Delhi District Court
Sh. Farjand Ali vs Sh. Om Prakash Sharma on 30 August, 2016
IN THE COURT OF CIVIL JUDGE07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Presiding Officer: Ms. AANCHAL, DJS
Civil Suit No. : 455/13
Unique ID No. : 94012/16
SH. FARJAND ALI
S/O SHRI MOHMMED KHAN
R/O A/200, BINDA PUR,
UTTAM NAGAR, NEW DELHI59. .......PLAINTIFF
Vs.
1. SH. OM PRAKASH SHARMA
S/O SH. B.R. SHARMA
R/O H. NO. 32, GALI NO.12,
GUPTA ENCLAVE, VIKAS NAGAR,
HASTSAL, NEW DELHI110059.
2. SMT. RAJNI
W/O SH. OM PRAKASH SHARMA
R/O H. NO. 32, GALI NO. 12,
GUPTA ENCLAVE, VIKAS NAGAR,
HASTSAL, NEW DELHI110059.
3. SH. SHAYAM SUNDER SHARMA
R/O RZ46, DEEP ENCLAVE,
GALI NO.5, VIKAS NAGAR,
HASTSAL, NEW DELHI110059. .......DEFENDANTS
Date of Institution of suit : 11.10.2007
Date on which reserved for judgment : 04.08.2016
Date of Judgment : 30.08.2016
JUDGMENT
1. Vide this judgment, this court shall decide the aforesaid suit filed by Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 1 plaintiff seeking recovery of sum of Rs. 1,60,000/ with interest.
2. In brief, the facts as pleaded in the plaint are following : In October 2006, while searching for a plot for his family, the plaintiff came into contact with defendant no.3 who stated himself to be a property dealer and commission agent having a nice plot for residential purpose in Vikas Nagar area. Defendant no.3 took to the plaintiff at Vikas Nagar area and showed a plot where defendants nos. 1 and 2 also reached and claimed themselves to be the owners of the plot and interested to sell the same. Defendant no.3 also informed them to be the lawful owners eager to sell the plot. Defendants nos. 1 and 2 fixed Rs.6.00 Lakhs as total value of this plot and asked the plaintiff to arrange Bayana/ Earnest money of Rs.80,000/ within one week which was found to be rightly assessed on enquiry about the prevailing rate of land in this area. On 02.11.2006, plaintiff handedover the amount of Rs.80,000/ to defendant no.1 in the presence of defendants nos. 2 and 3 and defendant no.1 executed the receipt on the same date in the presence of one Sh. Dinesh Kumar Thakur at his office. Defendant no.2 counted the money and promised to execute the documents on 05.01.2007, according to terms & conditions of the bayana receipt in the office of SubRegistrar, Janak Puri, New Delhi with the advice to the plaintiff to arrange remaining amount of Rs.5.20 Lakhs before the same. Plaintiff arranged the remaining amount and informed the same to defendants on 04.01.2007 asking them to reach to the office of Sub Registrar, Janak Puri in time but defendant no.1 asked for some more time for execution of documents but later on one or the other pretext, defendants intentionally avoided to meet the plaintiff and to execute the documents and wasted more than eight months. Finally, on 29.08.2007, on being contacted by the plaintiff at their home, defendants nos. 1 and 2 started shouting at the plaintiff asking him to leave their home and on asking did not show the papers of Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 2 ownership. Leaving their house, the plaintiff contacted defendant no.2 but he also behaved in the same manner. All the defendants threatened the plaintiff of dire consequences and bluntly declined to return the bayana amount of Rs.80,000/ to the plaintiff and threatened to take any step whatever the plaintiff likes and that no police official would take any action against them as they used to visit police station regularly and defendants nos. 1 and 2 have good and close relationship with some officials of P.S. Uttam Nagar. Later on enquiry from the property dealers, plaintiff came to know that defendants nos. 1 and 2 are not the lawful owners of the plot and they in connivance with defendant no.3, intentionally and deliberately projected themselves as owners to extract the amount of Rs.80,000/ from the plaintiff. Plaintiff requested the defendants several times to return Rs.80,000/ but they have declined but according to terms & conditions of Bayana receipt, the plaintiff is entitled for the sum of Rs.1,60,000/ as defendant no.1 fails to execute the documents of plot in favour of the plaintiff in time. Hence, the present suit.
3. Defendants nos. 1 and 2 filed the Written Statement. On merits, it is denied that any transaction ever tookplace between plaintiff and defendant no.1 at any point of time in respect of the suit property or they claimed themselves to be the owners of the plot and interested to sell the same or there was any talk between plaintiff and defendants nos. 1 and 2 at any point of time or any payment towards earnest money was made or consideration of Rs.6.00 Lakhs was fixed or any Bayana Receipt was executed or money was counted or promise to execute the documents was made or any advice to arrange remaining amount was given or the plaintiff ever arranged the sum of Rs.5.20 Lakhs or he informed to the defendants about the same or asked them to reach the office of Sub Registrar, Janak Puri, New Delhi or defendants ever asked for time for execution of documents. Further, it is stated that the receipt which has been filed with the Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 3 plaint and being relied upon by the plaintiff is a forged and fabricated document and the present suit has been filed at the instance of Sh. Dinesh Thakur and Sh. Vijender Singh, who are the property dealers of the area and against whom a case u/S. 420 IPC has already been got registered by defendant no.1, in order to put pressure to withdraw this criminal case. Finally, the suit of the plaintiff is prayed to be dismissed.
4. Defendant no.3 also filed separate Written Statement in the lines of the Written Statement filed by defendants nos. 1 and 2 and it is denied that defendant no.3 is the property dealer or commission agent or he showed any plot to the plaintiff. It is submitted that defendant no.3 never came in contact with the plaintiff at any point of time during his lifetime nor he has ever seen his face nor he is aware about his name prior to the receipt of the summons of the present suit and he is an electrical contractor carrying on small business in the area of Vikas Nagar, Hastsal, New Delhi and has nothing to do with the property dealing business and each and every allegation made in the plaint is cooked up and concocted story having no reality or truth in substance. Finally, suit of the plaintiff is prayed to be dismissed.
5. From the pleadings of the parties and hearing, following issues were framed vide order dated 10.07.2008 by Ld. Predecessor of this Court:
1. Whether the plaintiff is entitled for a sum of Rs. 1,60,000/ alongwith pendentelite and future interest @ 24% p.a.?
2. Relief.
6. In order to substantiate his case, plaintiff examined himself as PW1 and Sh. Dinesh Thakur as PW2 and they relied upon the following documents:
1. Original Bayana Receipt as Ex.PW1/1.
Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 4 During cross examination, plaintiff as PW1 was put a complaint made by him against Defendant no. 2 as Ex. PW1/D.
7. Defendant no. 1 examined himself as DW1 and relied upon certified copy of complaint dt. 01.11.07 and 02.11.07 which are collectively exhibited as Ex. DW1/1. During cross examination defendant no. 1 admitted the 4 FIRs registered against him the copies of which are Mark A and agreement for sale and purchase was executed between him and one Devender Kr. Vashisht in respect of the suit property which is Mark B Defendant no.2 appeared into the witness box as DW2 relied upon complaint dt. 02.11.07 Ex. DW2/B and she was partly crossexamined. But thereafter, none for the defendants appeared and consequently, all the defendants were proceeded exparte vide order dated 22.12.2014.
8. Final arguments as advanced on behalf of plaintiff are heard. None for defendant appeared to address the final arguments despite opportunity granted. Record is perused carefully. Now the issuewise findings of this court are as under :
ISSUE No.1 "Whether the plaintiff is entitled for a sum of Rs. 1,60,000/ alongwith pendentelite and future interest @ 24% p.a.?"
The plaintiff is claiming this sum of Rs. 1,60,000/ being the double the amount of Rs. 80,000/ paid by him towards the earnest money to defendant no. 1 and 2, which is received by defendant no. 1 vide receipt Ex. PW1/1 in terms of agreed term that in case the executant does not perform his part or does not enter in to the sale transaction, he shall be liable to pay double the earnest money received Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 5 by him. The plaintiff has also pleaded that it was the defendant no. 3 who acted as dealer and commission agent for the transaction between plaintiff and defendant no.1 and 2. The defendant no. 1 and 2 have denied to have entered in to any transaction with plaintiff qua the suit property and submitted the receipt Ex. PW1/1 as forged and even to have never come in to the contact of plaintiff before the receipt of the summons of the present suit (refer to para no. 2 of reply on merits of WS) and similarly defendant no. 3 has denied his role as property dealer or commission agent and every allegation made in the plaint is alleged to be a cooked up and concocted story having no reality or truth.
It is strongly argued on behalf of the plaintiff that since the defendant No.1 and 2 have led no cogent evidence to prove the fact that the signatures present on receipt Exb. PW1/1 are forged one, it stands proved that the plaintiff had paid the earnest money of Rs. 80000/ to defendant No.1 and 2 and for nonexecution of the documents regarding suit property by them, the suit should be decreed in favor of the plaintiff.
This Court has given thoughtful consideration to the arguments advanced. There is no doubt that the onus to prove the case lies upon the party who wants the Court to believe to the case and seek judgment in his favour but it is equally settled principle of law that the case of the plaintiff cannot be accepted as a gospel truth and when the existence of transaction is in question and challenged being sham or fictitious, it is necessary for the party asserting existence of one transaction to prove the factum of existence of the same before the other party is called upon to disprove the existence of same by also leading the evidence to prove the same as sham or fictitious. This principle can be said as recognized by Hon'ble Supreme Court in Subhra Mukherjee & Anr. Vs. Bharat Coking Coal Ltd. & Ors. Reported as 2000 (3) SCC 312, wherein it is observed that : "13. There can be no dispute that a person who attacks a Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 6 transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No.1 discloses that it is in two parts; the first part says, 'whether the transaction, in question, is bona fide and genuine one' which has to be proved by the appellants. It is only when this has been done that the respondent has to dislodge it by proving that it is a sham fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the court to find out whether the respondent has lead any evidence to show that the transaction is sham, bogus or fictitious."
Therefore, before the defendants are required to dislodge the onus of proving that the receipt in question are forged and fabricated, the plaintiff is required to prove that the transactions for which receipt is stated to be issued did take place. So this court first proceed to determine this question.
The plaintiff has produced the original receipt as Ex. PW1/1. The bare examination of this receipt shows that it is on the printed form of Thakur Property Dealer, Vikas Nagar, Deep Enclave. In his affidavit filed for evidence Ex. PW1/2, plaintiff has deposed that the Bayana receipt was issued by defendant no. 1 in the presence of one Sh. Dinesh Kr. Thakur @ Dinesh Kr. Singh at his office and in his cross examination, the plaintiff has stated that he has no friendship with Dinesh Kr. Thakur except he knows him for the last two years and first time he met with him when he need the earnest money in the office of Dinesh Thakur. Sh. Dinesh Kr. Thakur @ Dinesh Kr. Singh is examined by the plaintiff as PW2 who deposed in his affidavit that defendants with plaintiff came at his office on 02.011.06 and asked for a printed Bayana Receipt for execution of the Bayana and he gave the same to defendant no. 1. He has admitted in his cross examination that he knows defendant no. 1 since long being his neighbor and defendant no.1 has filed an FIR against him regarding cheating though it was stated to be registered subsequent to the execution of receipt. So, from these Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 7 admissions, it can be safely concluded that the receipt is on a form which belongs to none but Dinesh Kr. Thakur @ Dinesh Kr. Singh who is none but a property dealer himself and with whom defendant no. 1 has strained relations. Therefore, this court is of the opinion that the due execution of receipt is necessary to be proved by an independent evidence and the testimony of Dinesh Kr. Thakur @ Dinesh Kr. Singh regarding the execution or existence of the transaction between plaintiff and defendant no. 2 solely can not be relied upon.
Despite asserting that receipt Ex. PW1/1 was issued while accepting the earnest money for the transaction qua the suit property agreed between plaintiff and defendant no.1 and 2 on 02.11.06, plaintiff has failed to produce even a single document to suggest that he has ever asked for performance on the part of the defendant no. 1 and 2 to be made in respect of the agreement referred in the receipt till the date of filing of the suit. The plaintiff has asserted that he was willing and ready to performance his part he has neither led any evidence that he had arrangement of the balance sum nor he ever preferred even to send a legal notice to the defendant no. 1 and 2 submitting his willingness and calling upon them to perform their part at any point of time. The plaintiff has deposed to have visited the house of defendant no. 1 and 2 asking for the reasons for delay in performance but no independent witness has been examined even in this regard. On the other hand, the plaintiff and PW2 Dinesh Kr. Thakur @ Dinesh Kr. Singh have admitted that defendant no. 1 and 2 filed a complaint u/s 107/151 Cr. P.C. against them when police has arrested them and bail was granted. Though, the Kalandara prepared in this regard has not been exhibited or marked by any of the party in their evidence but the copy of the same has already been filed on behalf of defendants on record on 23.11.07 so being admitted by the plaintiff and the witness PW2, the copies can be looked into and perusal of the same show that this Kalandra was prepared vide DD No. 80B dt. 19.11.07 when plaintiff and witness PW2 were found abusing and likely Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 8 to commit any offense against defendant no. 2 in order to threaten her to withdraw her complaint given in police station. Defendant no. 1 has relied upon the complaint Ex. DW1/1 and perusal of the same shows that these are the complaints given by defendant no.1 on 05.11.07 and 02.11.07 respectively stating that neither he knows Farjand Ali/plaintiff nor he has ever seen him and Farjand Ali/plaintiff has forged one receipt in collusion with Dinesh Kr. Thakur and Vijender Singh against whom he has got FIR No. 644/07 u/s 420 IPC registered at PS Uttam Nagar. Record reveals that service of the summons of the suit was effected on defendant no. 1 and 2 through post in last week of October and by ordinary process on 03.11.07 for 24.01.08. Therefore, the complaints filed by defendant no. 1 and interaction of defendant no.2 with the plaintiff as per record at first are found to be just after the receipt of the summons of the present case. In such circumstances, it can be inferred more probable that transaction leading to issuance of the receipt Ex. PW1/1 was never in existence and defendant no. 1 and 2 found the existence of this receipt bearing signatures receiving the amount only by receipt of the summons of the present case.
Further, the factum of the existence of this transaction does not lend confidence for the fact why defendant no. 3, if he had to receive the commission as well, would have not even bothered to sign the receipt even referring himself as property dealer whereas Dinesh Kr. Thakur to whom the plaintiff had approached for the first time, would stand as a witness when he had no role in the transaction. Not only this, plaintiff as well as Dinesh Kr. Thakur, PW2 both have been cross examined specifically and both of them have answered that defendant no. 1 had signed at point C on the receipt but it is not known whose sign has been written at point C. This fact is beyond comprehension since a party, who is none but a truck driver and not affluent enough, parting with a huge sum of Rs. 80,000/ can not be believed to have satisfied with only such signatures from which the name of the signatory can not be inferred and Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 9 when even thumb impression is not taken and the name is not bothered to be written in words, more specifically under the circumstances when admittedly, none of the person known to plaintiff was present during these transactions much less to be a witness of payment of earnest money. Execution of the receipt can also not be believed for the simple fact that plaintiff has been unable to prove that the signatures present on the receipt is in the hand writing of defendant no. 1. So, above the all, it is not only the execution of receipt but the factum of payment of money which is also required to be proved by the plaintiff to claim the recovery in the present suit but plaintiff has not substantiated the payment of money to defendant no.1 in any manner.
Hence, it is held that plaintiff has failed to prove that transaction leading to the execution of receipt had ever taken place and he had parted with the money. Thus, due to the failure on this part of the plaintiff, the fact that the defendants have not led any evidence to prove that receipt is forged one, is immaterial and for want of genuineness of the claim of the plaintiff, plaintiff is held not entitled for claimed sum or interest.
Consequently, the issue under consideration is decided against the plaintiff.
ISSUE No. 2.
RELIEF In view of the decision of issue no. 1, plaintiff is held entitled for no relief and the suit of the plaintiff is dismissed. No order as to cost.
Decree Sheet be prepared accordingly. Thereafter, file be consigned to Record Room.
Announced in Open Court on 30.08.16 at 3:30pm AANCHAL CIVILJUDGE07(CENTRAL) DELHI/30.08.16 Farjand Ali Vs. Om Prakash Sharma & Ors. Suit No.455/13 Page 10