Delhi District Court
Suit No.550/14 vs Smt. Usha Devi on 18 February, 2016
IN THE COURT OF RAKESH KUMAR SHARMA, ADJ03 (N/W) ROHINI
COURTS:DELHI
Suit No.550/14
Smt. Rajni Chaudhary
W/o Sh. Rahul Rathi
R/o 268, Double Storey
New Rajinder Nagar
New Delhi ......Plaintiff
Versus
Smt. Usha Devi
W/o Sh. Sudhir Kumar
R/o M2/14, Mohan Park
Model TownIII
Delhi110009 ......Defendant
Date of Institution of the Suit : 08.12.2009
AND
Suit No.551/14
Smt. Usha Devi
W/o Sh. Sudhir Kumar
R/o M2/14, Mohan Park
Model TownIII
Delhi110009 ......Plaintiff
Versus
Smt. Rajni Chaudhary
W/o Sh. Rahul Rathi
R/o 268, Double Storey
New Rajinder Nagar
New Delhi
......Defendant
Date of Institution of the Suit : 11.01.2010
Date on which order was reserved : 02.02.2016
Date of decision : 18.02.2016
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.1/56
J U D G M E NT
1 One sale deed executed between the parties is the bone
of contention. The purchaser has filed suit for possession and mesne
profits etc. on the basis of the sale deed and the seller has sought
cancellation of the said sale deed.
2 Both the suits are being disposed of by this common
judgment. These are two crosssuits filed by the parties against each
other. Vide order dated 26512 passed in Suit No.551/14 Ms. Usha
Devi Vs. Ms. Rajni Chaudhary, both the suits were consolidated and
Suit No.550/14 Ms. Rajni Chaudhary Vs. Ms. Usha Devi was directed to
be the lead case for the purpose of recording evidence. The parties
shall be referred to as per their position in Suit No.550/14 Ms. Rajni
Chaudhary Vs. Ms. Usha Devi i.e Ms. Rajni Chaudhary shall be referred
to as plaintiff and Ms. Usha Devi as defendant.
3 Admitted facts are that the plaintiff (Ms. Rajni Chaudhary)
is niece of the husband of the defendant (Ms. Usha Devi), that the
plaintiff is an Engineer, that she (the plaintiff) joined M/s LG Electronics
in the year 2008, that the defendant (Ms. Usha Devi) executed a
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.2/56
registered sale deed dated 19609 in favour of the plaintiff (Ms. Rajni
rd
Chaudhary) in respect of built up 3 floor with roof and terrace rights
with common entrance/passage and staircase in property bearing
no.M2/14, Mohan Park, Model Town, Delhi - 110009 measuring 100
square yards (hereinafter "the suit premises") and that husband of the
defendant (Smt. Usha Devi) was not present at the time of registration
of the sale deed.
4 The plaintiff (Ms. Rajni Chaudhary) has filed her suit (Suit
No.550/14) for possession, recovery of damages/mesne profits and
permanent injunction. Her case as stated in the plaint is that in
consideration of the receipt of the valuable consideration, the defendant
had delivered physical, peaceful and actual vacant possession of the
suit premises to the plaintiff and the plaintiff occupied the same.
However, after execution of the sale deed and delivery of the
possession, on the request of the defendant, the plaintiff allowed her to
use the same for a period of three months i.e upto 18909 as a licensee
without payment of any charges. It was agreed that the defendant shall
pay the electricity and water charges according to her consumption
during the period of stay in the suit premises. However, after the expiry
of the said period, the defendant failed to handover vacant possession
of the suit premises to the plaintiff despite several requests and
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.3/56
demands. Hence, the plaintiff sent a legal notice dated 311009 to the
defendant terminating her license with immediate effect and calling
upon her to handover the possession and vacant possession of the suit
premises specifically stating that in case she failed to handover
possession of the suit premises within 15 days from the receipt of the
notice, she shall be liable to pay damages for unauthorized use and
occupation @ Rs.15,000/ per month which the suit premises can fetch
easily if let out. However, the defendant failed to comply with the notice
despite service and has, instead, threatened to transfer, dispose of and
create a third party interest in the suit premises. Hence, the present suit.
The plaintiff has sought (a) possession of the suit premises, (b)
damages/mesne profits of Rs.15,000/ for the period from 11109 to
301109 (c) future damages @ Rs.15,000/ per month from the date of
filing of the suit till the actual possession is handed over to her, (d)
interest @ 18% per annum on the amount of future damages (e)
permanent injunction restraining the defendant permanently from
creating any third party interest in the suit premises and (f) costs of the
suit.
5 Before filing the written statement in the suit filed by the
plaintiff, the defendant (Smt. Usha Devi) filed her suit (i.e Suit No.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.4/56
551/14) u/s 31 of the Specific Relief Act and for permanent injunction.
Her case is that the relations between the parties and other members of
the family have been very cordial. The husband of the defendant (Smt.
Usha Devi) has lot of love and affection for the plaintiff (Smt. Rajni
Chaudhary) as the plaintiff is his niece. In fact, he treated her like his
daughter. The plaintiff is holding engineering degree. Towards the end
of December, 2008, the plaintiff joined M/s LG Electronics. In February
March, 2009, the plaintiff approached the defendant and told them that
if she (the plaintiff) gets any immovable property in her name, she would
be able to save a lot of money in the form of tax exemptions/benefits.
She requested the defendant and her husband to execute title
documents of the suit premises in her name purely for the purposes of
availing loan and for tax exemptions/benefits etc. Keeping in view the
close relations between the parties and the love and affection of the
husband of the defendant towards the plaintiff, the defendant agreed to
the proposal of the plaintiff. It was clearly understood between the
defendant and her husband on one side and the plaintiff on the other
that the documents of title in respect of the suit premises shall be
executed and used only for the purpose of availing of loan and tax
exemptions/benefits etc and for no other purposes by the plaintiff and
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.5/56
that the plaintiff shall execute a sale deed in favour of the defendant in
due course after availing of the loan and other benefits. There was no
occasion for any consideration involved in the transaction. Hence, the
sale deed was executed without consideration. The defendant and her
husband had full faith and belief in the plaintiff. The defendant being
illiterate could not and did not know the contents of the sale deed. The
husband of the plaintiff is only a school pass out. He did not even have
a look towards the documents or its contents, what to talk of reading the
contents thereof. He did not even bother to accompany the defendant to
the SubRegistrar office for registration of the sale deed, as he had total
faith and belief in the plaintiff. The defendant and her husband did not
even bother to retain a copy of the sale deed. Even the original
document of title i.e the sale deed in favour of the defendant, was also
taken by the plaintiff on the pretext of preparation of the sale deed. The
said document has not been returned by the plaintiff despite demands
by the defendant and her husband. The things were normal and usual
after execution of the sale deed. However, to her utter shock and
surprise, in the first week of November, 2009, the defendant received a
notice purportedly on behalf of plaintiff for vacating the suit premises
and handing over its possession to the plaintiff and only then, the
defendant came to know about the cheating and fraud committed by the
plaintiff. The husband of the defendant and his younger brotherSh.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.6/56
Arvind Kumar visited the house of plaintiff on 71109 and expressed
their displeasure. During the course of conversation, the plaintiff
admitted that there was no consideration and that the sale deed was
executed merely for the purpose of availing of loan and tax
exemptions/benefits etc. She further divulged that all these acts were
done at the behest of some other person in the family i.e the youngest
brother of the husband of the defendant, namely, Sh. Vijay Kumar. The
husband of the defendant recorded the conversation. The plaintiff
categorically assured that the notice was sent under some
misunderstanding and no action shall be taken on the basis of the
notice or otherwise. However, in the second week of December, 2009,
the defendant received summons of the suit filed by the plaintiff. The
defendant has been in possession of the suit premises continuously
since the year 2000 when she purchased the same. As there was no
consideration, much less lawful consideration, the sale deed is not in
accordance with Section 10 of the Indian Contract Act. Further, the
consent of the defendant is also not free as defined in Section 14 of the
Contract Act. The sale deed is also nullity as the same is hit by Section
16 of the Indian Contract Act. The defendant lodged a complaint dated
241209 with the local police and has also written a letter dated
261209 to the SubRegistrar not to execute any further document on
the basis of the said sale. The suit is valued at Rs.6.85 lac (i.e the
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.7/56
consideration amount mentioned in the sale deed) for the purposes of
jurisdiction and a fixed Court fees of Rs.20/ has been paid for the relief
of cancellation of sale deed. Hence, the suit for cancellation of the sale
deed and for restraining the plaintiff permanently from creating any third
party interest on the basis of the sale deed in the suit premises.
6 Needless to say, the written statement of the defendant in
the suit filed by the plaintiff is the same as the plaint in the suit filed by
her. Similarly, the written statement of the plaintiff in the suit filed by the
defendant is the same as the plaint in her own suit. It is further
submitted by the plaintiff that the suit of the defendant has not been
properly valued for the purposes of Court fees and proper Court fees
has not been paid, that the entire consideration was paid which fact has
been acknowledged by the defendant in the sale deed itself and that the
alleged conversation between the plaintiff and Sh. Arvind and Sh.
Sudhir (husband of the defendant) never took place.
7 In their respective replications, both the parties have
controverted the pleas of the other party and have reiterated those of
their plaint.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.8/56
8 From the pleadings of the parties, following issues were
framed in Suit No.550/14:
1) Whether the plaintiff has purchased the third floor
with roof right etc of the suit property with
proportionate share of land, as alleged in para no.
2 of the plaint? OPP
2) Whether the suit is not maintainable, in view of
preliminary objection no.3 of WS? OPD
3) Whether the sale deed dated 19609 is in
contravention of provisions of Section 10, 14 and
16 of Indian Contracts Act, 1872, as alleged in para
2 on merits in WS? OPD
4) Whether the plaintiff is entitled to decree of
permanent injunction, as prayed? OPP
5) Whether plaintiff is entitled to decree of
possession, as prayed? OPP
6) Whether plaintiff is entitled to damages, mesne
profits, as prayed? OPP
7) Relief.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.9/56
9 Following issues were framed in Suit No.551/14:
1) Whether the suit is valued properly for the purpose
of Court fee and proper Court fees has been paid?
OPP
2) Whether the suit is not maintainable in view of
preliminary objection no.3 in the WS? OPD
3) Whether plaintiff is owner of the suit property as
alleged in para no.2 of the plaint? OPP
4) Whether plaintiff has sold the suit property to the
defendant against consideration, as alleged in
para no.2 of the WS on merits? OPD
5) Whether documents and nature of sale deed were
executed by plaintiff in favour of defendant without
any consideration and on account of reasons
mentioned in para nos.7 and 11 etc in the plaint?
OPP
6) Whether plaintiff is entitled to decree of
cancellation of sale deed, as prayed? OPP
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.10/56
7) Whether plaintiff is entitled to decree of permanent
injunction, as prayed?
8) Relief.
10 Thereafter, as noted above, vide order dated 260512
passed in Suit No.551/14 Ms. Usha Devi Vs. Ms. Rajni Chaudhary, both
suits were consolidated for the purpose of recording evidence, treating
Suit No.550/14 Ms. Rajni Chaudhary Vs. Ms. Usha Devi as the lead
case.
11 The plaintiff examined the following witnesses in support of
her case:
S.NO. WITNESS NAME OF THE DOCUMENTS REMARKS
WITNESS RELIED UPON
1 PW1 Smt. Rajni Chaudhary Mark A- Copy of Sale
Deed
Plaintiff
Ex.PW1/2 - Site Plan
Ex.PW1/3 Statement
of Accounts
Ex.PW1/4- Copy of
Legal Notice dated
31-10-09
2 PW2 Sh. Vijay Kumar- Ex.PW2/1 - Sale deed Attesting witness to
Maternal uncle (which is also mark A) sale deed
(mama) of the plaintiff
3 PW3 Sh. Rishipal (Father of Ex.PW2/1 - Sale deed Attesting witness of
the plaintiff) (which is also mark A) sale deed
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.11/56
12 The defendant examined the following witnesses in support
of her case.
S.NO. WITNESS NAME OF THE WITNESS DOCUMENTS RELIED REMARKS
UPON
1 DW1 HC Sukhbir Singh Ex.DW1/1 - Order of Whereby all
DCPNW complaints and
complaints registers
upto 2009 have been
destroyed
2 DW2 Sh. Sameer Aggarwal For proving value of
the suit premises in
2008
3 DW3 Sh. Damodar Das Pugalia For proving value of
the suit premises in
2008
4 DW4 Sh. Ravinder Chikhar, UDC, Sub
Registrar VIA, Pitam Pura
5 DW5 Sh. Sanket Sharma, Manager, Ex.DW5/ARelevant To prove that
TPDDL,Azadpur record of electricity electricity connection
Office, Delhi connection vide CA No. in the suit premises
60011573981 is in the name of
defendant.
6 DW6 Sh. Vishambhar Dutt, LDC, Ex.DW6/A - Details of
Regional Passport Office, Bhikaji passport of Sh. Sudhir
Cama Place, Delhi Kumar
7 DW7 Smt. Usha Devi Ex.DW7/1electricity bill
in the name of
Defendant defendant
Ex.DW7/2 (Same as
(Conversation of plaintiff Ex.PW1/D3)
with Sh. Sudhir and Sh.
Arvind)
Ex.DW7/3 (Same as
[Conversation of Sh. Ex.PW1/D4)
Sudhir and Sh. Arvind
with Sh. Rahul Rathee
husband of the
defendant]
Ex.DW7/4 (Same as
Ex.PW2/1) Sale deed
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.12/56
S.No. WITNESS NAME OF THE WITNESS DOCUMENTS RELIED REMARKS
UPON
______ ____________ ____________________________ ___________________ ________________
Ex.DW7/5 Copy of
complaint dated
DW7 (Contd.) 241209 made by
defendant to SHO
Model Town against the
plaintiff
Ex.DW7/6 - original
postal receipt in respect
of Ex.DW7/5
Ex.DW4/B copy of
letter dated 261209
sent by defendant to
SubRegistrar
Ex.DW4/A original
postal receipt of
Ex.DW4/B
8 DW8 Sh. Arvind Kumar Ex.PW1/D3 Transcript of
recorded
conversation with
defendant
Ex.PW1/D4 Transcript of
recorded
conversation with
Sh. Rahul Rathi
(husband of
defendant)
9 DW9 Sh. Nikhil Chaudhary Documents relied upon
(Son of defendant) by the plaintiff and DW8
10 DW10 SI Govind Singh Rawat, FRRO Unit, Ex.DW10/1 arrival and To prove that Sh.
R.K. Puram, New Delhi departure details in Sudhir Kumar was
respect of Passport of not in India when the
Sh. Sudhir Kumar alleged payment was
Chikara (husband of the made
defendant)
13 Counsel for the plaintiff relied upon the following authorities
in support of his contentions:
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.13/56
1 AIR 2009 SC 2122
Kaliaperumal Vs. Rajagopal & Anr.
2 2015 Law Suit (Del) 5057
KMJ Land Developers India Ltd. Vs. Karan Realtech Pvt.
Ltd. & Anr.
3 2012 Law Suit (Del) 1235
Man Mohan Batra Vs Bharat Bhushan Batra & Ors.
4 2011 X AD (DELHI) 273
Shiv Kumar Sharma Vs. Madhu Aggarwal
5 (2014) 10 SCC 473
Anvar P.V Vs. P.K. Basheer & Ors.
14 Counsel for the defendant relied upon the following
authorities in support of his contentions:
1 172(2010) DLT 251
Ashok Kumar Khurana Vs. Lokeshwer Nath Gulati &
Ors.
2 158 (2009) DLT 136
Vimla Mehra Vs. K.S. Mehra
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.14/56
3 153 (2008) DLT 121
Rajesh Kumar Aggarwal Vs. Pavneet Singh
4 AIR 1961 Calcutta 359 (V 48 C 74)
A.E.G Carapiet Vs. A.Y. Derderian
15 Directions were given to both the parties to file their
respective lists of dates and events. One list of events/written synopsis
was filed by the defendant and brief facts with dates and events was
filed by the plaintiff.
16 I have heard counsels for the parties and have also gone
through the record as well as the authorities relied upon by them.
17 My issues wise findings are as follows:
18 ISSUE NO.1 IN SUIT NO.551/14
"Whether the suit is valued properly for the purpose
of Court fee and proper Court fees has been paid?
OPP"
19 Suit No.551/14, as noted above, was instituted by the
defendant i.e Smt. Usha Devi. Hence, the burden of proving the fact that
the suit was properly valued for the purposes of Court fees and proper
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.15/56
Court fees has been paid was on the defendant Smt. Usha Devi.
20 The record reveals that the plaintiff (Smt. Rajni Chaudhary)
filed an application u/O 7 Rule 11 CPC for rejection of the plaint filed by
the defendant (Smt. Usha Devi) interalia on the ground that the suit
has not been properly valued for the purposes of Court fees and proper
Court fees has not been paid. Vide order dated 29910 passed in the
said suit i.e CS No.551/14, the application was dismissed. However, the
plaintiff (Smt. Rajni Chaudhary) filed an application for review of the
said order, which was allowed vide order dated 20811 and the
defendant (Smt. Usha Devi) was directed to pay advolerem Court fees
on the sale consideration mentioned in the sale deed executed by her in
favour of the plaintiff. The Court fees was filed by the defendant Smt.
Usha Devi on 51011. Hence, this issue already stands decided.
Issues no.1,2 and 3 in Suit No.550/14 which are as follows:
1) Whether the plaintiff has purchased the third floor
with roof right etc of the suit property with
proportionate share of land, as alleged in para no.
2 of the plaint? OPP
2) Whether the suit is not maintainable, in view of
preliminary objection no.3 of WS? OPD
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.16/56
3) Whether the sale deed dated 19609 is in
contravention of provisions of Section 10, 14 and
16 of Indian Contracts Act, 1872, as alleged in para
2 on merits in WS? OPD
and
Issues no.2, 3, 4 and 5 in Suit No.551/14 which are as
follows:
2) Whether the suit is not maintainable in view of
preliminary objection no.3 in the WS? OPD
3) Whether plaintiff is owner of the suit property as
alleged in para no.2 of the plaint? OPP
4) Whether plaintiff has sold the suit property to the
defendant against consideration, as alleged in
para no.2 of the WS on merits? OPD
5) Whether documents and nature of sale deed were
executed by plaintiff in favour of defendant without
any consideration and on account of reasons
mentioned in para nos.7 and 11 etc in the plaint?
OPP
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.17/56
21 All these issues are being taken up together as they are
interrelated. Section 10, 14 and 16 of the Indian Contract Act are as
follows:
"10
What agreements are contract
- All agreements
are contracts if they are made by the free consent of
parties competent to contract, for a lawful
consideration and with a lawful object, and are not
hereby expressly declared to be void.
Nothing hereby contained shall affect any law in force
in [India], and not hereby expressly repealed, by which
any contract is required to be made in writing or in the
presence of witnesses, or any law relating to the
registration of documents.
14
'Free consent' defined
- Consent is said to be free
when it is not caused by
1.Coercion, as defined in section 15, or
2. Undue influence, as defined in section 16, or
3. Fraud, as defined in section 17, or
4. Misrepresentation, as defined in section 18, or
5. mistake, subject to the provisions of sections 20, 21 and 22.
Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.18/56 16 'Undue influence' defined - (1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another 0
(a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person, who is in a position to dominate the will of another enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
Nothing in the subsection shall affect the provisions of section 111 of the Indian Evidence Act, 1872".
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.19/56 22 The respective cases of the parties in the pleadings have already been noted above. In nutshell, the case of the plaintiff (Smt. Rajni Chaudhary) is that the sale deed was executed by the defendant after receiving the entire sale consideration whereas the case of the defendant is that the sale deed was executed on account of love and affection between the parties, only to facilitate the plaintiff in getting tax exemptions/benefits etc and that no consideration was ever paid to or received by the defendant.
23 A perusal of the record reveals that the defendant (Smt. Usha Devi) filed written statement in the suit filed by the plaintiff (Smt. Rajni Chaudhary) as well as her suit specifically stating these facts. In her replication and written statement in the suit filed by the defendant, the plaintiff merely denied the averments that no consideration was paid. I am of the considered view that keeping in view the specific averments/denial of the defendant that no consideration was paid, it was incumbent upon the plaintiff (Smt. Rajni Chaudhary) to give particulars as to how and when the payments were made. The written statement and replication, filed by the plaintiff are absolutely silent about the same. It is not at all stated whether the payment was made by cash or by cheque, whether it was made in one go or in installments or whether the same was made directly by the plaintiff or through somebody else. Civil Suit No.550/14 and Civil Suit No.551/14 Page no.20/56 Hence, the plaintiff has chosen to remain silent about the most material aspect of the matter at the first available opportunity. This fact assumes importance keeping in view the facts and circumstances of the case, which shall be noted below.
24 There cannot be any doubt that except the statement of a party, there cannot be any evidence regarding a negative fact and that evidence can be given only about a positive fact. Hence, the only evidence, the defendant (Smt. Usha Devi) could have given about non payment of consideration amount was her statement that no consideration was paid. This has been done by her. Hence, the burden of proving that the consideration was paid to the defendant was on the plaintiff (Smt. Rajni Chaudhary).
25 In her affidavit filed as examinationinchief, the plaintiff (Smt. Rajni Chaudhary) stated about payment of consideration amount as follows:
"I say that the consideration amount of Rs.6,85,000/ was paid by the deponent to the defendant against different cheques bearing no.364414 to the amount of Rs.50,000/ dated 24122008 from A/c No.10614956817 in the name of Sh. Rishi Pal Singh, father of the deponent; cheque bearing Civil Suit No.550/14 and Civil Suit No.551/14 Page no.21/56 no.217052 of Rs.2,50,000/ dated 22122008 from A/c No. 10614928824 in the name of Smt. Usha Devi, mother of the deponent; cheque bearing no.384287 dated 29908 amounting to Rs.1,00,000/ from the A/c No.10614966767 in the name of the deponent, all drawn at SBI Paharganj, New Delhi and cheque bearing no.340083 dated 61008 from the A/c No.062900 0100285124 in the name of Sh. Rahul Rathee, husband of the deponent, drawn at PNB, New Rajinder Nagar, New Delhi of the amount of Rs.2,50,000/ and the same were duly received by the defendant. Rest of the consideration amount was paid in cash by the deponent to the defendant. The entire consideration amount was paid to the defendant before execution of the Sale Deed. The defendant after the receipt of the valuable consideration had to deliver the physical, peaceful and actual vacant possession of the suit property to the deponent and the defendant has confirmed this fact in the sale deed of the suit property. Original statement of accounts are annexed herewith and marked as Ex.PW1/3 (Colly.)".
(Underlining by me) 26 As noted above, this is the first time, particulars of the Civil Suit No.550/14 and Civil Suit No.551/14 Page no.22/56 payments were given by the plaintiff. A perusal of these averments made by the plaintiff shows that as per the plaintiff, the payments (except Rs.35,000/) were made to the defendant by cheques. It is nowhere stated by the plaintiff in the entire affidavit that the cheques mentioned in the para were encashed by somebody other than the defendant and the amount was paid in cash to the defendant either by the plaintiff or by somebody else. This fact assumes importance as shall be noted later on in this judgment.
27 As noted above, the plaintiff, in her affidavit filed as examinationinchief, relied upon the statement of account as Ex.PW1/3. In her crossexamination, she admitted that it is not stated in any of the pages of Ex.PW1/3 that any payment was made to the defendant Smt. Usha Devi.
28 Although, as noted above, it is stated in her affidavit by the plaintiff that rest of the consideration amount was paid in cash by her to the defendant, no date when the said amount in cash was paid by the plaintiff to the defendant has been given in the entire affidavit. All that is stated is that the entire consideration was paid to the defendant "before" execution of the sale deed. It is not at all stated that the payment was made on 19609 i.e. the date on which the sale deed was Civil Suit No.550/14 and Civil Suit No.551/14 Page no.23/56 executed.
29 Significantly, in her crossexamination, the plaintiff stated that "it is correct that I myself never handed over any amount to the defendant in respect of the suit premises". It is clear that the statement made by her in her affidavit filed as examinationinchief that she paid the balance amount in cash to be defendant is false to her knowledge. 30 In her crossexamination, the plaintiff as PW1 stated that she had shown the amounts paid to the defendant from her account in her incometax returns and that she has not filed any of her incometax returns on record to show that the amount was shown in the incometax returns. No effort was made by the plaintiff to file, much less to prove, her incometax returns for the relevant period. Hence, an adverse inference is to be drawn against the plaintiff. The inference is that the incometax returns, if filed would have gone against the plaintiff i.e they would have shown that the alleged amounts paid by the plaintiff from her account was not shown in the incometax returns. Hence, the payments allegedly made by the plaintiff from her account is highly unbelievable.
31 In her crossexamination, the plaintiff admitted that the other Civil Suit No.550/14 and Civil Suit No.551/14 Page no.24/56 amounts allegedly paid to the defendant were not shown in her income tax returns. As per the own case of the plaintiff, the other amounts were paid on her behalf and for her benefit. Hence, it was incumbent on her to show the same in her incometax returns. The very fact that the amounts were not shown by the plaintiff in her incometax returns again makes the case of the plaintiff unbelievable that the other payments were made.
32 The plaintiff examined her maternal uncle and attorney Sh. Vijay Kumar as PW2. He is also an attesting witness to the sale deed. In his affidavit filed as examinationinchief, for the first time, it is claimed that the cheques mentioned by the plaintiff in her affidavit except the one from the account of Sh. Rahul Rathee, were given to him (PW2), they were encashed by him and the amount was handed over by him to the defendant. This is nowhere the case of the plaintiff in her affidavit filed as examinationinchief, as noted in para 25 above. Regarding the cheque mentioned by the plaintiff in her affidavit pertaining to the account of her husband Sh. Rahul Rathee, it is stated by PW2 that he was given the amount of the cheque in cash by the plaintiff and he handed over the amount to the defendant. This is obviously contradictory to the statement of the plaintiff in her affidavit. Civil Suit No.550/14 and Civil Suit No.551/14 Page no.25/56 33 Significantly, in his affidavit filed as examinationinchief, PW2 states that the amount of Rs.2.50,000/ which was given to him by the plaintiff on 61008 was given by him to the defendant "on the same date". However, significantly, regarding the other amounts, it is not at all stated by PW2 in his entire affidavit whether the same were handed over by him to the defendant on the same day or on some other date, and if so, on what date.
34 In his affidavit filed as examinationinchief, PW2 stated that an amount of Rs.35,000/ was paid by the plaintiff to the defendant on 190609 in his presence. As noted above, no date was given by the plaintiff in her affidavit filed as examinationinchief regarding the payment of this amount and the only thing she stated in the affidavit was that the amount was paid before execution of the sale deed. As noted above, in her crossexamination, the plaintiff admitted that she never paid any amount to the defendant. Hence, the statement of PW2 is contradictory to the statement made by PW1 in her crossexamination. 35 In his crossexamination, PW2 (Sh. Vijay Kumar) stated that he was working with his sister in her business. He admitted that the said sister is the mother of the plaintiff. Hence, he is highly interested witness.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.26/56 36 In his crossexamination, PW2 admitted that some times plaintiff and her father give her cheques to withdraw the amounts from their account. He stated that he must have withdrawn amounts from the account of mother of the plaintiff at SBI, Pharganj about 515 times in the year 2008 and that it is possible that he had withdrawn amounts from all these three accounts i.e from the accounts of the plaintiff and her parents more than 23 times in the year 2008. It is clear that PW2 was withdrawing amounts from the accounts of the plaintiff and her parents in routine many times. Ex.PW1/3 relied upon by the plaintiff as PW1 as statement of accounts in her affidavit filed as examinationin chief shows that the amounts were withdrawn by PW2 Sh. Vijay Kumar from the respective accounts. Thus, the possibility that the amounts withdrawn by PW2 in routine and for some other purposes are being shown by the plaintiff as paid to the defendant, cannot be ruled out. 37 In his crossexamination, PW2 stated that no receipt was taken for any of the amounts handed over by him to the defendant and her husband. He stated that all the payments were got confirmed by him by asking the husband of the defendant to talk to the plaintiff on his mobile phone. It is nowhere the case of the plaintiff as PW1 that on payments being made by PW2, the defendant or her husband Civil Suit No.550/14 and Civil Suit No.551/14 Page no.27/56 confirmed the payments on telephone to the plaintiff. 38 No call details have been produced by the plaintiff much less proved in respect of the phone of PW2 to show whether any call was made by him to the plaintiff on the dates when the alleged payment was made. Hence again, an adverse inference is liable to be drawn against the parties. The influence is that the call records, if proved, would have gone against the plaintiff. In other words, no such calls were made. 39 In his crossexamination, PW2 Sh. Vijay Kumar stated that he gave an amount of Rs.1,00,000/ on 29908, amount of Rs. 2,50,000/ on 221208, amount of Rs.50,000/ on 241208, amount of Rs.2,50,000/ on 61008 to be defendant and her husband. He denied the suggestion given by the defendant that on 29908, 221208 and 241208, husband of the defendant was not in India.
The defendant examined DW10SI Govind Singh Rawat from FRRO Unit, R.K. Puram, New Delhi, who filed the details of arrival and departure in respect of the passport of Sh. Sudhir Kumar Chikara (husband of defendant) as Ex.DW10/1. In the crossexamination, DW10 stated that he had no personal knowledge about the facts of the present case including about the facts stated in Ex.DW10/1. It was not at all suggested to the witness DW10 by the plaintiff that the facts stated in Civil Suit No.550/14 and Civil Suit No.551/14 Page no.28/56 Ex.DW10/1 are false or that the true facts are not recorded in Ex.DW10/1. It is to be noted here that Ex.DW10/1 has been prepared by one Sh. Satish Kumar Sharma, Assistant Foreigner Regional Registration Officer, New Delhi and the same is addressed to this Court in response to a summon sent to FRRO. It is difficult to believe that the Assistant FRRO would give false or incorrect details before a Court particularly when he has no personal interest in the matter. Hence, I am of the considered view that Ex.DW10/1 stands proved on record.
It is stated in Ex.DW10/1 that Sh. Sudhir Kumar Chikara departed on 19908 and arrived on 30908 and further departed on 101208 and arrived on 301208 via IGI Airport, New Delhi. The flight numbers have also been mentioned in Ex.DW10/1. Hence, in view of Ex.DW10/1, it stands proved on record that the husband of the defendant was not in India on 29908, 221208 and 241208. Hence, the statement made by PW2 that on these dates payments were made to the defendant and her husband is false.
40 As noted above, the case of PW2 is that the amounts were either withdrawn by him from the bank or were given to him by the plaintiff and they were handed over by him to the defendant (and her husband). PW1 (Smt. Rajni Chaudhary) in her crossexamination stated that no receipt was issued for the amounts paid in respect of the suit Civil Suit No.550/14 and Civil Suit No.551/14 Page no.29/56 premises. In his crossexamination, PW2 also admitted that there is no receipt taken about any of the amounts handed over by him to the defendant and her husband. Hence, the entire case of the plaintiff is based on the oral testimony of PW2. Keeping in view that I have held above that the statement of PW2 that payments were made to the defendant and her husband on 29908, 221208 and 241208 is false (as the husband of the defendant was not in India on these dates) it is difficult to believe that PW2 made any payment to the defendant. 41 PW3 (Sh. Rishi Pal) is the father of the plaintiff and an attesting witness to the sale deed. In his affidavit filed as examinationin chief itself, he made further improvements to the case of the plaintiff and stated that on 29908, 221208 and 241208 Sh. Vijay Kumar (PW2) paid amounts of Rs.1,00,000/, Rs.2,50,000/ and Rs.50,000/ to the defendant "and informed the plaintiff". Hence, it is clear that as per PW3, only PW2 informed the plaintiff about the payments allegedly made to the defendant, and not the defendant or even her husband. This testimony of PW3 is contradictory to the averments of PW2 in his crossexamination that "all the payments were got confirmed by me by asking the husband of the defendant to talk to the plaintiff on my mobile phone".
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.30/56 42 In his crossexamination, PW3 admitted that no payment was made by Sh. Vijay Kumar (PW2) to the defendant in his presence and that no receipts were issued by the defendant. 43 Significantly, in his affidavit filed as examinationinchief, PW3 stated that on 19609, the plaintiff gave the remaining amount of Rs.35,000/ to the defendant. As noted above, in her crossexamination, the plaintiff admitted that he never made any payment to the defendant herself.
44 In his crossexamination, he (PW3) stated that he had shown the payment of Rs.50,000/ made by him to Sh. Vijay Kumar (PW2) in incometax return and admitted that he had not filed any incometax return in this regard. Again, no effort was made by the plaintiff to file incometax return of PW3.
45 In his crossexamination, PW3 volunteered that the amount of Rs.35,000/ was paid in cash by him to the defendant at the suit premises on the day the sale deed was executed. This is contradictory to the averment made by him in his own affidavit that the amount was paid by the plaintiff.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.31/56 46 In his crossexamination, PW3 stated that the amount of Rs. 35,000/ paid by him to the defendant on the date of the execution of the sale deed was taken as loan by him from his elder brother and that the amount was not shown in his incometax return. He stated that he was an incometax assessee. No reason why the amount was not shown his incometax return is given. Hence, it is difficult to believe that the amount was paid by him to the defendant.
47 Thus, there are improvements upon improvements in the case of the plaintiff at every stage. This is why I have held in para 23 of the judgment that it was incumbent about the plaintiff to give particulars of the payment allegedly made by her to the defendant at the first available opportunity. It is obvious that the plaintiff did not give the particulars only to find out ways and means to somehow prove her case in this regard.
48 Coming to the evidence of the defendant, as noted above, the case of the defendant, interalia, is that on 71109, Sh. Sudhir Kumar (husband of the defendant) and his brother Sh. Arvind Kumar visited the plaintiff and the entire conversation was recorded by them and that Sh. Sudhir Kumar (husband of the defendant) also recorded his conversation dated 111109 with Sh. Rahul Rathi (husband of the Civil Suit No.550/14 and Civil Suit No.551/14 Page no.32/56 plaintiff). The defendant filed the alleged conversation in the form of a CD. This CD was exhibited as Ex.PW1/D5 during the crossexamination of the plaintiff and the transcript of conversation was exhibited as PW1/D3 and Ex.PW1/D4 respectively. Exhibition of the CD was objected to by the counsel for plaintiff.
In this regard, counsel for the plaintiff relied upon Anvar P.V (supra) in which it has been held as follows: 7 Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act'). The Evidence Act underwent a major amendment by Act 21 of 2000 [The Information Technology Act, 2000 (hereinafter referred to as 'IT Act')]. Corresponding amendments were also introduced in The Indian Penal Code (45 of 1860), The Bankers Books Evidence Act, 1891, etc. 8 Section 22A of the Evidence Act reads as follows:
"22A. When oral admission as to contents of electronic records are relevant. Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."
9 Section 45A of the Evidence Act reads as follows:
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.33/56 "45A. Opinion of Examiner of Electronic Evidence. When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.
Explanation.For the purposes of this section, an Examiner of Electronic Evidence shall be an expert."
10 Section 59 under Part II of the Evidence Act dealing with proof, reads as follows:
"59. Proof of facts by oral evidence. All facts, except the contents of documents or electronic records, may be proved by oral evidence.
11 "Section 65A reads as follows: "65A. Special provisions as to evidence relating to electronic record:
The contents of electronic records may be proved in accordance with the provisions of section 65B."12
Section 65B reads as follows: "65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and Civil Suit No.550/14 and Civil Suit No.551/14 Page no.34/56 computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.35/56 (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of subsection (2) was regularly performed by computers, whether
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.36/56
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.37/56
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process."
These are the provisions under the Evidence Act relevant to the issue under discussion.
13 In the Statement of Objects and Reasons to the IT Act, it is stated thus:
"New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business."
In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
14 Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the Civil Suit No.550/14 and Civil Suit No.551/14 Page no.38/56 procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2).
Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the Civil Suit No.550/14 and Civil Suit No.551/14 Page no.39/56 computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16 It is further clarified that the person need only to state in the certificate that the same is to the best of his Civil Suit No.550/14 and Civil Suit No.551/14 Page no.40/56 knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17 Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A opinion of examiner of electronic evidence.
18 The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India. 19 It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The Civil Suit No.550/14 and Civil Suit No.551/14 Page no.41/56 presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility. 20 Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
21 In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[1], a twoJudge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph150 as follows:
"150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is Civil Suit No.550/14 and Civil Suit No.551/14 Page no.42/56 not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65."
It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act. However, it was held Civil Suit No.550/14 and Civil Suit No.551/14 Page no.43/56 that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.
22 The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
(Underlining by me) Civil Suit No.550/14 and Civil Suit No.551/14 Page no.44/56 49 It is clear from para 15 of the authority that an electronic record is admissible only if the conditions, interalia, laid down in the said para are fulfilled. Further, it is only if all the conditions mentioned in para in the authority are fulfilled, the electronic record becomes admissible as evidence. In other words, in case the party relying upon an electronic record fails to fulfill even one of these conditions, the electronic record is inadmissible as evidence. It is specifically laid down that the person relying upon the electronic record must give a certificate and the certificate must, interalia, (a) describe the manner in which the electronic record was produced (b) furnish the particulars of the device involved in the production of that record.
A perusal of the record shows that the defendant filed two certificates u/S 65B of the Evidence Act. Both the certificates are exactly the same. Both were filed on 16915. Even the title of the case given on both of them is the same. In neither of the certificates, the defendant has mentioned/described the manner in which the CD was produced or even the particulars of the device involved in the production of the CD. How the conversation was recorded i.e whether it was recorded on a tape recorder or on mobile phone or any other device, is not at all stated by the defendant either in the pleadings or even in the evidence of the witness examined by her. Hence, the authority is squarely applicable to the facts of the present case and the CD is inadmissible in Civil Suit No.550/14 and Civil Suit No.551/14 Page no.45/56 evidence.
Even otherwise, a perusal of Section 65B of the Evidence Act shows that the averments made in the certificate constitute evidence. However, none of the witnesses examined by the defendant relied upon the certificate in their examinationinchief or even otherwise. The result is that the CD Ex.PW1/D5 has been relied upon without the requisite certificate and hence, again, in view of the authority Anvar P.V (Supra) relied upon by the counsel for plaintiff, the CD is inadmissible in evidence.
In view of the above discussion, it is held that the CD Ex.PW1/D5 relied upon by the defendant is inadmissible in evidence. Consequently, the transcript of conversation Ex.PW1/D3 and Ex.PW1/D4 are also inadmissible.
50 The defendant, as DW7, in her affidavit filed as examination inchief, fully supported her case as stated in her plaint/written statement in the suit filed by the plaintiff. Significantly, in her cross examination, a general suggestion was given by the plaintiff that she received the entire sale consideration from the plaintiff. The dates on which the payments were made and that the payments were made through PW2 was not at all suggested to the defendant by the plaintiff. Civil Suit No.550/14 and Civil Suit No.551/14 Page no.46/56 51 The defendant also examined DW2 Sh. Sameer Aggarwal, who is residing in the same building in which the suit premises is situated. In his examinationinchief, he has stated that the suit premises would have fetched an amount of rupees fortyfive to fifty lakhs in the year 2008. The testimony of DW2 goes unrebutted, unchallenged and uncontroverted as there is no crossexamination of DW2 in respect of this statement. It was not at all suggested by the plaintiff to DW2 that the suit premises was worth only Rs.6.85 lac in the year 2008. The entire crossexamination of DW2 was in respect of his statement that he purchased the premises in which he is residing in the year 1997 for Rs. 20,00,000/.
52 DW3 Sh. Damodar Das Pugalia in his examinationinchief specifically stated that the suit premises would have fetched an amount of rupees thirty to thirty five lac in the year 20082009. Again, the testimony of DW3 in this regard goes unrebutted, unchallenged and uncontroverted as there is no crossexamination of DW3 in respect of this statement. It was not suggested to DW3 that the suit premises was worth only Rs.6.85 lac in the year 2008. The entire crossexamination of DW3 is in respect of his statement that he purchased his premises in the same building in the year 1999 for about rupees fifteen lac. Civil Suit No.550/14 and Civil Suit No.551/14 Page no.47/56 53 It has been held in A.E.G Carapiet (supra) relied upon by ld. Counsel for defendant as follows: "10 The law is clear on the subject. Wherever, the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority on the House of Lords that this much a counsel is bound to do when crossexamination that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated".
(Underlining by me) Civil Suit No.550/14 and Civil Suit No.551/14 Page no.48/56 54 The authority is squarely applicable to the facts of the present case. In view of the authority, the testimonies of DWs 2 and 3 in respect of market value of the suit premises in the year 2008 is deemed to be admitted by the plaintiff. In view of the testimonies of DW3 and DW4, it is held that the suit premises was worth at least rupees thirty lac on the date of the execution of the sale deed.
55 The very fact that even as per the plaintiff, the suit premises was sold for a merely Rs.6.85 lac (despite buy with at least Rs.30 lac) goes a long way in proving the case of the defendant that the sale deed was executed not for consideration but, only for helping the plaintiff in getting tax concessions being a niece of the husband of the defendant. 56 There is another aspect of the matter. As per the plaintiff, the suit premises was worth Rs.6.85 lac on the date of the execution of the sale deed. If, this was so, I do not find any reason why the parties would not execute written documents (at least receipts for the amounts allegedly paid by the plaintiff to the defendant), to avoid any controversy in future particularly, keeping in view that the parties are near relatives. Even if, no document like receipt was executed, it is difficult to believe that a sum as big as Rs.6.85 lac was paid by (or on behalf of) the plaintiff in cash and she chose not to pay it by cheque. As noted Civil Suit No.550/14 and Civil Suit No.551/14 Page no.49/56 above, no particulars how the payment was made were given by the plaintiff in her replication or in her written statement filed in the suit of the defendant at the first available opportunity. This is not the conduct of a reasonable man.
57 Admittedly, the husband of the defendant was not present at the time the sale deed was executed. I am aware that there is no law requiring spouse of a party to be a witness to the sale deed executed by such party or even to be present at the time of the execution of the sale deed. However, normally, when sale deed is executed, one witness from either side is involved. In the present case, both the witnesses of the sale deed are from the side of the plaintiff and that too her close relatives i.e her father and maternal uncle. As noted above, PW2 is working with the mother of the plaintiff. Hence, the fact that admittedly husband of the defendant was not present at the time of execution of the sale deed, in my view, supports the case of the defendant that the sale deed was executed without consideration only to facilitate the plaintiff and was not to be acted upon for any other purpose except for availing tax benefits etc. 58 In view of the above discussion, I have no hesitation in holding that no payment was made by the plaintiff to the defendant Civil Suit No.550/14 and Civil Suit No.551/14 Page no.50/56 towards sale consideration of the suit premises. 59 I have gone through the authorities relied upon by the counsel for plaintiff. There cannot be any dispute about the propositions of law laid down in the authorities, but it is a settled law that each case is to be decided according to its own facts. I have already applied Anvar P.V (supra) relied upon by the counsel for plaintiff. The other authorities were relied upon by the counsel to contend that the suit is not maintainable in view of Section 55 (4) (b) of the Transfer of the Property Act and that the only remedy available with the defendant (Smt. Usha Devi) was to file a suit for recovery of the consideration amount, if not paid as per the defendant. I do not find any force in the contention. In the present cases, the sale deed is sought to be cancelled by the defendant not on the ground that the sale consideration has not been paid but on the ground that the sale deed was executed only to facilitate the plaintiff in getting tax benefits on account of close relations between the parties and for no other purposes. The fact that no sale consideration was paid has been stated and relied upon only in support of this contention/ground. Hence, with great respect, none of these authorities relied upon by the counsel for plaintiff, in my considered view, is applicable to the facts of the present case. Civil Suit No.550/14 and Civil Suit No.551/14 Page no.51/56 60 It is a settled law that civil cases are decided by preponderance of probabilities. Keeping in view the totality of the facts and circumstances of the case, the facts that :
a) Particulars in respect of the alleged payments were not given by the plaintiff at the first available opportunity.
b) It is nowhere case of the plaintiff even her affidavit filed as examinationinchief that the payments were made in cash much less through PW2.
c) For property worth at least rupees thirty lac, the sale consideration has been shown as Rs.6.85 lac only.
d) Stands of PWs which are not only contradictory in material aspects to their own testimonies but are contradictory to the testimonies of other PWs also.
e) The husband of the defendant was not even in India when the alleged payments were made by PW2.
f) No call records have been produced by the plaintiff.
g) The husband of the defendant was not present at the time of registration of the sale deed.
Civil Suit No.550/14 and Civil Suit No.551/14 Page no.52/56
h) No incometax return of plaintiff and PW3 have been filed.
i) I have held above that no consideration was paid.
j) There are improvements upon improvements in the case of the plaintiff, I have no hesitation in holding that the case of the defendant is definitely more believable that that of the plaintiff. Hence, it is held that the sale deed was executed by the defendant without consideration only to help the plaintiff in getting the tax concessions being near relative and for no other purposes. Hence, the consent of the defendant for executing the sale deed was not free. Thus, the entire contract agreement was voidable at the option of the defendant, who has chosen to seek setting aside the sale deed. Hence, it is held that the plaintiff is not the owner of the suit premises. All these issues are, therefore, decided in favour of the defendant and against the plaintiff. Issues No.4, 5 and 6 in Suit No.550/14 which are as follows:
4) Whether the plaintiff is entitled to decree of permanent injunction, as prayed? OPP
5) Whether plaintiff is entitled to decree of possession, as prayed? OPP Civil Suit No.550/14 and Civil Suit No.551/14 Page no.53/56
6) Whether plaintiff is entitled to damages, mesne profits, as prayed? OPP 61 The burden of proving these issues was on the plaintiff (Smt. Rajni Chaudhary). In view of my findings given on issues no.1, 2 and 3 in Suit No.550/14 and issues no.2, 3, 4 and 5 in Suit No.551/14 (Smt. Usha Devi), there cannot be any doubt that the plaintiff (Smt. Rajni Chaudhary) is not entitled to any relief. All these issues are, therefore, decided in favour of the defendant (Smt. Usha Devi) and against the plaintiff (Smt. Rajni Chaudhary).
Issues no.6 and 7 in Suit No.551/14 which are follows:
6) Whether plaintiff is entitled to decree of cancellation of sale deed, as prayed? OPP
7) Whether plaintiff is entitled to decree of permanent injunction, as prayed?
62 The burden of proving both these issues was on the defendant (Smt. Usha Devi). In view of my findings given on issues no.1, 2 and 3 in Suit No.550/14 (Smt. Rajni Chaudhary Vs. Smt. Usha Devi) and issues no.2, 3, 4 and 5 in Suit No.551/14 (Smt. Usha Devi Vs. Smt. Rajni Chaudhary), there cannot be any doubt that the plaintiff is entitled Civil Suit No.550/14 and Civil Suit No.551/14 Page no.54/56 to both the decrees.
Relief (In Suit No.550/14, Smt. Rajni Chaudhary Vs. Smt. Usha Devi) 63 In view of the above findings, there cannot be any doubt that the suit filed by the plaintiff Smt. Rajni Chaudhary is liable to be dismissed.
64 Coming to costs, I have held above that the witnesses examined by the plaintiff have made statements which are not only contradictory to the statements made by other witnesses of the plaintiff but even to their own statements. Hence, I am of the considered view that it is a fit case where exemplary costs should be imposed on the plaintiff.
65 Keeping in view the totality of the facts and circumstances of the case, the costs are assessed at Rs.1,00,000/. The suit is, therefore, dismissed with costs of Rs.1,00,000/ which shall be paid by the plaintiff to the defendant within a month from today, failing which the plaintiff shall be liable to pay interest @ 6% per annum from today till its realization/payment. Decree sheet be prepared accordingly. Civil Suit No.550/14 and Civil Suit No.551/14 Page no.55/56 Relief (In Suit No.551/14, Smt. Usha Devi Vs. Smt. Rajni Chaudhary). 66 In view of the above findings given by me, the suit is allowed. A decree for :
a) Cancellation of sale deed dated 19609 executed by the defendant (Smt Usha Devi) in favour of the plaintiff (Smt. Rajni Chaudhary).
b) Permanent injunction restraining the defendant permanently from creating any third party interest on the basis of sale deed dated 19609.
with costs is hereby passed in favour of the defendant Smt. Usha Devi and against the plaintiff Smt. Rajni Chaudhary. Decree sheet be prepared accordingly.
67 The original of this judgment be placed in Suit no.550/14 Smt. Rajni Chaudhary Vs. Smt. Usha Devi and a copy of the same certified by the Reader be placed in Suit No.551/14 Smt. Usha Devi Vs. Smt. Rajni Chaudhary.
68 File be consigned to record room.
Announced in the open Court on 18022016. (RAKESH KUMAR SHARMA) ADJ03 (N/W) ROHINI COURTS DELHI:18.02.2016*rk Civil Suit No.550/14 and Civil Suit No.551/14 Page no.56/56