Delhi District Court
Sng Mohelas Anal And Anr vs Meena Devi on 1 June, 2024
DLST010036762018
In the Court of Sh. Munish Bansal,
District Judge-03, South District,
Saket Courts, New Delhi
CS No.: 543/2018
In the matter of :-
1. SNG Mohelas Anal,
S/o Late LH Khison Anal,
2. ST Cicilia,
W/o SNG Mohelas Anal,
Both R/o D-9E, Second Floor,
G-8, Area Rajouri Garden,
Mayapuri,
New Delhi -110064. .......Plaintiffs
Versus
1. Mrs. Meena Devi,
W/o Late Sh. Paramjeet Singh,
2. Harmanjeet Singh,
S/o Late Paramjeet Singh,
3. Harmanpreet Kaur,
D/o Late Paramjeet Singh,
(Defendant no. 2 & 3 are minors)
All R/o S-13, Har Govind Enclave,
Rajpur Khurd,
New Delhi- 110068. ......Defendants
CS/543/2018 Page 1 of 22
Date of institution : 25.05.2018
Arguments heard on : 27.05.2024
Date of decision : 01.06.2024
JUDGMENT
1. Facts as epitomized in the plaint are that Late Paramjet Singh was husband of Defendant no. 1 and father of Defendant no. 2 and 3, who died on 21.03.2018 and Defendants herein are the only legal heirs of Late Paramjeet Singh, who have inherited all the movable and immovable properties left behind by Late Paramjeet Singh, thus, have also become liable for the liabilities for which Late Paramjeet Singh was responsible at the time of his death. Defendants no. 2 and 3 are minors and are being represented through their legal guardian/ mother i.e. Defendant no.1.
1.1. It is averred that Late Paramjeet Singh through various local newspapers had published an advertisement with the name & style of M/s Harman & Harman Builders and offered to sell plots situated in Village Gadaipur, Ghitorni, near Chhattarpur, New Delhi. On the basis of said advertisement, the Plaintiffs showed their interest for purchase of residential plot. In the first week of January 2016, Sh. Paramjeet Singh (now deceased), met the Plaintiffs and shown photocopy of documents of his ownership over the land forming part of Khasra no. 314 and 315, Gadaipur Extension, New Delhi and also took the Plaintiffs to the site of land which was offered for sale. He also assured and confirmed that he was the absolute owner of said land having clear marketable title and also assured that he would develop the said land and would provide all necessary amenities before delivery of possession of said land. On the basis of assurances, the Plaintiffs have agreed CS/543/2018 Page 2 of 22 to purchase 100 sq. yards of land forming part in Khasra no. 314 & 315, Gadaipur Extension, New Delhi and Sh. Paramjeet Singh had offered Plot no.20 at a sale consideration of Rs.17,00,000/- and accordingly, an Agreement to Sell dated 19.01.2016 was executed between Sh. Paramjeet Singh and Plaintiffs. As per demand, the Plaintiffs have paid Rs.4,25,000/- as part payment of total sale consideration against receipt executed by Sh. Paramjeet Singh. As per the agreement, the delivery of physical, vacant possession of land/ plot was to be delivered within three months from the date of execution of Agreement. Sh. Paramjeet Singh also compelled the Plaintiffs to pay Rs.1,17,000/- for the purposes of stamp duty, registration charges of Sale Deed which was to be executed in terms of said Agreement and accordingly, said sum of Rs.1,17,000/- was duly paid. However, despite assurance, Sh. Paramjeet Singh neither handed over the said plot nor executed Sale Deed in favour of Plaintiffs despite their willingness to make remaining payment in terms of said Agreement. The Plaintiffs regularly pursued Sh. Paramjeet Singh to fulfill the terms of Agreement but he showed his inability to do so and offered to return the amount of Rs.5,42,000/- received by him as advance payment and tendered his apology. Sh. Paramjeet also forced the Plaintiffs to sign a Memorandum of Settlement as pre- condition for returning the money and the Plaintiffs signed the same under compelling circumstances and original of the same was kept by Sh. Paramjeet Singh. Thereafter, Sh. Paramjeet Singh had issued a cheque bearing no. 000208 dated 05.12.2016 of Rs.3,00,000/-, drawn on HDFC Bank, Chattarpur Branch in the name of Plaintiff no.1 and cheque no. 000209 dated 13.12.2016 of Rs.2,42,000/- drawn on HDFC Bank, in the name of Plaintiff no.2 for refunding the payment so received by him. Later on, Sh. Paramjeet Singh requested the Plaintiffs to return said cheques and issued new cheques bearing no. 935892 dated 25.01.2017 of Rs.3,00,000-, drawn on Indusind Bank, Vasant Kunj Branch, in favour of Plaintiff no.1 and cheque no. 935593 CS/543/2018 Page 3 of 22 dated 03.02.2017 of Rs.2,42,000/-, drawn on Indusind Bank, Vasant Kunj Branch, in the name of Plaintiff no.2. However, upon deposit of cheque no. 935892, the same got dishonoured and returned vide Return Memo dated 04.03.2017. Thereafter, Sh. Paramjeet Singh promised to pay the said amount in cash but had failed to fulfill his part of obligations.
1.2. It is further averred that Late Sh. Paramjeet Singh had intentionally cheated the Plaintiffs by publishing false advertisement regarding sale of plots and assuring himself to be the owner of the same, even though he was not the owner nor had any rights to sell the same. He also issued cheques in favour of the Plaintiffs in order to cheat them, even when there was no amount in his bank. Finding no other alternative, the Plaintiffs got issued legal notice dated 17.03.2017 to Late Paramjeet Singh, which was duly served upon him, however, despite notice, neither the money was returned nor any reply was filed. The Plaintiffs have also filed complaint case under Section 138 of Negotiable Instruments Act in respect of cheque bearing no. 935892 dated 25.01.2017 of Rs.3,00,000/-. It is averred that Late Sh. Paramjeet Singh, during his lifetime, despite acknowledging his liability and after his death, his legal heirs are illegally and unlawfully withholding the legitimate amount of Plaintiffs.
On these grounds, the Plaintiffs have filed the present suit seeking recovery of principal amount of Rs.5,42,000/- alongwith interest amount of Rs.1,80,667/- (@16% p.a. w.e.f. 01.04.2016 to 30.04.2018). The Plaintiffs are also seeking pendent-lite and future interest @16% p.a. from the Defendants. Hence, this suit.
2. Summons of suit were served upon the Defendants. The Defendant no.1 filed written statement in her defence stating therein that Defendant no.1 got divorce from Sh. Paramjeet Singh, way back on CS/543/2018 Page 4 of 22 16.11.2017, u/s 13 B (2) of Hindu Marriage Act, 1955 by the Court of Ld. Principal Judge, Family Courts, South, Saket, therefore, no cause of action has arisen against the Defendant no.1 herein. It is denied that Defendant no. 1 is responsible for any liabilities of Late Sh. Paramjeet Singh. She stated that she is not the legal heir of Late Paramjeet Singh nor has inherited any movable and/or immovable properties, whether or not left behind by him. It is further stated that Defendant no.1 is not aware of the contents of the plant since she had already been divorced.
On these grounds, it is prayed that the present suit is liable to be dismissed.
3. Replication to written statement of Defendant no.1 was filed on behalf of the Plaintiff wherein the Plaintiff has stated that the alleged divorce proceedings were only a sham litigation in order to commit fraud with the investors, moreso, no documents with respect to the same were placed on record by the Defendant no.1. It is further stated that the fraudulent act committed by Sh. Paramjeet Singh was prior to the alleged divorce. It is stated that Defendant no.1 was residing with Paramjeet Singh till his last breath and is still residing in the same house and in the affidavit annexed with the written statement, the same residence address is mentioned. It is further stated that even after the death of Paramjeet Singh, the condolence message card for attending the last rites of Paramjeet Singh bears the name of Defendant no.1 alongwith Defendant no. 2 and 3 and hence, the Defendant no.1, 2 and 3 cannot save themselves from the legal liabilities arising due to acts of Late Paramjeet Singh. It is stated that all the properties and assets belonging to Late Paramjeet Singh are inherited by Defendants no.1, 2 and 3. All other contents of written statement were denied and pleadings made in the plaint are reiterated and reaffirmed by the Plaintiff.
CS/543/2018 Page 5 of 224. From pleadings of parties, following issues were framed on 10.12.2018:-
1. Whether plaintiff is entitled for a decree of recovery of sum of Rs.7,22,667/- from the defendants, as prayed for? OPP
2. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP
3. Whether the suit filed by the plaintiff is without any cause of action? OPD
4. Relief.
Thereafter, matter was fixed for Plaintiff's evidence.
5. To prove their case, the Plaintiff no.1 has himself stepped in witness box as PW1 and tendered his evidence by way of affidavit Ex.PW1/A whereby she has reiterated the contentions made in the plaint. He has relied upon the following documents :-
1. Original Agreement to sell and purchase dated 19.01.2016 Ex. PW1/1.
2. Original Receipt dated 19.01.2016 Ex. PW1/2.
3. Receipt for sum of Rs.3,51,000/- Mark 'X' (Ex. PW1/3 is de-exhibited).
4. Certified copy of cheque no. 935892 dt. 25.01.2017 Ex. PW1/4
5. Certified copy of cheque no. 935893 dt. 03.02.2017 Ex. PW1/5.
6. Cheque return memo dated 04.03.2017 and 23.02.2017 Ex. PW1/6 (Colly)
7. Legal notice dated 17.03.2017 Ex. PW1/7.
8. Postal receipts of speed post, AD and courier Ex. PW1/8 (colly)
9. Postal receipts alongwith PODs Ex. PW1/9 (Colly)
10.Copy of newspaper advertisement Mark 'A'.
11.Copy of site plan Mark 'B'.CS/543/2018 Page 6 of 22
PW1 did not rely upon copy of khatauni as mention in his affidavit as Mark 'C'. The same stood de-exhibited.
PW1 was cross-examined by Ld. Counsel for the Defendant. Thereafter, PE was closed and matter was listed for DE.
6. In defence, the Defendant no.1 appeared in witness box as DW1 and tendered her evidence by way of affidavit Ex. DW1/A, whereby she reiterated the contents made in her written statement. She has placed reliance on copy of decree of divorce between her and Paramjeet Singh, dated 23.11.2017 Ex. DW-1/1 (OSR). She was cross-examined by Ld. Counsel for the Plaintiff.
Thereafter, DE was closed and matter was fixed for final arguments.
7. I have heard arguments as advanced by Ld. Counsel for the Plaintiffs as well as by Ld. Counsel for Defendants. I have also gone through the written submissions/ arguments filed on behalf of both the Plaintiffs and Defendants and perused the material available on record. My issue-wise findings are as under:
Issue no. 1 Whether plaintiff is entitled for a decree of recovery of sum of Rs.7,22,667/- from the defendants, as prayed for? OPP
8. The burden of proving the said issue is on the plaintiffs. Two aspects for deciding the present issue have to be considered, one whether plaintiff is entitled to recovery of total sum of Rs.7,22,667/- and the second aspect is from whom i.e. whether from all the defendants or not.
CS/543/2018 Page 7 of 228.1. Coming to the first aspect, whether the plaintiffs are entitled to recovery of total sum of Rs.7,22,667/- (Rs.5,42,000/- alongwith interest amount of Rs.1,80,667/- (@16% p.a. w.e.f. 01.04.2016 to 30.04.2018)), it is stated in the plaint that in January, 2016, Late Paramjeet Singh offered to sell Plot no. 20, in land forming part of Khasra no. 314 & 315, Gadaipur Extension, New Delhi for a total sale consideration of Rs.17,00,000/-, out of which the Plaintiffs paid Rs.5,42,000/- (Rs.4,25,000/- as part payment of total sale consideration and Rs.1,17,000/- for stamp duty, registration charges etc.) against receipt Ex.PW1/2 and agreement for the purchase of said property was reduced to writing in the form of Agreement to Sell & Purchase dated 19.01.2016 Ex.PW1/1. Perusal of Ex.PW1/1 shows that property was agreed to be sold by Late Sh. Paramjeet Singh for total consideration of Rs.17 Lacs, out of which Rs.4,25,000/- was received and acknowledged by Late Sh. Paramjeet Singh. The receipt of Rs.4,25,000/- by Late Paramjeet Singh also stands proved and corroborated by receipt dated 19.01.2016 Ex.PW1/2. Later on, a joint receipt Mark 'X' for Rs.3,51,000/- was issued in favour of F.T.C. Thang and SNG Mohelas Anal, from which Plaintiff is claiming to have paid Rs.1,17,000/- to Sh. Paramjeet Singh. However, since the said receipt Mark X has not been proved in accordance with the law, no reliance can be placed on it for the proof of making payment of Rs.1,17,000/- by the Plaintiff to Late Paramjeet Singh on account of stamp duty, registration charges etc. 8.2. The Plaintiffs further stated that they were always ready and willing to pay the remaining consideration amount, however, Late Sh. Paramjeet Singh did not hand over the possession of said property nor executed Registered Sale Deed in favour of Plaintiffs and thereby breached the agreement and on several requests and reminders, when Late Sh. Paramjeet Sing expressed his inability to transfer the said property and offered to return the sum of Rs.5,42,000/- to the plaintiffs and thus, issued CS/543/2018 Page 8 of 22 cheques no. 935892 dated 25.01.2017 of Rs.3,00,000/- and no. 935893 dated 03.02.2017 of Rs.2,42,000/- Ex. PW1/4 and Ex. PW1/5 respectively, in favour of Plaintiffs herein. The said cheques got dishonored and returned vide Return memos dated 04.03.2017 and 23.02.2017 Ex. PW1/6 (colly). The dishonoring of cheque is proved by return memos. It is also stated in the plaint that legal notice dated 17.03.2017 Ex.PW1/7 was issued to Sh. Paramjeet Singh, which was duly served upon him, the service duly proved by postal receipts alongwith proof of delivery Ex. PW1/8 (colly) and Ex.PW1/9 (colly), but the same was not replied. Even on suggestion put up by the Counsel for the Defendant during cross-examination of PW1, PW1 stated that it is correct that Paramjeet Singh gave refund cheques amounting to Rs.3,00,000/- in favour of the Plaintiff no. 1 and Rs.2,42,000/- in favour of Plaintiff no.2. Thus, it is proved that the aforesaid cheques Ex.PW1/4 and Ex.PW1/5 were given for the payment of Rs.5,42,000/- (Rs.3,00,000/- and Rs.2,42,000/-) by Sh. Paramjeet Singh in favour of Plaintiffs.
8.3. As regards documents tendered in evidence by the Plaintiffs, no objection as to mode of proof or their admissibility has been taken at the time of such tendering. It is noted from the evidence affidavit of DW1 Ex. DW1/A that contents of para no. 5 to 10 do not find mention in the written statement and are therefore, beyond the pleadings made by the Defendant in her written statement. Even on being asked during cross-examination, DW1 simply stated that she cannot say that the contents of para no. 5 to 10 of her evidence affidavit do not find mention in her written statement. It is well settled that no evidence beyond the pleadings can be given and therefore, the contents of para no. 5 to 10 of the affidavit of evidence Ex.DW1/A cannot be used or appreciated for any purpose.
CS/543/2018 Page 9 of 228.4. Coming to the second aspect, as from whom the said amount of Rs.5,42,000/- is to be recovered, counsel for the Defendants has submitted that since Defendant no.1 has obtained a mutual divorce decree dated 23.11.2017 Ex. DW1/1, under Section 13-B of the Hindu Marriage Act, 1955, from Late Paramjeet Singh and under Section 41 of Indian Evidence Act, 1872, the divorce decree being a conclusive proof of the fact that said decree conferred a legal character to Defendant no.1 of not being wife of Late Sh. Paramjeet Singh, therefore, after the death of Late Paramjeet Singh, Defendant no.1 cannot be designated as a legal heir of Late Paramjeet Singh. It is further stated in the written arguments filed on behalf of the Defendants as well as orally submitted by the Counsel for the Defendants that Defendant no.1 has not inherited any property from her late ex-husband, who died on 21.03.2018 and that it was mutually agreed between them that none of the liabilities owned by Late ex-husband would come on to Defendant no.1 after the mutual divorce. He further submits that Defendants no. 2 and 3 were minors at the time of alleged transaction and in terms of the divorce decree Ex. DW1/1, the said Defendants have also not inherited any property from their deceased father and therefore, cannot be held liable in the capacity of legal representative of deceased Paramjeet Singh in terms of Section 50 of CPC.
8.5. Ld. Counsel for the Defendants has placed reliance upon a judgment passed by Hon'ble Apex Court in Chand Dhawan (Smt) vs. Jawaharlal Dhawan, (1993) 3 SCC 406, wherein it has been observed that:-
"24. Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order CS/543/2018 Page 10 of 22 or decree is conclusive proof as to the conferral, accrual, or taking away of such legal character from a point of time as declared by the Court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction."
8.6. Similarly, in matter of State of Bihar vs. Radha Krishna Singh, (1983) 96 LW (JS) 93, it has been observed by Hon'ble Supreme Court that a judgment in rem, e.g. judgments or orders passed in admiralty, probate proceedings etc., would always be admissible.
9. Counsel for the Plaintiffs by way of written submissions as well as orally has averred that the alleged divorce proceedings were only a sham litigation in order to commit fraud with the investors. It is further argued that prima facie the divorce decree is a collusive decree obtained by playing fraud with the Hon'ble Court as is apparent from the fact that the residence address of both Defendant no.1 and Late Paramjeet Singh are same as mentioned in the divorce decree. It is further argued that Defendant no.1 has not annexed any document to show the terms and conditions of the aforesaid divorce and that all the properties and assets belonging to Late Paramjeet Singh are inherited by Defendants no.1, 2 and 3 and hence, Defendant no.1 as well as Defendant no.2 and 3 (children of Defendant no.1) are personally responsible for the claims arising out of the transaction entered into with Late Paramjeet Singh. It is argued that Defendant no.1 was residing with Paramjeet Singh till his last breath and is still residing the same house. Counsel for the Plaintiff further argued that fraud or collusion in obtaining an order from the Court, cannot be allowed to further permeate and be made a tool to defeat the rights of the parties.
CS/543/2018 Page 11 of 229.1. In S.P. Chengalvaraya Naidu (Dead) by LRs vs. Jagannath (Dead) by LRs & ors, 1994 SCC (1) 1, it has been observed that:-
"5. ...... The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often that not, process of the Court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
9.2. In Kishan Lal Barwa vs. Sharda Saharan & anr , 2015 SCC Onine All. 4980, it has been observed that:-
"14. ...... The question as to whether a plea of fraud could be entertained even in collateral proceedings, at the stage of execution, after passing of the decree, is no longer res integra. It is settled that fraud and justice do not dwell together. It is equally settled that a Court of Law would do its utmost to ensure that injustice is not meted out to a party. Such right in a Court of Law has been recognized under Section 44 of Evidence Act, which reads as under:-
"44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. Any party to a suit or other proceedings may show that any judgment, order or decree which is relevant under Section 40 and 41 or 42 and which has been proved by the adverse party, was delivered by CS/543/2018 Page 12 of 22 a Court not competent to deliver it, or was obtained by fraud or collusion"."
9.3. In Shewa Lachha Banjar vs. Bhawarilal Ganeshmal Marwadi , AIR 1973 Bom. 139, it has been observed by Hon'ble Bombay High Court that :-
"..... It must be observed that even in execution if it is shown that the order was made upon mistake or fraud which affects the very validity of the order under execution rendering it ineffective, it can properly be questioned by any one. Section 44 of the Evidence Act in terms applies to such matters and permits a person to lead evidence to show that the order is not binding in any such proceeding."
9.4. In Nistarini Dassi vs. Nundo Lall Bose , (1899) ILR 26 Cal. 891, it was observed that an innocent party may be allowed to prove in one Court that a decree obtained against him in a different proceeding in another court of concurrent jurisdiction was obtained by fraud, and if the Court be of opinion that such decree so obtained in the other Court cannot stand, it has jurisdiction to treat that decree as nullity and render its effect nugatory. In Section 44 of the Evidence Act the word "collusion" has been placed exactly on the same footing as the word "fraud" in the said section.
9.5. In Bishunath Tewari vs. Mst. Mirchi, AIR 1955 Patna 66, it has been observed that:-
"Thus, a survey of the authorities of the different High Courts, shows that a judgment, decree or order of a Court of competent jurisdiction can be treated as a nullity under Section 44, Evidence Act and its effect rendered nugatory if it is shown that it was obtained by fraud or collusion of the antagonist."CS/543/2018 Page 13 of 22
9.6. In Gram Panchayat of Village Naulakha vs. Ujagar Sing h, 2000 (7) SCC 543, it has been observed by Hon'ble Apex Court that :-
"6. It appears from the commentary in Sarkar's Evidence Act (13 th Ed., reprint) (at p.509) on Section 44 that it is the view of the Allahabad, Calcutta, Patna, Bombay High Courts that before such a contention is raised in the latter suit or proceedings, it is not necessary to file an independent suit. The passage from Sarkar's Evidence which refers to various decisions reads as follows:-
"Under Section 44 a party can, in a collateral proceedings in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a Court without jurisdiction or was obtained by fraud or collusion and is not necessary to bring an independent suit for setting it aside, Bansi vs. Dhapo; Rajib vs. Lakham; Parbati vs. Gajraj; Prayag vs. Siva; Hare Krishna vs. Umesh; Ashwini vs. Banamali; Manchharam vs. Kalidas; Ranganath vs Govind; Kamiruddin vs. Jhadejanessa; Bhagwandas vs Patel & Co; Bishunath vs. Mirchi and Vijaya vs. Padmanabham"."
9.7. In view of the aforesaid authorities on law, it is no more res integra that a plea of fraud or collusion can be entertained even in collateral proceedings. Under Section 44 of the Evidence Act, any party to the suit or other proceedings may show any judgment, order or decree, which is or was obtained by fraud or collusion. If it is proved that a judgment was obtained by collusion that fact will affect its force, effect, executability and value.
9.8. It is also well settled that a fact may be proved either by tendering positive evidence by a party who alleged the said fact or by way of evidence already on record tendered by the other party including the cross-
CS/543/2018 Page 14 of 22examination of the other party. For determining whether there was collusion between Defendant no.1 and Late Paramjeet Singh for obtaining the mutual divorce decree Ex. DW1/1, perusal of the cross-examination of DW1 is essential. In the said cross-examination, DW1 has stated that she and Paramjeet Singh got separated in year 2011-2012, however, in divorce decree Ex. DW1/1, it is mentioned that both were living separately from each other since 14.04.2015. Later on in the same cross-examination, she states that she cannot tell the period since when Paramjeet Singh was living separately from her and also does not knew where he was residing but he was not residing at S-13, Hargobind Enclave, New Delhi. She further states that the said property consisted of four floors and no floor of the said floor was ever occupied/ possessed by Paramjeet Singh at any point of time. However, in contradiction to the said testimony, DW1 admits to be correct that Ex.DW1/1 bears the said address of herself and Paramjeet Singh. Even perusal of the said Ex. DW1/1 proves that address of both Defendant no.1/ DW1 and Paramjeet Singh was mentioned to be S-13, Hargobind Enclave, New Delhi. In the same cross- examination, DW1 states that Paramjeet Singh was staying separately with his friends and on being asked whether Ex. DW1/1 mentions the same address of Paramjeet Singh, she voluntarily stated that said address was mentioned by Paramjeet Singh, however, the floors were separate. Thus, it is clear from the said testimony of DW1 that contradictory statements have been given by DW1 as regards the residence of Paramjeet Singh and even evasive replies have been given as to the period for which he was living separately from DW1 and also where Paramjeet Singh was residing.
9.9. DW1 in her cross-examination has stated that she was running tiffin service from her house and that property bearing no. S-13, Hargobind Enclave, New Delhi is owned by her and was purchased in year 2004 through Power of attorney. She also states that she also owns a shop bearing no. S-14, CS/543/2018 Page 15 of 22 Hargobind Enclave, New Delhi which was purchased by her in the year 2010. However, she denies the suggestion that she was having no source of income to purchase any property. It is highly improbable that DW1 can be said to have sufficient source of income, that too by running tiffin service from her house, to purchase the property bearing no. S-13, Hargobind Enclave, New Delhi as well as property bearing S-14, Hargobind Enclave, New Delhi. It is also noted that during cross-examination, she has produced photocopy of documents pertaining to property bearing S-13, Hargobind Enclave, New Delhi and the same were marked DZ (colly). However, no document or copy of the said document pertaining to property bearing no. S-14, Hargobind Enclave, New Delhi has been produced.
9.10. In cross-examination, DW1 has also stated that property bearing no. bearing no. S-13, Hargobind Enclave, New Delhi has been mortgaged by her for children education and the said property is lying mortgaged with Shri Ram Finance. Though photocopy of the documents pertaining to the property Mark DZ (Colly) have been produced but there is nothing to show that the same is lying mortgaged with Shri Ram Finance.
9.11. Ex. DW1/1 shows that the divorce between the defendant no. 1 and Late Shri Paramjeet Singh was a divorce by mutual consent, however, in the cross-examination, DW1 states that divorce was not a mutual divorce but the same was taken on the grounds of cruelty. The said answer /statement was given when DW1 was asked about any memorandum of understanding (MOU) was prepared for seeking mutual divorce to which she stated in the negative and again stated that she does not remember. This clearly shows that the said answer was given to escape the further questions regarding any MOU or settlement arrived between the defendant no. 1 and late Shri Paramjeet Singh for seeking mutual divorce.
CS/543/2018 Page 16 of 229.12. Even in the cross-examination, DW1 stated that she does not remember whether she and Paramjeet Singh jointly entered into collaboration agreement with third party for the construction of the property. She further stated that Paramjeet Singh never executed relinquishment deed, however, he has executed an assignment deed in respect of his share in the property in her favour and further voluntarily stated that the said deed was executed against the money which was given by her to Shri Paramjeet Singh. Later on, DW1 further gave an evasive reply that she does not remember the amount of money and also the details of the property in respect of which the assignment deed was prepared by late Shri Paramjeet Singh, though she further stated that late Shri Paramjeet Singh had given Rs.1 Crore in respect of aforesaid Collaboration Agreement. It is clear that the responses of DW1 in cross- examination were evasive as is apparent from from the above that in the same cross-examination, she is unaware of the money given qua the assignment deed but states that Rs.1 Crore was given by Shri Paramjeet Singh qua collaboration agreement.
9.13. It is evident from the aforesaid discussions regarding the contradictory statements of the DW1 as well as evasive replies given by the DW1 qua the subject matter of separation from late Shri Paramajeet Singh as well as engagement/ involvement of DW1 in transactions with late Shri Paramjeet Singh, that the mutual divorce decree Ex. DW1/1 was a collusive decree apparently to commit fraud with the investors of late Shri Paramjeet Singh. The contentions of the counsel for the Defendants that the Plaintiff or any other person has never challenged the said divorce decree before any Court, is bound to be rejected, as in view of the law already settled and as discussed above, a collusive decree can be challenged in collateral proceedings in terms of Section 44 of Indian Evidence Act.
CS/543/2018 Page 17 of 229.14. As already discussed above, the divorce decree dated 23.11.2017 Ex. DW1/1, is a collusive arrangement to escape the liability which would have fallen on late Shri Paramjeet Singh. Perusal of the Ex. DW1/1 reveals that it is only the decree of divorce that has been filed by the Defendant no.1 in evidence. The copy of the judgment on the basis of which divorce decree has been granted has been brought on record as Mark 'DY'. Relevant herein is the written submissions filed on behalf of the Defendants wherein it is stated that it was mutually agreed between the Defendant no.1 and Late Paramjeet Singh that none of the liabilities owed by the Late Paramjeet Singh would come on to Defendant no.1 after mutual divorce. It is noted that no documentary proof has been brought on record that such an agreement has been made between DW1 and the late Shri Paramjeet Singh. Since this fact was especially within the knowledge of defendant no. 1 /DW1, as per Section 106 of Indian Evidence Act, the burden of proving the same was upon DW1 which she failed to discharge. Moreover, by making such a submission in written submissions filed on behalf of Defendants, on the basis of preponderance of probabilities, it is clear that the decree of divorce was a ploy and mechanism adopted by the Defendant no. 1 and late Shri Paramjeet Singh to wriggle out of the financial liabilities. If by way of such internal arrangement between the parties to the marriage, respective liabilities can be fixed as per their whims and fancies, then it would frustrate the purported rights of the Plaintiffs even before the said rights are being crystallized by way of passing of judgment and decree by a competent Court. To understand the situation how the rights of the Plaintiffs can be frustrated by such an internal arrangement, an instance is quoted wherein a husband being debtor, transfers his property to his wife prior to passing of judgment and decree against him, in a divorce by mutual consent and thereafter, takes a plea that since the property has been transferred in mutual arrangement with the wife and that wife is divorced, his wife is not liable. In such a scenario, plaintiff CS/543/2018 Page 18 of 22 shall be rendered remedy-less because decree cannot be executed as husband no longer had assets/ property to satisfy the decree. In such instances, the Court has to look into the real intention of the parties to the mutual divorce, which this Court, as discussed in the above paras, has looked into.
9.15. As per Section 52 CPC, where a decree is passed against a party as legal representative of the deceased person, the decree can be executed to the extent of the estate of the deceased coming to his hands. It has also been held that a decree against the legal representative of debtor can be passed even if they have not inherited any property and that the only result is that decree cannot be executed against them and the same is the matter to be decided at the stage of the execution. It has also been well settled that where a heir of debtor is sued, it is not opened to him to raise the plea in the course of the suit that it does not hold the assets of the deceased debtor. In this regard, as already discussed above, Defendant no. 1 though has pleaded that she is not heir of late Shri Paramjeet Singh as having obtained divorce from him but in view of aforesaid discussions treating the divorce decree as nullity and rendering its effect nugatory and applying the principles of preponderance of probabilities, this Court is of the view that Defendant no.1 has not been able to prove that she is not the legal representative and therefore, not able to prove that she is not liable for the liabilities of the late Shri Paramjeet Singh. Thus, necessary corollary is that the Defendant no. 1 is liable for the payment of the amount of Rs.5,42,000/- being the LR of late Shri Paramjeet Singh.
9.16. There is no dispute as regards the defendant no. 2 and 3 being the children of defendant no. 1 and late Shri Paramjeet Singh. Even it has not been denied either in the written statement or in the evidence of DW1 including her cross-examination that Defendants no. 2 and 3 are not the legal heirs of late Shri Paramjeet Singh. It is only stated that since defendant no. 2 CS/543/2018 Page 19 of 22 & 3 have not inherited any property from their deceased father namely Shri Paramjeet Singh, hence, they are not liable as legal representative /legal heir of late Shri Paramjeet Singh. The said contention is without any basis since at this stage, it is to be seen that whether the said defendants no. 2 and 3 are legal representative/ legal heirs of late Shri Paramjeet Singh or not and whether the said defendants have inherited any property from late Shri Pramjeet Singh, is to be seen at the time of execution of decree, if any, passed qua the liabilities of late Shri Paramjeet Singh. Perusal of the Mark DY shows that both the defendant no. 2 & 3 are in care and custody of Defendant no. 1 and the same has nowhere been denied either in the written statement or the evidence of DW1. There is nothing in the said judgment Mark DY to show that Defendants no. 2 & 3 shall not inherit any property from their father i.e. Late Shri Paramjeet Singh. Though in the said judgment Mark DY, it is mentioned that both the Defendant no. 1 and late Shri Paramjeet Singh shall abide by the terms and conditions as mentioned in the joint petition, however, the said joint petition has not been brought on record by Defendant no. 1 for the reasons best known to her. Thus, Defendants no. 2 and 3 are also liable for the payment of the amount of Rs.5,42,000/- being the LRs of late Shri Paramjeet Singh.
9.17. In light of the aforesaid discussion, Plaintiffs are entitled to recovery of Rs.5,42,000/- from the Defendants. Accordingly, this issue is decided in favour of the Plaintiffs.
Issue no. 2 Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP CS/543/2018 Page 20 of 22
10. The plaintiff has prayed for grant of interest @ 16% per annum w.e.f. date of payment made by the Plaintiff to Late Paramjeet Singh i.e. 01.04.2016 till the realization of the amount claimed. Since, the plaintiffs have been deprived of the constructive use of their money and in view of Section 34 of Civil Procedure Code providing for pendente lite interest @ 6% p.a. and also taking in view that late Shri Paramjeet Singh was originally liable to pay the principal amount and it is the only the wife and children who are Defendants in the present suit, interest including both pendente lite and future interest, is awarded at the rate of 6 % per annum w.e.f. 01.04.2016 till the date of its realization.
Issue no. 3 Whether the suit filed by the plaintiff is without any cause of action? OPD
11. The onus to prove this issue was upon the Defendants. In view of the discussion made in issue no. 1, since Plaintiffs have been able to prove their entitlement for recovery of money from the Defendants, the Plaintiffs have duly proved the existence of cause of action in his favor and against the Defendants. Consequently and as a necessary corollary, this issue is decided against the defendants.
Relief
12. In view of the above discussions, this suit of the plaintiffs is decreed. The plaintiffs are entitled to recover a sum of Rs.5,42,000/- (Rupees Five Lacs Forty Two Thousand only) from the Defendants, alongwith interest @ 6 % per annum w.e.f. 01.04.2016 till the date of its realization. Cost of the suit is also awarded in favour of the Plaintiffs.
CS/543/2018 Page 21 of 22It is clarified that this Court has not gone into the issue as to whether any of the assets of the Defendants, being LRs, can be attached or sold. The defences available to the LRs under Section 52 CPC shall continue to be available in any execution of the present judgment/ decree.
Decree-sheet be prepared accordingly. Originals documents, if any, be released/ returned to the rightful claimant/ owner as per law.
File be consigned to Record Room after due compliance.
Announced in the Open Court on 01.06.2024 (Munish Bansal) District Judge-03 South District, Saket Courts New Delhi CS/543/2018 Page 22 of 22