Delhi District Court
Satish Bidhuri vs . Sushila on 30 August, 2018
Digitally
signed by
ANIL ANIL ANTIL
Date:
ANTIL 2018.09.06
16:23:00
+0530
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT JUDGE
SOUTH EAST DISTRICT, SAKET COURTS, ND
Civil Suit No. 408/17
Satish Bidhuri Vs. Sushila
Sh. Satish Bidhuri
S/o Late Sh. Sish Ram
R/o A50, Tehkhand,
O.I.A., Ph1, N.D.20 ....Plaintiff.
Versus
Smt. Sushila
W/o Sh. Jagdish Chand
R/o 1342B/13, Govind Puri,
Kalkaji, New Delhi19,
Near MCD Counselor
of Sh. Chander Prakash
Residence ........Defendant
Date of institution of the suit : 08.03.2017
Date reserved for judgment : 10.08.2018
Date of pronouncement of judgment: 30.08.2018
Decision : Decreed in part
Dismissed in part
JUDGMENT
1. The present suit for recovery of Rs. 10,00,000/ alongwith pendentlite and future interest @ 24% has been filed by the plaintiff against the defendant.
2. Plaintiff's version as per averments in the plaint : Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 1 of 19 2.1 Succinctly, the plaintiff is a peaceful citizen of India and well conversant with facts of the case and competent to file the present suit. 2.2 That defendant offered to sale out his property bearing no. 1342 B/13, lower ground floor, measuring 50 sq. yards, carved out of Khasra No. 93, situated at Govindpuri, Kalkajii, New Delhi19 (hereinafter called as 'suit property') to the plaintiff. That an agreement to sale was held between the plaintiff and defendant on 30.07.2015 regarding the said property for a sale consideration of Rs. 10 lakhs. And a set of documents viz General Power of Attorney, Special Power of Attorney, Agreement to Sell and Purchase, Will, Possession Letter, Indemnity Bond, Affidavit and Payment receipt were got executed. That defendant received all the full and final payment, i.e. Rs. 10 lakhs as settled between both the parties. At that time the plaintiff was assured by the defendant that the registration of sale deed in favour of plaintiff shall be done as per his wishes and the defendant shall complete all the formalities towards the registration of sale deed. 2.3 That at time of executing the above mentioned transfer documents etc. in favour of plaintiff, defendant had requested the plaintiff to reside for a short period in the above said suit property as her daughter was not keeping well and that the defendant was looking for new home for their family, the plaintiff conceded to the request of defendant believing it to be genuine. 2.4 That after few months and again in mid of 2016, plaintiff approached the defendant for handing over the physical possession of the above said suit property but the defendant did not vacate it on the frivolous and bogus excuses that she is still looking for a dwelling house, and thereby succeeded to gain more time.
Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 2 of 19 2.5 That by the end of 2016, plaintiff became suspicious and had serious doubts regarding the intentions of defendant and therefore again asked her to vacate the suit property immediately. But the defendant flatly refused to vacate the premises and at the same time offered to return the sale amount of Rs. 10 lakhs along with interest to plaintiff and also threatened the plaintiff with dier consequences in case he insisted on his demands for possession of the suit property. That after observing the situation the plaintiff agreed to get back his paid amount of Rs. 10 lakhs along with interest. 2.6 That the defendant in order to discharge the abovesaid liability issued two cheques bearing no. 126027 dated 23.01.2017 and cheque bearing no. 126028 dated 01.02.2017 of Rs. 5 lakhs each drawn on ICICI Bank Branch, E1002, C.R. Park, Kalkaji, New Delhi19, in favour of plaintiff. That defendant also promised to pay the interest amount. 2.7 That abovesaid both cheques were returned on dated 02.02.2017 unpaid with the remarks 'insufficient fund'.
2.8 That plaintiff informed the defendant about the said dishonoured cheques and requested her to pay the cheques amount through the demand draft or in cash but defendant ignore the request and refused to make the payment of both cheques.
2.9 That it has come to knowledge of plaintiff that defendant is trying to create third party interest with the interference of some local property dealer regarding sale out of the above said suit property just to avoid the legal litigation regarding the said suit property and also creating the complication to resolve the matter.
2.10 On 17.02.2017 and 25.02.2017 plaintiff sent a legal notice but no heed Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 3 of 19 was paid by defendant. Defendant has failed to pay the legitimate amount of the plaintiff despite numerous requests. Hence, the present suit for recovery of the alleged amount.
3. WRITTEN STATEMENT/ DEFENCE OF THE DEFENDANT 3.1 In reply to the present suit, the defendant had appeared and filed his written statement on 30.03.2017.
3.2 In the WS, defendant has denied the claim of the plaintiff on merits; preliminarily objections are taken that the suit is not maintainable and liable to be dismissed for want of cause of action; that plaintiff has not approached the court with clean hands; material facts have been suppressed from the court; the suit is liable to be dismissed for want of necessary parties; that suit is also liable to be dismissed under Section 3 & 4 of the Prevention of Money Laundering Act 2002; that the documents are forged and fabricated; that the documents are unregistered and cannot be read in evidence in view of bar under Section 17 of the Registration Act; that the documents are also not sufficiently stamped and liable to be impounded in view of Section 35 of the Stamp Act, 1899.
3.3 That the present suit is deliberate and dishonest attempt by plaintiff to coerce the defendant, forcing it to accept illegal demands of plaintiff.
3.4 On merits it is stated that the defendant is owner and in possession of the above said suit property which was purchased by her vide sale deed dated 21.06.2010 duly executed by erstwhile owner Mr. Nasir Khan. That defendant and his family members thereafter are in continuous possession of the suit property.
Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 4 of 19 3.5 That the plaintiff and one Mr. Sanjeev Jain are partners of M/s Jain Real Estate & Developers as represented to the husband of plaintiff, under the garb of Real Estate business carry on business of private financing and used to provide loan to their customers on hefty and exorbitant rate of interest and often used to obtain signature on various papers either blank or sometimes incomplete typed papers and projected as if the documents were actually with intend to transfer of the right and interest in a property, whereas it was to only act as a security till the repayment of the loan amount. 3.6 That defendant's husband was in need of money and approached the plaintiff and his partner namely Sanjeev Jain for a loan of Rs. 5 lakhs. The loan of Rs. 5 lacs was provided by plaintiff and his partner namely Sanjeev Jain. It was agreed that initially a sum shall be paid in a period of two years with equated monthly installments of Rs. 25,000/. However, the defendant's husband was given a concession/liberty to the extent that in the event of defendant's husband paying more that abovesaid equated monthly installments (EMI) then the said would be taken on account and adjusted against the repayment schedule and the amount so paid in access installment would be deducted from the principle amount of the loan. 3.7 That the defendant's husband availed the facility for the full term of two years and he was required to make the repayment of the said loan for 24 months @ equated monthly installment EMI of Rs. 25,000/ meaning thereby Rs. 6 lakhs in total against the loan of Rs. 5 lakhs. 3.8 That the defendant's husband started making repayment of the loan to the said partner of plaintiff Mr. Sanjeev Jain and/or their partnership firm M/s Jain Real Estate Builder and Developer, and in the manner made Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 5 of 19 monthly payment of Rs. 35,000/ from July 2015 to November, 2015, and Rs. 30,000/ in January 2016, Rs. 40,000/ in February and March 2016, Rs. 45,000/ in April 2016 and Rs. 30,000/ and Rs. 8,000/ in May 2016, Rs. 30,000/ in June 2016, Rs. 35,000/ in July 2016, Rs. 30,000/ in August 2016, Rs. 10,000/ and Rs. 25,000/ in September 2016. 3.9 That till date defendant has made a payment of Rs. 5,88,000/. That since most of the time the payment was made on account, the same is reflected in the statement of account of the defendant's husband, either it is paid in the name of Sanjeev Jain and the plaintiff's firm i.e. M/s Jain Real Estate Builder and Developer.
3.10 That on 31.10.2016, plaintiff and his said partner Sanjeev Jain came to the house of defendant and started abusing and threatening that if she wants the loan to be wiped off then it would be required to pay Rs. 2,00,000/ more for this misbehaviour, the police was called but of no avail. 3.11 That the defendant has repaid the entire the said loan amount of Rs. 5 lacs along with interest to the plaintiff through his partner Sanjeev Jain and therefore the suit is liable to be dismissed with heavy cost.
4. REPLICATION 4.1 Plaintiff filed replication denying all the submissions made in the WS, and reiterating all the averments made in the plaint.
5. ISSUES Before proceedings further, I must state that in the present case issues were framed on 17.08.2017 which read as under:
(i) Whether plaintiff is entitled for recovery of suit amount, i.e. Rs. 10,00,000/?OPP Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 6 of 19
(ii) Whether plaintiff is entitled to interest, if so, at what rate and for what period?OPP
(iii) Whether the documents relied upon by the plaintiff are false, forged and fabricated?OPD
(iv) Whether the money advanced by the plaintiff was towards the loan and not as a consideration price for sale of the property?OPD
(v) Whether the suit is bad for nonjoinder of necessary party?OPD
(vi) Relief.
6. EVIDENCE Plaintiff's Evidence 6.1 In order to prove his case, plaintiff examined himself as PW1 and tendered his evidence by way of affidavit which is Ex. PW1/1, wherein he has reiterated the averments made in the plaint. During his deposition, he also relied upon the documents exhibited as follows:
(a) Ex. PW1/A(colly) i.e. GPA/SPA/ agreement to sell and purchase/Will/ possession letter/ indemnity bond/ affidavit all dated 30.07.2015, (OSR)
(b) Ex. PW1/B i.e. Payment receipt dated 23.07.2015 (OSR)
(c) Ex. PW1/C(colly) i.e. cheque bearing no. 126027 dated 23.01.2017 and cheque bearing no. 126028 dated 01.02.2017
(d) Ex. PW1/D(colly) i.e. returning memo/ dishonored cheques.
(e) Ex. PW1/E i.e. demand notice/ legal notice. (f) Ex. PW1/F (colly)i.e. Postal receipts (g) Mark as PW1/1 Statement of Account being photocopy Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 7 of 19 6.2 In order to prove his case, plaintiff also examined Sh. Sanjeev Jain as
PW2 and tendered his evidence by way of affidavit which is Ex. PW2/A, wherein he has reiterated the averments made in the plaint. During his deposition, he relied upon the documents which are already exhibited while testimony of PW1.
Plaintiff closed his evidence. Thereafter, matter was fixed for DE. Defendant's Evidence 6.3 In order to prove its case, defendant examined Sh. Jagdish Kumar her husband as DW1, tendered his evidence by way of affidavit which is Ex. DW1/A. During his deposition, he relied upon the documents exhibited as Ex. DW1/1 (colly) to Ex. DW1/3.
Ex. DW1/2 and Ex. DW1/3 i.e. the complaint sent to the CP, DCP and SHO, were deexhibited and ordered to be not part of the record.
This is the entire evidence adduced in this matter.
7 ARGUMENTS 7.1 I have heard the submissions advanced by the plaintiff. I have also perused the entire case record meticulously. My issuewise findings are hereunder.
ISSUEWISE FINDINGS
8. Issue No. (v): Whether the suit is bad for nonjoinder of necessary party? OPD 8.1 Onus to prove this issue was on the defendant. It was deposed by DW1 that the plaintiff and one person namely Sh. Sanjeev Jain are partners in M/s Jain Real Estate & Developers. That the defendant had approached the plaintiff and his partner for a loan of rs. 5 lakhs. The loan was advanced Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 8 of 19 by them which was to be paid on some monthly instalments. The loan amount was paid to the plaintiff and the partnership firm through Mr. Sanjeen Jain. Thus it was contended that Mr. Sanjeev Jain was a necessary party to the present suit and the plaintiff having failed to implead him in the array of parties ,the suit of the plaintiff must fail for want of necessary parties on board.
8.2 On the other hand the plaintiff has argued that the case herein pertains to sale purchase of the suit property between the plaintiff and the defendant(his wife); cheques were issued by the defendant from her account; that the plaintiff is not a partner in the M/s Jain Real estate firm;that the plaintiff is not even aware if there exist any firm by the said name; that Sh. Sanjeev Jain and/or M/s Jain Real Estate, and rightly so, is neither necessary nor a proper party to the lis herein, he has no concern whatsoever to the dispute between the parties herein.
8.3 Pertinently, defendant has miserably failed to establish if there existed any partnership firm by the name M/s Jain Real Estate Builders & Developers or that the plaintiff was a partner in the said firm. Except bald statement nothing positive has come on record to establish the factum of said partnership between the plaintiff and Mr. Sanjeev Jain. 8.4 Marriage card of his son (exhibited as Ex. PW1/DX1) and a visiting card (exhibited as Ex. PW1/DX2) produced during cross examination whereby the name of M/s Jain real estate is written thereon, by itself does not prove the factum of partnership between Plaintiff & Sanjeev Jain. PW1 in crossexamination had specifically denied that he is a partner in the said firm. Thereafter it was incumbent upon the defendant to lead some Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 9 of 19 evidence to demonstrate the existence of Partnership business. No partnership deed or any other document of any nature to indicate the existence of partnership was brought on record.
8.5 And important to note that the said Mr. Sanjeev Jain has stepped into the witness box as PW2 to face the crossexamination. He deposed to say that Jain Real Estate is a proprietorship firm, he being the sole proprietor thereof and further denied the suggestion that plaintiff was also a partner in the said firm.
8.6 Besides that the visiting card produced during crossexamination specifically mentions the name of the plaintiff as 'Financier' and that of Sh Jain as builder, and not that as 'Partners'.
8.7 In entirety of the facts it can not be said that there existed any partnership between the plaintiff and Mr. Sanjeev Jain and that he is a necessary or a proper party to the present dispute and the suit is liable to be dismissed for want of necessary parties. The issue accordingly stands decided in favour of the plaintiff and against the defendant.
9. Issue No. (v): Whether the documents relied upon by the plaintiff are false, forged and fabricated?OPD 9.1 Onus of this issue again was on the defendant. It was contended by the defendant that that documents Ex.PW1/ A (colly) are false, forged and fabricated documents. That the plaintiff had obtained the signatures of his wife on blank papers under the pretext of granting loan. That the said papers have been misused by the plaintiff in connivance with Sh. Sanjeev Jain. The original documents were produced on record vide testimony of PW
1. In these facts the onus in terms of Section 101 to Section 103 Evidence Act Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 10 of 19 was upon the defendant to show that the documents were neither executed nor signed by his wife and that the entire set of document is manufactured by the plaintiff. But the defendant has failed miserably to discharge its onus. In fact DW1 in his crossexamination admits that all the documents dated 30.05.2015 in the form of agreement to sell/GPA/Will/Receipt/ Possession letter bears the signature of his wife. And importantly he goes on to admit that he had also signed and affixed his thump impression as a witness on all the above said documents. The original Title deed of the property is also produced from the custody and possession of the plaintiff. Though DW1 has tried to improve upon his case by deposing that the title documents went missing and were not found. But how and when nothing is averred thereof. Further no complaint of any nature is made by the defendant regarding the lose of the title documents of the property. Therefore in light of above facts, to say the documents are false, forged and fabricated is exfacie without any substance. The issue is accordingly stands decided against the defendant and in favour of the plaintiff.
10. Issue No. i): Whether plaintiff is entitled for recovery of suit amount, i.e. Rs. 10,00,000/?OPP Issue No. (ii): Whether plaintiff is entitled to interest, if so, at what rate and for what period?OPP Issue No. (iv): Whether the money advanced by the plaintiff was towards the loan and not as a consideration price for sale of the property?OPD 10.1 Onus of issue nos. (i) and (ii) is upon the plaintiff and issue Whether the money advanced by the plaintiff was towards the loan and not as Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 11 of 19 a consideration price for sale of the property upon the defendant. The case of the Plaintiff as deposed via testimony of PW1 is that defendant has sold her property (suit property)to the plaintiff for a consideration of rs. 10 lakhs. The total consideration amount was paid by the plaintiff, Rs 5lac through cheque and 5 lac by cash at the time of execution of sale documents i.e Agreement to Sell/ GPA/WIL/possession letter/ receipt etc., and on her failure to execute sale deed and hand over the possession ,the defendant handed over two cheques for Rs.5lac each to repay the said consideration amount. The cheques got dishonored and hence defendant is liable to pay the said amount. On the other hand defendant has denied that no such property transaction as alleged had taken place. That the documents are forged and fabricated as discussed in above issue. That admittedly a sum of rupees 5 lac was taken from the plaintiff and other person Mr. Sanjeev Jain and that the said sum was paid to the Mr. Jain subsequently. And that the money advanced by the plaintiff was loan amount and not towards sale consideration. Reliance is also placed on (a) Sec 3 & 4 of Prevention Of Money Laundering Act 2002 to contend that plaintiff can not enforce illegal act of money laundering since he has no licence under the act.
(b) the documents requires mandatory registration under Sec 17 of Registration Act and in absence thereof the same can not be taken in evidence.
(c) that the alleged sale documents are not properly stamped sufficiently and can not be read in evidence for any purpose in terms of Sec35 of the Stamp Act.
10.2 In the crossexamination, PW1 states that besides him the husband of Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 12 of 19 the defendant was present and no other person was present at the time of execution of the documents implying thereby that the Defendant, the owner of the property was not present nor Sh. Sanjeev Jain was present at the time of execution of the alleged documents,which raises serious cloud over the valid execution of the documents.
10.3 The documents (as stated earlier) may not be forged and fabricated but the intent and purpose of the execution of the documents certainly was not to transfer the right and interest in the suit property. I also fail to comprehend if earlier the property was transferred through registered sale deed then why in the present case the property was allegedly transferred through GPA and agreement to sell etc. and more the so when allegedly the entire consideration amount was paid by the defendant. Then what stopped the plaintiff or the defendant from executing a valid sale deed no explanation is forthcoming. The documents in the facts of the case does purport to create any right or interest in the suit property. And significantly for this very reason no suit for specific performance was ever filed by the plaintiff on the failure of the defendant to hand over the possession of the suit property. The entire transaction of transfer of the property was a sham transaction. The documents were created not in furtherance of sale transaction but only to act as a security for the loan advanced by the plaintiff. It was a camouflage to give the flavours of the transfer of the property which in fact neither was intended nor was to be acted upon.
10.4 At this stage, a profitable reference in this regard, where the provisions of Registration Act, i.e. Section 17 r/w Section 49 have deliberately not complied with, may be made to the decision of the Hon'ble Supreme Court in Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 13 of 19 Suraj Lamp and Industries Private Ltd. Vs. State of Haryana & Anr. (2009)7SCC363 whereby deprecating such malpractices prevalent in the market, the Hon'ble Court has held that:
"18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents."
"19. Recourse to "SA/GPA/will" transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these mentions to avoid multiple stamp duties/registration fees so as to increase their profit margin.
20. Whatever be the intention, the consequences of SPA/GPA/will transactions are disturbing and farreaching, adversely affecting the economy, civil society and law and order. Firstly, it enables largescale evasion of income tax, wealth tax, stamp duty and registration fees thereby Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 14 of 19 denying the benefit of such revenue to the Government and the public. Secondly, such transactions enable persons with undisclosed wealth/income top invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption." 10.5 Coming to the case of the plaintiff, it is trite to say that the case of the plaintiff has to stand on its own feet and he can not take the benefit of the weakness of the defence of the defendant in absence of his own evidence. Plaintiff alleged that a sum of Rs. 10 lacs was paid to the defendant but he has failed to establish the payment of Rs. 5Lacs, arguably paid by cash. Reliance on the receipt dated 30.07.2015 as part of Ex. PW1/A (colly) to show the entire payment is misplaced. It though states a sum of Rupees 10 Lacs has been paid to the defendant but underneath wherein the details of the payment are provided it finds no mention of any payment by way of cash. A receipt of a sum of Rs 5 lacs, vide cheque (details stated) only is confirmed therein, and not the entire sum of Rs. 10 lacs. No details of the remaining sum of 5lac Rs as stated therein is not forthcoming. Besides that it also contains blank(s) with regard to the date of the agreement to sell. Had there been an agreement to sell as put forth by the plaintiff, it surely would have been mentioned in the receipt and pertinently in other documents, which also contain blank space on the aspect of the date of the agreement to sell. 10.6 In so far as remaining sum of Rs 5lac is concerned, it stands admitted by the Defendant in his pleadings though allegedly repaid to Mr. Sanjeev Jain. But for the balance amount of Rs. 5 lacs, Plaintiff has failed to prove the fact of payment by leading any sort of evidence.
10.7 DW1 in his crossexamination has specifically denied having received Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 15 of 19 a sum of Rs 10 lacs in total. In fact right from day one defendant has repeatedly denied having received the said sum, thereafter it was incumbent upon the plaintiff to lead some positive evidence to demonstrate the entire payment of Rs. 10 lacs. Reiterating no evidence of whatsoever nature is produced before the court to reflect the payment of the said sum of 5lacs by way of cash.
10.8 On other hand defendant also has failed miserably to prove the repayment of the said sum of Rs.5 lacs to the plaintiff. The records and the receipt placed on record by the defendant indicates the payment were allegedly made to Sh. Sanjeev Jain and not to the plaintiff. As discussed above the factum of partnership business remains not established therefore any payment, if made at all, to Sh. Sanjeev Jain does to absolve the liability of the defendant when admittedly the loan was advanced by the plaintiff through cheque.
10.9 Besides that, the contention of the plaintiff that to repay the consideration amount two cheques of Rs. 5 lac each were issued by the defendant is apparently misleading. The first cheque bearing no. 126027 dated 23.01.2017 got dishonored on 02.02.2017 as reflected from Return Memo Ex.PW1/ D (colly) for the reason "Drawers Signature differs" and therefore the second cheque no. 126028 was got issued as there were some interpolation/overwriting on the signatures on the first/earlier cheque. The said stand of the defendant taken in para 10(in reply to para 10 )that the first cheque was issued as a security and since there was interpolation in the signature ,on request of the plaintiff( and his partner) another second cheque was issued as replacement of the earlier cheque has not been specifically Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 16 of 19 denied by the plaintiff in his replication. Except bald statement to say the content are wrong and denied, there is no specific denial to the facts as put forth by the defendant in said para of his W.S. and more significantly the plaintiff has not even refuted and controverted the said fact in the cross examination of DW1. Thereby leading to an inference that in all probabilities the second cheque was issued in lieu of earlier one which was dishonored for the difference in signatures of the Drawer and not to discharge any separate debt as alleged by the plaintiff.
10.10 In so far as objections of the defendant under Stamp Act is concerned it is trite to say that even an insufficient Stamped document can be looked into by the court after impounding the same in accordance with law. The challenge to the admissibility of an insufficient stamped instrument shall stands foreclosed as soon as the instrument is admitted in evidence by making good the payment of stamp duty and penalty by invoking proviso (a) of Section 35 read with Section 38 of Indian Stamp Duty Act. 10.11 The section 35 and particularly the proviso (a) of Section 35 of Indian Stamp Act was amended in the year 2006 and the amended proviso clarifies that the unstamped or insufficient stamped document can be taken into evidence, subject to complaint of Section 29,33, 38 o be read with Section 44 of the Indian Stamp Act. (A useful reference may be made to Rasheeda Sidiqqui V Mustafa Aleem 185 (2011) DLT 151).
10.12 Analysing the facts in its entirety I have no hesitation to say that only a sum of rs. 5lacs was advanced as loan by the plaintiff to the defendant and that the documents E. PW1/A (colly) were executed simply as a security for the loan advanced and not to be acted upon.
Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 17 of 19 10.13 There is also nothing on record to show that parties had any contractual liability qua the interest part. Thus, taking note of the relation between the parties the nature of the transaction and the prevalent rate of the interest at the market, the interest @9% on the principal amount in my considered opinion will be reasonable and justified.
The issues accordingly stands decided in terms thereof.
11. Summary of the findings:
1) suit is not bad for nonjoinder of necessary parties.
2) defendant has failed to establish M/s Jain Real Estate & Developer is a partnership firm
3) and that plaintiff is/was a partner in the above said firm,
4) the documents i.e Ag to Sell/GPA/Possession/Receipt etc. entails no contractual obligations;were executed simply as security for the loan advanced by the plaintiff,
5) plaintiff advanced only a sum of rs. 5lac as loan to the defendant,
6) plaintiff has failed to establish the payment of alleged sum of rs. 5lac by cash,
7) defendant has failed to prove the repayment of the said sum of rs. 5lac to the plaintiff.
12. RELIEF 12.1 In view thereof, considering the findings on the issues discussed above, I am of the considered opinion that the suit is partly decreed in favour Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 18 of 19 of plaintiff and against defendant for a sum of Rs. 5 lacs along with interest @ 9% per annum, from the date of demand notice, i.e. 17.02.2017 till its realization.
12.2 The suit of the plaintiff stands partly decreed and partly dismissed.
Suit stands disposed of accordingly.
Decree be drawn accordingly. No order as to cost.
File be consigned to record room.
Announced in the open Court (Anil Antil) Today on 30.08.2018 ADJ05, South East, District(SE) Saket Court, New Delhi Civil Suit No. 408/17 Satish Bidhuri Vs. Sushila Page no. 19 of 19