Delhi District Court
Suit No.: 362/16 Ramwati vs . Anil Kumar on 10 January, 2023
Suit No.: 362/16 Ramwati Vs. Anil Kumar
IN THE COURT OF SH. ARUN GOEL, ADJ03,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Suit No.: 362/16
In the matter of--
Smt. Ramwati
W/o Shri Ram Babu
R/o E57/C297, Sunder Nagri,
Delhi110093
.......PLAINTIFF
versus
Shri Anil Kumar
S/o Shri Ram Lal
R/o E2/451, Nand Nagri,
Delhi110093.
.......DEFENDANT
Date of Institution of suit : 15.03.2013
Date of reservation of judgment : 14.12.2022
Date of pronouncement of judgment : 10.01.2023
JUDGMENT:
1. This is a suit of recovery of a sum of Rs.19,15,000/ filed by the plaintiff against the defendant.
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2. The case of the plaintiff is that he wanted to purchase a property and contacted dealers namely Man Singh and Tek Chand, who introduced the defendant. They further stated that the defendant is in physical possession and the owner of the property bearing No. A1/148, Nand Nagri, Delhi 110093 (hereinafter referred as 'Suit Property') which is free from all encumbrances, court cases, loan etc. and he wanted to sell the same for the consideration of Rs. 19,15,000/. Thereafter, an agreement on 15.12.2012 was executed between the defendant and the plaintiff and earnest money of Rs. 4,15,000/ was paid to the defendant by the plaintiff in presence of afore mentioned property dealers. The date of execution was fixed on 15.01.2013.
3. On 22.12.2012, the defendant approached the plaintiff and stated that he was in dire need of money and requested the plaintiff to purchase the property within one week. Considering the request of the defendant, the plaintiff paid the remaining amount of Rs. 15,00,000/ to the defendant in cash on 27.12.2012 in the presence of above mentioned property dealers and one Shri Saeed. The physical possession as well as previous chain of documents were also handed over to the plaintiff and notarized documents were executed in favour of plaintiff. The defendant gave a receipt of Rs. 15,00,000/ instead of Rs. 19,15,000/ stating that it was due to tax saving.
4. On 09.01.2013, some police officers alongwith court bailiff and one lady Smt. Dallo visited the Suit Property and asked the plaintiff to vacate the same. The plaintiff refused to do so and then the bailiff showed the order of court passed in an execution petition No. 48/2012 and the possession was handed over by the bailiff with the help of police officers to Smt. Page 2 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar Dallo. Smt. Dallo stated that she is the absolute owner of the suit property and the case regarding the same pending since 2006. It was further revealed that bailiff had previously visited the Suit Property and found someone else in possession of the same. Thereafter, permission was sought from the court for police protection and also to open the lock. The plaintiff has stated that he approached the defendant and demanded amount of Rs. 19,15,000/ back but defendant did not return the amount. do so. He also approached the police officers and filed the complaint but no action was taken. Legal notice was also sent to the defendant. Thereafter, he filed the suit for recovery of amount of Rs. 19,15,000/ and also claimed interest of 18% per annum.
5. Summons were issued upon defendant who appeared and filed his WS. In WS, the defendant has taken some preliminary objections regarding maintainability of the suit on the grounds that the plaintiff has not sought the declaration of declaring documents as null and void, non payment of stamp duty, misjoinder of parties. On the merits it is not denied that the defendant has sold the suit property to the plaintiff. However, he has denied the consideration amount to be Rs. 19,15,000/. He has further denied that he had approached the defendant on 22.12.2012 rather plaintiff had approached him for transfer the suit property. The defendant has further stated that he has shown all the documents regarding the Suit Property to the plaintiff and the plaintiff was aware about the title of the defendant regarding the Suit Property. He has further denied that he has knowledge about any previous litigation regarding the Suit Property. He has denied the claim of the plaintiff.
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6. Thereafter, replication was filed, then the issues were framed vide order dated 25.07.2013.
1) Whether the plaintiff is entitled to a decree of recovery of Rs.
19,15,000/ with interest in his favour and against the defendant, as claimed? OPP
2) Whether the suit is bad for nonjoinder of necessary parties?
3) Relief.
7. Thereafter, plaintiff stepped in the witness box as PW1. Plaintiff has placed on record his testimony by way of affidavit Ex. PW1/A and also produced on record the following documents:
Ex. PW1/1 General Power of Attorney dated 27.12.2012 Ex. PW1/2 Agreement to Sell dated 27.12.2012 Ex. PW1/3 Deed of Will dated 27.12.2012 Ex. PW1/4 Payment of Receipt dated 27.12.2012 Ex. PW1/5 Possession Letter dated 27.12.2012 Ex. PW1/6 Affidavit dated 27.12.2012 Ex. PW1/7 Copy of complaint dated 10.01.2013 to DCP, Seelampur Ex. PW1/8 Certified copy of judgment dated 02.04.2012 Ex. PW1/8A Certified copy of decree dated 02.04.2012 Ex. PW1/9 Certified copy of site plan of the property.
Ex. PW1/10 General Power of Attorney dated 28.08.1997
Ex. PW1/11 Agreement to Sell dated 28.08.1997
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Suit No.: 362/16 Ramwati Vs. Anil Kumar
Ex. PW1/12 Will dated 28.08.1997
Ex. PW1/13 Receipt dated 28.08.1997
Ex. PW1/14 General Power of Attorney dated 05.09.1997. Ex. PW1/15 Agreement to Sell dated 05.09.1997. Ex. PW1/16 Will dated 05.09.1997.
Ex. PW1/17 Receipt dated 05.09.1997.
Ex. PW1/18 General Power of Attorney dated 15.10.1998. Ex. PW1/19 Agreement to Sell dated 15.10.1998. Ex. PW1/20 Will dated 15.10.1998.
Ex. PW1/21 Receipt of payment dated 15.10.1998. Ex. PW1/22 General Power of attorney dated 04.10.2002. Ex. PW1/23 Agreement to Sell dated 04.10.2002. Ex. PW1/24 Affidavit dated 04.10.2002.
Ex. PW1/25 Receipt dated 04.10.2002.
Ex. PW1/26 General Power of Attorney dated 09.04.2003. Ex. PW1/27 Will deed dated 09.05.2003.
Ex. PW1/28 Agreement to sell dated 09.05.2003. Ex. PW1/29 Affidavit dated 09.05.2003.
Ex. PW1/30 Payment receipt dated 09.05.2003. Ex. PW1/31 Certified copies of ordersheets of Execution petition from 22.05.2012 to 11.01.2013.
Ex. PW1/32 Certified copy of statement of Dallo dated 11.01.2013. Ex. PW1/33 Certified copy of statement of Bailiff Mukesh Chand Page 5 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar dated 07.09.2012.
Ex. PW1/34 Certified copy of statement of Dallo dated 07.09.2012. Ex. PW1/35 Copy of legal notice dated 01.02.2013.
Ex. PW1/36 Postal receipt.
Mark A Copy of complaint dated 10.01.2013 to SHO, PS Nand
Nagri.
8. Plaintiff has examined Sh. Ram Babu as PW2. He has tendered his evidence by way of affidavit Ex. PW2/A and relied upon the documents which are already exhibited as Ex. PW1/1 to Ex. PW1/6.
9. Plaintiff has examined Sh. Shahid @ Saeed as PW3. He has tendered his evidence by way of affidavit Ex. PW3/A and relied upon the documents which are already exhibited as Ex. PW1/1 to Ex. PW1/6.
10.Thereafter, plaintiff has closed her evidence vide order dated 20.02.2014.
11.Thereafter, defendant stepped in the witness box as DW1. Defendant has placed on record his testimony by way of affidavit Ex. DW1/A.
12.Thereafter, defendant has examined Smt.Ramo Devi as DW2. She has produced on record the following documents:
Ex. DW2/1 General Power of Attorney dated 28.12.2011 Ex. DW2/2 Agreement to Sell dated 28.12.2011 Ex. DW2/3 Will dated 28.12.2011 Ex. DW2/4 Possession Letter dated 28.12.2011 Ex. DW2/5 Receipt dated 28.12.2011 Page 6 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar
13. Thereafter, defendant evidence closed vide order dated 27.09.2018.
14.Arguments were advanced by both parties.
15. Issue wise findings are as under:
Issue No. 1 & 2 are decided together
1) Whether the plaintiff is entitled to a decree of recovery of Rs. 19,15,000/ with interest in his favour and against the defendant, as claimed? OPP &
2) Whether the suit is bad for nonjoinder of necessary parties?
16. In the present case, admittedly it is not denied by both the parties that there was a sale transaction with regard to the Suit Property wherein the defendant had sold the Suit Property to the plaintiff. It is also not denied that the plaintiff has been dispossessed from the Suit Property one by Smt. Dallo. However, certain objections were taken by the defendant regarding the maintainability of the suit.
17.The first objection which was taken regarding maintainability of the suit on behalf of the defendant that the document relied upon by the plaintiff i.e. Agreement to Sell is inadmissible in evidence as the proper stamp duty has not been paid by the plaintiff on the said documents. It was stating that the said documents cannot be read into evidence in view of the bar created under Section 35 of the Stamp Act. The Stamp Act creates bar regarding admission of the documents in evidence on which stamp duty has not been paid. The said documents cannot be used in evidence for any purpose. However, the objections regarding the inadmissible of Page 7 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar the said documents i.e. Agreement to Sell Ex. PW1/2 was not taken when the said document was tendered in evidence by the plaintiff. The law regarding the time at which the objection regarding admissibility is to be taken had been stated by the Hon'ble Supreme Court in judgment titled as Shyamal Kumar Roy v. Sushil Kumar Agarwal, (2006) 11 SCC 331.
It read as follows: "17. Objection as regards admissibility of a document, thus, specifically is required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially.
20. If no objection had been made by the appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence.
21. The appellant having consented to the document being marked as an exhibit has lost his right to reopen the question.
22. What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken as to what document is tendered in evidence and before it is marked as an exhibit in the case. Before the learned trial Judge, reliance was placed on a decision of a learned Single Judge of the Andhra Pradesh High Court in Vemi Reddy Kota Reddy v.Vemi Reddy Prabhakar Reddy[(2004) 3 ICC 832 (AP)]. In that case there was nothing on record to show that the document was marked as an exhibit after an objection had been raised. The said case, therefore, has also no application to the facts of the present case".
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18. Perusal of the above stated judgment reveals that in case the objection as to nonpayment of proper stamp duty is to be taken at the time when the documents are tendered in evidence. If the said objection is not taken at the time of tendering, the same cannot be agitated at the latest stage in view of bar created by Section 36 of Indian Stamp Act. In this case, the objection regarding into the inadmissible of the document was not taken by the plaintiff during the evidence, the same is taken at the stage of argument which is not permissible.
19. Another objection which was taken by the Ld. Counsel for the defendant that the said documents cannot be read in evidence as they are unregistered. This objection is also not tenable as unregistered document can be used for collateral purpose. The Hon'ble Supreme Court in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, (2018) 7 SCC 639 has observed as follows: "10. On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53 A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v. V.R. Somasundaram [S. Kaladevi v. V.R. Somasundaram, (2010) 5 SCC 401 : (2010) 2 SCC (Civ) 424] this Court has restated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence Page 9 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar of an oral agreement of sale under the proviso to Section 49 of the 1908 Act."
20.Perusal of the above judgment reveals that the unregistered document can be used for collateral purpose. However in the present case the defendant has not denied that he had sold the property to the plaintiff and received the consideration. However, there is dispute regarding the amount of consideration.
21. Ld. Counsel for the defendant has further stated that the present suit is not maintainable as the plaintiff should file the suit for specific performance and not a suit for recovery. This objection raised by the defendant is not tenable as the defendant does not have any right, title, interest in the Suit Property. In case, the plaintiff could not have filed a suit for specific performance against the defendant as court would not pass the decree for specific performance that cannot be enforced in absence of tittle of defendant. Moreover Hon'ble Delhi high court in judgment tittled as Harbans Lal v. Daulat Ram, 2006 SCC OnLine Del 1520 : ILR (2007) 1 Del 706 : 2008 dealing with the maintainability of suit for recovery and similar objection as raised in the present suit regarding non filling of suit for specific performance has observed as follows: "8. On a plain reading of S. 22 of the Specific Relief Act, there can be no quarrel with the proposition that a person suing for specific performance of a contract can in appropriate cases ask for further/additional reliefs by way of possession or partition and separate possession of the property or by way of refund of the earnest money or deposit paid in case his claim for specific performance is refused. That is however far from saying that a party must necessarily seek specific performance of the agreement to Page 10 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar sell in order to seek refund of the earnest money paid by him in terms of the agreement to sell. The provisions of S. 22 do not, in our opinion, go that far nor do they forbid a claim for refund of the earnest money paid by a party who is not at fault for the failure of the transaction. The trial court was not, therefore, correct in holding that refund of earnest money was impermissible so long as the suit for specific performance was not filed and a claim for refund made only by way of an alternative prayer. The true position appears to be that if the seller under an agreement to sell defaults in the discharge of his obligations, as was the position in the present case, the purchaser has the option of filing a suit for specific performance and for additional reliefs as indicated earlier or for cancelling the agreement and demanding the refund of his earnest money. As a matter of fact, the demand of the earnest money back from the seller may in itself constitute a repudiation of the agreement by the purchaser for such a demand would be inconsistent with his readiness and willingness to go ahead with the transaction. In other words, no sooner the purchaser demands the refund of the earnest money on the ground that the seller is unable to perform his part of the agreement, the demand must constitute a cancellation of the agreement at the instance of the purchaser. Institution of a suit for specific performance for taking a refund of the earnest money would in such an event be wholly unnecessary."
22. Accordingly, on failure of the contract between the parties, the only remedy available with the plaintiff was to file the suit for recovery of money. Thus, the suit for recovery is maintainable.
23. Another objection which was raised by the defendant is that the plaintiff was fully aware about the title of the defendant with regard to the Suit Property. The defendant had shown all the previous chain of documents Page 11 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar to the plaintiff at the time of sale of Suit Property and the plaintiff after verifying the same has entered into an agreement with regard to the Suit Property with plaintiff. The defendant had put the plaintiff in possession of the Suit Property in pursuance of the agreement to sell and he has performed his part of the contract, so plaintiff is not entitled to recover the consideration amount from the defendant. However, this argument of the defendant is not tenable in view of agreement to sell Ex. PW1/2 executed between the parties. It will be useful to have a relevant part of the agreement before us. The agreement clause is reproduced as below:
"The property under sale is free from all sorts of encumbrances like sale, mortgage, gift, life, decree, dispute, security, surety or legal flaws etc. and there is no defect in the title of the First party/s, if it is proved otherwise the first party/s shall indemnify the second party with costs."
24. Perusal of the above said clause reveals that defendant had given undertaking to the plaintiff that the suit property is free from any sort of defect in title and he has further assured to indemnify the plaintiff if there is any legal defect. The Section 55 of the Transfer Property Act also deals with rights and liabilities of vendor and vendee. The relevant section has reproduced as below:
"55. Rights and liabilities of buyer and seller.--In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:
(1) The seller is bound--
(a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller Page 12 of 15 Suit No.: 362/16 Ramwati Vs. Anil Kumar is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b)......
An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent"
25. Perusal of above stated section reveals that it is the liability of the seller to declare material defect in his title to the purchaser. The defendant has not produced any document or any evidence to show that he has told the plaintiff about the material defect in his title to the Suit Property. On the contrary, as per Ex. PW1/2, he had given assurance to the plaintiff that he has perfect title with regard to the Suit Property. He had further assured plaintiff that he will indemnify him in case it is otherwise. The defendant has failed to comply with the terms of the contract between the parties to transfer the suit property without any defect in tittle and in case there is failure of contract and he is bound to indemnify the plaintiff. The Hon'ble Supreme Court in Rathnavathi v. Kavita Ganashamdas, (2015) 5 SCC 223 : (2015) 2 SCC (Civ) 736 has observed as follows: "59. In a contract for sale of immovable property for consideration, if a seller fails to transfer the title to the purchaser, for any reason, on receipt of consideration towards the sale price then a seller has no right to retain the sale consideration to himself and he has to refund the same to the purchaser. When the contract fails then parties to the contract must be restored to their respective original position which existed prior to execution of contract as far as possible provided there is no specific term in the contract to the contrary."
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26. It is observed by the Hon'ble Supreme Court that in case of failure of contract for sale of property the parties should be restored to their previous position. In this case, the contract has failed so parties should be restored to previous position that can be done by the defendant returning the consideration amount paid to him.
27.Another objection raised by the defendant is regarding the misjoinder / nonjoinder of necessary parties. The defendant has raised the objection that the suit filed by the plaintiff is not maintainable as the plaintiff has not joined previous owner of the Suit Property as shown in chain of documents as a party. This objection of the defendant is not tenable as there was no privity of contract between the plaintiff and socalled previous owner of the Suit Property as mentioned in chain of documents. Thus. he could not made them party in this case. Moreover, the plaintiff has filed a suit for recovery of the amount paid to defendant and other person were not party to that transaction. The plaintiff has also not claimed any relief against them. Hence, this objection of the defendant is not tenable.
28. Plaintiff has sought the recovery of amount of Rs. 19,15,000/. However, the document Ex. PW1/2 Agreement to sell, Payment of receipt Ex. PW 1/4, show that the consideration of the Suit Property was Rs. 15 Lakh. No documentary or oral evidence has been produced by the plaintiff to show that the amount of Rs.19,15,000/ was paid by the plaintiff to the defendant. On the other hand, defendant has only admitted that the sale consideration was Rs.15 Lakhs. In view of the documents as well as admission of the defendant, the plaintiff is entitled for a sum of Rs.15,00,000/.
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Relief :
29.In view of my finding on issue no 1 and 2, Plaintiff is entitled to recover a sum of Rs.15,00,000/ from the defendant.
30. The plaintiff has also claimed the interest of 18% p.a. which is excessive and exorbitant. In view of the fact that the plaintiff was having business relations with the defendant, as well as the prevailing economic situation, the ends of justice shall be served in case the defendant is made to pay simple interest on the aforesaid sum at the rate of 6% per annum. It is ordered accordingly.
31.Plaintiff shall also be entitled to costs of the present suit. It is so ordered. Interest awarded shall be paid from the date of filing of this suit till its realization.
32.Let a decree sheet be prepared in the aforesaid terms. All pending applications, if any, are disposed off.
33.File be consigned to record room.
Announced in the Open Court
ARUN Digitally signed
by ARUN GOEL
Date: 2023.01.10
on this 10th day of January, 2023 GOEL 16:13:11 +0530
(ARUN GOEL)
ADDITIONAL DISTRICT JUDGE - 03,
SHAHDARA, KKD COURTS, DELHI
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