Delhi District Court
Sh. Kartar Singh vs Smt. Usha Rani on 30 August, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
CS NO. 12644/16
In re:
Sh. Kartar Singh
S/o Sh. Chandgi Ram
R/o E-16/410, Sector-8,
Rohini, Delhi-110085.
............... Plaintiff
VERSUS
Smt. Usha Rani
W/o Late Sh. Raman Chadha
i. R/o B-3/3, Sector16,
Rohini, Delhi.
ii. R/o 518/13, Krishna Nagar,
Near Adarsh Nagar Park,
Jalandhar, Punjab.
............. Defendant
Date of institution of Suit : 10.04.2008
Date of receiving in this Court : 08.02.2016
Date of hearing arguments : 12.08.2016
Date of Judgment : 30.08.2016
Suit For Recovery of Rs 9,46,000/- along with
Pendentilite and Future Interest
JUDGMENT
This judgment decides the suit filed by plaintiff for recovery of sum of Rs 9,46,000/- against defendant with pendentilite and future interest.
1. Plaintiff has filed suit for recovery of amount stating therein that plaintiff had purchased the plot no. 423, area measuring 32 sq. meters, Block and Pocket-B1, Sector 29, situated in layout plan of Rohini residential scheme, CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 1 of 13 Phase IV, Rohini, Delhi which was alloted by Delhi Development Authority vide file no. F-45 (2285)/2004/RHN in favour of the defendant husband Late Sh. Raman Lal Chadha. After the demise of Raman Lal Chadha, defendant got mutated her name in place of her husband in the record of DDA and thereafter on 11.03.2005, defendant disposed of/sold out the abovesaid plot by executing title documents i.e. agreement to sell/purchase, receipt, two registered SPA and Will in favour of the plaintiff for the aforesaid plot after receiving valuable consideration of Rs.5,50,000/- in cash on the date of execution of title documents ;i.e. 11.03.2005.
2. It has been submitted that DDA sent allotment cum demand letter dated 02.08.2004 in respect of the suit property after mutating the defendant's name in place of her husband under which defendant was to deposit Rs.1,51,484/- as per the said allotment cum demand letter.
3. Defendant approached plaintiff after receiving allotment cum demand letter and requested for arranging amount of Rs.1,50,000/- so that she could deposit the same with DDA and she represented that she would return/refund the said amount within three months with interest.
4. Plaintiff arranged the money for defendant and made payment to DDA vide pay order no. 999520 for Rs.47,760/- which was prepared against cheque no. 850256 dated 04.10.2004 for Rs.47,810/- and another pay order no. 597737 for Rs.98,270 which was prepared against cheque no. 850265 dated 03.12.2004 for Rs.98,379/- and as such a sum of Rs. 1,46,030/- was paid to DDA. Plaintiff approached the defendant in January 2005 after expiry of three months period and shown her incapability to refund the above money. However, she assured that plaintiff would dispose of the above plot after making enquiry about actual market value of the said plot. Defendant failed to refund the above money as per the above assurance. Defendant told plaintiff that she inclined to dispose of/sell the above plot for Rs.5,50,000/- excluding CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 2 of 13 Rs.1,46,030/- which was paid against the above allotment cum demand letter which plaintiff agreed. Accordingly defendant executed aforesaid title document dated 11.03.2005 after receiving the valuable consideration.
5. On 04.04.2005, plaintiff came to know that defendant had played fraud with the plaintiff, defendant moved an application before DDA for re- mutation of the aforesaid plot in favour of her one of the son Sh. Revti Chadha. As such plaintiff got issued legal notice to the defendant and DDA. After receiving the aforesaid legal notice DDA stopped further mutation proceedings on the application of the defendant and called the plaintiff for giving proper representation. Thereafter, plaintiff visited the office of DDA and on enquiry from DDA, plaintiff filed suit for permanent injunction bearing no. 106/07 titled Sh. Kartat Singh vs. DDA & Ors. whereby interalia praying for not to cancel the allotment of the aforesaid plot but DDA filed written statement and mentioned that the aforesaid plot has already been re-alloted to the next waiting registrant Smt. Muthri Devi in the draw held on 07.03.2007. Plaintiff was shocked to know this. Thereafter, plaintiff approached the defendant for restoring the hard earned money of Rs.7,00,000/- which was paid by the plaintiff to the defendant, with interest @ 24% per annum.
6. Defendant filed written statement thereby raising objection that the suit is not maintainable, same has been filed to blackmail and harass the defendant, therefore, defendant would be compelled to accede the illegal and unlawful demand of the plaintiff. The suit does not disclose cause of action. The suit is bad for non-joinder of Sh. Vasudev R/o F-13/7, Sector 15, Rohini, Delhi-85. It has been submitted that plaintiff has concealed the material fact of having transaction with Sh. Jitender and it was infact Sh. Vasudev who had got some signatures of defendant and had allured profit and had forced her to sign some undisclosed papers. It has been further submitted that no contract for the sale could have taken place for the property alloted by DDA without taking permission from the DDA. Therefore, any alleged agreement or alleged CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 3 of 13 purchase by the plaintiff is illegal and invalid. It has been submitted that Sh. Vasudev approached the defendant and paid a sum of Rs.65,000/- against the allotment papers of the flat in question. On merits, every submission of the plaintiff has been denied. It has been denied that defendant ever approached the plaintiff when allotment cum demand letter for Rs.1,50,000/- was received by the plaintiff or agreed to sale the same to the plaintiff. Hence, defendant prayed for dismissal of the suit.
7. On the basis of pleadings of parties following issues were framed vide order dt 01.08.2008:-
1. Whether the suit is not maintainable for non-joinder of Sh. Vas Dev? OPD
2. Whether there is privity of contract between the parties in respect of plot no. 423 measuring 32 sq. meters, B-1, Sector-29, Rohini, Phase-IV, Delhi? OPP
3. Whether the plaintiff is entitled to recover the suit amount with interest from the defendant? OPP
4. Relief.
8. In support of his case, plaintiff examined Sh. Kartar Singh as PW-1 who tendered his affidavit Ex. P1 in examination-in-chief and relied upon original Agreement to sell and purchase Ex. PW1/1, Two Registered Special Power of Attorney Ex. PW1/2 and Ex. PW1/3 respectively, Will dated 11.03.2005 Ex. PW1/4, Receipt in favour of plaintiff Ex. PW1/5, Original Allotment Letter Ex. PW1/6, Original Debit Certificate Ex. PW1/7, Certified copy of Plaint Ex. PW1/8 and Certified copy of Written Statement alongwith documents Ex. PW1/9 (colly.). He was cross examined by the defendant. Plaintiff examined Sh. Yashpal Grover as PW-2 who tendered his affidavit Ex. PW2/A in examination-in-chief. He was cross examined by the defendant. Plaintiff examined Sh. Ashok Kumar Malhotra, UDC, Land Sales Branch, DDA, Rohini as PW-3 who produced the record pertaining to the payment CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 4 of 13 vide challan receipt no. 041203000484 dated 03.12.2004 instrument no. 587737 for an amount of Rs.98,270/- drawn on Bank of Punjab Ltd. against allotment of plot having area of 32 sq. meters bearing no. 423/B-1, Sector 29, Rohini, Delhi and challan receipt is Ex. PW3/1. He was cross examined by the defendant. Plaintiff examined Sh. Chetan Chauhan as PW-4 who produced the certificate of issuing demand drafts bearing no. 999520 dated 04.10.2004 for Rs.47,760/- and another DD bearing no. 587737 dated 03.12.2004 for Rs. 98,270/- in favour of DDA and proved the same as Ex. PW4/1. He was cross examined by the defendant. After which, plaintiff's evidence was closed.
9. In support of her case, defendant examined herself as DW-1 and tendered her affidavit as Ex. DW1/A in examination-in-chief. She was partly cross-examined by the plaintiff. Her cross-examination was deferred and was not completed.
ISSUE No. 1:- Whether suit is not maintainable for non joinder of Sh Vasdev? OPD
10. Onus to prove this issue is upon the defendant. Defendant filed her affidavit in examination in chief and once appeared for her cross examination and she was partly cross examined but thereafter she did not appear for her cross examination. As defendant was not appearing for her cross examination nor any other witnesses were being examined despite many opportunities, defendants evidence was closed on 24.03.2015. Thereafter, Defendant moved an application and one opportunity was granted to her lead defense evidence subject to payment of coast but she neither paid the cost nor did she examined herself and as such again defendant evidence was closed and it ordered that her part examination would not be read in evidence vide order dt 14.10.2015.
11. It is the pleading of the defendant that one Vasdev who approached defendant and paid Rs 65,000/- against allotment of the plot in CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 5 of 13 question and it was Vasdev who allured her profit and forced her to sign some undisclosed papers. Plaintiff has denied any involvement of Vasdev in the deal. Therefore it was for the defendant to prove that Vasdev had in fact dealt with and forced her to sign some undisclosed papers. But as noted above since defendant has not led any evidence, therefore defendant failed to prove this issue.
Hence, issue No.1 is decided against the defendant and in favour of Plaintiff.
ISSUE No.2:- Whether there is no privity of contract between parties in respect of plot No. 423 measuring 32 sq. meters B-1, Sector 29, Rohini Phase-IV, Delhi? OPP
12. Onus to prove this issue is upon the plaintiff. It is the pleaded case of the plaintiff that defendant after receiving allotment-cum-demand letter from Delhi Development Authority (DDA) in respect of plot No. 423, Block & Pocket No. B-1, Sector-29, Rohini, Delhi-110085 after mutating her name in place of her husband, approached plaintiff with request to arrange for her sum of Rs 1,50,000/- which she was required to deposit with DDA against the said allotment of flat. She promised to return the same within three months with interest as charged by Bank otherwise she would sell the plot to the plaintiff. Plaintiff himself arranged the money for defendant and made payment to DDA vide pay Order No. 999520 for Rs 47760/- which was prepared against cheque No. 850256 dt 4.10.2004 and vide pay Order No. 597737 for Rs 98,270/- which was prepared against cheque No. 850255 dt 3.12.2004 for 98,379/- and thus plaintiff on behalf of defendant made payment of Rs 1,46,189/- vide above stated pay orders. After expiry of the above stated period of three months, plaintiff approached defendant in 2005 for refund of his money to which defendant expressed her inability and assured to dispose of the plot in his favour after ascertaining the market value of the plot. After one month defendant assured to dispose of the plot for sum of Rs 5,50,000/- excluding the amount of Rs 1,46,000/-. Accordingly, defendant executed title document i.e..
CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 6 of 13 Agreement to sell, two Regd. G.P.A, Regd Will and receipt dt 11.03.2005 Ex PW1/1 to Ex Pw1/5 respectively after receiving Rs 5,50,000/- in cash on the day of execution of documents Ex PW1/1 to Ex PW1/5. Subsequently, plaintiff came to know that DDA had canceled the plot and alloted the same to other person without giving any opportunity to represent his case and grievance by DDA. Thereafter, plaintiff regularly approaching defendant and DDA for restoration of the aforesaid allotment after canceling the allotment in favour of one Smt Muthra Devi but DDA not paid any heed, hence plaintiff met defendant for returning he aforesaid principal amount of Rs 7,00,000/- against the purchase of aforesaid plot.
13. Defendant in her pleading has denied the fact of approaching plaintiff for arranging fund for payments against allotment-cum-demand letter. She also denied any contract with plaintiff. She pleaded that one Vasdev allured her to profit and paid Rs 65,000/- and forced her to sign some undisclosed documents. She also denied to have received any sum of Rs 5,50,000/- as alleged by plaintiff. Defendant had submitted that defendant was not aware of cancellation of plot by DDA and she reserved her right to get restored status quo ante.
14. Plaintiff examined himself as PW1, Yashpal grover as PW2 stated to be unsigned witness to the transaction, PW3 Sh Ashok Kumar LDC Land sales Branch of DDA and PW4 Sh Chetan Chauhan Assistant Branch Manager from HDFC Bank. As noted above there is no evidence from defendant.
15. PW1 deposed on the lines of his plaint and exhibited documents Ex Pw/1 to Ex PW1/5 executed by defendant after receiving the considderation amount. His corss examination did not bring out anything favouring defendant. No suggestion was given to PW1 and PW2 that Ex PW1/1 to PW1/5 do not bear the signature of defendant or that Ex PW1/1 to CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 7 of 13 Ex PW1/5 are the documents got forced signed from her by Vasdev. PW2 also deposed on the lines of plaint but even in his cross examination no suggestion was given to PW1 and PW2 that Ex PW1/1 to PW1/5 do not bear the signature of defendant or that Ex PW1/1 to Ex PW1/5 are the documents got forced signed by her by Vasdev. In fact suggestion which was given is beyond the pleading. It was suggested that documents were got signed by plaintiff along with and in collusion with Shri Vasudev and Shri Jitender from defendant on the pretext that these documents are the formal documents which were to be submitted before DDA without telling the defendant the exacts facts. In the entire written statement there is no averment about the collusion between plaintiff, Vadev and one Jitender.
16. There is neither specific denial in the pleading nor in the cross examination of the plaintiff's witness that documents Ex PW1/1 to PW1/5 do not bear the signatures of the defendant. Defendant has not pleaded that documents Ex PW1/1 to Ex PW1/5 are the documents which was got forced signed by her by Vasdev and misused by the plaintiff. Defendant has also not pleaded that she did not appear before any Sub-Registrar. Defendant has not led any evidence to prove that any undisclosed documents was got signed from her by Vasdev.
17. The unimpeachable conclusion of the above discussion is that plaintiff has successfully proved the execution of documents Ex PW1/1 to Ex PW1/5 by defendant in his favor and therefore so far as the privity of contract is concerned plaintiff has successfully proved the same.
Hence, issue No.2 is decided in favour of plaintiff and against the defendant.
ISSUE No. 3:- Whether plaintiff is entitled to recover the suit amount with interest from the defendant? OPP CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 8 of 13
18. Onus to prove this issue is upon the plaintiff. As seen above plaintiff has successfully proved execution of documents Ex PW1/1 to Ex PW1/5.
19. Defendant has denied receipt of any sum from plaintiff. Plaintiff as PW1 deposed that defendant after receiving allotment-cum-demand letter Ex PW1/6 approached plaintiff for arranging for her fund for depositing the amount demanded in the said letter with DDA and agreed to return the same after three month failing which she would sell the plot to him. Plaintiff got prepared two pay orders No. 999520 and 583737 against cheque No. 850256 and 850265 and got exhibited the debit certificate Ex PW1/7 from HDFC Bank in his evidence. As defendant failed to return the amount she agreed to sell the same for Rs 5,50,000/- excluding the amount of Rs 1,50,000/- paid to the DDA by plaintiff by way aforesaid pay orders.
20. As has been noted above that plaintiff has successfully proved execution of documents Ex PW1/1 to Ex PW1/5 and defendant failed to lead any evidence to prove any of her defense. Plaintiff also placed and proved on record original allotment-cum-demand letter exhibit ExPW1/6. Plaintiff was not cross examined on this point as to how this allotment-cum-demand letter Ex PW1/6 came into possession of plaintiff. It is also not the case of the defendant that at the time of getting alleged forced signature on undisclosed document, the original allotment-cum-demand letter was taken away by the said alleged Vasdev. Nor is her case that such document was lost etc. Nor did any suggestion was given to plaintiff that Ex PW1/6 is not the allotment-cum- demand letter. Further no suggestion was given to PW1 that no such pay order were deposited with DDA on behalf of defendant.
21. Plaintiff also examined one witness form Land Sales Branch of DDA. The LDC from the said branch brought record pertaining to payment made against allotment of suit plot. He further deposed as PW3 that vide CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 9 of 13 challan No. 041203000484 dt 3.12.2004 a sum of Rs 98,720/- vide instrument No. 587737 was deposited, copy of which was exhibited as Ex PW3/1 and vide challan No. 041005000001 dt 5.10.2004 a sum of Rs 47,760/- vide instrument No. 999520 was deposited, copy of which was exhibited as Ex PW3/2. He was cross examined only with regard to his authority to depose and about his personal knowledge. He deposed that he has deposed only on the basis of record brought by him and he admitted that Ex PW3/1 and Ex PW3/2 do not bear the detail of property showing its number. He deposed that file number is mentioned along with the allottees's name on it. No suggestion was given that he was not working with DDA or that record brought by him was not of DDA or of DDA Land Sales branch or that it does not contain the details of payment or that amount was not credited into the account of defendant in respect of suit plot.
22. It has been argued by Counsel for plaintiff that if a person on his own deposits the money on behalf of any other person then that other person does not become liable to pay the same back to former. The argument is not sustainable. If a person has taken benefit of mistaken/deliberate act of other, then the person taking benefits is under obligation to pay for it or return the same to person who gave it. If by mistake delivery boy deliver a article to wrong person and if that person consume the same or use it for personal purpose he becomes oblige to pay for it. If plaintiff had deposited the said sum by way of aforesaid pay orders in her account, then defendant must have been given adjustment for the said amount. It was not the case of defendant that she paid the said sum or any sum to DDA.
23. It has been further argued by the counsel for defendant that PW3 was not authorized to depose as he failed to prove authority to depose. Even this argument is not sustainable as it is not the source but the evidence that is to be considered. As has been noted above his evidence has been impeccable. Simply because he was not authorised to depose will not wipe off the evidence CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 10 of 13 brought by him on record veracity of which was not questioned. Thus, it stands proved that plaintiff paid the initially sum of Rs 1,46,189/- excluding the cost of preparation of pay orders.
24. As far as payment of Rs 5,50,000/- is concerned, defendant has denied that she received any payment from plaintiff and she also denied execution of any document Ex PW1/1 to Ex PW1/5. But it has already been proved by plaintiff that such documents were executed by the defendant. Moreover, original allotment-cum-demand letter Ex PW1/6 was produced by plaintiff in his evidence. In the light of defendant's stand where she denied every thing which crumbled one by one thereby credibility of defendant's plea that she did not receive the payment of Rs 5,50,000/- becomes doubtful and does not inspire confidence of this court to doubt plaintiff's stand
25. It has been argued by the Counsel for defendant that plaintiff was required to stand on his own legs and has not proved the payment of Rs 5,50,000/- to defendant.
26. Agreement to sell Ex PW1/1 and receipt Ex PW1/5 both shows consideration amount as Rs 5,50,000/- meaning thereby plaintiff documents reveals that total agreed consideration amount was Rs 5,50,00/- and not Rs 7,00,000/- as pleaded by the plaintiff. Plaintiff has pleaded that Rs 5,50,000/- was apart from what was already paid. But this fact do not find mention in the agreement to sell Ex PW1/1 and in the receipt Ex PW1/5. It is also not understandable as to why this fact was not included if it was so agreed. Thus court finds it difficult to accept that sale consideration was agreed to be Rs 7,00,000/-.
27. It has already been held herein before that defendant has failed to inspire confidence in her defense. Ex PW1/5 is the receipt of payment of Rs 5,50,000/-which defendant denied but plaintiff successfully proved. Defendant CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 11 of 13 in her written statement has not questioned the capacity of plaintiff to pay such amount although a suggestion was given to the plaintiff that he did not have such amount in cash. This suggestion of defendant is of no value as evidence beyond pleading cannot be looked into. Defendant's entire defense was that documents were got forced signed from her by one Vasdev. She did not plead that plaintiff had no ability to pay. If she had questioned the capacity of plaintiff in her pleading then plaintiff would have been expected to bring on record material of his capacity to pay and that he actually paid. Defendant having not questioned his ability to pay cannot be allowed to spring surprise for plaintiff to say that plaintiff had not shown his ability to pay or that he actually paid.
28. In the facts and circumstances of this case plaintiff by proving the payment receipt Ex PW1/5 coupled with production and proving of allotment-cum-demand letter Ex PW1/6 which defendant failed to explain how it came into the hands of plaintiff, has successfully discharged the burden upon him. Thus, plaintiff can be believed with certainty that he in all paid the consideration amount of Rs 5,50,000/- only as preponderance of probabilities lead this court to believe as such.
29. If defendant had pleaded that cancellation of allotment by DDA subsequent to her execution of documents in favor of plaintiff does not make her liable to refund the amount then different question would have arisen for consideration before this court but such is not the case here. No other question has been raised about the entitlement of plaintiff to recover amount from defendant.
30. Plaintiff has claimed interest @ 24% per annum but has not led any evidence on this aspect. Therefore, in terms of Section 34 of CPC plaintiff is awarded simple interest @ 6% per annum from the date of institution of the suit till its actual realisation.
CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 12 of 13 RELIEF In view of the findings recorded on all issues, suit of the plaintiff is decreed and accordingly decree for recovery of Rs 5,50,000/- is hereby passed in favor of plaintiff and against the defendant with simple interest @ 6% p.a from the date of institution of the present suit till its actual realization. Parties to bear their own cost of litigation.
Decree sheet be drawn accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 13 pages) Delhi/30.08.2016
CS No. 12644/16 Kartat Singh Vs. Usha Rani Page No. 13 of 13