Delhi District Court
Kashmiri Devi (Senior Citizen) vs Sydicate Bank on 1 October, 2024
IN THE COURT OF CIVIL JUDGE-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
PRESIDED OVER BY SH. SAHIL KHURMI
CNR No:-DLCT03-005545-2019
CS SCJ No.2348/2019
Kashmiri Devi
W/o Late Sh. Bhim Sain
R/o 1/1600-I, Block,
Bapa Nagar,
Karol Bagh,
New Delhi-110005. ....Plaintiff
Versus
1. Syndicate Bank
Through its
Branch Manager
Branch Dev Nagar
16-B/6, Mehra Chambers
D.B. Gupta Road, Karol Bagh,
New Delhi-110005.
2. Vipin Anand
S/o Late Sh. Bhim Sain
R/o 1/1600, I Block
Bapa Nagar, Karol Bagh,
New Delhi-110005.
...Defendants
Date of institution of suit 02.08.2019
Date on which reserved for judgment 23.08.2024
Date of pronouncement of judgment 01.10.2024
Decision DISMISSED
Digitally
CS SCJ No.2348/2019 signed by
Page No.1 of 42
Sahil Sahil Khurmi
Date:
Khurmi 2024.10.01
16:21:39
+0530
SUIT FOR DECLARATION AND RECOVERY
JUDGMENT
BRIEF FACTS
1. Shorn of unnecessary details, the brief facts as per the plaint are that the plaintiff is the widow of deceased husband Bhim Sain, who was a government employee and expired on 22.02.2014 and is receiving a family pension, after his death, through the bank i.e. defendant No.1 whereas the defendant No.2 is the elder son of the plaintiff.
1.2 It is the case of the plaintiff that she and her husband were having joint account bearing No.90242020002297 till 2014 with the defendant No.1 and later on in 2014, plaintiff opened her independent account i.e. in her own name i.e. account bearing No.9024010255785 with banker/defendant No.1. That in the above said joint account the plaintiff received arrears of family pension amounting to Rs.61,756/- on 16.06.2014 out of which she made one Fixed Deposit of Rs.50,000/- on 11.09.2014 bearing FD No.90244050098772 for the period of one year.
1.3 It is further stated that in the aforesaid independent account of the plaintiff, she received arrears of Rs.60,134/- on 23.07.2014 and Rs.1,00,000/- in the month of October 2014, out of which another another FD of Rs. 1,00,000/- bearing No.90244470002787 was made for a period of one year in the same branch of bank i.e. defendant No.1 bank.
1.4 That since 2014 the above mentioned both the FDRs were Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date: Page No.2 of 42 Khurmi 2024.10.01 16:21:46 +0530 renewed again and again automatically by the defendant No.1.
1.5 That when plaintiff visited the defendant No.1 to get the FDRs released the defendant No.1 demanded the original receipt, lying in possession of the defendant No.1.
1.6 That plaintiff is an illiterate lady hence she got made these FDs through his son i.e. defendant No.2 and hence all the original pertaining to the FDRs are lying with defendant No.2.
1.7 That in the absence of the original which are not being returned to plaintiff, defendant No.1 has refused to release the above said both FD's has refused to release the above said both FDs in favour of the plaintiff.
1.8 That the plaintiff is willing that in need to get released her FDs and she is not willing further renewal of the above said Fds.
1.9 That on refusal to release the above said FDs the plaintiff issued a legal statutory notice dated 26.04.2019 to defendant No.1 and 2 for releasing the above said FDs and the same have been duly received by the defendant No.1 and 2.
1.10 That through the bank officials the plaintiff has come to know that defendant no.1 has signed the above said FDs as joint owner and signature of the defendant no.2 is required for releasing the aforesaid FDs but both the defendants are keeping silence, whereas the plaintiff never consented the defendant to be joint owner with the plaintiff while making the aforesaid FDs. That defendant No.1 and 2 in connivance are keeping silence and waiting for her dying and deliberately demanding the originals Digitally signed CS SCJ No.2348/2019 Page No.3 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:21:53 +0530 whereas all the records pertaining to the above said FDs of plaintiff is existing with defendant No.1. That the relation between the plaintiff and defendant No.1 are strained.
1.11 That plaintiff is entitled to get release the above said both the FD No.90244050098772 for amount of Rs.50,000/- made on 11.09.2014 and FD No.90244470002787 for amount of Rs.1,00,000/- made on 27.10.2014 in her favour. Therefore the present suit has been filed by the plaintiff with the prayer of declaration thereby declaring the plaintiff as an exclusive owner/holder/entitled to both the FDs i.e. FD No.90244050098772 for amount of Rs.50,000/- made on 11.09.2014 and FD No. 90244470002787 for amount of Rs.1,00,000/- made on 27.10.2014 and it is further prayed for decree of recovery for a sum of Rs.1,50,000/- in favour of plaintiff i.e. the amount of both the aforesaid FDs in favour of plaintiff.
2. Summons of the suit have been served on the defendants and after appearance, Written statement was filed on behalf of defendant.
WRITTEN STATEMENT OF DEFENDANT No.1
3. It is the case of defendant No.1 that plaintiff along with defendant No.2 had approached the defendant No.1 for FDRs of amount of Rs.50,000/- and Rs.1,00,000/- in the year 2014 in its bank and subsequently the plaintiff and defendant No.2 both jointly deposited Rs.50,000/- on 11.09.2014 and Rs.1,00,000/- on 27.10.2014 in joint fixed deposit account bearing No.90244050098772 and bearing No.90244470002787 Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date:
Page No.4 of 42Khurmi 2024.10.01 16:21:59 +0530 respectively in the Dev Nagar Branch of the defendant No.1. That after receiving the above said amount, the defendant No.1 bank issued the Fixed Deposit receipts to the plaintiff and her son, the defendant No.2 in the present case. That as far as the question of releasing the amount deposited in joint fixed deposit account, the defendant bank can release the same only after producing the original fixed deposit receipts from the customer to whom it were issued. That in the present case also, the defendant bank can start the process of releasing the amount deposited in both joint FD accounts only after receiving the original FD receipts. That the plaintiff had been duly communicated as and when she visited the defendant bank's branch regarding her issue. That defendant No.1 can release the joint FDs only after receiving signature/consent of the concerned parties/signatories of the FDs and after producing the original receipts of the aforesaid FDs. That both the FDs are made in the capacity of joint FDs and signature of both the parties i.e. plaintiff and the defendant No.2 along with original receipts are required to release the same.
WRITTEN STATEMENT OF DEFENDANT No.2
4. It is the case of defendant No.2 that the plaintiff has already filed a suit for partition bearing No.CS DJ 40/2019 with respect to movable and immovable assets as well as all the bank accounts of her late husband and the present suit is barred under Order 2 Rule 2 CPC. That husband of the plaintiff and father of the defendant No.2 herein passed on 22.02.2014 and after his demise the family pension of the plaintiff could resume only after 6 month i.e. from the month of July and till the month of November 2014 the family Digitally signed by Sahil CS SCJ No.2348/2019 Sahil Khurmi Date: Page No.5 of 42 Khurmi 2024.10.01 16:22:10 +0530 pension the entire expenses of the family were borne by the defendant No.2 herein. That as the defendant No.2 was earning quite well through his education consultancy business and therefore he singlehandedly took upon all the expenditure of the family. That the general overview of the expenses made by the defendant No.2 is as under:-
(a) Electricity bill=9350/-, (b) MCD property Tax=Rs.14,908/- divided by 4 =Rs.3727/-, ration and (c) all other expenses = Rs.15,000/- per month till October
2014 i.e. Rs.15,000/- x 9 = 1,35,000/- i.e. total expenses = Rs.1,48,077/-.
5. That in view of the major household and other expenses borne by the defendant No.2, it was agreed by the plaintiff and defendant No.2 that once the pension of the husband of the plaintiff begins she would take out a money from those accounts and a fixed deposit would be made in the name of the plaintiff and the defendant No.2 herein and therefore, it was neither opened in her sole name nor with the other three siblings of the defendant No.2 herein i.e. Nitin Anand, Ruchika or Pooja Anand.
6. That when the VRS account bearing No.90242020002297 of the husband of the plaintiff was checked on 01.09.2014 there was a sum of Rs.60,184/- in that account which was there at the time of death of husband of plaintiff out of which again FD of Rs.50,000/- was made in the name of the plaintiff and defendant No.2 herein and she promised that the rest of the amount of Rs.1,48,077/- - Rs. 60,000/-=Rs.88,077/- she would pay gradually, however, the same was never done and hence she is Digitally CS SCJ No.2348/2019 signed by Sahil Page No.6 of 42 Sahil Khurmi Date:
Khurmi 2024.10.01
16:22:19
+0530
also liable to compensate the defendant No.2 herein apart from that a sum of Rs.1500/- also on account of deposit made by the defendant No.2 in the family pension account for keeping it alive on 26.06.2014 and also a sum of Rs.10,000/- taken by the plaintiff on several occasions for her own personal expenses.
7. That in the month of July 2014 an arrear of Rs.60,134/- was received in the family pension account bearing No.90242010255785 and after that for next three month i.e. till October 2014 a sum of Rs.43,171/- which totaled a sum of Rs.1,05,150.28/- with sum interest. That out of that total amount of Rs.1,05,150.28/- a sum of Rs.1,00,000/- was withdrawn by the plaintiff on 27.10.2014 and it was fixed in the name of the plaintiff and the defendant No.2.
8. That therefore all these fixed deposits were made by the plaintiff with the defendant No.2 for the consideration of the expenses made by the defendant and hence the defendant is liable to get equal share in the FD.
9. That on 04.07.2015 the plaintiff at the behest of her daughter Pooja Anand, fled with the jewellery of Kavita Anand and some valuable items regarding which a complaint was made by Kavita/wife of defendant No.2 herein. That the present suit is not maintainable as the plaintiff has not approached the Hon'ble court with clan hands as the plaintiff was already having the knowledge of this fact that the said two FDRs are in name of the plaintiff and the defendant No.2 and that she has already sent legal notice dated 12.04.2016 to the defendant No.2. That as the plaintiff was already in knowledge of this fact and she was having Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date:Page No.7 of 42
Khurmi 2024.10.01 16:22:27 +0530 her grievances regarding the same therefore in any case it can be safely presumed that the cause of action for filing of present suit had arisen on 12.04.2016 and hence, the present suit is hopelessly barred by time and deserves dismissal with cost.
REPLICATION
10. Separate replications have been filed on behalf of plaintiff to the written statements of defendant No.1 and defendant No.2, thereby reiterating the averments made in the plaint and denying the contents of the written statements.
ISSUES
11. Thereafter on completion of pleadings, the following issues were framed:-
1. Whether the plaintiff is entitled to the decree of declaration, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of Rs.1,50,000/- , as prayed for? OPP
3. Whether the present suit is barred by limitation? OPD2
4. Relief 11.1 Thereafter the matter was fixed for recording of plaintiff evidence.
PLAINTIFF EVIDENCE
12. In order to prove her case, the plaintiff has got examined herself as a witness PW-1. PW-1 tendered evidence by way of Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date:
Page No.8 of 42Khurmi 2024.10.01 16:22:36 +0530 affidavit Ex.PW1/A and relied on the following documents:-
PW1/Mark-A(colly) Account details of FD of Rs.50,000/-
dated 11.09.2014 bearing account No.90244050098772.
PW1/Mark-B(colly) Account details of FD of Rs.1,00,000/-
bearing account No.90244470002787. Mark C Copy of legal notice dated 26.04.2019. Ex.PW1/X(colly) Original postal receipt.
13. PW-2 Ms. Pooja Anand was examined as a witness who tendered her evidence by way of affidavit Ex.PW2/A. PW-1 & PW-2 were duly cross examined by Ld. Counsels for defendant No.1 and 2 and thereafter plaintiff evidence was closed on separate statement of plaintiff and the matter was fixed for defence evidence.
DEFENCE EVIDENCE
14. It is pertinent to mention that no evidence was lead on behalf of defendant No.1 vide separate statement of Branch Manager of defendant No.1 bank and therefore the DE on behalf of defendant No.1 was closed.
15. The defendant No.2 led his evidence and got examined himself as a witness (D2W1). D2W1 tendered his evidence by way of affidavit Ex.D2W1/A and relied upon Ex.PW1/X5 and Ex.PW1/X6 dated 17.08.2022. D2W1 further relied on the following documents:-
Ex.D2W1/1(colly) Copy of the BOB account passbook and Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date: Page No.9 of 42 Khurmi 2024.10.01 16:22:43 +0530 copy of the PNB account passbook reflecting electricity bill (entry dated 15.03.2014, 04.04.2014, 12.06.2014), MCD property tax (entry dated 17.01.2015) and Jal Board (entry dated 05.02.2015, 11.04.2015, 04.06.2015).
(OSR) Mark A Copy of WS filed in the suit for partition bearing No.40/2019 pending in the Court of Ld. ADJ, Central, Tis Hazari Courts, Delhi.
16. D2W1 was duly cross examined on behalf of plaintiff and thereafter the defence evidence on behalf of defendant No.2 was closed on 08.08.2024 and the matter was fixed for final arguments.
17. Final arguments were heard on behalf of all the parties. Record of the case file has been perused carefully.
FINDINGS OF COURT Issue no. 1. Whether the plaintiff is entitled to the decree of declaration, as prayed for? OPP Issue no. 2. Whether the plaintiff is entitled to the decree of Rs.1,50,000/- as prayed for? OPP
18. Both these issues are taken up together being interconnected. The onus to prove these issues is on the plaintiff. It is the case of the plaintiff that after the death of her husband named Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date:
Page No.10 of 42Khurmi 2024.10.01 16:22:50 +0530 Bhim Sain who was a government employee, she received the family pension. It is further stated that there was a joint account of plaintiff with her husband bearing No.90242020002297 till 2014 and later on in 2014 the plaintiff opened an independent account in her own name bearing No.90242010255785.
19. It is further stated that in the aforesaid joint account, the plaintiff received the arrears of family pension amounting to Rs.61,756/- on 16.06.2014 and one FD of Rs.50,000/- was made on 11.09.2014 bearing No.902440500987 for a period of one year.
20. It is further stated that in the aforesaid independent account of the plaintiff, arrears of Rs.60,134/- were received on 23.07.2014 and arrears of Rs.1,00,000/- were received in the month of October 2014 and another FD of Rs.1,00,000/- bearing No.90244470002787 was made on 27.10.2014 for a period of one year. It is further stated that both the FDRs were renewed again and again as they were automatically renewable FDRs.
21. It is stated by Ld. Counsel for defendant No.2 that the amount received in the joint account of the plaintiff and her deceased husband bearing No.90242020002297 is already under adjudication before Ld. ADJ, Tis Hazari Courts, Delhi in Suit bearing No.40/2019 for partition and rendition of account. Thus, it is argued by Ld. Counsel for defendant No.2 that the plaintiff has no exclusive right in the amount received in the joint account of plaintiff with her deceased husband bearing No.90242020002297.
22. It is further stated by Ld. Counsel for defendant No.2 that it has been admitted by the plaintiff that she received the family Digitally signed Sahil by Sahil Khurmi CS SCJ No.2348/2019 Date: Page No.11 of 42 Khurmi 2024.10.01 16:22:57 +0530 pension arrears of Rs.60,134/- on 23.07.2014 and Rs.1,00,000/- in October 2014 and FDR of Rs.1,00,000/- was made on 27.10.2014 from the arrears received.
23. Thus, it is submitted by Ld. Counsel for defendant No.2 that the said FD of Rs.1,00,000/- was made from the arrears of family pension received by the plaintiff in her independent account and not from her independent income and the plaintiff has no exclusive right and ownership over the said FD made from the family pension arrears received.
FINDINGS OF THE COURT
24. First, the contention of defendant No.2 that the present suit qua FDR No. 90242020002297 is barred by Order II Rule 2 CPC is taken up for consideration. For ready reference Order II Rule 2 CPC is reproduced hereunder:-
Order II Rule 2 CPC "ORDER II 2. Suit to include the whole claim-
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
(2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action CS SCJ No.2348/2019 Digitally signed Page No.12 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:23:04 +0530 may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
24.1 The Hon'ble Supreme Court in Gurbux Singh v. Bhoora Lal, AIR 1964 Supreme Court 1810 discussed the ingredients of Order II Rule 2 (3) CPC and held:
"In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out:
(a) that the second suit was in respect of the same cause of action as that on which the previous suit was based;
(b) that in respect of that cause of action the plaintiff was entitled to more than one relief;
(c) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed."
24.2 Order II Rule 2, sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order II sub-rule (3). This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause.
24.3 The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the whole of the claim which the plaintiff is entitled CS SCJ No.2348/2019 Digitally signed Page No.13 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:23:22 +0530 to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by some subsequent and independent proceedings.
24.4 In Kunjan Nair Sivaraman Nair v. Narayanan Nair, (2004) 3 SCC 277, the Court elucidated purpose of such provisions in the following words:
10. ..... The salutary principle behind Order 2 Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicted in successive litigations. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court."
(emphasis supplied) 24.5 The Hon'ble Supreme Court in M/s Virgo Industries (Eng.) P.Ltd. vs M/s.Venturetech Solutions P.Ltd. Civil Appeal no. 6372 of 2012, decided on 07.09.2012 observed that Order II Rule 2 CPC also applies when the earlier suit is pending and a subsequent suit is filed on the same cause of action. It was observed as under:
16. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R.Vimalchand and M.Ratanchand v.
Ramalingam, T.Srinivasalu & T.
CS SCJ No.2348/2019 Digitally signed Page No.14 of 42
Sahil by Sahil Khurmi
Date:
Khurmi 2024.10.01
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Venkatesaperumal (supra) holding that the provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order II, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC as already discussed by us, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram7 and by the Bombay High Court in Krishnaji v.
Raghunath8.
(Emphasis supplied) 24.6 Reverting back to the present case, the defendant no.2 has placed on record pleadings of the earlier suit case bearing CS DJ 40/2019 titled as "Kashmiri Devi vs Vipin Anand and ors filed by the plaintiff for partition and rendition of accounts in which the plaintiff has claimed her share over the joint account bearing No.90242020002297 of plaintiff and her deceased husband. In the present suit also, the plaintiff has claimed declaration of ownership qua the FDR prepared from the joint account bearing Digitally signed by Sahil CS SCJ No.2348/2019 Sahil Khurmi Date: Page No.15 of 42 Khurmi 2024.10.01 16:23:31 +0530 No.90242020002297. Thus, as per Order II Rule 2(3) CPC, the plaintiff is precluded from the said claim as no leave of the Court was obtained where the earlier suit with same cause of action and relief was filed.
25. It is pertinent to mention that in the cross examination of the plaintiff dated 17.08.2022, a specific question was asked to her regarding the suit for partition and rendition of account pertaining to account No.90242020002297 filed by her before ADJ, Tis Hazari, Delhi which is reproduced here for ready reference:
"Q. Have you filed another suit in 2019 before the filing of the present suit before Ld. ADJ, THC, Delhi for partition of movable and immovable properties of your late husband where you have asked for rendition of accounts pertaining to account No.90242020002297?
Court Observation:- on being prompted by her counsel, the witness has replied that no such suit was filed.
At this stage, the witness is confronted with the pleadings in suit filed before Ld. ADJ, THC, Delhi bearing No.40/2019 and the document is now Ex.PW1/X3. The witness is asked whether she has instituted the said suit. The witness has replied that she has not instituted the said suit."
(emphasis supplied)
26. Thus, the plaintiff on being prompted by her counsel stated that no such such suit was filed. It is flabbergasting to note that even after being confronted with the pleadings in the said suit of partition and rendition of accounts Ex.PW1/X3 filed by her, the plaintiff had stated that she has not instituted the said suit.
27. A bare perusal of Ex.PW1/X3 shows that the plaintiff had filed the suit for partition and rendition of account, inter alia, of account No. 90242020002297. The present suit if also filed qua the Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date: Page No.16 of 42 Khurmi 2024.10.01 16:23:37 +0530 said account No. 90242020002297 which is joint account of the plaintiff and her deceased husband.
28. During the course of final arguments a specific query was put to Ld. Counsel for plaintiff Sh. Parikshit Mahipal as to whether the said partition suit is pending or not, to which Ld. Counsel for plaintiff fairly conceded that the suit for partition and rendition of account between the parties is pending before Ld. ADJ, Tis Hazari Courts, Delhi. Even otherwise, apart from blatant refusal by the plaintiff, there is nothing on record which suggests that Ex.PW1/X3 was not filed by the plaintiff.
29. I have myself checked the status and case proceedings of the said case bearing CS DJ 40/2019 titled as "Kashmiri Devi vs Vipin Anand and ors" on ecourts website and the said case is pending at the stage of framing of issues. It is also pertinent to note that the same counsels representing the plaintiff in the present case (Sh. Pariskshit Mahipal and Ms. Shweta Sharma) are representing the plaintiff and her daughter Pooja Anand in the said suit pending before the Court of Ld. ADJ-10/Central/Tis Hazari Court/Delhi. Thus, I have no hesitation in holding that the plaintiff has given a false and misleading statement on oath in her testimony dated 17.08.2022 on being prompted by her counsel and stated that no such suit was filed by her.
30. Ld. Counsel for defendant No.2 has further brought the attention of this Court to the fact that the said suit of partition was filed on 14.01.2019 whereas the present suit is filed by the plaintiff on 02.08.2019 and therefore, the same is barred by Order II Rule 2(3) CPC.
Digitally signedSahil by Sahil Khurmi CS SCJ No.2348/2019 Date: Page No.17 of 42 Khurmi 2024.10.01 16:23:43 +0530
31. This court finds force in the submissions of Ld. Counsel for defendant No.2 as the FDR bearing no. 90242020002297 made from the joint account in the name of plaintiff and her husband, which is a subject matter in the present suit is also a subject matter pending adjudication in the suit for partition and rendition of account in CS DJ 40/2019 titled as "Kashmiri Devi vs Vipin Anand and ors" pending before the Court of Ld. ADJ-10/Central/Tis Hazari Court/Delhi. Thus, the relief qua the said FDR from the joint account bearing no. 90242020002297 is barred by Order II Rule 2 (3) CPC.
32. Even on merits, the plaintiff is not entitled to the said FDR made from the family pension received in the joint account of plaintiff and her deceased husband as all the class-I legal heirs of deceased husband of the plaintiff are entitled to it. Thus, the plaintiff has no exclusive right, tile, interest or ownership on the family pension amount received in the joint account of plaintiff and her deceased husband.
33. Regarding the amount of family pension received in the independent account of the plaintiff bearing No. 90242010255785, it is pertinent to mention that even the own case of the plaintiff is that she received the arrears of Rs.60,134/- on 23.07.2014 and family pension arrears of Rs.1,00,000/- in October 2014 and "from the aforesaid amount" another FD of Rs.1,00,000/- was made.
34. Thus, at the cost of repetition it is again reiterated that the plaintiff has no exclusive and independent right over the family Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date:
Page No.18 of 42Khurmi 2024.10.01 16:23:50 +0530 pension amount received by her in her independent account from which the second FDR of Rs. 1,00,000/- is made. The plaintiff has averred that the said FDR of Rs. 1,00,000/- was made from her independent income/sources but the plaintiff has failed to prove the same by leading any cogent and clinching evidence. The plaintiff has also failed to place on record the bank account statement of her independent account no. 90242010255785 so that the Court could have ascertained whether the plaintiff had sufficient funds in her independent account (apart from the family pension amount received) so as to claim independent ownership right over the FDR of Rs. 1,00,000/- made from it. Since the plaintiff has not filed her bank account statement of her independent account no. 90242010255785, adverse inference is taken by the Court that the same is deliberately not filed as there were no independent funds available with the plaintiff in the said account apart from the family pension received in the said account.
35. Thus, it is hereby held that the plaintiff is not alone entitled to the FDR amount of Rs.50,000/- and Rs.1,00,000/-. Even otherwise the plaintiff has not been able to prove on the basis of preponderance of probability that the said FDRs were supposed to be made in her own name but made in the joint name with defendant No.2 with the connivance of defendant No.2 and defendant No.1. It is the case of the plaintiff that defendant No.2 has fraudulently and in connivance with defendant No.1 made the said FDRs in the joint name of plaintiff and defendant No.2.
36. It is pertinent to mention that the plaintiff has deposed in her testimony dated 17.08.2022 that she informed defendant No.1 to release the FDRs to her and she further deposed that she has placed Digitally signed CS SCJ No.2348/2019 Page No.19 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:23:58 +0530 on record the proof of the same but after going through the judicial file no such intimation given to the defendant No.1 by the plaintiff was found. The relevant portion of the cross examination of the plaintiff is reproduced for ready reference.
"I informed defendant No.1 to release the FDRs in question to me. I have placed on record the proof of the same. At this stage, the witness has gone through the judicial file and no such document/intimation given to defendant No.1 is traceable on Court record. "
(emphasis supplied)
37. Another interesting thing which warrants attention is that the plaintiff has admitted in her cross examination dated 17.08.2022 that she visited the bank along with defendant No.2 when the FDRs in question were made. It is unfathomable that the plaintiff despite being physically present in the bank when the FDRs were made was oblivious that the said FDRs were made in the joint account of the plaintiff and defendant No.2. It is beyond my imagination that neither the bank official informed the plaintiff that the said FDRs were made in joint account with her son i.e. defendant No.2 nor the plaintiff bothered to ask bank officials regarding the status of the FDRs.
38. The plaintiff further deposed in her cross examination dated 17.08.2022 that she made written complaint to the bank that defendant No.2 has fraudulently got his name added in the FDRs. But when the plaintiff was asked whether she has placed the written complaint made to the bank on Court record, the plaintiff did not answer. Further, the plaintiff has admitted in her cross examination dated 16.12.2022 that "she has not placed on record the alleged complaints made by her to the higher officials of the Digitally signed CS SCJ No.2348/2019 Page No.20 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:24:06 +0530 Syndicate Bank regarding the fact that FDRs were made without her consent by including the name of her son/defendant No.2."
39. Thus, it is apparent that no such complaint was made or any written communication was made by the plaintiff with the defendant No.1 bank regarding the alleged fraudulent act of defendant No.2. A reasonable prudent person ought to have made a written complaint to the bank officials or made police complaint on finding that the FDRs made by her are fraudulently in the joint name with someone else. No such steps were taken by the plaintiff in the present case.
40. It is the case of the plaintiff the she never consented the defendant no.2 to be joint owner with the plaintiff while making the aforesaid FDRs. As per Section 103 of Indian Evince Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Thus, as per Section 103 of Indian Evidence Act, the burden to prove the averment that the plaintiff never consented her son/defendant no.2 to be joint owner with the plaintiff in the FDRs, lies on the plaintiff. The plaintiff has miserably failed to prove the same by leading any cogent and clinching evidence.
41. Similarly, the plaintiff has not placed on record the original FDRs in question. The plaintiff has simply averred that the said FDRs are in possession of defendant No.2 whereas the defendant No.2 has refused that the said FDRs are in his possession. As per Section 103 of Indian Evidence Act, the onus was upon the plaintiff to prove that the said FDRs are in the possession of the CS SCJ No.2348/2019 Digitally signed Page No.21 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:24:15 +0530 defendant No.2. Apart from mere suggestion, no cogent and clinching evidence has been placed on record by the plaintiff to prove that the original FDRs are in possession of the defendant No.2.
42. It is further interesting to note that plaintiff admitted in her cross examination dated 17.08.2022 that she filed a maintenance petition against her husband in Tis Hazari Courts, Delhi. The plaintiff was asked a specific question in her cross examination dated 17.08.2022 that whether she stated in her maintenance petition that her son Vipin Anand/defendant No.2 was earning Rs.50,000/- per month in the year 2013, to which the plaintiff stated that it is not correct.
43. The plaintiff was confronted with the copy of maintenance petition filed by her against her husband Ex.PW1/X2 and the plaintiff was shown para No.4 of the said petition from point X to X1, to which the plaintiff stated that the same is not correct.
44. The defendant no.2 has also placed on record the order dated 02.12.2013 of Ld. MM (Mahila Court) Ms. Kiran Gupta, Central, Tis Hazari Courts, Delhi, in which the said maintenance petition was disposed off as compromised after the statement of plaintiff and her husband and the copy of the said statements are also filed on record by the defendant no.2.
45. A bare perusal of Ex.PW1/X2 shows that the plaintiff had filed petition for maintenance u/s 125 CrPC against her husband and sons (including defendant No.2) in 2013 and it is specifically mentioned in para No.4 of the said petition that the respondent Digitally signed by Sahil CS SCJ No.2348/2019 Sahil Khurmi Date:
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No.2 Vipin Anand (defendant No.2 herein) is working as Educational Consultant and is earning Rs.50,000/- per month. The said petition is duly filed by the plaintiff through Legal Aid Counsel bearing her thumb impressions. The plaintiff has blatantly refused the filing of the said petition. Apart from mere refusal, there is nothing on record which remotely suggests that the said petition Ex.PW1/X2 was not filed by the plaintiff in 2013. Thus, with a heavy heart, I have to lament that the plaintiff has again falsely deposed in her testimony on oath before the Court of law despite being specifically confronted the pleadings of maintenance filed by herself. The cleverness and shrewdness of the plaintiff is writ large from the fact that when she had to claim maintenance from her son/defendant no.2 she pleaded that he is earning Rs. 50,000/- per month whereas in the present case, to counter the defence of the defendant no.2 that he is earning well enough to pay for the family expenses, the plaintiff took a stand that his son/defendant no.2 does not earn anything. The plaintiff, in order to prove her present case (albeit frivolous and vexatious one) has left no leaf unturned to make a somersault and contradict herself which has lost her credibility in the eyes of the Court.
46. Another instance of deposing falsely by the plaintiff which warrants attention, is as follows. In her cross examination dated 17.08.2022 the plaintiff was confronted with the copy of passbook of account bearing No. 90242010255785 (joint account of plaintiff and her deceased husband) Ex.PW1/X1 and the plaintiff was asked whether the aforesaid account was opened on 05.11.2013 to which the plaintiff replied in affirmative and voluntarily stated that the same was opened after the death of her husband. The plaintiff Digitally signed by Sahil CS SCJ No.2348/2019 Sahil Khurmi Date:
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further admitted that her husband died on 22.02.2014.
47. Thus, the plaintiff has falsely deposed in her testimony on oath for the third time that she opened her independent account bearing No. 90242010255785 after the death of her husband as she herself has admitted that the said account was opened on 05.11.2013 whereas her husband expired on 22.02.2014.
OFFNCE OF PERJURY
48. The Hon'ble Supreme Court of India in Kishorbhai Gandubhai Pethani v. State of Gujarat (2014) 13 SCC 539 has succinctly elaborated the meaning of perjury in para 9, which reads as under:
9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury.
Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large.
(emphasis supplied)
49. The genesis of the offence of perjury finds mention in Sections 191 IPC (now Section 227 of The Bhartiya Nyaya Sanhita, 2023) that defines "giving of false evidence". Apart from being a criminal offence under IPC/BNS, perjury invites contempt proceedings under Section 340 CrPC.
50. In M/s GokalDas Paper Products vs M/s Lilliput Kidswear Ltd. and anr. Citation: 2023 LiveLaw (Del) 314, Digitally signed CS SCJ No.2348/2019 by Sahil Page No.24 of 42 Sahil Khurmi Date:
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Justice Sanjeev Narula observed that the legal system relies heavily on the honesty and integrity of individuals who appear before courts, the bench said:
"When one makes a statement before the court or signs an affidavit, they are making a solemn declaration to tell the truth, the whole truth and nothing but the truth. Filing of a false affidavit is a serious offence that undermines the very foundation of the legal system."
51. Observing further that perjury strikes at the very heart of the judicial process by undermining the integrity of the evidence presented in court, Justice Narula added:
"The act of contempt can be purged or remedied, by the offending party, but in contrast, perjury cannot. Simply recanting or correcting a false statement cannot undo the act. Affidavits in a court of law have sanctity and cannot be taken casually. Thus, a false statement to the Court has to necessarily invite adverse action."
52. The Hon'ble Delhi High court made the observations while directing the Registrar General to draw up and make a complaint against a party for making a false statement and send it to the appropriate Metropolitan Magistrate.
DISCUSSION OF SETTLED LAW BY HON'BLE SUPREME COURT ON LYING ON OATH/CONCEALING MATERIAL FACTS
53. In Kusha Duruka vs State of Odisha, Criminal appeal no 303 of 2024 decided on 19.01.2024 by Hon'ble Supreme Court of India, it was held that:
7. It was held in the judgments referred to above that one of the two cherished basic values by Indian society for centuries is "satya" (truth) and the same Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date:Page No.25 of 42
Khurmi 2024.10.01 16:24:40 +0530 has been put under the carpet by the petitioner. Truth constituted an integral part of the justice-delivery system in the pre-Independence era, however, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, the values have gone down and now a litigants can go to any extent to mislead the court. They have no respect for the truth. The principle has been evolved to meet the challenges posed by this new breed of litigants. Now it is well settled that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Suppression of material facts from the court of law, is actually playing fraud with the court. The maxim supressio veri, expression faisi, i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted. Its nothing but degradation of moral values in the society, may be because of our education system. Now we are more happy to hear anything except truth; read anything except truth; speak anything except truth and believe anything except truth. Someone rightly said that `Lies are very sweet, while truth is bitter, that's why most people prefer telling lies.' (emphasis supplied)
54. In K.D. Sharma Vs. Steel Authority of India Limited and others (2008) 12 SCC 481 it was observed by Hon'ble Supreme Court:
"39. If the primary object as highlighted in Kensington Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly Digitally signed by CS SCJ No.2348/2019 Page No.26 of 42 Sahil Sahil Khurmi Date:
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but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court."
[emphasis supplied]
55. In Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421, it was again held by Hon'ble Supreme Court of India that:
"1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.
[emphasis supplied]
56. In Dalip Singh v. State of Uttar Pradesh and others (2010) 2 SCC 114, the Hon'ble Supreme Court noticed the progressive decline in the values of life and the conduct of the new creed of litigants, who are far away from truth. It was observed as under:
"1. For many centuries Indian society cherished two basic values of life i.e."satya" (truth) and "ahinsa"
(non- violence). Mahavir, Gautam Buddha and CS SCJ No.2348/2019 Digitally Page No.27 of 42 signed by Sahil Sahil Khurmi Date:
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Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice- delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
(emphasis supplied)
57. In Moti Lal Songara Vs. Prem Prakash @ Pappu and another 4 (2013) 9 SCC 199, the Hon'ble Supreme Court Court, considering the issue regarding concealment of facts before the Court, observed that "court is not a laboratory where children come to play", and opined as under:
"19. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused-respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revision court hearing the revision against the CS SCJ No.2348/2019 Digitally signed Page No.28 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:24:58 +0530 order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi , i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revision court. It can be stated with certitude that the accused- respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to playpossum.
58. To recapitulate, the plaintiff has made false statement on oath during her cross examination not once but thrice.
CONCLUSION
59. For the reasons aforementioned, this Court has come to irresistible conclusion that the plaintiff has not been able to prove her case on the basis of preponderance of probability. Thus, the present issues are decided against the plaintiff and in favour of defendants.
ISSUE No.3 Whether the present suit is barred by limitation? OPD2
60. The onus to prove this issue is on the defendant No.2. It is stated by Ld. Counsel for defendant No.2 that the limitation period for filing the suit for declaration as per Article 58 of Limitation Act is three years "when the right to sue first accrues". It is stated by Ld. Counsel for defendant No.2 that the plaintiff has prayed for declaration to declare her as the exclusive owner of both the FDRs in question. Ld. Counsel for defendant No.2 has stated that the said FDRs were made in 2014 whereas the present suit is filed in 2019 CS SCJ No.2348/2019 Page No.29 of 42 Digitally signed Sahil by Sahil Khurmi Date: Khurmi 2024.10.01 16:25:04 +0530 and the same is barred by law of limitation.
61. Ld. Counsel for defendant No.2 has further stated that the plaintiff has admitted in her cross examination dated 17.08.2022 that the legal notices dated 12.04.2016 Ex.PW1/X5 and Ex.PW1/X6 bear her signatures at points M and N respectively. A bare perusal of legal notices dated 12.04.2016 Ex.PW1/X5 and Ex.PW1/X6 shows that the plaintiff has mentioned in the said legal notices addressed to defendant No.2 that the defendant No.2 has fraudulently made the FDRs in joint name with the plaintiff. Thus, Ld. Counsel for defendant No.2 has argued that the plaintiff was very mush having the knowledge of the alleged fraudulent act of defendant No.2 on 12.04.2016 when the said legal notices were issued by her to defendant No.2 and still the present suit is not filed within three years from the date of the said legal notices/date of knowledge of the alleged fraudulent act of the defendant no.2
62. Per contra, learned counsel for the plaintiff has submitted that the FDRs in question were auto renewing and therefore, the cause of action is continuous and running.
CAUSE OF ACTION
63. In Swamy Atmanand v. Sri Ramakrishna Tapovanam (2005) 10 SCC 51 the Hon'ble Supreme Court held:
25. The expression "Cause of Action" has been described to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support the plaintiff's right to judgment. In other words, cause of action consists of a bundle of material facts which are necessary for the plaintiff to prove in order to entitle the plaintiff to the relief CS SCJ No.2348/2019 Digitally signed Page No.30 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:25:10 +0530 claimed. For ascertaining cause of action, the averments made in the plaint must be read in its entirety - and not in isolation - and must be held to be correct. Simply put, the plaintiff must prove its case on the averments made in the plaint and further the relief claimed must have a real nexus with the cause of action pleaded.
63.1 In Om Prakash Srivastava v. Union of India and Anr.
2006 6 SCC 207, it was held by the Supreme Court that:
"Cause of action" means, in the restricted sense, the circumstances which constitute an infringement of the right or the immediate cause for the reaction. In the wider sense it implies the conditions required for the enforcement of the action, including the violation of the right and the violation combined with the power itself.
64. The submission of the learned counsel for the plaintiff that since the FDRs were auto renewable therefore, the cause of action is continuous and running is misconceived. If such an interpretation is given, the law of limitation would become a dead letter and cause of action would never end in case of auto renewal of FDRs. It is a settled law that law assists those who are vigilant and not who sleep over their rights. The same is enshrined in the fundamental Maxim of "Vigilantibus non dormientibus jura subveniunt" which means that the law assists those who are vigilant, not those who sleep over their rights, is a fundamental legal maxim on which statutes of limitations are premised. The plaintiff despite having knowledge, of alleged fraudulent act of defendant no. 2 in making joint FDRs with the plaintiff, on 12.04.2016 (date of legal notices dated Ex.PW1/X5 and Ex.PW1/X6 sent by plaintiff to defendant no.2) failed to filed the present suit within three years.
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65. Firstly, it is interesting to note that the plaintiff has cleverly not mentioned the date/month/year when she got the knowledge of the alleged fraudulent act of the defendant no.2 in making joint FDRs with the plaintiff. There is no whisper in the entire pleading and evidence affidavit of the plaintiff as to when she got the knowledge of the alleged fraudulent act of the defendant no.2 in making joint FDRs with the plaintiff.
66. As per Article 58 of Limitation Act, the limitation period for suit for declaration is three years from the date when the right to sue "first" accrues. Thus as per Article 58 of Limitation Act, the limitation period to file the present suit begins when the said FDRs were initially made in 2014 (as the right to sue first accrued in 2014).
67. Even if assuming that the plaintiff later on got the knowledge of the alleged fraudulent act of the defendant No.2 in making FDRs in joint name with the plaintiff in 12.04.2016 (date of legal notices Ex.PW1/X5 and Ex.PW1/X6), still the present suit is filed on 03.08.2019 which is beyond the period of limitation of three years.
68. Similarly, the second relief for recovery of money/amount of FDR of Rs.1,50,000/- is also barred by law of limitation for the reasons that the limitation period for suit of recovery is three years from the date when cause of action arises. The plaintiff has admitted her signatures on the legal notices dated 12.04.2016 Ex.PW1/X5 and Ex.PW1/X6. Even if assuming the entire case of the plaintiff as gospel truth, the cause of action to file the present Digitally signed by Sahil CS SCJ No.2348/2019 Sahil Khurmi Date:
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suit for recovery arose last on 12.04.2016 and the present suit is filed on 03.08.2019, which is beyond the period of limitation of three years.
69. Accordingly, the present suit is barred by law of limitation. The present issue is decided in favour of defendant No.2 and against the plaintiff.
FRIVOLOUS LITIGATION AND IMPOSING REALISTIC COSTS
70. Before parting, I would be failing in my duty without discussing the settled law on filing of frivolous litigation and imposition of realistic costs.
HON'BLE SUPREME COURT
71. Lamenting that the Indian judicial system is grossly afflicted with frivolous litigation and abuse of process of law, Hon'ble Supreme Court of India affirmed Cost Of Rs 5 Lakhs Imposed On Litigant in case titled as Charu Kishor Mehta vs Prakash Patel & Ors Special Leave Petition No.. 11030 /2022 decided on 22.06.2022.
HON'BLE DELHI HIGH COURT
72. In Kusum Kumria and Ors. vs Pharma Venture India Pvt. Ltd RFA(OS) 124/2014 decided on 20.10.2015 by Hon'ble Delhi High Court, it was held that realistic costs should be imposed to discourage frivolous litigations. It was observed as follows:
Abuse of Judicial Process CS SCJ No.2348/2019 Digitally signed Page No.33 of 42 Sahil by Sahil Khurmi Date:
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241. It is also necessary to advert to the power of the court under Section 151 of the CPC. This statutory provision specifically states that ―Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court‖. The spirit, object and intendment of the statutory provisions, as well as statutory scheme shows, that the inherent powers of the court are complementary to the powers specifically conferred on the court by the Code, and are in addition thereto. While Section 35A is confined to award of compensatory costs in respect of ―false or vexatious claims or defences, Section 151 takes within its ambit a much wider area of litigation which tantamounts to abuse of process of court. Section 151 therefore, enables a court to pass orders as may be necessary for the ends of justice, or to ―prevent abuse of process of the court which is beyond the "false and vexatious" litigation covered under Section 35A and are wide enough to enable the court to pass orders for full restitution. It is trite that an order imposing reasonable and realistic costs is necessary to do the right and undo the wrong by an unscrupulous litigant in the course of administration of justice.
(emphasis laid) DELHI DISTRICT COURT
73. In Devi Prasanna Nayak vs Deepak Malviya Revision Petition No.. 527 of 2018, CNR No. DLSE01-005961-2018 decided by court of Sh. Anuj Agrawal, Additional Sessions Judge- 05, South East District, Saket courts, New delhi, it was held that:
12. Before parting, I may hasten to add that liberal access to justice should not be construed by anyone as a means to lead chaos and indiscipline and frivolous petitions should be penalized with heavy cost. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberty with court procedure should anticipate the necessary consequences.
13. In my view, a stern message is required to be Digitally signed CS SCJ No.2348/2019 Sahil by Sahil Khurmi Date:Page No.34 of 42
Khurmi 2024.10.01 16:25:36 +0530 sent to the litigants who indulge in frivolous and vexatious litigation as such litigation not only clogs arteries of justice delivery system but also deprives genuine litigants of their fundamental right of speedy trial. Therefore, it is bounden duty of the court to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. It is only then the courts would be in a position to resolve genuine causes in a time bound manner and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances and not to the frivolous petitions like the present one.
14. The issue that in appropriate cases, costs can also be imposed while dismissing revision petition is no longer res integra. Reliance can be placed upon judgments of our own Hon'ble High Court in the matter of Vijay Ghai v. State Crl. M. C. No. 3669/2011 decided on 01.11.2013 and M/s Miracle Infoweb Pvt. Ltd. v. State, Crl. M. C. No. 4529/2013 decided on 07.11.2013. To illustrate, observations of Hon'ble High Court of Delhi in the matter of Inderjeet Kaur Kalsi v. NCT of Delhi & Anr, Crl. M.C No. 4504/2013 and Crl. M. A No. 16125/2013 decided on 27.11.2013 while imposing costs in a criminal revision can be reproduced here as under: "...22. Imposition of Costs-
22.1 Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. The cost should be equal to the benefits derived by the litigants, and the harm and deprivation suffered by the rightful person so as to check the frivolous litigations and prevent the people from reaping a rich harvest of illegal acts through Court. The costs imposed by the Courts must be the real costs equal to the deprivation suffered by the rightful person and also considering how long they have compelled the other side to contest and defend the litigation in various courts. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. The parties raise fanciful claims and contests because the Courts are reluctant to order prosecution. The relevant judgments in support of this preposition are as under:-Digitally signed
Sahil by Sahil Khurmi Date:
CS SCJ No.2348/2019 Khurmi 2024.10.01 Page No.35 of 42 16:25:42 +0530 "22.2 In Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, the Supreme Court has held that the Courts have to take into consideration pragmatic realities and have to be realistic in imposing the costs. The relevant paragraphs of the said judgment are reproduced hereunder:-
"52...C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings...
***
54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the Defendants or the Respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the Defendants or Respondents were compelled to contest and defend the litigation in various courts. The Appellants in the instant case have harassed the Respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The Appellants have also wasted judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000/- (Rupees two lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation."
22.3 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Digitally signed CS SCJ No.2348/2019 Page No.36 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:25:48 +0530 Supreme Court held that heavy costs and prosecution should be ordered in cases of false claims and defences as under:-
"82. This Court in a recent judgment in Ramrameshwari Devi, (2011) 8 SCC 249, aptly observed at p. 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. The Court observed at pp. 267-68, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."
(Emphasis supplied)"
22.4 In Padmawati v. Harijan Sewak Sangh, 154 (2008) DLT 411, this Court imposed costs of Rs.15.1 lakhs and noted as under:
"6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to be to discourage unjust enrichment using Courts Digitally signed by Sahil CS SCJ No.2348/2019 Sahil Khurmi Page No.37 of 42 Date: Khurmi 2024.10.01 16:25:54 +0530 as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person. ***
9. Before parting with this case, I consider it necessary to pen down that one of the reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts..."
(Emphasis supplied)"
74. Thus, time and again it has been held by Superior Courts that realistic costs should be imposed for frivolous litigation as such litigation clogs arteries of justice delivery system. It is only then the courts would be in a position to resolve genuine causes in a time bound manner and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine Digitally signed Sahil by Sahil Khurmi Date:
CS SCJ No.2348/2019 Khurmi 2024.10.01 Page No.38 of 42 16:25:59 +0530 grievances and not to the frivolous petitions like the present one.
CONCLUSION
75. Adverting back to the present case, notably there are several discrepancies in the case of plaintiff which invite exemplary cost on the plaintiff. Even though all the said discrepancies have been discussed above in detail by this Court but for the sake of brevity, the same are recapitulated as follows:
i. The present suit qua FDR from the joint account bearing no. No.90242020002297 of plaintiff and her deceased husband is barred under Order II Rule 2 (3) CPC.
ii. The present suit is barred by law of limitation.
iii.Despite filing a partition suit by the plaintiff against the legal heirs of deceased husband, including the defendant no.2, the plaintiff dragged the defendant no.2 in the present frivolous litigation for more than five years.
iv. There are several contradictions in the deposition of the plaintiff. The plaintiff was even prompted by her counsel during her deposition. Even the plaintiff refused to answer to some questions in her deposition. The plaintiff has deposed various times that she had made written complaint to the higher officials of bank regarding the alleged fraudulent act of the defendant no.2 in making joint FDR, but no Digitally signed CS SCJ No.2348/2019 by Sahil Page No.39 of 42 Sahil Khurmi Date:
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such complaint was placed on record despite specific query.
v. The plaintiff has claimed exclusive ownership of the FDRs despite herself admitting that the said FDRs were made from the family pension amount received after demise of her husband. It is a settled law that all the class-I legal heirs are entitled to such amount.
vi. The plaintiff has neither filed on record original FDRs on the basis of which the present suit is filed nor led any cogent and clinching evidence to prove that the same are in the possession of the defendant no.2. The said FDRs forms the foundation of the edifice of the case of the plaintiff.
vii.The plaintiff has audaciously deposed falsely on oath in her deposition repeatedly. The plaintiff has blatantly refused filing any suit for partition despite confronting with her own plaint of the partition suit filed by herself before the Court of ADJ, Tis Hazari, Delhi. Similarly, the plaintiff again blatantly refused filing of any maintenance petition against her husband and son (defendant no.2) despite confronting her with her own petition for maintenance under Section 125 CrPC and order dated dated 02.12.2013 of Ld. MM (Mahila Court) of Ms. Kiran Gupta, Central and statement of compromise recorded by herself before the said Court. When the plaintiff had to claim maintenance Digitally signed by CS SCJ No.2348/2019 Sahil Sahil Khurmi Page No.40 of 42 Date:
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from her son/defendant no.2 she pleaded that he is earning Rs. 50,000/- per month whereas in the present case, to counter the defence of the defendant no.2 that he is earning well enough to pay for the family expenses, the plaintiff took a stand that his son/defendant no.2 does not earn anything. Thus, the testimony of the plaintiff is not worthy of credence. It transpires that the plaintiff has been hell bent to mislead the Court with distorted facts and misleading statements on oath, which necessarily invites exemplary cost, apart from contempt proceedings and the offence of perjury.
76. Even though it is argued on behalf of the plaintiff that the plaintiff is an old and uneducated lady, but in my considered opinion, the uneducated people have more respect and fear for Court of Law and they do not depose falsely in the Court of Law repeatedly. The plaintiff has shamelessly resorted to falsehood and unethical means in achieving her nefarious goals. As held by Hon'ble Supreme Court in Dalip Singh (supra), a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands must be dealt with iron hands.
RELIEF
77. In view of foregoing discussion, the present suit is dismissed with cost of Rs. 1,00,000/- to be paid by the plaintiff to defendant no.2 Sh. Vipin Anand. As held by Hon'ble Supreme Court in Ramrameshwari Devi (supra), it is clarified that the CS SCJ No.2348/2019 Digitally signed Page No.41 of 42 Sahil by Sahil Khurmi Date:
Khurmi 2024.10.01 16:26:19 +0530 aforesaid cost is imposed not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.
78. Decree sheet be prepared accordingly.
79. File be consigned to the record room after due compliance.
Digitally signedAnnounced in the open Sahil by Sahil Khurmi Date:
Court today on 01.10.2024 Khurmi 2024.10.01 16:26:26 +0530 (SAHIL KHURMI) Civil Judge-1, Central District, Tis Hazari Courts, Delhi CS SCJ No.2348/2019 Page No.42 of 42