Delhi District Court
Sh. Dal Chand vs Ms. Nazma Begum on 30 November, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 278/2015
Unique I. D. No. 02401C0040612012
Sh. Dal Chand,
S/o Sh. Lekh Raj Singh,
R/o 245/17, Shiv Mandir,
Wazirabad Village, Delhi110084.
......Plaintiff
Versus
Ms. Nazma Begum,
W/o Sh. Sharafat Ali,
R/o 49, Basti Nizamuddin,
New Delhi110013
.......Defendant
SUIT FOR RECOVERY OF RS. 3,50,000/
Date of institution of suit : 25.01.2012
Date of conclusion of arguments : 10.11.2015
Date of pronouncement of judgment : 30.11.2015
CS278/2015
Sh. Dal Chand Vs. Ms. Nazma Begum page 1 of 13
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs. 3,50,000/ with interest @ 18% per annum against the defendant. Adumbrated in brief the facts of the case of plaintiff are as follows. On 14.08.2008, defendant and plaintiff entered into an agreement to sell in respect of property bearing no. 20, measuring 908 sq. yds. in Khasra No. 172/4/2, situated at Wazirabad Village, Delhi, (hereinafter referred as suit property) for total consideration of Rs. 99,88,000/. Defendant received a sum of Rs. 3,50,000/ as earnest money against the aforesaid consideration amount and it was agreed that the balance consideration amount shall be paid by plaintiff at the time of execution of sale deed i.e. on or before 29.01.2009. In the month of January 2009, when plaintiff approached the defendant for balance payment and executing sale deed in favour of plaintiff, defendant requested the plaintiff to defer the execution of sale deed as one Sh. Subhash Bansal had filed a suit for permanent injunction against defendant on the suit property and assured the plaintiff that after disposal of case, she shall execute the sale deed in favour of CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 2 of 13 plaintiff. Plaintiff requested the defendant to execute an agreement for extension of time for execution of sale deed, but defendant assured the plaintiff that she shall definitely execute the sale deed in favour of plaintiff after disposal of the case, hence, having belief in the said assurance, plaintiff did not insist her further for the same. Thereafter, plaintiff was in touch of defendant and having the updates of aforesaid case, but defendant deferred the execution of sale deed on the pretext that suit is still pending and refused to handover the copy of pleadings to plaintiff. Defendant developed malafide intention and had settled the matter with aforesaid Sh. Subhash Bansal with ulterior motive to defeat the valuable rights of plaintiff. Plaintiff came to know that somebody was raising construction over the suit property and plaintiff contacted the defendant but defendant did not give any satisfactory reply to the plaintiff. Plaintiff issued legal notice through his counsel to defendant to execute the sale deed of suit property in favour of plaintiff but despite the receipt of notice, defendant neither complied with the legal notice nor replied the same. Thereafter, plaintiff filed a complaint dated 04.12.2010 vide DD No. 28B against defendant before P.S. Timarpur, but no action was taken by police. Thereafter, plaintiff moved CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 3 of 13 an application u/o I Rule 10 read with Section 151 CPC in the suit no. 548/08, titled "Subhash Bansal Vs. Nazma Begum", pending before Dr. Archana Sinha, Ld. A.D.J., Delhi, which was dismissed for non appearance vide order dated 24.10.2011. On coming to know that the construction over the suit property had been completed, plaintiff made several approaches to defendant for return of earnest money with interest but defendant made pretext to return the same and on 13.01.2012, defendant flatly refused to return the same. Resultant had been this suit.
2. In the filed written statement, defendant took preliminary objections viz., (i) suit was not maintainable in the present form; (ii) suit did not disclose any cause of action; (iii) suit of plaintiff was an abuse of the process of law; (iv) suit was based on false and fabricated facts; (v) plaintiff had not approached the Court with clean hands and had concealed the material facts; (vi) suit had not been properly valued; (vii) plaintiff had concocted the story and fabricated the facts with unclean hands and just to grab the property of defendant plaintiff had cooked up the story. It was not denied that on 14.08.2008, the defendant and plaintiff entered into an agreement for sale of suit property for total CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 4 of 13 consideration of Rs. 99,88,000/ but defendant denied of having received earnest money of Rs. 3,50,000/ against aforesaid consideration amount and also denied of having agreed between the parties that balance consideration amount shall be paid at the time of execution of sale deed i.e. on or before 29.01.2009. Defendant averred that plaintiff had filed these types of false and frivolous averments only to mislead this Court and to take benefits of his own wrongs, hence same were not admissible in any manner. It was further submitted that before filing of aforesaid suit no. 548/08, defendant had paid the said amount to plaintiff and now the plaintiff had fully ignored the said amount given by defendant to him. Afore elicited agreement was executed between the parties in the presence of two witnesses i.e. Sh. Gulfam @ Kallu s/o Moharam Sah and Sh. Abdul Sattar s/o Mohd. Khacheru, but on the basis of wrong things of plaintiff, plaintiff had put the amount of Rs. 96,38,000/ in place of Rs. 69,88,000/ by cutting in the said agreement, which is not maintainable in the eyes of law, hence, same is not a valid and proper document. Defendant denied of any legal notice having been served upon her. Defendant submitted that plaintiff had filed a false, frivolous and bogus suit against her and the case filed by plaintiff was only to take benefits of CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 5 of 13 his own wrongs and the afore elicited other suit was dismissed in default on date 24.10.2011. Defendant submitted that she will suffer irreparable loss and injury, if any order has been passed in favour of plaintiff. It is further averred that the present suit is based on false and frivolous allegations, which are not only baseless but also devoid of any merits. Rest of the averments of the plaint have been denied by the defendant in toto.
3. Plaintiff filed replication to the written statement of the defendant to controvert the contentions of the written statement and to reiterate the averments of the plaint.
4. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 29.08.2012 : ISSUES
1)Whether the plaintiff is entitled for recovery of Rs. 3,50,000/? OPP CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 6 of 13
2)Whether the plaintiff is entitled for interest? If so, at what rate and for what period? OPP
3)Whether the plaintiff has not come to this court with clean hands? OPD
4)Relief.
5. Plaintiff examined himself as PW1 vide affidavit Ex P1 and Sh. Ram Kripal Yadav as PW2 vide affidavit Ex PW2/A. PW1 relied upon documents viz., (i) site plan exhibited as Ex PW1/1; (ii) original copy of agreement dated 14.08.2008 exhibited as Ex PW1/2; (iii) legal notice exhibited as Ex PW1/3; (iv) copy of receipt of acknowledgment exhibited as Ex PW1/4; (v) copy of complaint dated 04.12.2010 exhibited as Ex PW1/5; (vi) certified copy of application u/o I Rule 10 CPC filed by plaintiff exhibited as Ex PW1/6; and (vii) certified copy of order dated 24.10.2011, passed by Ld. ADJ exhibited as Ex PW1/7. Both PWs were crossexamined. Despite grant of opportunities no defendant evidence was led. Defendant evidence was closed vide detailed order dated 16.09.2015 CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 7 of 13
6. I have heard arguments addressed by Sh. Ashok Kumar, Ld. counsel for plaintiff, defendant and have given thoughts to the contentions put forth, pleadings of the parties, evidence, written arguments filed on behalf of defendant and have also examined the record of the case.
7. My issue wise findings are as under : Findings on Issue No(3) Whether the plaintiff has not come to this court with clean hands? OPD Onus of proof on this issue was on defendant. Despite opportunities since defendant has not led any evidence, there is no evidence borne out of record including evidence of PW1 and PW2, that plaintiff has not come to this Court with clean hands. Defendant has failed to discharge her onus on this issue. Issue no3 is decided against the defendant and in favour of plaintiff accordingly.
CS278/2015
Sh. Dal Chand Vs. Ms. Nazma Begum page 8 of 13
Findings on Issue No(1)
Whether the plaintiff is entitled for recovery of Rs. 3,50,000/? OPP
8. Suit of plaintiff rests upon the premise of having entered into agreement Ex PW1/2 with defendant on 14.08.2008 with respect to sale of property bearing no. 20, measuring 908 sq. yds. in Khasra No. 172/4/2, situated at Wazirabad Village, Delhi, for total consideration of Rs. 99,88,000/ and giving of Rs. 3,50,000/ to defendant as earnest money and having agreed to pay balance consideration amount at the time of execution of sale deed on or before 29.01.2009.
9. In para2 of reply on merits in written statement, defendant interalia averred that "It is not denied that on 14.08.2008, the defendant and the plaintiff had entered into an agreement to sell of property bearing No.20, measuring 908 sq. yds. in Khasra No. 172/4/2, situated at Wazirabad Village, Delhi, for total consideration of Rs. 99,88,000/."
CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 9 of 13
It is admitted by defendant and proved on record that parties to suit had entered into aforesaid agreement Ex PW1/2 on 14.08.2008. Further, in the written statement in same para2 of reply on merits, defendant also interalia averred that "it is further submitted that before filing of the said suit vide No. 548/08, the defendant had paid the said amount to the plaintiff and now, the defendant is fully ignored the said amount given by defendant to him."
10. In affidavit Ex P1, plaintiff as PW1 has reiterated the averments of the plaint, elicited hereinbefore. Despite opportunity given by my Ld. Predecessor on 03.01.2013, no crossexamination has been affected upon plaintiff/PW1. Testimony of PW1 has gone unrebutted, unchallenged and uncontroverted. Even, defendant did not enter into the witness box to testify per contra to any averment contained in Ex P1. PW2 Sh. Ram Kripal Yadav in Ex PW2/A testified of being witness of agreement Ex PW1/2 and giving of sum of Rs. 3,50,000/ as earnest money by plaintiff to defendant at the time of execution of said agreement on 14.08.2008 for which the sale deed was to be executed by CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 10 of 13 defendant on or before 29.01.2009. In the course of crossexamination, PW2 elicited that the payment of aforesaid earnest money was made by plaintiff in cash to the defendant at the residence of defendant when the daughter of defendant was also present and it was said by defendant that there was litigation between defendant and some other person regarding the same plot and she will call the plaintiff for registration of sale deed after the litigation is over. The testimony of plaintiff/PW1 is lent corroboration by the version of PW2, in whose presence the agreement Ex PW1/2 was entered upon between the parties to the lis and the signatures and thumb impression of PW2 are borne out on agreement Ex PW1/2. Fact of giving of earnest money of Rs. 3,50,000/ by plaintiff to defendant is also corroborated by PW2 to the version of plaintiff/PW1. It is proved on record that sum of Rs. 3,50,000/ was paid by plaintiff to defendant as earnest money on entering into agreement Ex PW1/2. It is also the fact of the matter that consequent upon receipt of the earnest money aforesaid, the defendant did not execute any sale deed in favour of plaintiff with respect to the subject property, elicited hereinbefore. No evidence has been led by defendant to prove the fact of return of sum of Rs. 3,50,000/, the earnest money received by her earlier from plaintiff.
CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 11 of 13
11. Despite demand of plaintiff vide notice Ex PW1/3, dated 20.09.2010, served upon defendant vide receipt Ex PW1/4, the defendant did not come forward, before or after filing of suit, to pay a sum of Rs. 3,50,000/ of the earnest money earlier received nor had executed the sale deed of the immovable property in question in favour of plaintiff nor delivered its possession. Now, plaintiff has sought by way of this suit the recovery of afore elicited sum of earnest money of Rs. 3,50,000/ with interest. Plaintiff is held entitled for recovery of sum of Rs. 3,50,000/ from defendant. Issue no1 is decided in favour of plaintiff and against the defendant.
Findings on Issue No(2) Whether the plaintiff is entitled for interest?
If so, at what rate and for what period?
OPP
12. In view of my findings with respect to issue no1, plaintiff is entitled for recovery of sum of Rs. 3,50,000/ from defendant. Having used, withheld the sum of plaintiff, given as earnest money and having CS278/2015 Sh. Dal Chand Vs. Ms. Nazma Begum page 12 of 13 not returned despite demands of plaintiff, defendant is liable to pay interest on sum of Rs. 3,50,000/. Interest has to be granted keeping in view the economic standards of country and the conduct of the parties. In my view, accordingly, interest @ 12% per annum from date of filing of suit till realization would be appropriate and reasonable.
RELIEF
13. In view of my findings with respect to issues no1 and 2, the suit of the plaintiff is decreed in terms that a sum of Rs.3,50,000/ is payable by the defendant to plaintiff @ 12% per annum from the date of filing of the suit till realization. The proportionate costs of the suit are also allowed in favour of the plaintiff. Decree sheet be prepared and file be consigned to record room.
Announced in open Court (GURVINDER PAL SINGH)
th
on 30 Day of November, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD)
CS278/2015
Sh. Dal Chand Vs. Ms. Nazma Begum page 13 of 13