Delhi District Court
Sh. Ram Babu Aggarwal vs Suresh Kumar (Deceased) on 30 November, 2019
Ram Babu Aggarwal V. Suresh Kumar & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 387/2017
UNIQUE CASE ID NO.: 610508/2016
IN THE MATTER OF :
Sh. Ram Babu Aggarwal, Advocate
S/o Shri Chhabil Dass,
R/o 391, Defence Colony,
Hissar. ....Plaintiff
VERSUS
1.Suresh Kumar (deceased) through LR's
i) Smt. Rita Garg, Wd/o Sh. Suresh Kumar
ii) Sh. Varun Garg, S/o Late Sh. Suresh Kumar
iii) Sh. Kapil Garg, S/o Late Sh. Suresh Kumar
iv) Miss Sakshi Garg, D/o Late Sh. Suresh Kumar All resident of H17/194, Sector7, Rohini, Delhi110085.
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2. Naveen Kumar S/o Sh. Deputy Chand, J.E. BDO, BlockII, Hanshi, Distt. Hissar (Haryana).
Also at:
C/o M/s. Deputy Chand Parveen Kumar, Cement Stockists, Thana Road, Meham, Distt. Rohtak, Haryana. ....Defendants SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF RS. 9,66,000/ (RUPEES NINE LAKHS SIXTY SIX THOUSAND ONLY) & PERMANENT INJUNCTION Date of institution of the Suit : 23/07/1997 Date on which Judgment was reserved : 19/11/2019 Date of Judgment : 30/11/2019 :: J U D G M E N T ::
The plaintiff has filed the present suit under Order 37 CPC for recovery of Rs.9,66,000/ along with interest. However, the conditional leave was granted to the defendant vide order 16.02.2001 passed by Hon'ble High Court of Delhi and by way of the said order, the defendants were directed to either deposit Rs.2,50,000/ and/or furnish the bank guarantee. The defendants have furnished the bank guarantee of Rs.2,50,000/.
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CASE OF THE PLAINTIFF AS PER PLAINT Succinctly, the facts, as stated by the plaintiff in the suit, are as under:
(i) The plaintiff is a practicing advocate at Hisar and has a good practice over the years. His father Sh. Chhabil Dass was living with him at Hisar. At the time of filing of the present suit, the plaintiff had a living brother Sh. Suresh Chand, defendant no.1. The other brother of the plaintiff Sh. Prahlad Rai died on 12.01.1996. All the three brothers were residing at Hisar.
The defendant no.1 and Sh. Prehlad Rai were carrying on small business of selling quota sugar and thus, always in financial crisis and had always been looking for financial helps towards the plaintiff. The plaintiff used to contribute them in their business. Ultimately, to increase the family income, it was decided between the brothers that some other business should be started at Delhi. Accordingly, in the middle of 1992 at the instance and with the substantial financial contributions provided by the plaintiff, it was decided that both defendant no.1 and Sh. Prahlad Rai should start business at Delhi. Consequent thereupon, shifted to Delhi and started a unit of manufacturing plastic granules at Pooth Kalan, near Budh Vihar, New Delhi under the name and style of M/s. Amba Plastic Factory (M/s. Onkar Plastic Factory). The factory area was taken on lease.
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Ram Babu Aggarwal V. Suresh Kumar & Anr.
(ii) As a result of contribution/ financial and other helps given by
the plaintiff from time to time, both defendant no.1 and Prahlad Rai started earning and it was always understood between the three brothers & their father that each brother will have equal share in the business and assets acquired through the income of the business. Out of the income of the firm, it was decided between the brothers to purchase a house and hence, a double storey house bearing no. 19, Pocket17 H, Sector7, Rohini, Delhi was purchased by defendant no.1 and Prahlad Rai in their joint names from Sh. Rishi Dev Sharma on 30.05.1995. It was always understood and accepted by all that this house is a joint property of the three brothers and all the three have equal share/ right therein.
(iii) After the death of Shri Prahlad Rai on 12.01.1996, the defendant no.1 developed selfishness & greed and he started causing harassment and creating problems for the plaintiff. He refused to render any account stopped giving profits of the firm to the plaintiff. The plaintiff requested the defendant no.1 that he be given his share in the business and the assets of the firm including the share in the house at Delhi. The defendant no.1 malafidely denied any right, title or interest of the plaintiff in the said house and the business and also refused to render any account of the business, resulted into development of strain relations between the family members.
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(iv) With the intervention of well wishers and family members, the matter was thoroughly discussed and a written settlement was drawn at the instance of the parties including other family members by Sh. S.P. Jain, Advocate with regard to the shares of plaintiff and the defendant no.1 in the assets of business and other movables and immovables of the family. The writing was signed by the plaintiff, his father Shri Chhabil Dass, the brotherinlaw (sister's husband) Shri Purshottam Dass, the real maternal uncle of the plaintiff & defendant no.1 Shri Ram Dhari Mal and the defendant no.1.
(v) As per the settlement dated 04.11.1996, the defendant no.1 was to pay a sum of Rs.3 Lakhs by 15.11.1996 and the balance amount of Rs.7 Lakhs within a month thereafter. However, the defendant no.1 failed to adhere to the terms of settlement. The said action of the defendant no.1 once again forced the plaintiff to convene a Biradari meeting to request the defendant no.1 to adhere to the terms of settlement, as agreed by him. On 30.12.1996 again, the defendant no.1 agreed before the Biradari that he would pay Rs.1.00 Lakh immediately, Rs.2.00 Lakhs on 04.01.1997 and the balance in 14 monthly installments of Rs.50,000/ each. As the defendant no.1 was not adhering to his words, the defendant no.2 (wife's brother of defendant no.1) stood guarantee that in the event the amount is not paid by defendant no.1, he shall pay the same. An endorsement to this effect was subscribed Suit No. 387/2017 Page 5 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
in the writing by defendant no.2, which was duly signed by Defendants no. 1 & 2.
(vi) As per the fresh endorsement, the defendant no.1 paid a sum of Rs.1.00 Lakh on 30.12.1996, however, failed to pay the balance amount and a request was made to both the defendants to fulfill their promise but with no effect. Thus, both are jointly and severally liable to pay to the plaintiff a sum of Rs.9 Lakhs with 18% interest thereon, as agreed. Thereafter, the plaintiff issued a registered notice on 10.03.1997, which was duly received by the defendants. On receipt of the notice, instead of reply to the same and/ or complying with the terms of notice, the defendant no.1 started negotiating for the sale of the aforesaid house to the prejudice of plaintiff. The defendant no.1 has no exclusive right, title or interest to dispose of the same.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT Succinctly, the case of the defendants is as under:
(a) The suit of the plaintiff is bad for misjoinder of the parties as the defendant no.2 has no concern with the disputes of the defendant no.1 and plaintiff as he never stood any surety.
(b) The suit has been filed on the basis of forged and fabricated agreement dated 04.11.1996 as it is neither a valid nor legal agreement. The defendants never executed such agreement nor agreed to pay any amount. The plaintiff and defendant no.1 entered into an agreement dated 28.02.1997 in full and Suit No. 387/2017 Page 6 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
final in respect of the disputes and properties and plaintiff also gave an affidavit in this regard and also written a Chit for cancellation of the earlier agreements and as per agreement and Undertaking dated 28.02.1997, no dispute is left between the parties.
(c) The plaintiff has not come with clean hands and has concealed and suppressed the real facts, as the agreement dated 04.11.1996 was executed and typed in English regarding family settlement and during night of 27/28 February, 1997, a final settlement in full and final was signed by the parties in the presence of witnesses and other family members at Delhi and plaintiff gave an undertaking during the same night and agreement was got attested on 20 th February, 1997 by Notary Public with the consent of the plaintiff and earlier agreement signed by the parties on 04.11.1996 was destroyed in the presence of the witnesses. The plaintiff did not pay any amount for the business of defendant no.1 and his deceased brother and to purchase the house but defendant no.1 started his own business from his own earnings and also purchased the house at Delhi from his own earnings and hence, the plaintiff has no right or interest in the property and business of the defendants.
(d) The plaintiff has already received and in possession of the joint property of plaintiff and defendants situated at Hissar, Haryana and defendants agreed to give up their shares in the Suit No. 387/2017 Page 7 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
property situated at Hissar and all the disputes and claims either side have been settled in full and final vide agreement dated 28.02.1997.
(e) The suit of the plaintiff for permanent injunction is not maintainable as the defendants are the owners of the property bearing no. 194, Pocket H, Sector 17, Rohini, Delhi.
(f) On merits, the contents of the plaint have been denied and it has been submitted that Sh. Chabil Das used to reside sometime at Hissar and sometimes at Delhi with the defendants. Sh. Prahlad Rai, brother of defendant no.1 expired on 12.01.1996. The plaintiff never paid any amount for the business of the defendants or to purchase the house. He never helped financially to the defendants. All the property was arranged by defendant no.1 from his own earnings.
(g) The plaintiff is a practicing lawyer and under the law, he has no right or authority to run any business being enrolled as Advocate under the Advocates Act. The property at Hissar was given to the plaintiff and property of Delhi was given to defendant no.1 and this settlement was arrived on 04.11.1996 but full and final dispute was not solved and on 28.02.1997, a fresh settlement was executed between the plaintiff and defendant no.1 and earlier settlement was destroyed and plaintiff gave an undertaking vide affidavit and Hindi written slip in this regard and after full and final settlement dated Suit No. 387/2017 Page 8 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
28.02.1997, no dispute or any claim either side is left. It was amicably decided by way of formal settlement that plaintiff shall remain the owner of the property situated at Hissar and defendant no.1 will be the owner of the property and business situated at Delhi.
(h) Sh. Chabil Das, the father of plaintiff & defendant no.1 reconciled and settled all the disputes between the plaintiff & defendant no.1 and settlement was arrived at his instance to keep cordial relations between the family members and he filed an affidavit regarding full & final settlement between the parties in this case and specifically mentioned in his affidavit dated 23.12.1997 filed in this case that the earlier settlement dated 04.11.1996 was cancelled and fresh settlement dated 28.02.1997 was made. The defendant has also filed the last settlement dated 28.02.1997 made between the parties, affidavit and hand written letter given by the plaintiff regarding full & final settlement and cancellation of earlier agreement is also on record.
(i) When the plaintiff came to know that his father had filed an affidavit in the Court, he obtained the signatures on some blank papers and typed fraudulently of his father and he got issued a notice dated 20.01.1998 through advocate to the plaintiff by registered post as well as under postal certificate regarding obtaining his signatures on some papers, blank and typed and to cancel the same and not used his signatures in Suit No. 387/2017 Page 9 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
any manner but the plaintiff did not cancel and return the signatures and documents to his father and used his signatures as an affidavit dated 15.07.1999 filed in this case and affidavit filed by Sh. Chabil Das dated 15.07.1999 is also forged and liable to be cancelled. It is denied that defendants agreed to pay Rs. 9 Lakhs with interest to the plaintiff. The defendants never agreed to pay any amount and claim of the plaintiff is false and without any basis.
(j) The defendants did not receive any notice from the plaintiff and if any notice is received, the same is illegal and without any basis and with a motive to harass the defendant. The defendant never tried to dispose of the house nor started any negotiations for the sale of the house as the defendant is the owner of the property and residing with his family being the owner of the property. He has all the rights to dispose of the house in any manner and to handover the possession of the same to anyone. The plaintiff has no right or any title in the property and is not entitled for any relief or to restrain the defendant from disposing of the property. It has been prayed to dismiss the suit of the plaintiff with special costs. REPLICATION AND ISSUES The plaintiff has filed the replication to the Written Statement filed by defendants controverting the allegations/ contentions in the Written Statement of the defendants and contents of the plaint have been reiterated and reaffirmed.
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From the pleadings of the parties, following issues were framed vide order dated 28.02.2004: ISSUES
1) Whether the plaintiff is entitled to recover the suit amount alongwith cost & interest? OPP
2) Whether the parties entered into an agreement on 28.2.97 whereby everything between the parties stood settled and nothing was left to create any cause of action in the present suit in favour of the plaintiff? OPD
3) Relief.
EVIDENCE OF THE PLAINTIFF The plaintiff, in order to prove his case, has led plaintiff evidence and got examined himself as PW1. The PW1 has filed his evidence by way of affidavit, wherein he reiterated and reaffirmed the contents of the plaint. The PW1 in his testimony has relied upon the following documents:
(i) The certified copy of General Power of Attorney and Will are Ex.P1 to Ex.P3.
(ii) The agreement dated 04.11.1996 is Ex.PW3/A.
(iii) The subsequent agreement duly endorsed by defendant no.2 on 30.12.1996 is Ex.D1.
(iv) The carbon copy of the notice dated 10.03.1997 is Ex.PW1/A, postal receipts for sending the notice are Ex.PW1/B to Ex.PW1/D. Suit No. 387/2017 Page 11 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
(v) The documents supplied by the defendants as Ex.PW2/A to Ex.PW2/C (Submitted that the same are fabricated documents).
(vi) Certified copies of the orders dated 28.02.1997 are Ex.PW 1/E to Ex.PW1/G.
(vii) The plaintiff had filed an affidavit before the Hon'ble High Court and the same is Ex.PW1/H.
(viii) The father of plaintiff gave the affidavit regarding non payment of the amount by the defendants is Ex.PW1/g.
The plaintiff has also examined Sh. Sultan Singh as PW 2 and Sh. Sital Prashad Jain as PW3.
EVIDENCE OF THE DEFENDANTS On the other hand, the defendant no.1 examined himself as DW1, who has filed his evidence by way of affidavit. He has relied upon the following documents:
1. Affidavit of defendant no.1 dated 28.02.1997 is Ex.DW1/1.
2. Affidavit dated 25.02.2003 is Ex.DW1/2.
3. The copy of notice is Ex.DW1/3.
4. Postal receipt is Ex.DW1/4 and UPC is Ex.DW1/5.
The DW1 was expired on 08.07.2009 and therefore, the cross examination was not completed. The same is reflected in the order dated 01.09.2009.
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The defendant no.2 Sh. Naveen Kumar examined himself as DW2, who has filed his evidence by way of affidavit.
The defendants have also examined Sh. Subhash Chand as DW3 and Sh. Parveen Kumar as DW4. The defendants have also examined Smt. Rita Garg as DW5, who relied upon the following documents:
1. Certified copy of Vakalatnama given by Sh. Sultan Singh is Ex.DW5/1.
2. Certified copy of the application form submitted by the plaintiff for obtaining certified copy of order dated 12.10.1994 passed by Civil Judge, Hansi is Ex.DW5/2.
3. Certified copy of the affidavit dated 28.08.2002 is Ex.DW5/3.
4. Certified copy of statement dated 04.08.2003 is Ex.DW5/4.
5. Certified copy of the order dated 28.07.1994 is Ex.DW5/5.
The defendants also examined a summoned witness Sh. Rajender Kumar, Patwari, Block Development and Panchayat Office, HansiII, District Hissar, Haryana as DW6, who filed on record the following documents:
1. Authority letter Ex.DW6/1.
2. Letter of Block Development and Panchayat Officer Ex.DW 6/2.
3. Attested copy of attendance register Ex.DW6/3.
4. Attested copy of Log Register Ex.DW6/4 and
5. Attested copy of Movement Register Ex.DW6/5.
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This Court heard the final arguments advanced by Ld. counsels for the parties. I have perused the material available on record.
ISSUE WISE FINDINGS
1) Whether the plaintiff is entitled to recover the suit amount alongwith cost & interest? OPP
2) Whether the parties entered into an agreement on 28.2.97 whereby everything between the parties stood settled and nothing was left to create any cause of action in the present suit in favour of the plaintiff? OPD The aforesaid issues are interlinked and interconnected with each other and accordingly, they are decided together. ON THE QUESTION OF VERACITY AND ADMISSIBILITY OF DOCUMENT DATED 04.11.1996 FINDINGS AND CONCLUSIONS OF THE COURT The first argument, which is raised by the defendants that the document Ex.PW3/A is not admissible, as the same is required to be registered and stamped in accordance with law as it purports to create right, title and interest in the immovable property and admittedly, as per the case of plaintiff, the property is more than Rs.100/. In this regard, the ld. counsel for the defendants has relied upon the judgment of Hon'ble Apex Court in the case of, "Kale and Ors., versus Deputy Director of Consolidation and Ors., AIR 1976 SC 807".
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The perusal of Ex.PW3/A reveals that it is a settlement qua the business and house property at Delhi. The question arises, whether the said document has created or purported to create any right, title and interest and the answer is in negative. The perusal of the document itself reveals that the right in the immovable property qua the business and house property at Delhi is to be created after the receipt of the entire amount, which is mentioned in Ex.PW3/A. It is clearly mentioned in Ex.PW3/A that after payment of money, a writing would be executed to the effect that the house and business at Delhi would go to Sh. Suresh Kumar and house situated at Hisar, Haryana would remain with Ram Babu. Therefore, the said document is only an endorsement to the fact that in future, after the payment, which is mentioned in the said document, the documents/writing will be executed and the said document itself has not created or purported to be created any right, title and interest, whatsoever, in the property in question. It is a mere agreement between the parties and the said document itself has not conferred any right, title and interest in the immovable property, whatsoever, either in favour of the plaintiff or in favour of the defendants. Therefore, the contention of the defendants that the document Ex.PW3/A required to be registered sans merit and the same is hereby rejected. Furthermore, it is well settled law that in the money suit, even the unregistered Agreement to Sell/ Sale and Sale Deed can be looked into for collateral purpose.
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The objection of stamping of the document is required to be raised at the time of exhibition of the document and it is well settled law that after the exhibition of the document, the question of stamping on the document cannot be considered by the Court in terms of Section 36 of the Indian Stamp Act. In this case, the defendants have neither pleaded nor raised any objection in the Written Statement qua the registration or stamping but the said ground was raised during the course of arguments. Since the question of registration goes into the root of the matter and the same is the question of law, then, the same can be considered at the time of the final arguments but as far as the stamping of the document is concerned, once the parties and in this case, defendants have not raised the said issue, then, the aforesaid issue of stamping cannot be raised at the time of final arguments. Accordingly, the arguments of the defendants regarding mandatory requirement of stamping of the document Ex.PW3/A sans merit and the same is hereby rejected.
The defendants have raised the second contention that since Hindi writing dated 04.11.1996 (Exhibit PW3/A), as per the list of documents dated 16.07.1997, was not provided to the defendants, therefore, the defendants have not taken the stand of forgery and fabrication of the said document in the pleadings (1) under Order 37 Rule 3(5) CPC, (2) affidavit alongwith application under Order 37 Rule 3(5) CPC, (3) application under Order 39 Rules 1 and 2 CPC and (4) Order 39 Rule 4 read with Section 151 CPC.
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The Ld. counsel for the defendants has further argued that in the Order dated 05.07.2000, it is clearly mentioned that the copy of the Hindi writing dated 04.11.1996 was not given to the defendants and therefore, the direction was passed to supply the copy of the said documents within two days and thereafter, the copy of the same was supplied to the defendants, although, not within the said two days.
The perusal of the record reveals that in the list of documents dated 16.07.1997, there is a mention about writing dated 04.11.1996 alongwith endorsement dated 30.12.1996 with English translation. The word "English Translation" is important. There is no dispute between the parties that the language of the document can either be in Hindi or in English because the practice adopted in the Hisar, Haryana is either Hindi or English. The "English Translation" means that the document was in some other language other than English. The natural consequences would arise that the document must be in Hindi language. Furthermore, the document i.e. English translation clearly reveals that it does not bear the signatures of any other party, rather it shows as "sd/ Suresh Kumar", "sd/ Chhabil Dass". In witness, it has been shown "sd/ Ramdhari Mal", "sd/ Parshottam Dass" and "sd/ Sheetal Prasad Jain" in the middle. The endorsement is also typed and the same is also shown on the bottom as "sd/ Suresh Kumar", "sd/ Naveen Kumar", "sd/ Ram Babu Aggarwal", "sd/ R.K. Gautam", "sd/ ineligible". The said document is apparently on the Suit No. 387/2017 Page 17 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
face of it is the English translation and the same cannot be considered, by any stretch of imagination, to be a document. Even assuming for the sake of arguments that on the basis of said English translation, the defendants have filed the application under Order 37 Rule 3(5) CPC, detailed affidavit in support thereof, reply to application under Order 39 Rules 1 & 2 read with Section151 CPC and an application under Order 39 Rule 4 CPC, still it cannot lie to the mouth of the defendants to have alleged that they have not denied the document to be as forged & fabricated, as they have not seen the Hindi document. In the translation, there is one mistake, which has been made by the plaintiff and instead of writing the balance amount of Rs.7.00 Lakhs "paid by Sh. Suresh Kumar", it is recorded as "paid to Sh. Suresh Kumar". The said error can be looked into from the mere reading of the document. There are two roman paragraphs, which have been recorded in the English translation and as per the English translation, the first roman paragraph clearly states that "Suresh Kumar will pay Rs.3.00 Lakhs to Sh. Parshottam Dass on behalf of Ram Babu Aggarwal" and the second roman paragraph starts with "that the balance amount of Rs.7.00 Lakhs". The first obligation in the first roman paragraph was upon Sh. Suresh Kumar and the second roman paragraph was in continuation thereof and the word clearly written as "the balance", which means, after deducting the amount of Rs.3.00 Lakhs. Therefore, there was no ambiguity and Suit No. 387/2017 Page 18 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
specifically to the knowledge of the Ld. counsel for the defendants, who has drafted the aforesaid pleadings/ affidavit. From the aforesaid pleadings/ drafting, it has nowhere been pleaded that the plaintiff is required to pay to Sh. Suresh Kumar the balance amount of Rs.7.00 Lakhs. The entire obligation was upon Sh. Suresh Kumar, as per the said document and the second roman paragraph was only a typographical mistake, which was rectified later on by filing the amendment application and the said application was also allowed. The entire case of the plaintiff in the plaint itself reveals that as per the writing dated 04.11.1996, the defendant no.1 was liable to pay Rs.10.00 Lakhs and the defendant no.2 has further undertaken to pay Rs.9.00 Lakhs in terms of the endorsement made on 30.12.1996. The combined effect of the plaint and the English translation has to be looked into and it is not the English translation, which has to be considered alone. The endorsement dated 30.12.1996 in the English translation is as under: ".......Rs.1.00 Lakh has been paid and Rs.2.00 Lakhs will be paid by 04.01.1997 and the balance amount will be paid in 14 equal installments of Rs.50,000/ each in the first day of every month. The guarantee for payment of amount would be upon Naveen Kumar....."
The Ld. counsel for the plaintiff has vehemently argued qua the Agreement dated 4.11.1996 (Exhibit PW3/A) and endorsement dated 30.12.1996 and the said argument is as under: Suit No. 387/2017 Page 19 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
1. In application under Order 37 Rule 3(5) CPC the defendants admitted the agreement dated 04.11.96 (although the date was wrongly mentioned as 5.11.96) stating in Para 4 of their application that 'the plaintiff and defendant No. 1 with the consent of other family members entered into an agreement dt. 5.11.96 which has been filed by the plaintiff in this case and on the basis of this agreement he has filed the suit'. In the same breathe the defendants alleged that the agreement dated 04.11.1996 was cancelled vide alleged agreement dated 28.02.1997. The defendants further alleged that an another agreement dated 28.02.1997 was also executed between plaintiff and defendant No. 1 regarding the property at Hisar and also alleged that the plaintiff also obtained an affidavit from the defendant No. 1 on the same date. In next para of their application the defendants alleged that the defendant No. 1 has paid full and final payment to the plaintiff in respect of his share in the property in suit and the plaintiff has no share in the business of the defendant No. 1 and denied about the investments made by the plaintiff in the business of the defendant No. 1 and their deceased brother Sh. Prahlad Rai. The defendants further denied the involvement of defendant No. 2 in the matter and prayed for grant of leave to defend the case.
2. The defendant No. 1 also filed his detailed affidavit alongwith application under Order 37 Rule 3(5) CPC in which the defendant No. 1 again admitted the agreement dated 04.11.1996 and also admitted that the copy of the agreement dated 04.11.1996 has already been filed by the plaintiff and the same is on court record stating in Para No. 7 of the affidavit that "That after the death of my younger Suit No. 387/2017 Page 20 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
brother Sh. Prahlad Rai, the plaintiff created disputes and claimed the share of the deceased Prahlad Rai and after negotiations, discussions, between the family members and relatives an agreement was made between me and my brother Sh. Ram Babu Aggarwal on 4.11.96, certain terms and conditions were typed and signed. Copy of the said agreement has already been on record, which has been filed by the plaintiff." The defendant No. 1 in his affidavit further alleged in Para No. 8 that "that after agreement I paid the entire amount as per terms and conditions of the said agreement to the plaintiff, arranging the money from my savings, disposing off my jewellary, taking the loans from my relations and both the parties agreed to cancel the earlier agreement dated 4.11.96...". Further, the defendant No. 1 in his affidavit described the forged documents Annexure 'A1' to Annexure 'A5' and also claimed his rights in the property of plaintiff at Hissar and other properties and prayed before Hon'ble Court to dismiss the suit of the plaintiff as not maintainable.
3. The suit of the plaintiff is only a recovery suit based on the settlement dated 04.11.1996 Ex. PW 3/A and subsequent endorsement dated 30.12.1996 Ex.D1 and hence the settlement is not in relation with claim of any immovable property and thus the settlement Ex. PW3/A is not the document which requires registration.
4. Although at initial stage the defendants admitted the settlement dated 04.11.1996 between the plaintiff and defendant No. 1 and also admitted that the same has been filed by the plaintiff in this case and further admitted that the plaintiff has Suit No. 387/2017 Page 21 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
filed the present case on the basis of the said settlement but later on both the defendants changed their stand and denied the settlement dated 04.11.1996 which was already on court record and alleged that the settlement dated 04.11.1996 was a typed document in English language. The defendants further alleged that the document i.e. settlement dated 04.11.1996 Ex. PW3/A alongwith endorsement Ex. D1 was not filed by the plaintiff alongwith suit. On 05.07.2000 the counsel for the defendants submitted before the Hon'ble High Court that 'he does not have the copy of the agreement in Hindi and has relied upon the English translation only.' It is submitted that the counsel for the defendants never stated that the defendants were not supplied with the copy of the settlement dated 04.11.1996 Ex. PW 3/A. It is pertinent to mention here that the present suit was filed by the plaintiff under order 37 CPC and his reliance is based on the settlement dated 04.11.1996 Ex. PW3/A alongwith subsequent endorsement dated 30.12.1996 Ex. D 1 and the Hon'ble High Court was pleased to pass interim order to maintain status quo on 23.07.1997 and also issued notice of the suit to the defendants and hence it is unbelievable that the Hon'ble High Court without going through the document, upon which the suit of the plaintiff is based, passed such an order and hence the objections raised and allegations put by the defendants are false and baseless and have no sanctity in the eyes of law. It is further submitted that the defendant No. 1, surprisingly, changed his stand in his examinationinchief Ex. DW1/A in Para No. 6 by stating that "...As per family settlement it was agreed that the plaintiff shall pay Rs. 7,00,000/ to me and I shall pay Rs.
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3,00,000/ to Sh. Purshottam Dass s/o Sh. Gyan Chand......". It is also submitted that after the death of defendant No. 1 the same stand was taken by the wife of the defendant No. 1 Smt. Rita Garg DW5 in her examinationinchief Ex. DW 5/A in Para No. 6 by saying that "... As per family settlement it was agreed that the plaintiff shall pay Rs. 7,00,000/ to my husband and my husband shall pay Rs. 3,00,000/ to Shri Purshottam Dass s/o Sh. Gyan Chand......" till 03.01.2015 when during her crossexamination she admitted the truth on asking a question by Hon'ble Court which is reproduced as under: (Crossexamination of DW5 dated 03.01.2015 page 2) 'Court question: What was the family settlement as stated by you in para no. 6 of your affidavit?
Ans. Sh. Suresh had to pay an amount of Rs. 7 lacs to the plaintiff herein and Sh. Suresh had to pay an amount of Rs. 3 Lacs to Sh. Purshottam Dass as per the family settlement.'
5. That though the defendant No. 1 decided to deny the settlement dated 04.11.1996 but on various occasions he alleged that he paid the entire amount as per terms and conditions of the said agreement to the plaintiff. The defendant No. 1 in detailed affidavit alongwith application under Order 37 Rule 3(5) CPC in Para No. 8 particularly stated "that after agreement I paid the entire amount as per terms and conditions of the said agreement to the plaintiff, arranging the money from my savings, disposing off my jewellary, taking the loans from my relations and both the parties Suit No. 387/2017 Page 23 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
agreed to cancel the earlier agreement dated 4.11.96...". Further, even the defendant No. 1 during his crossexamination dated 28.10.2006 at Page 3 admitted the execution of settlement dated 04.11.1996 by saying that ".... Myself, plaintiff and our father were present at the time of arriving of compromise on 4.11.1996...... It is correct that earlier Sh. Sheetal Prashad Jain was my Sales Tax advocate."
I find force in the aforesaid arguments of Ld. counsel for the plaintiff. The perusal of the pleadings i.e. application under Order 37 Rule 3(5) CPC, detailed affidavit in support thereof, reply to application under Order 39 Rules 1 & 2 read with Section151 CPC and an application under Order 39 Rule 4 CPC reveals that there is a categorical admission of the defendants that the agreement dated 04.11.1996 was made between defendant no.1 and his brother Ram Babu Aggarwal on 04.11.1996. In the said pleadings and affidavit, there is mentioning about the copy of the Agreement, which has already been placed on record by the plaintiff. It is also mentioned in the aforesaid pleadings that defendant no.1 had paid the entire amount, as per the terms & conditions of the said agreement, to the plaintiff arranging the money from his savings, disposing of his jewellery, taking the loans from his relations and both the parties agreed to cancel the Agreement dated 04.11.1996 and a new Agreement was executed on 28.02.1997. Although, it is stated that the said Agreement was typed & signed and the reference of the said typing has been made Suit No. 387/2017 Page 24 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
as the copy of the Agreement filed by the plaintiff on record. As per defendant no.1 himself, he has admitted that he was required to pay a sum of Rs.10.00 Lakhs but the only question raised by the defendant no.1 was that the Hindi writing dated 04.11.1996, which was supplied, is not the said document, which was executed between the parties and it was the typed and signed document. The document, on which basis, the defendant no.1 has filed the affidavit in support of the application of Leave to defend, clearly reveals that the same is only an English translation and not the copy of the original document. The said English translation also contains at the bottom the endorsement, which clearly suggests that the total amount was Rs.10.00 Lakhs and it was the defendant no.2, who has agreed to pay the balance amount of Rs.9,00,000/, as per the said endorsement dated 30.12.1996. The defendants have come out with the contentions, after the alleged receipt of Hindi writing dated 04.11.1996, that the same is forged & fabricated but the entire evidence of the parties clearly reveals that defendant no.1 himself has categorically admitted that payment of Rs.10.00 Lakhs was required to be made under the Agreement dated 04.11.1996 and it is also argued on behalf of the defendants during the arguments that defendant no.1 was liable to pay Rs.10.00 Lakhs in terms of the Settlement/Agreement dated 04.11.1996, but the same was typed and signed. There is another thing, there is no denial about the endorsement dated 30.12.1996 but the Ld. counsel for defendants has argued as under: Suit No. 387/2017 Page 25 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
1. The Defendant No.2 is brotherinlaw of the Defendant No.1 and was very close to the Plaintiff also. The Plaintiff had been lawyer of the Defendant No.2 in some cases and the Defendant No.2 had full faith in the Plaintiff. In March, 1997, the Plaintiff approached the Defendant No.2 and stated that he has settled the dispute with the Defendant No.1. The Defendant No.2 was in hurry at that time and the Plaintiff asked the Defendant No.2 on a handwritten paper in Hindi. The matter was dictated by the Plaintiff and the Defendant No.2 in the good faith without putting any date has written on the said paper as per the dictates of the Plaintiff. The Defendant No.2 has never stood as a surety or guarantee. When the Defendant No.2 came to know about the fraud played by the Plaintiff, he contacted the Plaintiff but the Plaintiff threatened the Defendant No.2 that he will file a case against both Defendants in Delhi High Court. In these circumstances, the Defendant No.2 changed his lawyer at Hissar.
2. In his examinationinchief the Plaintiff in respect of Ex.D1 has stated in the above terms and has also stated that the said endorsement is in own hands of the Defendant No.2 and has was signed by both Defendants besides other relatives and well wishers in the presence of the Plaintiff.
3. The Defendant No.2 i.e. DW2 in his examinationinchief has stated that, "In the first week of March, 1997, Sh Ram Babu Aggarwal came to my house early in the morning and he told me that the dispute of the properties between me and my brother Sh Suresh Aggarwal has been settled. He shown me a hand written paper in Hindi and tole me to write some lines on the paper. I was hurry to reach my office. I did not read the paper which was in Hindi hand written. Sh Ram Babu gave me dictation and I written the same on the paper in Hindi. The paper is placed on record by the Plaintiff. The matter which was dictated to me and I written as per dictation of Sh Ram Suit No. 387/2017 Page 26 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
Babu Aggarwal is Exhibit D1 on the document exhibit PW3/A. he told me not to put the date. There were no signatures of Sh Suresh Kumar or any other witness on the paper. I written as per dictated by Sh Ram Babu Aggarwal in good faith".
4. In the crossexamination the DW2 denies the suggestion that he himself and his father gave the guarantee of payment of the amount to Plaintiff on behalf of Defendant No.1. He also denies suggestion that Ram Babu Aggarwal did not come to his house or he has not given any dictation of Ex. D1. He also denied suggestion that he was aware of the fact that the Defendant No.1 has to pay money to the Plaintiff. The DW2 in his crossexamination deposed, "I cannot say whether the settlement took place between plaintiff and defendant no.1 in presence of their relatives on 04.11.1996................xxxxxxxxxxxxx............... I had no knowledge about the settlement dated 4.11.1996 when the portion Ex.D1 was written by me. It is correct that I have not filed any police complaint or complaint case or any legal proceedings in respect of portion Ex.D1. I had no talk with Defendant No.1 before writing Ex.D1. It is correct to suggest that I was aware of the fact that the defendant no.1 has to pay money to plaintiff and I alongwith my father guaranteed for the payment of the amount to the plaintiff..................xxxxxxxxxxxxxxx.................... It is wrong to suggest that myself and my father given the guarantee of payment of the amount to the plaintiff on behalf of defendant no.1. It is further wrong to suggest that Ram Babu neither came to my house nor gave any dictation of Ex.D1".
5. That from the testimony of DW2 it is clear that the endorsement Ex.D1 was obtained by the Plaintiff by breaching the trust of the Defendant No.2 and by playing a fraud upon Defendant No.2. It is the case of the Plaintiff that Ex.D1 was written in the presence of Biradari however, the Plaintiff has not examined any witness from the alleged Suit No. 387/2017 Page 27 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
Biradari to support his claim that the Defendant No.2 wrote the said endorsement without any fraud. It is the case of the Plaintiff that Ex.D1 was written in the presence of Plaintiff also and he is a signatory to the said document. The Plaintiff has filed an English translation of Ex.D1 at pg741 wherein the Plaintiff for the two signatures on the said document has stated illegible which shows that the Plaintiff is not aware of the signatories of Ex.D1. The Plaintiff is not aware of the signatories of Ex.D1 as the Plaintiff has fabricated the document Ex.D1 and do not know whose signatures have been fabricated on the said document. The date, "30.12.1998"
appearing on Ex.D1 also shows that some manipulation was done and a wrong date has been mentioned. Thus, no reliance can be placed on Ex.D1.
6. That in the totality of circumstances, Plaintiff has failed to prove the document Ex.PW3/A and endorsement Ex.D1. As stated above the document Ex.PW3/A suffers from various infirmities and no decree can be passed on Ex.PW3/A. The document Ex.PW3/A suffers from following infirmities:
i) The language of the Exhibit PW3/A is ambiguous. It does not clarify to whom the payment of Rs.7,00,000/ is to be made. It does not also clarify the total amount of settlement.
ii) The Exhibit PW3/A is not signed by the Plaintiff.
iii) There is an interpolation in Exhibit PW3/A in respect of rate of interest which is quite evident that 18% has been added by some other person with some other pen subsequently.
iv) The Family Settlement as per the pleadings of the Plaintiff was written at the time of arriving at the settlement itself and transfers the rights in the Suit No. 387/2017 Page 28 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
immovable property, therefore, it requires compulsory registration and payment of stamp duty.
v) The Plaintiff has not signed the family settlement Ex.PW3/A and Shri Chabbil Dass who allegedly signed on behalf of the Plaintiff has not been examined as witness by the Plaintiff though he was alive upto 2013. Further, the case of the Plaintiff is that Shri Chabbil Dass was living with him.
vi) The documents Ex.PW3/A does not bear signatures of any of the parties on first page of the document which also creates doubt about the authenticity of the document and is not admissible in evidence.
The bare perusal of the aforesaid arguments reveals that the endorsement (Exhibit D1) is in the handwriting of defendant No.2. The defendant No.2 has failed to bring any case details, which are alleged by defendant No.2 in his evidence. The defendant no.2 has not stated anything about the alleged cases and the contentions raised by defendant No.2 during the entire pleadings i.e. application under Order 37 Rule 3(5) CPC, detailed affidavit in support thereof, other pleadings and even also in the written statement filed by the defendants. The perusal of order dated 16.01.2003 reveals that the admission and denial of documents were done and the following order was passed: "....Qua documents filed by the plaintiff vide list of documents dated 16.7.1997 documents admitted on behalf of defendants 1 and 2 by Ld. Counsel for defendants 1 and 2 present are exhibited as Ex.P1 to Ex.P3. It is submitted by ld. Counsel for the Suit No. 387/2017 Page 29 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
defendants that documents filed by the plaintiff on 31.7.2002 vide diary no.8887, is also denied on behalf of the defendants. Admission/ denial of documents on the record has been concluded...."
The relevant entries of list dated 16.7.1997 filed by the plaintiff is reproduced as under:
1. Writing dated 4.11.1996 alongwith endorsement dated 30.12.1996 with English Translation thereof.
2. Photocopy of Legal Notice dated 10.03.1997.
3. Photocopy of documents dt. 30.5.95 executed by Shri Rishi Dev Sharma in R/o H. No.194, Pocket H17, Sec.7, Rohini.
4. Any other document.
Therefore, in terms of the said order dated 16.1.2003, the defendants no.1 and 2, through their advocate, have admitted the aforesaid documents. Cumulatively, in view of the discussions made hereinabove, the arguments of the defendants that Hindi writing dated 4.11.1996 (Exhibit PW3/A) and endorsement dated 30.12.1996 (Exhibit D1) were forged and fabricated do not inspire any confidence and the same sans merit and are hereby rejected. ON THE QUESTION OF VERACITY AND ADMISSIBILITY OF DOCUMENT DATED 28.12.1996 FINDINGS AND CONCLUSIONS OF THE COURT The only question, which remains for consideration in the present case, is whether the amount of Rs.10.00 Lakhs (as per Agreement dated 4.11.1996) or Rs.9,00,000/ (as per endorsement Suit No. 387/2017 Page 30 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
dated 30.12.1996) was paid by the defendant no.1 by means of the subsequent agreement dated 28.02.1997, coupled with the affidavit dated 28.02.1997 and the handwritten letter alleged to be written by Sh. Sultan Singh. The Ld. counsel for the plaintiff has argued that the settlement documents, which are alleged to be executed on 27 and 28.02.1997 are forged & fabricated documents. The Ld. counsel for the plaintiff has argued as under:
(i) That the entire claim of the defendants is based on some forged and fabricated documents i.e. Ex. DW1/1, Ex. PW 2/A, Ex. PW2/B, Ex. PW2/C and Ex. PW2/D2 but the defendants have miserably failed to prove these documents.
(ii) The defendants alleged that the documents Ex. DW1/1, Ex.
PW2/A, Ex. PW2/B, Ex. PW2/C and Ex. PW2/D2 were got prepared by Sh. Sultan Singh and further alleged that in the evening of 27.02.1997 the plaintiff brought Sh. Sultan Singh with him at the house of the defendant No. 1 and thereafter Sh. Sultan Singh got the above detailed documents prepared and signed by the parties in presence of Subhash Chander, Karan Singh and Sultan Singh. The defendants also alleged that Sh. Sultan Singh stayed at the house of defendant No. 1 in the night of 27.02.1997 while the plaintiff left for Hisar early in the morning on 28.02.1997 and thereafter all the above detailed documents were got attested by Notary Public in the presence of Sh. Sultan Singh on 28.02.1997.
(iii) That it is stated that the defendants concocted a false story and in order to prove their false story the defendants examined himself, another brother of his wife Sh. Praveen Kumar, Sh. Subhash Chander and also used the testimony of Sh. Sultan Singh who was brought in the witness box by the plaintiff as PW2 but the witnesses called by the defendants could not understand their false story and given contradictory Suit No. 387/2017 Page 31 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
statements and ultimately the false story concocted by the defendants lost its ground and the defendants have failed in proving the above detailed false documents in any manner.
(iv) That first of all it is stated that the defendants during the time of arguments put their entire weight to prove relationship between the plaintiff and Sh. Sultan Singh PW2. It is true that the plaintiff knows Sh. Sultan Singh and was conducted his cases but on 27.02.1997 or 28.02.1997 the plaintiff did not come to Delhi and hence it was not in the knowledge of the plaintiff that with the help of whom the defendants forged the documents Ex. DW1/1, Ex. PW2/A, Ex. PW2/B, Ex. PW2/C and Ex. PW2/D2.
(v) It is stated that Sh. Sultan Singh is/was a close friend and neighbor of defendant No. 2 Sh. Naveen Kumar and on 28.02.1997 Sh. Sultan Singh came to Delhi at the instance of defendant No. 2 Sh. Naveen Kumar. It is further stated that the defendants filed the photocopy of these forged and fabricated documents in the court on 13.10.1997 and also supplied the copy of the same to the plaintiff. After perusal of the above forged and fabricated documents the plaintiff started searching the persons whose signatures were appeared on these forged and fabricated documents and during inquiries the plaintiff got knowledge about the identity of Sh. Sultan Singh and only thereafter the plaintiff requested Sh. Sultan Singh to appear before Hon'ble Court as witness and inform the Hon'ble Court about the truth.
(vi) The plaintiff and Sh. Sultan Singh have no knowledge about each other on the 27.02.1997/ 28.02.1997 as they never met on these two dates. Thereafter, during crossexamination both the witnesses i.e. PW1 and PW2 denied their knowledge about each other on 27.02.1997/28.02.1997 but after recording their statements, their statements reflect different sense and not their actual / inner meaning. It is stated that the plaintiff PW1 in his crossexamination has denied his Suit No. 387/2017 Page 32 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
signatures on any of the above documents i.e. Ex. DW1/1, Ex. PW2/A, Ex. PW2/B, Ex. PW2/C and Ex. PW2/D2. In real, on 27.02.1997 and 28.02.1997 the plaintiff did not come to Delhi and he was present at Hisar as evident from the documents Ex. PW1/E to Ex. PW1/G which are certified copies of court orders of Hissar Courts where the plaintiff was appearing in difference cases.
(vii) The witness PW2 Sh. Sultan Singh admitted that the document Ex. PW2/A is in his handwriting and also stated that this document was written by him at the instance of Sh. Naveen Kumar. Sh. Sultan Singh PW2 further admitted his signatures on Ex. PW2/B and Ex. PW2/C with explanation that at the time of his signing these documents were incomplete and he signed these documents in good faith as he was told that signatures of other party will be taken as and when he will visit Delhi. This witness particularly stated in his evidence that the plaintiff Sh. Ram Babu Aggarwal was not present in Delhi at that time and neither the plaintiff signed any document in his presence nor he was given any money by the defendants in his presence.
(viii) Before highlighting any other contradiction in the statements of the witnesses of the defendants it is necessary to brought into the knowledge that all these original forged and fabricated documents, photocopies of which were filed by the defendants in Hon'ble High Court on 13.10.1997, were in the possession of the defendants which is evident from their own INDEX dated 16.02.2000 when the defendants were filing the original documents, photocopies of which were already filed by them vide INDEX dated 13.10.1997. It is stated that in the INDEX dated 16.02.2000 filed by the defendants at Sr. No. 4 and Sr. No. 5 the documents are mentioned in the following manner:
Suit No. 387/2017 Page 33 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
1. Original agreement for mutual dated 28.2.97 executed by the parties. Copy of the same is also on record as Annexure A4.
2. Original Affidavit of Sh. Suresh Kumar Agarwal dated 28.2.97 Copy of the same is also on Record as Annexure A5.
(ix) It is submitted that if these documents were not forged and fabricated by the defendants then the originals of the same supposed to be in the custody of the plaintiff then how the defendants were in possession of these documents and when the defendants realized this fact they crossed the entry No. 4 & 5 in the INDEX dated 16.2.2000 which was attested by their counsel Sh. Rohtash Singh which further clarifies that this mistake on their part was realized by the counsel just before filing these documents at filing counter of Hon'ble High Court and for this reason only he removed the documents mentioned at Sr. No. 4 and Sr. No. 5 of the INDEX dated 16.2.2000 after attesting the cuttings in INDEX dated 16.02.2000.
(x) The defendants examined DW1 Sh. Suresh Kumar defendant No. 1, DW3 Sh. Subhash Chander, DW4 Sh. Praveen Kumar and DW5 Smt. Rita Garg in order to prove the forged and fabricated documents Ex. DW1/1, Ex. PW2/A, Ex. PW2/B, Ex. PW2/C and Ex. PW2/D2.
(xi) The DW1 Sh. Suresh Kumar has deposed that during the night of 27/28 February 1997 a fresh agreement was arrived between the plaintiff and defendant No. 1 and the earlier agreement dated 04.11.1996 was destroyed at the time of execution of fresh agreement. The DW1 in his examination inchief put various false allegations against the plaintiff and to give colour to his concocted story deposed falsely during crossexamination, a part of which is reproduced below: Suit No. 387/2017 Page 34 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
'The plaintiff Sh. Ram Babu is 7/8/9 years elder to me. .... It is correct that plaintiff completed his LL.B. in the year 1975..... It is correct that the address i.e. House no. 391, Defence Colony, Hissar shown in documents of that house Ex. P1 to P3 is of plaintiff..... It is correct that some compromise was arrived on 4.11.1996 between the plaintiff and me. .... Myself, plaintiff and our father were present at the time of arriving of compromise on 4.11.1996...... It is wrong to suggest that in compromise dated 4.11.1996 my father Sh. Chabil Dass had signed on behalf of plaintiff.
... It is correct that earlier Sh. Sheetal Prashad Jain was my Sales Tax advocate.' '...The plaintiff had come to me on 27.2.1997 at about 7:00/8:00 p.m....... The entire payment was made by me on 28.2.1997 to the plaintiff. After receiving the payment the plaintiff had signed the documents. I made this payment in the evening at about 7:00/8:00 p.m. on 28.2.1997. ...... I do not remember whether the payment was made before or after the attestation of documents by the notary public. Plaintiff brought the documents after attestation to me on 28.2.1997. The payment was made by me after signing and attestation of documents to the plaintiff. I had paid Rs. 10 lakhs to the plaintiff towards full and final settlement and earlier settlement was cancelled. ..... I had arranged Rs. 10 lakhs out of savings of my family, by borrowing from the relatives and selling the ornaments. I had arranged money 810 days prior to 28.2.1997. .... I cannot say whether document Ex. PW 3/A bears signature of my father or not. I can identify only those signature of my father which are in English language. Hindi signature of my father I cannot identity. It is correct that affidavit of my father Sh.
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Chhabil Das Ex. DW1/p was filed by me in the present case. It is correct it bears the signature of my father in Hindi. .... It is correct that in Uklana Mandi I was implicated in one gambling case ..... It is correct that I was implicated in one case of Essential Commodities Act. .... It is wrong to suggest that plaintiff had purchased Khoti No. 391, Defence Colony, Hissar. Voltr. The plot was purchased by me and I got it constructed.' '....No compromise was entered into between me and plaintiff on 4.11.1996. .... I do not know English language. I am matric fail....'
(xii) The defendant No. 1 as DW1 was crossexamined by the counsel of the plaintiff but his crossexamination could not be completed as the defendant No. 1 unfortunately died during the pendency of the suit.
(xiii) The DW3 Subhash Chander during his crossexamination dated 23.08.2008 denied the execution of documents and payment to plaintiff in his presence and deposed as under: ... 'I have good relation with defendant No. 1 Suresh Kumar since childhood. ........The agreement Ex. PW2/B, affidavit Ex.PW2/D were not written and typed in my presence. ...... The notary public has not signed the Ex. PW2/B in my presence. Voltr. At about 8 8.30 p.m. between night of 27/28.2.1997 I received a telephonic call from Sh. Ram Babu Aggarwal that he had settled the entire disputes with the defendant no. 1 and has sent Sh. Sultan Singh for getting the agreement of settlement drafted. It was further stated by Sh. Ram Babu Aggarwal he wants to make me a witness to the settlement agreement.
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No settlement took place in my presence, ...... At the time of signing of the agreement, plaintiff, defendant no. 1 and Sh. Sultan Singh, myself, Sh. Karan Singh were present. ..... It is further correct that no payment was made in my presence by Sh. Suresh Kumar, defendant no. 1 to the plaintiff.'
(xiv) The witness DW4 Praveen Kumar also denied the preparation of documents and payment to the plaintiff in his presence and deposed on 20.09.2008 as below: ....... 'I did not have any talk with the plaintiff before 27.2.1997, regarding the compromise. on 26.2.1997 I received a telephone from defendant no. 1 Sh. Suresh Kumar that you had to reach at Delhi on 27.2.1997. I reached at the house of defendant no. 1 at 5.00 or 6.00 p.m. on 27.2.1997. The plaintiff and defendant no. 1 had called me and other persons at Village Poot Kalan. Myself and Suresh Kumar reached at Poot Kalan about 7.00 p.m. The talks between the plaintiff and defendant no. 1 in the presence of the persons gathered at Village Poot Kalan continued for about two hours. The compromise was settled between the plaintiff and defendant no. 1 in my absence and I am not aware whether any payment was made or not. ......... I am not aware whether the documents of compromise were prepared and by whom. I also not aware who purchase the stamp paper from where and where the stamp papers were typed. I do not know whether the documents were got prepared by defendant no. 1 Suresh Kumar. ...... Voltr. The documents were brought by the plaintiff Sh. Ram Babu Aggarwal and defendant Suresh Kumar and Sultan Singh. The documents were not prepared in my presence. ......... It is correct that earlier a Suit No. 387/2017 Page 37 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
compromise took place between the plaintiff and defendant no. 1. The witness was shown Ex. PW3/A but he showed his inability whether it is the same compromise or not. I was informed by both the parties that the earlier compromise was destroyed. I did not see the earlier compromise. No payment was made by the defendant no. 1 to the plaintiff in my presence. Voltr. I was told by both the parties that now matter has been settled and nothing is due between plaintiff and the defendant no. 1..........'
(xv) That the witness DW5 Smt. Rita Garg deposed in contradictory manner and changed her stands during her crossexamination, the relevant part of which is reproduced hereinbelow: (Crossexamination dated 14.12.2010 at Page 1)....... 'I do not know when the plaintiff started practicing as an advocate at Hisar, Haryana. Vol. He was practicing before my marriage which took place in 1982. ... At the time of our marriage, he was running a ration depot. We had income to run the house only. ...... (page 2) A total of Rs. 45 lac was invested in that factory initially. It is true that my husband was not paying income tax as he was not earning taxable income. .... It is true that whenever the plaintiff came to Delhi, he resided in said house. My mother in law expired after about sixseven months of death of my brother in law Prehlad Rai who expired on 12.1.96. My mother in law was survived by two sons and three daughters and husband. It is true that property no. 391, Defence Colony, Hissar was owned by plaintiff and Prehlad Rai. ..... (Page 3) It is true that the plaintiff asked for his share in said factory and house before me and it created bitterness in our Suit No. 387/2017 Page 38 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
relations when my husband refused to accept his demand. It is true that a Panchayat of family members and wellwishers including my father in law, Sh. Ram Dhari (maternal uncle of my husband), Purshottam Dass (brother in law of my husband), was convened on 4.11.96 and a written agreement was reached there. .... I was not present at the time when said agreement was prepared......
It is wrong to say that Sh. Sheetal Pd. Jain was Sale Tax Advisor of my husband. Vol. he was friend of plaintiff. ....... (Page 4) It is wrong to say that no agreement was reached on 27 or 28/02/1997. I was present at the time of said agreement which was written after 7 pm at our house. Only 56 pages of the agreement were written at that time and after that the plaintiff and Sultan Singh left our house and thus agreement was not complete. I do not know whether stamp papers were used in writing said agreement or it was written on plain paper. I do not know from where the papers on which it was written were brought. It was written in pen and not typed. ...... It is wrong to say that said agreement was not signed by the plaintiff. Vol. he had signed at three places.' (Crossexamination dated 31.01.2011 at Page 1) '.... It were my husband and Prehlad Rai who arranged money to establish the factory. They did not borrow any amount for said purpose. ...... I have no knowledge about any compromise reached between my husband and the plaintiff on 4.11.96 or 30.12.96. My husband gave at least 7 lakhs to the plaintiff in the evening of 27/02/1997. I was also present at that time. We had so much cash at our house. ..... I have no knowledge that my husband had paid Rs. 1 Suit No. 387/2017 Page 39 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
lakh (one lakh) to the plaintiff on 30.12.96. Again said no such amount was paid.' (Crossexamination dated 30.07.2011 at Page 1) '... I have no knowledge that my husband had a bank account in any bank at the time when he started factory of plastic dana at Village Puth Kalan. Sh. Prahlad Rai simply used to assist my husband in his business of coal and sugar as well as shop of cloth. He was not partner. It is true that I had no separate source of income at that time. I do not know for what amount house at Rohini no. 194 was purchased in the name of my husband and Prahlad Rai. It is true that it was purchased out of income from that factory. ........... My husband did not make any payment before me to the plaintiff at any point of time.' (Crossexamination dated 16.07.2013 at Page 1) '... The property situated in Rohini was purchased for Rs. 9 lacs by after selling some Gold ornaments.' (Crossexamination dated 07.01.2017 at Page 1) 'Q. Whether the notice dated 10.03.97 has been received by your husband?
Ans. No. It is correct that notice Ex. PW1/A dated 10.03.97 bears correct address of my husband.' (Crossexamination dated 01.04.2017 at Page 1) '.... At the time of death of my father in law was residing with the plaintiff.
(Page 2)
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Q. Whether any other person have signed document Ex. DW1/2 in any capacity apart from your father in law?
Ans. My husband had signed the said document Ex. DW1/2.
(Page 3)..... I do not have any copy of the agreement in English executed between the plaintiff and my husband as the same was torned off on 27.2.97 when Sultan Singh and Ram Babu visited our house. ..... Vol. The plaintiff visited our house at around 78 pm.' (xvi) DW6 Sh. Rajender Kumar, Patwari, Block Development and Panchayat Office, HansiII, District Hissar, Haryana, who brought documents Ex. DW6/1, Ex. DW6/2, Ex. DW6/3, Ex. DW6/4 and Ex. DW6/5. Through these records the defendant No. 2 tried to prove that on 27.02.1997 and 28.02.1997 he was on his duty and he did not come to Delhi with Sh. Sultan Singh. In this regard it is submitted that the defendant No. 2 is a resourceful person and it is very easy to him to manipulate the records as per his own convenience.
(xvii) That from scrutiny of the above detailed evidences of the witnesses on behalf of defendants it is proved that the defendants have failed in proving their false story as the defendant No. 1 particularly deposed that he made the alleged payment of Rs. 10 lac to the plaintiff on 28.02.1997 at about 7/8 p.m. after signing and attestation of all the documents. The attestation of the documents was got done on 28.02.1997 which is a matter of record. The stamp paper for document Ex. DW1/1 and one another document which was intentionally not exhibited by the defendants namely 'agreement for mutual' were purchased on 28.02.1997. As per the allegations of defendant No. 1 the plaintiff came at his Suit No. 387/2017 Page 41 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
residence at about 7/8 p.m. on 27.02.1997 and 28.02.1997. On the other hand as per deposition of the DW4 he alongwith defendant No. 1 reached Pooth Kalan at 7 p.m. and the plaintiff and Sh. Sultan Singh reached at the house of defendant No. 1 at about 7 p.m. The witness PW4 further deposed that the documents in question brought by the plaintiff, defendant No. 1 and Sh. Sultan Singh and they reached at Pooth Kalan factory at about 10 p.m. and thereafter talks between the plaintiff and defendant No. 1 continued for about two hours and the compromise was settled between the plaintiff and defendant No. 1 in his absence. The DW3 Subhash Chander, a childhood friend of the defendant No. 1 who was not known to the plaintiff due to age difference, deposed that at about 8/8.30 p.m. in the intervening night of 27/28.2.1997 plaintiff called him on telephone and informed him that he had settled the entire disputes with the defendant No. 1 and has sent Sh. Sultan Singh PW2 for getting the agreement of settlement drafted. The DW3 also deposed that no settlement took place in his presence. He further deposed that at the time of alleged signing of the agreement, plaintiff, defendant No. 1, Sh. Sultan Singh, he himself and Sh. Karan Singh were present. The DW3 is silent about the alleged presence of DW4 at the spot. On the other hand DW5 Smt. Rita Devi in her deposition stated that the alleged agreement was written after 7 pm at the residence of defendant No. 1 and 56 pages of the alleged agreement were written at that time and thereafter the plaintiff and Sultan Singh left the house and thus the alleged agreement was not complete. The witness DW5 further alleged in her deposition that her husband paid Rs. 7 lac to the plaintiff in the evening of 27.02.1997 in her presence but thereafter she denied any payment in her presence to the plaintiff made by her husband. Smt. Rita Garg also alleged in her deposition that the earlier agreement between the plaintiff and defendant No.1 was torn off on 27.02.1997 when Sultan Singh and Ram Bahu allegedly visited her house. She also Suit No. 387/2017 Page 42 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
alleged that the plaintiff visited her house on 27.02.1997 at around 78 pm. (xviii) After perusing the evidence lead by defendants various contradictions are evident which are as below:
1. As per DW1 he paid Rs. 10 lac to the defendant on 28.02.1997 after signing and attestation of the documents Ex. DW1/1, Ex. PW2/A, Ex. PW2/B, Ex. PW2/C and Ex. PW2/D2 which were alleged to be got prepared by PW2.
2. PW2 denied that all the above detailed documents were got prepared by him or in presence of the plaintiff and also deposed that he came to Delhi in the morning of 28.02.1997.
3. DW3 denied that the payment to plaintiff and settlement took place in his presence and is also silent about the presence of DW4 at the spot and as per DW3 it was the incident of intervening night of 27 & 28 February, 1997. As per deposition of the DW3 Sh. Sultan Singh got prepared the alleged documents.
4. DW4 also denied that the payment to plaintiff and settlement took place in his presence and deposed that the settlement took place after 10 p.m. at Pooth Kalan factory and continued about two hours and as per DW4 also it was the incident of intervening night of 27 & 28 February, 1997. As per the deposition of PW4 Sh. Ram Babu Aggarwal and Sh. Sultan Singh got prepared the alleged documents but PW4 also deposed that Sh. Suresh Kumar, Sh. Ram Babu Aggarwal and Sh. Sultan Singh got prepared the alleged documents.
Suit No. 387/2017 Page 43 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
5. DW5 deposed that incomplete settlement took place in her presence at her house at about 78 p.m. on 27.02.1997 and the defendant No. 1 paid Rs. 7 lakh to the plaintiff on 27.02.1997 in her presence but thereafter she denied any payment made by her husband to the plaintiff whereas the defendant No. 1, husband of DW5, himself had deposed that he made payment of Rs. 10 lakh to the plaintiff on 28.02.1997 at 7/8 p.m. after signing and attestation of the above detailed documents.
6. In fact, all these witnesses could not synchronize their evidence in accordance with their false story and are measurably failed to prove Issue No. 2 the burden to prove of which is upon the defendants.
The Ld. counsel for the defendants has vehemently argued that the plaintiff and Sh. Sultan Singh have deliberately shown their total ignorance qua each other prior to the filing of the suit in order to deny the documents Ex.PW2/A, Ex.PW2/B, Ex.PW2/C and Ex.PW2/D2. As per the plaintiff, the plaintiff does not know Sh. Sultan Singh and as per Sh. Sultan Singh, he does not know the plaintiff at the time of filing of the suit. The Ld. counsel for the defendants has argued that the said version of the plaintiff and Sh. Sultan Singh has been sufficiently demolished on record. In order to demolish the said version, the Ld. counsel for the defendants has argued as under: "It is submitted that Shri Sultan Singh, PW2 is an Advocate, practising at Hansi and Hissar, Haryana and is close friend of the Plaintiff. However, the Plaintiff and Shri Sultan Singh in the entire case has Suit No. 387/2017 Page 44 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
denied any kind of acquaintance with each other. There is no address of Shri Sultan Singh appearing on the documents dated 28.02.1997 or in the written statement. No address of Sultan Singh has been mentioned anywhere in the documents filed by the Defendants.
However, despite of all this the Plaintiff though maintaining a stand that he does not know who is Sultan Singh in the evidence which was lead in the year 2005, prior to the evidence itself on 24.05.2001 got an Affidavit of Sultan Singh filed in this Court which was attesting on 23.02.2000 at Hissar. If at all, the Plaintiff was not aware of Sultan Singh and role of Sultan Singh in the case, the Plaintiff could not have dreamed of the name, address and role of Sultan Singh in the present case. The said Sultan Singh files an Affidavit alleging that on asking of Defendant No.2 he signed some undated documents regarding settlement in good faith and wrote the receipt in his own handwriting.
The Plaintiff files list of witnesses on 12.03.2004 and cites the said Sultan Singh as his witness with complete address which also shows that he was fully aware of who is Sultan Singh and his role in the present suit. Despite of all this both Plaintiff and Sultan Singh (PW2) in their evidence maintains a false stand that they do not know each other.
The testimony of PW1 in this regard in his cross examination is , "Vol. In 1997 I did not know Sultan Singh and on 27/28/02/97 I was doing my work in the Courts at Hissar ............... xxxxxx ............. I do not know Sultan Singh Suit No. 387/2017 Page 45 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
.................xxxxxxxxxx................... it is incorrect to say that I know Sultan Singh before filing of the suit".
The testimony of PW2 in this regard in cross examination is, "I do not know Plaintiff........................... xxxxxxxxxx............................. I had not met the Plaintiff before today anywhere except on telephone .................. xxxxxxxxx........................... I started knowing Plaintiff now".
Thus, from the testimony of the PW1 & PW2, it is quite clear that their stand before the court is that did not know each other before filing of the present suit and have started knowing each other at the time of evidence. Infact, the said false stand was taken by the Plaintiff so that the Defendants may not be able to prove the documents of 28.02.1997 and a cloud may be created on the said documents.
However, in their testimony they did not explain how they came to know each other and how the Plaintiff came to know that it is Shri Sultan Singh who has scribe a note on 28.02.1997 in his hand. In order to prove old acquaintance of PW1 & PW2, the Defendants have relied upon the records of Hansi Court which are Exhibit DW5/1 to DW5/5. It is submitted that Exhibit DW5/1 is certified copy of Vakalatnama given by Sultan Singh to the Plaintiff in 1997 to contest a case for Sultan Singh titled as, "Smt. Chhanno versus Sultan Singh". The document Exhibit DW5/2 is a form filled by Plaintiff on behalf of Shri Sultan Singh in the year 1994 to obtain a certified copy of the case titled as, "Smt. Chhanno versus Sultan Singh". The Document Exhibit DW5/3 is an Affidavit submitted by Shri Sultan Singh before Civil Suit No. 387/2017 Page 46 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
Judge, Hansi wherein in para no.14 it is stated by Shri Sultan Singh that he was in judicial custody from 29.04.1994 to 23.05.1996. In Para no.20 of Exhibit DW5/3 he states that his Advocate was Ram Babu Aggarwal to whom he never instructed to settle the appeal. In Para no.22 Shri Sultan Singh has stated that my Advocate Shri Ram Babu Aggarwal got a protection warrant issued for me. This all shows that during the judicial custody from 29.04.1994 to 23.05.1996 Ram Babu Aggarwal was Advocate of Shri Sultan Singh. The Exhibit DW5/4 is an Affidavit by Ram Babu Aggarwal in the case titled as, "Sultan Singh versus Chhanno". In para No.1 of Exhibit DW 5/4, the Plaintiff has stated that in Civil Appeal No.120 of 12.09.1992 titled as, "Smt. Channo versus Sultan Singh", Sultan Singh has signed my Vakalatnama in my presence and during the pendency of this Appeal a case of murder was registered against Sultan Singh. Exhibit DW5/5 is an order dated 07.02.1995 passed by ASJ, Hisar, wherein Ram Babu Aggarwal is appearing for Sultan Singh as Advocate. The documents Exhibit DW5/1 to DW5/5 clearly establishes that the stand of Plaintiff and PW2 before this Hon'ble Court that they did not know each other before filing of the present suit and came to know each other only at the time of evidence is totally false. The above documents clearly shows that they had a very long and old association.
Further their above stand is also falsified on the basis of the document Exhibit PW2/DX. The Exhibit PW 2/DX is an Affidavit filed by Sultan Singh through counsel for the Plaintiff on 24.05.2001 before this Hon'ble Court taking a stand that he signed undated papers and a receipt in his own handwriting on 28.02.1997 on saying of Defendant No.2. When PW1 Suit No. 387/2017 Page 47 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
was cross examined on the said Affidavit it is stated by PW1, "I did not file the Affidavit of Sultan Singh, I do not know any O.P. Verma. Exhibit PW1/DX collectively confronted to the witness having received the same". The records of this Hon'ble Court reveals that on 24.05.2001 the Affidavit Exhibit PW2/DX has been filed by the counsel for the Plaintiff, and it would not automatically reach to the counsel for the Plaintiff unless or until the Plaintiff and PW2 are known to each other. Therefore, the Plaintiff and PW2 have maintained a false stand before this Hon'ble Court that they did not know each other to falsify the documents executed on 28.02.1997.
That in the light of the above, the testimony of PW1 & PW2 is totally incredible and this Hon'ble Court may kindly appreciate the document Exhibit PW3/A and the documents of 28.02.1997 in the light of the above testimony of the PW1 & PW2."
I find force in the aforesaid arguments of Ld. counsel for the defendants. The plaintiff is not a lay person and similarly, Sh. Sultan Singh is also not a lay person. Admittedly, both are legal professionals practicing as Advocates. The Advocates are expected to know about the rigors of law and its nuances. The casual and cavalier approach cannot be expected from the legal professionals. The plaintiff, while under the crossexamination, has categorically stated that he did not know Sh. Sultan Singh in the year 1997 and this version was volunteered by the plaintiff in his cross examination dated 27.01.2005. Therefore, the plaintiff has Suit No. 387/2017 Page 48 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
categorically come out with the version that in the year 1997, he did not know about Sh. Sultan Singh. The plaintiff was aware about the documents Exhibit PW2A to Exhibit PW2C, but still during the crossexamination done on 27.01.2005, the plaintiff has denied his acquaintance in the year 1997. Moreover, the defendants have placed on record the sufficient material on the record, whereby, it reveals that the plaintiff was engaged as a Counsel in the personal matter of Sh. Sultan Singh and he has been representing him as a Counsel in Hisar, Haryana prior to the year 1997.
The above conduct of the plaintiff is not above the Board and brought him under suspicion. Similarly, Sh. Sultan Singh, who is a professional practicing Advocate, has denied his relationship with the plaintiff prior to the filing of the suit and the same is also indigestible and unbelievable fact in the light of the material brought on record, whereby, the defendants have sufficiently proved their relationship even as an Advocate and client.
The plaintiff and Shri Sultan Singh appear to have denied their relationship for the simple reason that the plaintiff wants to deny the documents dated 28.02.1997 executed between the parties. The PW2 Sh. Sultan Singh has categorically admitted his signatures on the documents dated 28.02.1997. PW2 Sh. Sultan Singh in his evidence by way of affidavit has submitted that on 28.02.1997, the defendant no.2 had requested him to accompany for settlement, which was to takeplace between the two Suit No. 387/2017 Page 49 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
brothers at Delhi, who are relatives. The bare perusal of the said averment in the affidavit also reveals that as if Sh. Sultan Singh was not even aware about, who the plaintiff is and shown his total ignorance about the same.
The stand of PW2 and the plaintiff is that there is a relationship between defendant no.2 & Sh. Sultan Singh and it is on the asking of Sh. Naveen Kumar i.e. defendant no.2, Sh. Sultan Singh has made signatures on the undated documents (Ex.PW2/B and Ex.PW2/C) and also given handwritten receipt Ex.PW2/A. The said evidence of Sh. Sultan Singh is totally an indigestible fact and more so, coming from the mouth of the professional, who is a practicing Advocate. Such a theory is generally adopted by a person, who is a lay and illiterate person. The person having the professional degree and more so, practicing as a Lawyer, cannot be expected to sign the undated documents and write a document in his own handwriting, which is totally an unimaginable and unthinkable story, as presented by the plaintiff. Since Sh. Sultan Singh, who was and is having the relationship with the plaintiff and has signed the documents dated 28.02.1997, appears to have coined the aforesaid story on the asking of the Plaintiff. Except the oral testimony of PW2, there is nothing on the record to connect any relationship between Sh. Sultan Singh and Sh. Naveen Kumar i.e. defendant no.2. No documentary evidence has been produced to such effect that Sh. Sultan Singh has ever represented Sh. Naveen Kumar at any point of time. There is no record, which has Suit No. 387/2017 Page 50 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
been produced either by the Plaintiff or by Shri Sultan Singh about their relationship. Per contra, the defendants have got produced the official records of Sh. Naveen Kumar, whereby, he was not even present in Delhi either on 27.02.1997 and/ or 28.02.1997. The official records presented by the DW6 Sh. Rajender Kumar, Patwari, Block Development & Panchayat Office, HansiII, District Hissar, Haryana, cannot be overlooked merely on the ground that defendant no.2 is an official in the Haryana Government and as per the arguments of Ld. Counsel for the plaintiff that he can manipulate the said documents. There is nothing on record which shows the manipulation of the official records of the attendance of defendant no.2 in Haryana on 27.02.1997 and 28.02.1997. Moreover, this Court fails to understand, why Sh. Sultan Singh will sign merely on the asking of a person, who has no connection with Sh. Sultan Singh. The plaintiff or Sh. Sultan Singh has failed to show any connection with defendant no.2. Per contra, the defendants have sufficiently placed on record the sufficient material that there was relationship between the plaintiff and Sh. Sultan Singh. The Ld. counsel for the defendants has argued that the defendants have sufficiently proved the documents Ex. PW2/A, Ex. PW2/B and Ex. PW2/C by leading the cogent and convincing evidence and Ld. counsel for the defendants has argued as under: That the Defendants have examined Shri Subhash Chand (DW3) who is attesting witness on the documents executed between night of 27/28/02/1997. DW3 has deposed that, "during the Suit No. 387/2017 Page 51 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
night of 27/28 February 1997 Sh. Ram Babu Aggarwal, Sh. Suresh Aggarwal and Shri Sultan Singh friend of Sh. Ram Babu Aggarwal came to my factory with typed compromise deed & affidavit between the parties and I put my signature on the agreement at point A. Sh. Suresh Kumar and Sh. Ram Babu Aggarwal and two other witnesses Sh. Karan Singh and Sh. Sultan Singh had also signed on the agreement in my presence. Sh. Sultan Singh also written a slip in Hindi regarding cancellation of earlier settlement. I also put my signature as a witness. Both the parties and witnesses also signed on the slip in my presence. Earlier settlement was destroyed by Sh. Ram Babu Aggarwal in my presence at the time of agreement. Sh. Ram Babu Aggarwal also signed on his affidavit in my presence. Both the parties settled the disputes in full and final in my presence and executed the documents for compromised. The documents have already exhibited PW2/A, PW2/B and PW2/C on record".
In cross examination DW3 has stated, "We belong to same village ...........xxxxxxxxxxxxx....................I also advised him for the business at Delhi..........xxxxxxxxxxxxxxx.................... The document Ex.PWA was written in my presence in hand by Shri Sultan Singh and signed by the Plaintiff. At the relevant time I used to live and sleep in the factory.........xxxxxxxxxxxxxxxxx..................... the Notary Public has not signed Ex.PW2/B in my presence. Voltr. at about 88:30 pm between the night of 27/28.02.1997. I received a telephone call from Shri Ram Babu Aggarwal that he had settled the entire dispute with the Defendant No.1. And he had sent Shri Sultan Sigh for getting the agreement drafted. It was further stated by Shri Ram Babu Aggarwal that he Suit No. 387/2017 Page 52 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
wants to make me a witness to the settlement agreement. No settlement took place in my presence however, it was told by Sh. Ram Babu Aggarwal that the matter has already been settled in the meeting at the house of Defendant No.1. At the time of signing of the agreement, Plaintiff, Defendant No.1 and Shri Sultan Singh, myself, Shri Karan Singh were present. Shri Karan Singh was called by me. It is wrong to suggest that Shri Ram Babu Aggarwal do not know Karan Singh. It is correct that landlord of my factory premises and factory of Shri Suresh Kumar, Defendant No.1 is same person. It is correct that the document Ex.PW2/B and PW2/C, PW2/D2 and PW2/A were signed in my presence. It is further correct that no payment was made in my presence by Shri Suresh Kumar, Defendant No.1 to the Plaintiff............xxxxxxxxxx .............................. I do not know the contents of document which was destroyed by the Plaintiff and the Defendant No.1 on 27.02.1997. The document which was destroyed on 2702.1997 was in English. It is wrong to suggest that the document which was destroyed on 27.02.1997 was in Hindi. ....................
xxxxxxxxxxxxxxxx....................... It is wrong to suggest that the earlier settlement was in Hindi which was destroyed on 27.02.1997.
From the above testimony of DW3, it is quite clear that the document Ex.PW2/B, PW2/C, PW2/D2 & PW 2/A were signed in the presence of DW3 in his factory premises. It is also clear that Ex.PW2/A was written by Sultan Singh in his presence and signed by the Plaintiff. It is also clear from his testimony that the earlier settlement was destroyed. It is pertinent to mention here that the suggestions which have been given by the Plaintiff to DW3 also clarifies that the Suit No. 387/2017 Page 53 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
document Ex.PW2/B and Ex.PW2/C, PW2/D2 & PW2/A were signed in the presence of DW3. It is further submitted that no suggestion has been given to the DW3 that the earlier settlement was not destroyed on 27.02.1997 rather the suggestion which is coming is that the document was which destroyed on 27.02.1997 was in Hindi. In all eventualities, it is admitted case of the Plaintiff from these suggestion that the earlier settlement was destroyed on 27.02.1997. Thus, the position which emerges from the testimony of DW3 is that:
i) The documents Ex.PW2/B, PW2/C, PW2/D2, PW 2/A were signed by the parties and the witnesses in the presence of DW3 and are genuine documents.
ii) The Plaintiff was present in the factory of DW3 for signing these documents and these documents were brought by the Plaintiff after getting the same drafted.
iii) The earlier settlement between the parties was destroyed on 27.02.1997.
That the Plaintiff has also examined Shri Parveen Kumar, DW4. The said DW4 is real brother in law of the Defendant No.1 and brother of Defendant No.2. In his examination in chief he has deposed that on the request of Plaintiff and Defendant No.1 he reached Delhi on 27.02.1997 at about 6:00 pm and the Plaintiff alongwith his friend Sultan Singh also reached Delhi at the house of Defendant No.1 and the settlement was negotiated in his presence between the Plaintiff and Defendant No.1. He has further deposed that after negotiations the Plaintiff alongwith his friend Sultan Suit No. 387/2017 Page 54 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
Singh left to get the compromise documents prepared. He has further stated that at about 10:00 pm on 27.02.1997 Plaintiff, Defendant No.1, Sultan Singh alongwith DW4 met in the factory of Subhash Chand at about 10:00 pm and the Plaintiff and Shri Sultan Singh got typed agreement and affidavit in the factory of Subhash Chand. He has further deposed that the Plaintiff and Defendant No.1 signed the said agreement in his presence and Shri Sultan Singh and Subhash Chand also signed the same and Karan Singh also signed. He has also deposed that the previous settlement was cancelled and a note in this regard was written by Shri Sultan Singh on dictation of Plaintiff in the presence of DW4.
That in his cross examination DW4 has deposed that, "Myself and Suresh Kumar reached at Pooth Kalan about 7 pm..............xxxxxxxxxxxx......................... It is wrong to suggest that the Defendant No.1 Suresh Kumar got prepared documents and got signed from Sh. Subhash and Sh. Karan Singh. Voltr. The documents were brought by Plaintiff, Shri Ram Babu Aggarwal and Defendants Suresh Kumar and Sultan Singh. The documents were not prepared in my presence................xxxxxxxxx ........................... It is wrong to suggest that Ex.PW2/B, PW2/C & PW2/A do not bear signatures of Plaintiff....................xxxxxxxxxxxxxxx....................... I was informed by both parties that the earlier compromise was destroyed........................... xxxxxxxxxxxxxxxx.......................... It is wrong to suggest that the document Ex.PW2/A, PW2/B & PW 2/C were forged by Defendant No.1 Shri Suresh Kumar, Sh. Naveen Kumar and Sh. Subhash and Sh. Karan Singh". Except suggestions which are denied by the DW4, in the cross examination, nothing has Suit No. 387/2017 Page 55 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
come in favour of the Plaintiff and the Testimony of DW4 is corroborative to testimony of DW4.
That in order to state that the testimony of DW3 & DW4 is incredible, the Plaintiff in oral arguments have tried to show the timings stated by DW5, DW3 & DW
4. A conjoint reading of all the timings shows that the Plaintiff and Sultan Singh left the house of Defendant No.1 at around 7 pm and reached at the factory of DW3 at about 10 pm. It is submitted that that factory of DW3 at Pooth Kalan and residence of the Defendant No.1 at Sector7, Rohini, Delhi are at a driving distance of 1012 minutes. Though, the timings stated by the parties are almost in sequence of the events however, a minor discrepancy cannot be stated to be fatal for the case in a civil suit where the case is to be decided on the preponderance of evidence.
That in order to wriggle out of the documents Ex.PW 2/A, PW2/B & PW2/C, the Plaintiff and PW2 have stated that the Plaintiff was not present in Delhi on 27.02.1997 and the PW2 was brought by the Defendant No.2 alongwith him and the Plaintiff never knew PW2. The Plaintiff for the purpose of showing that he was not in Delhi has relied upon his presence in the Court on 27.02.1997 and 28.02.1997 and relied upon Ex.PW1/E & PW1/G. It is submitted that the lawyers appear in the cases in morning. The document Ex.PW1/E & PW1/G does not show the presence of Plaintiff in evening in the Court. Hissar and Rohini, Delhi are at a distance of 130 km and were reachable in three & half hours during those days. Therefore, the presence of the Plaintiff in the evening in Rohini, Delhi from 27.02.1997 cannot be ruled out on the basis of the said documents. Further, the case of the Defendants' is that the Plaintiff left Delhi early in Suit No. 387/2017 Page 56 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
morning on 28.02.1997 for some urgent work, leaving Sultan Singh in Delhi for attestation etc., therefore, the presence of Plaintiff in Court on 28.02.1997 will not establish that the Plaintiff was not in Delhi between the night of 27 & 28/02/1997.
Further case of the Plaintiff and PW2 that the PW2 was brought by the Defendant No.2 in Delhi is belied from the fact that the Defendant No.2 was attending his office at Hansi and was on official tour. The Defendants have examined DW6, Patwari, Block Development and Panchayat Office at Hansi in this regard who has produced the Attendance Register Ex.DW6/3 and attested copy of Log Register Ex.DW 6/4 and Attested copy of Movement Register Ex.DW 6/5. The document Ex.DW6/2 establishes that the Defendant No.2 was present in the office on 27.02.1997 & 28.02.1997. The document Ex.DW6/4 at entry no.350 depicts that the Defendant No.2 alongwith SDO (P) was on tour from 10 am to 6:30 pm on 28.02.1997. The document Ex.DW6/5 at entry No.2277 establish that Defendant No.2 on 27.02.1997 at 9:30 am to 6:00 pm was on tour at Dharam Kheri. Therefore, it is quite clear that the Defendant No.2 was not in Delhi on 27.02.1997 & 28.02.1997. As far as the claim of the Plaintiff and PW2 that they do not know each other has already been dealt in detail in preceding paras. The testimony of PW2 and Plaintiff in respect of documents of 27/28/02/1997 is not at all credible.
Further, the Plaintiff has testified himself by saying that he does not know Sh. Subhash Chand and Sh. Karan Singh. It is submitted that Sh. Subhash Chand, Plaintiff and Defendant No.1 belong to same village and Sh. Karan Singh was landlord of Defendant No.1 Suit No. 387/2017 Page 57 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
from the beginning. When Sh. Subhash Chand (DW3) testified himself, he has stated in crossexamination that they belong to same village and Sh. Karan Singh landlord. There is no suggestion put by the Plaintiff to this witness contrary to this. It is the case of the Plaintiff before this Hon'ble Court that he established the entire business of Defendant No.1 and had been even looking after the work of factory. That being the position, the Plaintiff must be knowing Sh. Karan Singh and Sh. Subhash Chand. This clearly shows that the testimony of the Plaintiff is not at all credible.
Further, the stand of the Plaintiff in his cross examination is that the documents on 28.02.1997 were not signed by him or Sh. Sultan Singh but the stand of the PW2 Sultan Singh is that these documents were signed by him however, he is taking a contradictory stand as at one place he has deposed that the documents were undated, at other place he has deposed that the documents were in blank and at one place he has stated that he has signed the same on saying of Shri Naveen Kumar i.e. Defendant No.2. In the light of these contradictory stands, the testimony of Plaintiff's witnesses on this aspect is not at all reliable.
That from the above testimony of the witnesses it is quite clear that the document Ex.PW2/A, PW2/B & PW2/C & PW2/D2 were validly executed by the parties after settling their all disputes including the disputes in respect of payment of money in terms of settlement dated 04.11.1996. The perusal of the agreement Ex.PW2/B & PW2/C depicts that the Plaintiff has received full and final amount against any claim in respect of the family settlement. The clause no.2 of Ex.PW2/B & PW2/C further depicts Suit No. 387/2017 Page 58 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
that the Plaintiff has agreed that he will not claim any amount from the Defendant No.1 in respect of any present, past or future liability and the Defendant No.1 will be absolute owner of the Rohini property. The perusal of the Ex.PW2/D2 depicts that the Plaintiff has received full and final payment from the Defendant No.1 and undertaken that he or his legal heirs will not demand or claim any amount from Defendant No.1 in future. The Plaintiff in Ex.PW2/C has also deposed in respect of the agreement Ex.PW 2/C and has stated that he or his heirs will not claim any right in Rohini property. The Ex.PW2/A is an undertaking by the Plaintiff written by his friend Sh. Sultan Singh wherein it is stated that document of mutual settlement of Rs.10 Lakhs has been cancelled and torn of and the agreement of 28.02.1997 shall be binding on the parties.
That in order to mislead this Hon'ble Court in respect of Ex.PW2/A, PW2/B & PW2/C, the Plaintiff during the oral arguments has shown to this Hon'ble Court a document titled as, "Agreement for mutual" dated 28.02.1997 and affidavit of Sh. Suresh Kumar Aggarwal filed in photocopy and has stated that since the stamp papers were purchased on 28.02.1997, therefore, how can the Ex.PW2/B & PW2/C can be executed on the night of 27/28/02/1997. It is submitted that the said documents shown by the Plaintiff at page No.891 & 893 are infact different documents and are not Ex.PW2/B & PW2/C & Ex.PW2/D2. The document as at Pg. No.891 is agreement for mutual between Ram Babu and Suresh Kumar in respect of Hissar property and the affidavit at Pg. 893 is affidavit of Suresh Kumar in respect of Hissar property and consideration received qua Hissar property. It is submitted that when the Defendant No.1 Suit No. 387/2017 Page 59 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
got documents on 27/28/02/1997 signed from the Plaintiff, the Plaintiff asked for the documents of Hissar property from the Defendant No.1 and the documents at pg. No.891 & 893 were signed without receiving any consideration from the Plaintiff so that there may not be any dispute between the parties.
That the Plaintiff has relied upon one affidavit of father Ex.PW1/g and the Defendant No.1 has relied upon one affidavit of the father Ex.DW1/P and Affidavit dated Affidavit dated 25.02.2003. The case of the Defendant No.1 is that the affidavit Ex.PW1/g has been prepared by the Plaintiff by playing fraud upon father. Both affidavits of father are contrary to each other. It is submitted that father never appeared in the witness box and no opportunity was given to the Defendants to cross examine Shri Chabbil Das. Even otherwise, filing of an affidavit without cross examination of the said person is of no consequence.
I find force in the aforesaid arguments of the defendants. The Ld. counsel for the plaintiff has vehemently argued about the timings interse between the witnesses and further that none of the witnesses supporting the fact about the payment of the amount of Rs.10.00 Lakhs. The documents Ex.PW2/B, Ex.PW2/C and Ex.PW2/D2 clearly and admittedly bear the signatures of Sh. Sultan Singh and Ex.PW2/A is in the writing of Shri Sultan Singh. The defendants have examined the witness of the said documents. The documents clearly suggest that full & final payment has been received by the plaintiff. Moreover, it is well settled law that by passage of time, the memory of the witness got fades and there may Suit No. 387/2017 Page 60 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
be contradiction with respect to the timings of meetings between the parties on 27.02.1997 and 28.02.1997 and/or about the making of payment of Rs.10.00 Lakhs, but the evidence of the defendants clearly stood the test of material version of their testimonies. The natural variations in the testimonies of the parties are always there with the lapse and passage of time and moreover, this Court is not the Criminal Court, who has to see that the case has to be proved beyond reasonable doubt. The Court has to consider the balance and preponderance of probabilities. The witnesses produced by the defendants clearly pointout about the settlement, which was arrived at between the parties on 27.02.1997 and 28.02.1997. The Affidavit Exhibit PW2/D2 (document dated 28.02.1997) and other documents clearly reveal the full & final amount has already been paid to the plaintiff in terms of the documents i.e. the Agreement dated 28.02.1997 (referred as Ex.PW 2/B and Ex.PW2/C, although, the same is one document). The handwritten letter of Sh. Sultan Singh Ex.PW2/A clearly shows that the Agreement dated 04.11.1996 was superseded. Although, it reveals about torning off the document dated 04.11.1996 but it appears that the said document has not been torn off.
The Ld. counsel for the plaintiff has also argued that in terms of the judgment of Kale and Ors., versus Deputy Director of Consolidation and Ors. (supra), the said document Ex.PW2/B cannot be relied upon as it purports to and creates the rights in the properties mentioned in the said document. The said document is Suit No. 387/2017 Page 61 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
not the alone document and there is also an affidavit alongwith the said document. Moreover, the Court is not adjudicating whether by the said document, the parties have got the right, title and interest in the properties mentioned in the said document. The question of substitution/ novation of the Contract dated 04.11.1996 is the germane and the same has been substituted/ novated by the said document and furthermore, the Hon'ble Supreme Court has categorically held that for the purpose of adjudicating the money suit, even the unregistered Sale Deed and Agreement to Sell can be looked into for collateral purpose.
The Ld. counsel for the plaintiff has also vehemently argued that on 27.02.1997, the plaintiff was at Hisar Court, Haryana. This Court cannot loose the sight of the fact that the Settlement tookplace at a place, which is at the North West Delhi and the North West Delhi is much closer to Hisar, Haryana than the other parts of Delhi. The parties can commute easily between Hisar and Delhi and there is availability of transportation throughout 24 hours. The presence of the counsel in the cases before the Court may be recorded in the morning or at the maximum, before the lunch hours and the distance between Hisar, Haryana and Delhi can easily be covered within a period of four hours even at that time. The arguments of the plaintiff that the plaintiff was at Hisar, Haryana, by showing the Court ordersheet, does not, in any manner, takesaway the efficacies of the documents dated 28.02.1997, whereby, full & final settlement was Suit No. 387/2017 Page 62 of 63 Ram Babu Aggarwal V. Suresh Kumar & Anr.
arrived at between the plaintiff and defendant no.1. However, with the caution that this Court is not adjudicating whether the documents dated 04.11.1996 and/or 28.02.1997 itself confer any right, title and interest in the property in question mentioned in the said documents. In view of the discussions, made hereinabove, the issues no.1 and 2 are decided in favour of the defendants and against the plaintiff.
RELIEF In view of the findings, as adumbrated above, I hereby pass the following FINAL ORDER
(i) The suit of the plaintiff is hereby dismissed.
(ii) The parties shall bear their respective costs of litigation.
(iii) The bank guarantee of Rs.2,50,000/, furnished by the defendants, be released in accordance with law after the expiry of three months i.e. after lapse of period provided for appeal.
Decreesheet be prepared accordingly.
File be consigned to Record Room after due compliance. Announced in the open court on this 30th day of November, 2019.
(ARUN SUKHIJA)
ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 387/2017 Page 63 of 63