Delhi District Court
Kusum Lata vs Sukhvir Singh on 19 November, 2010
IN THE COURT OF SH. DIGVINAY SINGH SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
SUIT NO.533/02/00
Kusum Lata
w/o. Sh. Devinder Singh,
r/o. H. No.22, Bharola Village,
Delhi-110033 .................Plaintiff
Vs.
Sukhvir Singh
s/o. Sh. Risal Singh
r/o. Flat no.37, Delhi Admn. Flats,
Ashok Vihar, PH-IV,
Delhi-110052 ..................Defendant
Date of institution of suit : 21.02.2000
Date of reservation of judgment : 16.11.2010
Date of judgment : 19.11.2010
JUDGMENT
1. This is a suit for recovery of Rs.1,41,100/-, filed against the sole defendant by the sole plaintiff.
2. Certain admitted facts are that the plaintiff and the defendant entered into an agreement to purchase a property at Sarai Pipal Thala Extension, Delhi, for a sum of Rs. 3,65,000/-, on 09.03.1998, which property fell in Khasra No.702/14, measuring 100 sq. yds. It is also an admitted fact that a sum of Rs.40,000/- was paid in cash on behalf of plaintiff to the defendant on that very day, as an earnest amount, regarding which, one receipt was executed, signed by the defendant and other witnesses. It is also an admitted fact that the final payment of the plot was to be made on or before 09.05.1998, whereafter, the sale documents were to be executed in favour of the plaintiff. Admittedly, the receipt contains a penalty clause that, if the plaintiff fails to pay the balance amount in time, the earnest money would stand forfeited. Similarly, it is mentioned in the receipt that in case, the defendant fails to execute the document, the defendant would be liable to pay double of the amount of earnest money.
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3. The dispute between the parties is that, the plaintiff claims that she was ready to perform her part of contract by the due date of 09.05.1998, but the defendant failed and she became suspicious and on inquiry from the Sub-Registrar's office, the plaintiff came to know that the defendant was not the owner of property, instead DDA was the owner. It would be worth mentioning here that this inspection of records of Sub- Registrar is subsequent to 09.05.1998, i.e., on 12.05.1998. The plaintiff also claims that besides the earnest money of Rs.40,000/- , the plaintiff paid Rs.20,000/- on 10.04.1998 to the defendant, for which no receipt was executed by the defendant. The said amount was claimed to be paid in presence of the property dealer. Thus, the plaintiff claims double the amount of earnest money, i.e., Rs.80,000/-, as per penalty clause of the receipt; plus the amount of Rs.20,000/-, allegedly paid by the plaintiff to the defendant on 10.04.1998, totaling Rs. One lac. On this amount of Rs. One lakh, the plaintiff claims interest @24% per annum for the period from 09.05.1998 to 08.01.2000, amount to Rs.40,000/- and the plaintiff also claims notice charges of Rs. 1,100/-. Thus, comes the suit amount of Rs.1,41,100/-. On this suit amount, the plaintiff also claims pendentlite and future interest @24% per annum.
4. It would be relevant to point out here that in the plaint, it is claimed that the property number, for which agreement was entered into, was C-4, Sarai Pipal Thaila, Delhi.
5. The defendant, on the other hand claims that it was the plaintiff, who was not willing and ready to perform her part of contract and she could not arrange the balance amount by the stipulated dated and, her earnest money was liable to be forfeited. Defendant claimed that the correct property number was C-5, and not C-4, and the plaintiff was deliberately mentioning wrong plot number by taking advantage of a clerical error in the receipt. The defendant denied that the defendant was not the owner of the property. Instead, the defendant claimed that he was attorney of one Dinesh Kumar, who owner of this property no.C-5, and attorney was given to the defendant to sell this property. Defendant denied having received Rs.20,000/- on 10.04.1998. Interestingly, the defendant claimed that the amount of Rs.40,000/- paid by the plaintiff to the defendant on 09.03.1998 was given to Mr. Dinesh Kumar and when the plaintiff failed to make payment of balance amount, in order to avoid losing Suit no.533/02/00 Page 2 of page 7 the said amount of Rs.40,000/-, the defendant purchased the property from Dinesh in the name of his son.
6. In the replication, the plaintiff reaffirmed that property sought to be purchased, was C-4 and not C-5.
7. From the pleadings of the parties, following issues were framed on 22.03.2002.
1. Whether suit is bad for non-joinder of necessary parties? OPD
2.Whether receipt dated 09.0.1998 is not properly stamped, if so, its effect? OPD
3.Whether plaintiff is entitled to the amount, as claimed? OPP
4.Whether plaintiff has failed to comply with the terms and conditions and perform his part of contract, if so, its effect contract? OPD
5. Whether the plaintiff is entitled to the interest, if so, at what rate, for what period, and to what amount? OPP
6.Relief.
8. In support of its case, the plaintiff examined three witnesses, i.e., her husband Devender Sharma as her special power of attorney as PW1; Mahender Singh, who witnessed the receipt, as PW2 and; Jai Narain, LDC in the office of Sub-Registrar, as PW3. On the other hand, the defendant examined himself as DW1, as the only witness.
9. Issue-wise findings are as follows.
10.Issue no.1, as to whether the suit was bad for non-joinder of necessary parties, was framed since the defendant took a stand in his written statement that DDA and Dinesh Kumar were necessary parties. Onus to prove this issue was on the defendant. Merely because the plaintiff claims that the property sought to be purchased from the defendant, was learnt to be owned by the DDA and not by the defendant, would not make DDA a necessary party. The present suit is not a suit for possession or specific performance. It is a simplicitor suit of recovery of amount allegedly paid by the plaintiff to the defendant with penalty and interest. DDA is neither a necessary party, nor a proper party in the suit. Similarly, the receipt, which is proved as Ex. PW1/1, is a receipt executed between the plaintiff and the defendant only and it does not find mention about the ownership of property by Dinesh Kumar. The agreement was not between the plaintiff and Dinesh, but it was between the plaintiff and defendant. The Suit no.533/02/00 Page 3 of page 7 amount was paid by the plaintiff to the defendant only and not to Dinesh. In the receipt, the defendant nowhere mentioned that the amount of Rs.40,000/- was received on behalf of Dinesh, or that it would be paid to Dinesh. Therefore, Dinesh is neither a proper, nor necessary party. Issue no.1 is accordingly stands decided in favour of the plaintiff and against the defendant.
11.Issue no.2 was, whether receipt in question was not properly stamped, and if so, its effect? Again onus of this issue was on the defendant, but the defendant failed to show anything that the receipt was insufficiently stamped. The receipt bears revenue stamp of rupees one, as required by the Schedule of Stamp Act, 1899. Therefore, this issue is also decided against the defendant and in favour of the plaintiff.
12.Issue nos.3 & 4, are integrally connected and needs to be decided together. The two issues say, whether the plaintiff failed to comply her part of contract, and whether the plaintiff is entitled to the suit amount. The onus to prove these issues were on the defendant and plaintiff, respectively being issue nos.3 & 4, respectively. Although, the defendant claims that the plaintiff failed to perform her part of contract by 09.05.1998, but no notice was sent by the defendant to the plaintiff to show that the plaintiff failed to perform her part of contract. Rather, an inspection application filed by the plaintiff before Sub-Registrar on 12.05.1998, which is proved as Exs. PW1/2 and PW1/3, so as to find out the status of ownership of the property, suggests that till that time, the plaintiff was interested in the transaction being completed, but if and only if the defendant was competent to transfer the title. The plaintiff sent a legal notice to the defendant, Ex. PW1/4, dated 27.08.1998, in which the plaintiff claimed that the property was not owned by the defendant and that the defendant has failed to perform his part of contract. Till that time, the defendant never informed the plaintiff that the plaintiff was lacking in performing her part of contract. It was in the reply of this notice sent by the defendant to the plaintiff on 14.09.1998, Ex. PW1/7, that the defendant for that first time claimed that the plaintiff failed to arrange the money. Thus, these facts suggest nothing to show that the plaintiff failed to perform her part of contract within the stipulated period. Issue no.4 accordingly has to be decided against the defendant.
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13.Turning to the issue no.3, in order to prove her claim, the plaintiff examined her husband as PW1, who reiterated the averments of the plaint, claiming that he was conversant with the facts of the case. He specifically deposed that he himself paid Rs. 40,000/- to the defendant on 09.03.1998, when the receipt Ex. PW1/1 was executed. In the cross examination PW1 specifically deposed that the matter and facts involved in the present case were in the specific knowledge of this witness from the very beginning. The defendant did not give any suggestion to PW1 that he was not present on 09.03.1998, at the time of execution of Ex. PW1/1, or that he did not pay Rs. 40,000/- to the defendant personally. Similarly, no suggestion was made by the defendant to PW2 Mahender Singh, who is witness of receipt and transfer and also signed Ex. PW1/1, that no such payment was made. Rather, PW2 specifically deposed that PW1 paid Rs.40,000/- to the defendant. It was nowhere suggested that PW1 was not present at the time, or that he did not pay the amount, or that he has no personal knowledge. In such circumstances, the argument of the defendant that plaintiff has not stepped into the witness box and that testimony of PW1 cannot be read, looses any importance, since PW1 deposed the facts, based on his personal knowledge and not merely as an SPA. The judgment relied up on by the defendant on the case of Janki Vashdev Bhojvani Vs. Indusind Bank Ltd., AIR 2005 SC 49, is accordingly of no help to the defendant.
14.PW1 & 2 have deposed that Rs.40,000/- was paid to the defendant. This fact is not denied by the defendant and, therefore, payment of Rs.40,000/- stands proved. So far as the payment of further amount of Rs.20,000/- is concerned, although PW1 also claimed that such payment was made on 10.04.1998, but there is no documentary proof in support of this claim. This payment was allegedly made to the defendant by PW1/plaintiff in the house of Satyavir Singh. No such witness has been examined to prove this fact by the plaintiff , especially when the defendant denied receiving of Rs. 20,000/-. The fact of payment of Rs.20,000/- does not stand proved.
15.Admittedly, when Rs.40,000/- has been received by the defendant under Ex. PW1/1, and admittedly when the property has not been transferred, the question which arises is, whether the defendant is entitled to the amount, and to what amount? The defendant although claimed that the property sought to be sold was C-5 and not C-4, Suit no.533/02/00 Page 5 of page 7 but it is contrary to the documentary proof on record. Receipt Ex. PW1/1 specifically mentions that property number was C-4 and not C-5. Not only this, the plaintiff in his notice dated 27.08.1998, which was admittedly received by the defendant and which is proved as Ex. PW1/4, also mentions the property number as C-4. The defendant replied to this notice vide Ex. PW1/7, but nowhere in the reply, he claimed that correct property number was C-5, and not C-4. Not only this, even PW2, a witness of transaction dated 09.03.1998 specifically deposed that the property number was C-4 and not C-5, regarding which the agreement was entered into. Although, in the cross examination of PW2 Mahender Singh, it was suggested by the defendant that before execution of receipt, documents of property no. C-5 were shown, but no specific suggestion was put by the defendant to the PW2 that the property intended to be sold was C-5 and not C-4. Not even any suggestion was made that it was a typographical error on the receipt. No documentary proof has been laid by the defendant to show that he was owner of the property no. C-4, on the date of agreement. Although, the defendant in his evidence exhibited the property documents of property number C-5 as Ex. DW1/A to DW1/D, but they were and are photocopies only and specific objection was taken by the plaintiff as to the mode of proof of these documents. The defendant failed to prove these documents in accordance with law and thus, these documents cannot be looked into. The defendant claims that he alongwith Dinesh waited for the plaintiff at the office of Sub-Registrar on 09.05.1998, but Dinesh was never examined by the defendant. Defendant did not depose that PW1 had no personal knowledge, or that he was not present there during the transaction. In the cross examination, he even stated that he was not aware whether property no. C-4 was of DDA, or not. In such circumstances, it is to be held that the agreement was regarding C-4 and not C-5 and on the date of agreement, the defendant was not owner of the property to have sold it to the plaintiff. Had it been regarding property no. C-5, still, on that day, the defendant was not the owner of the property and he merely claimed to be power of attorney. Receipt Ex. PW1/1 nowhere says that the defendant agreed to sell it as an attorney on behalf of Dinesh, rather it says that he was the owner. It is nowhere mentioned in the receipt that Dinesh would execute the document, or money would be paid to Dinesh. Even, the title deeds of Dinesh qua the property no. C-5 are Suit no.533/02/00 Page 6 of page 7 questionable. Law is settled that immovable property worth more than Rs.100/- can be transacted only through registered documents and not through unregistered agreement to sell, affidavit, will etc.
16.Thus, the issue no.3 has to be decided partly in favour of the plaintiff that plaintiff is entitled to recovery of sum of Rs.40,000/- paid by the plaintiff to the defendant on 09.03.1998. The plaintiff although has claimed double of this amounts, but in my considered view, the plaintiff herself was guilty of latches in not checking the title deeds of the property sought to be purchased before entering into the agreement to purchase that property and thus, the plaintiff ought not to be given the double of earnest money. At best, the plaintiff ought to be restituted Rs.40,000/- paid by her. Issue no.3 is accordingly decided that the plaintiff is entitled to earnest money of Rs.40,000/- paid on 09.03.1998 to the defendant.
17.Turning to the issue no.5, as to the rate of interest, in my considered view, the plaintiff is entitled to interest @8% per annum only, not only from the date of filing of suit till realization, but also from 09.05.1998 till filing of suit. It is so because, the plaintiff herself was guilty of latches and negligence. The rate of interest @24%, claimed by the plaintiff is exorbitant. Plaintiff is thus entitled to interest @8% per annum from 09.05.1998 till realization.
18.Turning to the last issue, i.e., relief, in view of the above discussion, the suit of the plaintiff is decreed only for an amount of Rs.40,000/- with an interest @8% per annum from 09.05.1998 till the date of realization. Plaintiff shall also be entitled to the cost of the suit. Decree sheet be prepared accordingly. File be consigned to the Record Room.
Announced in open Court on 19.11.2010 (DIG VINAY SINGH) SCJ/RC(NORTH)/DELHI.
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