prayed as under:-
(i) Pass a decree for recovery of Rs.40,00,000/-(Rupees Forty Lac) along with future and pendente-lite interest @ 18% per annum in favor of the Plaintiff and against the Defendants thereby directing the Defendants to pay the same to the Plaintiff.
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(ii) Award the cost of suit to the Plaintiff.
(iii) Any other relief which this Hon'ble Court may deem fit and proper also be passed in favor of the Plaintiff and against the Defendants
2. The defendants filed the written statement and contested the claims of the plaintiff. The defendants in preliminary objections stated that the defendant no. 1 in the month of July, 2014 was suffering from gynecological disorder and were requiring money for treatment and operation. Himanshu, a friend of the defendant no. 2 informed about the plaintiff and thereafter, defendant no. 2 along with Himanshu met the plaintiff and requested him to give Rs.1,00,000/-
as personal loan but the plaintiff only offered and agreed to pay Rs.50,000/-. The defendants due to dire need of money accepted Rs.50,000/- as loan on 15.07.2014. The plaintiff took signatures of the defendant no. 2 on 2-3 blank papers. The defendant no.1 was operated on 23.07.2014 in MKS Hospital and considerable amount was spent on the treatment of the defendant no. 1. The defendants in the second week of August, 2014 again approached the plaintiff for further loan of Rs.1,00,000/-. The plaintiff has agreed to advance loan of Rs.1,00,000/- on the condition of furnishing security. The defendants conveyed to the plaintiff that the defendant no. 1 jointly owns a plot at Bhajanpura which was under dispute. The plaintiff asked the defendants to bring title documents of the plot. The father of the defendant no. 1 and grandfather of defendant no. 2 namely Karan Singh was fighting a civil case against Bhim Singh in respect of the plot as the Bhim Singh and others took illegal possession of the plot. The original documents were already seized by the police and due to this the defendants showed photocopies of the documents of the plot to the plaintiff on 18.08.2014 and also informed to the plaintiff about the pending litigation in respect of the plot. The plaintiff took photocopies of the documents and asked the defendants to come after two days. The defendant no. 2 along with Himanshu again met to the plaintiff on 20.08.2014 and received loan of Rs.1,00,000/-. The plaintiff took signature and thumb impression of the defendant no. 1 on blank stamp paper and 2-3 blank papers and also took signatures of the defendant no. 2 on one blank paper and paid Rs.1,00,000/- to the defendants. The defendants due to financial crises could not repay loan amount and again in the month of October, 2014, approached the plaintiff for further loan. The plaintiff agreed to advance Rs.10,00,000/- through cheques to the defendants. The plaintiff on 03.11.2014 handed over four cheques amounting to Rs.3,00,000/- and Rs.2,00,00/- from the account of his brother Ranvir Singh and Rs.3,00,000/- and Rs.2,00,000/- from his own account to the defendant no. 2 which CS 89/2016 VIJAY KUMAR V MEERA & ANOTHER 3/11 were encashed by the defendant no.1. The defendants as such received Rs.11,50,000/- as loan from the plaintiff and his brother. The defendants did not execute Agreement to Sell dated 22.08.2014 in favor of the plaintiff. The plaintiff misused the stamp papers and the blank papers on which he obtained signatures and thumb impressions of the defendants at the time of advancing loan for preparing forged and fabricated Agreement to Sell dated 22.08.2014. The plaintiff has taken forcible possession of the plot and raised construction without any sanction plan. The suit is not maintainable and liable to be dismissed. The present suit is an abuse of process of law.
The defendants in reply on merits denied other allegations of the plaintiff and stated that suit is liable to be dismissed.
3. The plaintiff did not file replication.
4. Vide order dated 25.04.2016 following issues were framed:-
(i) Whether the plaintiff is entitled for decree of Rs. 40 lacs along with interest, as prayed in the suit? OPP
(ii) Relief.
5. The plaintiff examined him as PW-1, his brother Ranveer as PW-2, Constable Sushant, PS Khajuri Khas as PW-3 and Gopal Dutt, Record Keeper, Sub Registrar-IV, Seelampur as PW-4. The plaintiff as PW-1 and Ranveer as PW-2 tendered their respective affidavit in evidence which are Ex.PW1/A and Ex.PW2/A. The plaintiff as PW-1 relied upon documents which are Ex.PW1/1 to Ex.PW1/12. PW-3 produced copy of FIR bearing no. 117/2011 Ex.PW1/6. PW-4 proved registered sale deed Ex.PW1/5 executed by Roshan Lal in favor of Bhim Singh Tyagi. The plaintiff's evidence was ordered to be closed vide order dated 12.12.2017.
The defendants examined defendant no. 1 as DW-1 who tendered affidavit in evidence which is Ex.DW1/1. The defendants' evidence was ordered to be closed vide order dated 20.04.2019.
6. Sh. M.A. Khan, Advocate for the plaintiff and Sh. Pankaj Kumar, Advocate for the defendants heard. Record perused.
ISSUE WISE FINDINGS ARE AS UNDER
ISSUE NO1
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Whether the plaintiff is entitled for decree of Rs. 40 lacs along
with interest as prayed in the suit? OPP
7. The plaintiff primarily pleaded that the plaintiff paid Rs. 40,00,000/- to the defendants towards part payment of total sale consideration of Rs.80,00,000/- for purchase of the plot which was stated to be owned by the defendant no 1 as disclosed by the defendant no.2 to the plaintiff in pursuance of Agreement to Sell dated 22.08.2014. The balance amount of Rs.40,00,000/- was agreed to be paid at the time of execution and registration of sale deed on or before 31.12.2014. The defendants did not execute sale deed. The plot subsequently was found to be owned by Roshan Lal who sold the plot to Bhim Singh vide sale deed dated 15.01.2011 and the plot was under civil litigation.
The plaintiff in affidavit Ex.PW1/A deposed about execution of Agreement to Sell dated 22.08.2014 for purchase of the plot for total sale consideration of Rs.80,00,000/- and payment of Rs.40,00,000/- as part sale consideration to the defendants. The plaintiff in cross-examination deposed that he is engaged in the property business and is earning Rs.2,50,000/- per month approximately. The plaintiff denied suggestions that the defendant no.1 is the owner of the plot or that he had no conversation with the defendant no.1 regarding transaction of the plot or that the plaintiff was having an evil eye on the plot or that he fabricated Agreement to Sell Ex.PW1/1 or that defendant no.1 has not taken any loan or that signatures and thumb impressions of defendants were taken on blank papers at residence. The plaintiff examined his brother Ranveer as PW2 from whose bank account Rs.5,00,000/- was paid to the defendant no.1. PW2 in affidavit Ex.PW2/A deposed said fact. PW2 in cross examination deposed that he is having agricultural property besides running property dealing business. PW2 does not know the defendants personally. PW3 produced FIR No. 117/11 dated 25.04.2011 Ex.PW1/6. PW4 produced registered sale deed Ex.PW1/5 executed by Sh. Roshan Lal, in favor of Sh. Bhim Singh Tyagi.
8. The defendants primarily alleged that the plaintiff advanced loan of Rs.11,50,000/- in parts to the defendants. The plaintiff obtained signatures and thumb impressions of the defendants on blank papers and stamp papers which were misappropriated to prepare forged and fabricated Agreement to Sell. The father of the defendant no. 1 and grandfather of defendant no. 2 namely Karan Singh was fighting a civil case against Bhim Singh in respect of the plot as the Bhim Singh and others took illegal possession of the plot.
CS 89/2016 VIJAY KUMAR V MEERA & ANOTHER 5/11 The defendant no.1 in affidavit Ex.DW1/1 deposed above said facts. The defendant no.1 in cross examination admitted that Agreement to Sell dated 22.08.2014 Ex.PW1/1 bears her photograph but not her signature on Agreement to Sell Ex.PW1/1. The defendant no.1 denied suggestion that Agreement to Sell Ex.PW1/1 bears her signatures and thumb impressions at points A. The defendant no.2 and Karam Pal Singh did not sign Agreement to Sell in her presence and denied suggestions that both the witnesses signed Agreement to Sell Ex.PW1/1 in her presence or that the defendant no.1 is not the owner of the plot or that the plaintiff has paid Rs.40 lacs to her.
9. A burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The relevant provisions of the Indian Evidence Act, 1872 dealing with burden of proof are produces as under:-
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.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
CS 89/2016 VIJAY KUMAR V MEERA & ANOTHER 6/11 The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
10. The counsel for the plaintiff argued that the defendants only pleaded that the plaintiff obtained their signatures and thumb impressions on blank stamp paper and blank papers which is not proved as per law. The counsel for the defendants argued that the plaintiff misused blank signed stamp paper and blank papers for preparing forged Agreement to Sell dated 22.08.2014. The defendant no.1 is the mother of the defendant no.2. As per the defendants, the plaintiff obtained the signatures of the defendants on blank stamp paper and blank papers at time of advancing loan of Rs.11,50,000/- to the defendants which were subsequently misappropriated by the plaintiff to prepare a forged and fabricated Agreement to Sell dated 22.08.2014 Ex.PW1/1 which was never executed by the defendant no.1. The burden was on the defendants to prove that the plaintiff obtained their signatures and thumb impressions on blank stamp paper and blank papers when the plaintiff advanced loan to the defendants which were misappropriated by the plaintiff to prepare forged and fabricated Agreement to Sell dated 22.08.2014. The defendant no.1 as DW1 in cross-examination denied her signatures and thumb impressions at points A on CS 89/2016 VIJAY KUMAR V MEERA & ANOTHER 7/11 Agreement to Sell Ex.PW1/1. However, the defendants did not materially cross-examine the plaintiff that the plaintiff has obtained signatures and thumb impressions of the defendants on blank stamp paper and blank papers at the time of advancing loan to the defendants in parts on different occasions. The purpose of cross examination is to expose the truth about the testimony of the witness. The right of cross-examination is one of the most powerful instrumentalities in the conduct of litigation. One of the most important purposes of cross-examination is to attempt to destroy the testimony and/or the credibility of the opponent's witnesses. Cross-examination is the right of the party against whom the witness is called and the right is a valuable one as a means of separating hearsay from knowledge, error from truth, opinion from fact, and inference from recollection and as a means of ascertaining the order of the events as narrated by the witness in his examination in chief. The cross examination is not merely a technical rule of evidence but it is a rule of essential justice as it serves to prevent surprise at trial and miscarriage of justice. It was observed in A.E.G. Carapiet V A. Y. Derderian, AIR1961Cal.359 that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all. The Supreme Court in M.B Ramesh V K.M Veeraje, 2013 (2) RCR Civil 932 held that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is a rule of essential justice. The plaintiff in cross examination also denied suggestions that the plaintiff was having an evil eye on the plot or that the plaintiff fabricated Agreement to Sell Ex.PW1/1 or that defendant no.1 has not taken any loan or that signatures and thumb impressions of defendants were taken on blank papers at residence. There is nothing in cross examination of the plaintiff which can reflect that the plaintiff obtained signatures and thumb impressions of the defendants on blank stamp paper and blank papers and thereafter the plaintiff misused said papers to prepare forged and fabricated Agreement to Sell Ex.PW1/1. The defendants did not lead adequate evidence to prove that the defendants have taken only Rs.11,50,000/- as loan from the plaintiff. The defendants also did not examine Himanshu, friend of the defendant no.2 who introduced the defendant no.2 with the plaintiff to prove that the plaintiff only advanced loan of Rs.11,50,000/- to the defendant no1.
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11. The plaintiff sent a legal notice dated 17.01.2015 Ex.PW1/8 to the defendants through registered post as reflected from the postal receipts Ex.PW1/9 and the said notice was also received by the defendant no.1 as reflected from acknowledgement cards Ex.PW1/10 & Ex.PW1/11. The defendants did not reply the legal notice dated 17.01.2015 Ex.PW1/8 to deny and controvert the facts as stated in the legal notice Ex.PW1/9. The defendants even did not lodge any complaint or gave any notice to the plaintiff regarding obtaining of their signatures and thumb impressions on blank papers by the plaintiff. The defence as taken by the defendants is baseless, shame, false and afterthought. The defendants could not prove that the plaintiff has obtained their signatures and thumb impressions on blank papers. The Supreme Court in Bir Singh V Mukesh Kumar, Criminal Appeal Nos. 230-231 of 2019 in SLP (Criminal) Nos. 9334- 35 of 2018 decided on 6th February, 2019 observed in context of issuance of a blank signed cheque that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. In Hari Om Gupta V Ifb Industries Ltd, RFA 501/2014 decided on 15th October, 2014 decided by the High Court of Delhi the appellant did not state that cheques were not issued by him and did not dispute signatures on the cheques, it was observed that as regards plea of handing over the blank signed cheques is concerned, same does not raise any triable issue. Merely pleading that the cheques were signed in blank and handed over is not sufficient to be entitled to an opportunity to lead evidence. The same presumption rule applies to the pleas of having signed and delivered papers in blank. It was held that Trial Court has rightly held that plea of signing of blank document does not raise any triable issue. The defendants could not discharge burden of prove by leading appropriate evidence that the plaintiff could not prove that the plaintiff obtained their signatures and thumb impressions on blank papers.
12. The perusal of Agreement to Sell Ex.PW1/1 reflects that e-stamp was purchased by the defendant no.1 and the stamp duty was also paid by the defendant no.1. The Agreement to Sell Ex.PW1/1 is witnessed by Abhishek Verma i.e. defendant no.2 and Karampal Singh. The defendant no.2 did not appear as witnessed to deny his signature as witness on Agreement to Sell Ex.PW1/1. The defendant also did not call Karampal Singh as witness to prove that the Agreement to Sell Ex.PW1/1 was not witnessed by him. The defendants also did not cross-
CS 89/2016 VIJAY KUMAR V MEERA & ANOTHER 9/11 examine the plaintiff regarding the execution of Agreement to Sell Ex.PW1/1. The defendants also admitted receipt of Rs.10,00,000/- from the plaintiff out of the accounts of the plaintiff and his brother Ranveer PW2. The defendants have not led any evidence to prove that they have taken only loan of Rs.11,50,000/- from the plaintiff. The defendant no.1 in cross-examination denied the suggestion that she is not the owner of the plot. The defendants in the cross- examination of the plaintiff as PW1 also gave suggestion that the defendant no.1 is the owner of the plot. It reflects that the defendants pleaded that the defendant no.1 was the owner of the plot. The testimony of PW4 reflects that Roshan Lal was the owner of the plot who vide Sale Deed Ex.PW1/5 sold the plot to Bhim Singh Tyagi on 05.01.2011. Roshan Lal also got registered/lodged FIR bearing no.117/11 at P.S Khajuri Khas. The defendants did not lead any evidence to prove that the defendant no.1 was the owner of the suit property at any point of time. The plaintiff also got registered FIR bearing no.575/2016, u/s.420/120 IPC at P.S Khajuri Khas in pursuance of the directions given in CR No.23/2016 on 18.05.2016 passed by Sh. Devender Kumar, ASJ-03, North-East. The plaintiff deposed about the execution of Agreement to Sell Ex.PW1/1. The perusal of which reflects that the defendant no.1 represented herself the owner in possession of the plot and has agreed to sell to the plaintiff for a sale consideration of Rs.80,00,000/-. The defendants also acknowledged the receipt of Rs.40,00,000/- from the plaintiff on different occasion in parts by putting their signature and thumb impression on back side of Agreement to Sell Ex.PW1/1. There is nothing in the cross-examination of the plaintiff which can raise any doubt regarding the execution of Agreement to Sell Ex.PW1/1 and payment of Rs.40 lacs to the defendants. The counsel for defendants argued that Agreement to Sell Ex.PW1/1 is not a registered document and as such Agreement to Sell Ex.PW1/1 cannot be relied on. This argument advanced by counsel for defendants is without any force as the plaintiff is not seeking and enforcing any right on basis of Agreement to Sell Ex,PW1/1 but only seeking recovery of Rs. 40,00,000/- from defendants which he paid to the defendants as part sale consideration for the plot.
13. The plaintiff by leading appropriate evidence proved that the defendant no. 2 and Karam Pal Singh represented the defendant no.1 as owner of the plot and the defendant no.1 was willing to sell the plot. The plaintiff after negotiations has agreed to purchase the plot for sale consideration of Rs.80,00,000/- and an Agreement to Sell was executed on 22.08.2014 between the defendant CS 89/2016 VIJAY KUMAR V MEERA & ANOTHER 10/11 no.1 and the plaintiff witnessed by the defendant no.2 and Karampal Singh as attesting witnesses. The plaintiff paid Rs.5,00,000/- in cash to the defendant no.1 on 22.08.2014 at the time of signing Agreement to Sell, Rs.25,00,000/- in cash to the defendants on 30.08.2014 and Rs.10,00,000/- to the defendant no.1 through cheques. The plaintiff on preponderance of probabilities proved that execution of Agreement to Sell Ex.PW1/1 for purchase of the plot and payment of Rs.40,00,000/- to the defendants as part sale consideration out of total consideration of Rs.80,00,000/-. The defendants are jointly and severely liable to pay Rs.40,00,000/- to the plaintiff. The defendants are also liable to pay interest to the plaintiff.
ISSUE NO 2 RELIEF
14. In view of findings on issue no.1 the suit of the plaintiff is decreed and a decree of Rs.40,00,000/- is passed in favor of the plaintiff and against the defendants along with interest @ 12 % per annum from filing of present suit till decree and from date of decree till realization along with cost. Decree sheet be prepared accordingly. File be consigned to the record room.
ANNOUNCED IN THE OPEN SUDHIR Digitally signed by
SUDHIR KUMAR JAIN
COURT ON 27th FEBURARY, 2020 KUMAR Location:
Karkardooma Courts
Date: 2020.02.27
JAIN 03:09:11 +0530
(DR. SUDHIR KUMAR JAIN)
DISTRICT AND SESSIONS JUDGE, NORTH- EAST
KARKARDOOMA COURTS, DELHI
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