Delhi District Court
Smt. Sunila Jain vs Sh. Shashi Kant Sharma on 11 November, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 516710/2016
CNR No. DLSW010013722014
IN THE MATTER OF:
Smt. Sunila Jain
W/o Sh. Ashok Jain
R/o flat No.1, Pocket-4
Shubham Apartments
Sector-12, Dwarka,
New Delhi ... Plaintiff
v.
Sh. Shashi Kant Sharma
S/o Sh. B.N. Sharma
R/o flat No.221, Pocket-4,
Shubham Apartments,
Sector-12, Dwarka,
New Delhi ... Defendant
Date of filing of application(s): 09.04.2014
Date of order reserved: 02.09.2019
Date of pronouncement of order: 11.11.2019
JUDGMENT
1. The plaintiff, namely, Sunila Jain (hereinafter "plaintiff") has preferred a money recovery suit for ₹15,00,000/- (Rupees Fifteen CS DJ ADJ No. 516710/2016 Page No. 1/79 lakhs only) alongwith interest @18% per annum against the defendant, namely, Shashi Kant Sharma (hereinafter "defendant") under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter "CPC").
2. The suit at the behest of the plaintiff on the first date itself was converted into an ordinary suit and the summons for settlement of issues were issued to the defendant.
Facts
3. The facts of the case in a nutshell are that the defendant was in need of money, who approached the plaintiff and offered his immovable property i.e. a shop/office, bearing No. F-1, L.S.C. Manish Chamber No. II, Plot No. 5, Sector 12, Dwarka, New Delhi - 110078 (hereinafter "suit property") for sale. The parties were known to each other and they entered into an agreement to sell for the sale purchase of the suit property on 30.11.2012 for a total sale consideration of ₹30,00,000/- (Rupees Thirty lakhs only). The plaintiff paid an amount of ₹15,00,000/- (Rupees Fifteen lakhs only) to the defendant towards sale consideration out of which ₹3,00,000/- (Rupees Three lakhs only) was paid in cash and ₹12,00,000/- (Rupees Twelve lakhs only) was paid through two cheques. As per the agreement to sell, the plaintiff had to pay the balance sale consideration of ₹15,00,000/- (Rupees Fifteen lakhs only) to the defendant on or before 30.03.2014. The possession of the suit property was handed over to the plaintiff by the defendant. However, the possession was forcibly taken back by the defendant from the plaintiff much prior to 30.03.2014 and the CS DJ ADJ No. 516710/2016 Page No. 2/79 defendant inducted a tenant in the suit property. The plaintiff issued a demand notice to the defendant calling upon him to execute a sale deed in terms of the agreement to sell dated 30.11.2012. The defendant replied to the notice and refused to execute the sale deed and transfer the suit property in favour of the plaintiff. The plaintiff preferred a suit for permanent injunction against the defendant before the Civil Judge, South West District, Dwarka Courts, Delhi and the same was dismissed as withdrawn with liberty to file a fresh suit on the same cause of action. The plaintiff preferred the present suit for recovery of money of ₹15,00,000/- (Rupees Fifteen lakhs only) along with interest against the defendant.
Pleadings
4. The plaintiff has averred in the plaint that the defendant approached the plaintiff in the month of November, 2012, when the defendant expressed that he is in need of money and he offered to sell the suit property to the plaintiff.
5. The plaintiff has averred that the parties were known to each other for many years and since the defendant was her neighbour, the plaintiff agreed to purchase the suit property for a total sum of ₹30,00,000/- (Rupees Thirty lakhs only). The parties entered into an agreement to sell dated 30.11.2012 and the plaintiff paid an amount of ₹3,00,000/- (Rupees Three lakhs only) in cash, as bayana / earnest money to the defendant at the time of signing and execution of the CS DJ ADJ No. 516710/2016 Page No. 3/79 agreement dated 30.11.2012. The plaintiff on the same day also made part payment of ₹12,00,000/- (Rupees Twelve lakhs only) to the defendant through two separate cheques - cheque No. 291564 dated 01.12.2012 for an amount of ₹8,42,000/- (Rupees Eight lakhs forty two thousand only) and cheque No. 291565 dated 01.12.2012 for an amount of ₹3,58,000/- (Rupees Three lakhs and fifty eight thousand only). It is averred by the plaintiff that both the cheques were drawn upon Punjab & Sind Bank, Sector-6, Dwarka, Delhi. It is also averred by the plaintiff that the defendant after receiving the aforementioned payment duly signed a receipt on 30.11.2012 for an amount of ₹15,00,000/- (Rupees Fifteen lakhs only) in the presence of witnesses.
6. The plaintiff has averred in the plaint that on 01.12.2012, the defendant handed over the vacant physical possession of the suit property to the plaintiff after the amount of ₹12,00,000/- (Rupees Twelve lakhs only) was received in the bank account of the defendant. The plaintiff after taking the physical possession of the suit property from the defendant, put the same under lock and key by putting four locks on two shutters of the suit property.
7. The plaintiff has also averred that prior to the execution of agreement to sell dated 30.11.2012, the defendant had continuously taken huge amount of money on account of his needs from the plaintiff and her family members, as friendly loan. It is averred by the CS DJ ADJ No. 516710/2016 Page No. 4/79 plaintiff that since the defendant did not repay the loan, the cheques issued by the defendant were dishonoured and numerous complaint cases against the defendant were filed under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter "NI Act").
8. The plaintiff has averred in the plaint that on 15.10.2013, the plaintiff alongwith her husband were threatened by the defendant when they were walking out of the court room No. 607 at Dwarka Court Complex, Delhi. It is averred that the defendant threatened the plaintiff to face dire consequences; he will not pay single paisa to the plaintiff and he would also take away the suit property from them and further threatened them not to step into the suit property.
9. The plaintiff and her husband were shocked to hear such threats advanced by the defendant and when they rushed to the suit property, they found one Nitin Mehta in possession of the suit property. Nitin Mehta informed the plaintiff and her husband that the suit property has been let out to him by the defendant for a period of 11 months until August, 2014 by virtue of a rent agreement dated 05.10.2013. The husband of the plaintiff immediately called 100 and when the first responder's team of the police reached by PCR van, the defendant refused to come to the suit property despite being called repeatedly. The plaintiff and her husband were instructed to approach the police post at Sector-3, Dwarka and lodge their complaint. The plaintiff lodged a complaint with police on 19.10.2013 with regard to the incident of 15.10.2013 at police station Dwarka North, Delhi.
CS DJ ADJ No. 516710/2016 Page No. 5/7910. The plaintiff has averred in the plaint that the defendant forcibly gained access and possession of the suit property by breaking open the locks and also committed the offences of cheating, criminal breach of trust, trespass and criminal intimidation.
11. The plaintiff has averred in her plaint that out of the total sale consideration of ₹30,00,000/- (Rupees Thirty lakhs only), the plaintiff paid an amount of ₹15,00,000/- (Rupees Fifteen lakhs only) to the defendant and yet the defendant has been showing the suit property to other prospective buyers, despite the date of registration of the sale deed and payment of balance sale consideration was 30.03.2014.
12. The plaintiff has averred in the plaint that on 12.03.2014, a notice was issued to the defendant with regard to transfer of physical possession of the suit property and also get the sale deed of the suit property registered in the favour of the plaintiff before the concerned Sub Registrar, Kapashera, Delhi on or before 30.03.2014, as per the terms and conditions of the agreement to sell dated 30.11.2012. It is averred by the plaintiff that towards the balance sale consideration of ₹15,00,000/- (Rupees Fifteen lakhs only), the plaintiff stated in the aforesaid notice that the plaintiff is ready to make the balance payment by way of demand draft No.772999 dated 12.03.2014, issued by YES Bank Ltd., having its branch at Sector-12, Dwarka, Delhi-110078 at the time of signing and registration of the sale deed of the suit property.
CS DJ ADJ No. 516710/2016 Page No. 6/7913. The plaintiff has averred in the plaint that the defendant replied to the notice dated 12.03.2014, wherein the defendant declined to execute sale deed and transfer the suit property in the name of the plaintiff, as per the terms and conditions of the agreement to sell. The plaintiff has averred that the defendant neither have any legal right, title, interest in the suit property nor defendant has any right to disturb the peaceful possession, occupation and enjoyment of the suit property by the plaintiff. It is averred by the plaintiff that since the defendant failed to execute the sale deed, the plaintiff was apprehensive that the defendant may create third party interest in the suit property, the plaintiff herein preferred a suit for permanent injunction against the defendant herein with regard to the suit property titled as Sushila Jain v. Shashi Kant Sharma - Civil Suit No. 68/2014 before the Civil Judge, South West District, Dwarka Courts, Delhi. It is averred by the plaintiff that the suit titled as Sushila Jain v. Shashi Kant Sharma - Civil Suit No. 68/2014 was dismissed as withdrawn by the plaintiff herein with liberty to file a fresh suit on the same cause of action vide order dated 05.04.2014. Hence, the present suit for recovery of money to the tune of ₹15,00,000/- (Rupees Fifteen lakhs only) alongwith interest @ 18% per annum until the date of actual realization by the plaintiff.
14. The defendant filed his written statement on 19.06.2014. The defence urged by the defendant in his written statement is that the plaintiff has based a case on misrepresentation, suppression of CS DJ ADJ No. 516710/2016 Page No. 7/79 material facts, fraud. It is averred by the defendant in his defence that the plaintiff has misused the process of law to take undue advantage by causing wrongful loss to the defendant and wrongful gain to herself.
15. The defendant has urged in his defence that the plaintiff has neither filed a suit for possession nor a suit for specific performance, in terms of order dated 05.04.2014 passed by the learned Civil Judge, South West District, Dwarka Courts in Sushila Jain v. Shashi Kant Sharma - Civil Suit No. 68/2014.
16. The defendant has also urged in his defence that the averment made by the plaintiff in the plaint with regard to the possession of the suit property being given to her at the time of signing of the agreement to sell are incorrect, as neither the physical possession nor any possession letter was signed and executed by the parties. It is also averred by the defendant in his defence that since no possession was given by the defendant to the plaintiff, the question of dispossessing the plaintiff by the defendant in the month of October 2013, as averred by the plaintiff does not arise.
17. The defendant has urged in his defence that the present suit is nothing but a mere eye wash and a ploy by the plaintiff to extort money from the defendant.
18. The defendant has averred in his written statement that the agreement to sell dated 30.11.2012 alongwith receipt and cheque No.73513 dated 30.04.2013 for an amount of ₹15,00,000/- were only CS DJ ADJ No. 516710/2016 Page No. 8/79 for security purpose and they were not to be acted upon, as the underlying transaction between the parties was that of advancement of loan and not sale purchase of the suit property.
19. The defendant in his written statement has submitted that the parties were on highly good terms and since they were neighbours, they were just like family members to each other. It is averred by the defendant in the written statement that the plaintiff and her family members are money lenders, from whom the defendant had taken some loan on interest on some occasions. It is averred by the defendant that the plaintiff and her family members while advancing loan never used to give anything in writing, even after receiving back the payment of loan with interest. It is averred by the defendant that the plaintiff and her family members at the time of advancement of loan, they used to maintain documentary records as well as took security cheques from the borrower.
20. The defendant has urged in his defence that he had taken a loan from a bank to purchase the suit property. The plaintiff and her family members, who were on highly good terms with the defendant, persuaded the defendant to take loan from the plaintiff on interest, so that he could easily repay the bank loan at an earlier occasion.
21. The defendant has averred in the written statement that an amount of ₹12,00,000/- (Rupees Twelve lakhs only) through two bank cheques was given as loan by the plaintiff to the defendant. It is averred by the defendant that the defendant had blind faith in the CS DJ ADJ No. 516710/2016 Page No. 9/79 plaintiff and her family members, however, he was trapped and persuaded to execute an agreement to sell and receipt dated 30.11.2012 for an amount of ₹15,00,000/- (Rupees Fifteen lakhs only) with regard to the suit property. It is also averred by the defendant that the plaintiff took a security cheque No.73513 dated 30.04.2013 for an amount of ₹15,00,000/- (Rupees Fifteen lakhs only) on the pretext that the papers executed between them are mere papers and there should be some additional security for faith in favour of the plaintiff.
22. The defendant has averred in the written statement that at the time of execution of the said documents and cheque, the plaintiff, her husband and sons assured the defendant that the documents and cheque are being executed for the purpose of security of the loan amount of ₹12,00,000/- (Rupees Twelve lakhs only) and the same are just formal/fake (sic) or eye wash and the same never meant for execution for sale of suit property by the defendant to the plaintiff. Question
23. On completion of pleadings the following issues were framed by the court vide order dated 10.09.2014:
(i) Whether the defendant never entered into Agreement to Sell dated 30.11.2012 with the plaintiff and the said document was executed as a measure of security for repayment of loan to the plaintiff in addition to cheque of Rs.15,00,000/-?...OPD CS DJ ADJ No. 516710/2016 Page No. 10/79
(ii) Whether the plaintiff is entitled to the recovery of suit amount?...OPP
(iii) If answer to issue No.(ii) is in affirmative, whether plaintiff is entitled to interest thereupon. If so, at what rate and for what period?...OPP
(iv) Relief.
24. To prove the plaintiff's case, the plaintiff (PW1), Khazan Singh Yadav (PW2) and Rishab Jain (PW3) stepped into the witness box and testified. On the other hand, the defendant (DW1), Seema Sharma (DW2), V. Devender Nath (DW3), Jyoti (DW4), Niyat Rani (DW5), Pankaj Sharma (DW6) and Ruchi Sharma (DW7) testified in the defence of the defendant.
25. The plaintiff relied upon and proved the following documents:
S.No. Description and date, if any of the Exhibit Mark put document on the document
1. Agreement to sell and purchase. Ex.PW1/1
2. Receipt of payment dated 30.11.2012. Ex.PW1/2
3. Certified copy of the passbook. Ex.PW1/3
4. Photocopy of the rent agreement. Mark PW1/4
5. Copy of complaint dated 15.10.2013. Ex.PW1/5
6. Photocopy of complaint dated 19.10.2013. Mark PW/6
7. Copy of the legal demand notice. Ex.PW1/7
8. Speed post receipt. Ex.PW1/8 9. Courier receipt. Ex.PW1/9
10. Original acknowledgment of demand draft. Ex.PW1/10
11. Reply to the legal demand notice. Ex.PW1/12
12. Certified copy of order dated 05.04.2014 passed Ex.PW1/13 CS DJ ADJ No. 516710/2016 Page No. 11/79 in CS No. 68/14.
13. Bank account statement of Sunila Jain - A/c No. Ex.PW2/A 07221000019238 for the relevant period of 29.11.2012 to 03.12.2012.
14. Bank account statement of Sashi Kant for the Ex.PW2/B relevant period of 01.12.2012 to 12.12.2012.
15. The defendant relied upon and proved the following documents:
S.No. Description and date, if any of the Exhibit Mark put document on the document
1. Copy of affidavit of complainant - Sunila Jain Ex.DW4/A (CW1) dated 12.09.2013 tendered in Sunila Jain v. Shashi Kant Sharma - Case No. 1355/13 in the Court of Metropolitan Magistrate - 14, South West District, Dwarka Courts, Delhi.
2. Affidavit in evidence of Sanjay Kumar Gupta Ex.DW-4/B (CW2) dated 24.07.2014 tendered in Sunila Jain v. Shashi Kant Sharma - Case No. 1355/13 in the Court of Metropolitan Magistrate - 14, South West District, Dwarka Courts, Delhi.
3. Affidavit in evidence of Harish Chauhan (CW3) Ex.DW-4/C dated 24.07.2014 tendered in Sunila Jain v.
Shashi Kant Sharma - Case No. 1355/13 in the Court of Metropolitan Magistrate - 14, South West District, Dwarka Courts, Delhi.
4. Certified copy of the cross-examination of Ex. DW-4/A1 Sunila Jain (CW1) dated 09.05.2014 recorded in Sunila Jain v. Shashi Kant Sharma - Case No. 1355/13 in the Court of Metropolitan Magistrate - 14, South West District, Dwarka Courts, Delhi.
5. Certified copy of the cross-examination of Ex.DW-4/B1 Sanjay Kumar Gupta (CW2) dated 07.08.2014 recorded in Sunila Jain v. Shashi Kant Sharma -
Case No. 1355/13 in the Court of Metropolitan Magistrate - 14, South West District, Dwarka Courts, Delhi.
CS DJ ADJ No. 516710/2016 Page No. 12/796. Certified copy of the cross-examination of Ex.DW4/C1 Harish Chauhan (CW3) dated 07.08.2014 recorded in Sunila Jain v. Shashi Kant Sharma -
Case No. 1355/13 in the Court of Metropolitan Magistrate - 14, South West District, Dwarka Courts, Delhi.
7. Statement of Shashi Kant Sharma (Accused) Ex.DW-4/D dated 04.09.2014 recorded in Sunila Jain v.
Shashi Kant Sharma - Case No. 1355/13 in the Court of Metropolitan Magistrate - 14, South West District, Dwarka Courts, Delhi.
8. Certified copy of complaint alongwith affidavit Ex.DW-5/A filed by the complainant in Ashok Jain v. Shashi Kant Sharma - CC No. 1119/14 in the Court of Metropolitan Magistrate - 05, South West District, Dwarka Courts, Delhi.
9. Certified copy of cheque No. 426828 dated Ex.DW-5/B 15.01.2013 drawn upon Yes Bank filed in complainant in Ashok Jain v. Shashi Kant Sharma - CC No. 1119/14 in the Court of Metropolitan Magistrate - 05, South West District, Dwarka Courts, Delhi.
10. Certified copy of cheque return memo dated Ex.DW-5/C 07.08.2013 filed in Ashok Jain v. Shashi Kant Sharma - CC No. 1119/14 in the Court of Metropolitan Magistrate - 05, South West District, Dwarka Courts, Delhi.
11. Certified copy of testimony of CW1 - Ashok Ex.DW-5/D Jain (Complainant) dated 30.08.2014 recorded in Ashok Jain v. Shashi Kant Sharma - CC No. 1119/14 in the Court of Metropolitan Magistrate
- 05, South West District, Dwarka Courts, Delhi.
12. Certified copy of testimony of CW2 - Anurag Ex.DW-5/E Shukla, Asstt. Manager, HDFC Bank, Dwarka dated 15.11.2014 recorded in Ashok Jain v.
Shashi Kant Sharma - CC No. 1119/14 in the Court of Metropolitan Magistrate - 05, South West District, Dwarka Courts, Delhi.
CS DJ ADJ No. 516710/2016 Page No. 13/7913. Certified copy of testimony of CW3 - Neeraj Ex.DW-5/F Khokharm, Dy. Manager, HDFC Bank, Dwarka dated 15.11.2014 recorded in Ashok Jain v.
Shashi Kant Sharma - CC No. 1119/14 in the Court of Metropolitan Magistrate - 05, South West District, Dwarka Courts, Delhi.
14. Copy of affidavit dated 23.08.2013 of Rishab Ex.DW6/1 (OSR) Jain with regard to his income and status filed in Sunaina Jain v. Rishab Jain - Case File No. V-
153/2011 (Under Section 12 of the Protection of Women from Domestic Violence Act, 2005).
15. Copy of written statement filed by Rishab Jain Ex.DW6/2 (OSR) in Sunaina Jain v. Rishab Jain - Case File No. V-153/2011 (Under Section 12 of the Protection of Women from Domestic Violence Act, 2005).
Submissions by Counsel for the parties
16. Sh. Abhishek Aggarwal, learned counsel for the plaintiff and Sh. Anuj Jain, learned counsel for the defendant advanced their oral arguments.
17. Sh. Abhishek Aggarwal, learned counsel for the plaintiff submitted that the plaintiff has preferred a suit for recovery of ₹15,00,000/- (Rupees Fifteen lakhs only) along with interest against the defendant on the basis of an agreement to sell dated 30.11.2012. The parties had entered into an agreement for sale and purchase of suit property for a total sale consideration of ₹30,00,000/- (Rupees Thirty lakhs only) against which the plaintiff paid a sum of ₹15,00,000/- (Rupees Fifteen lakhs only). The plaintiff paid ₹3,00,00/- (Rupees Three lakhs only) in cash on 30.11.2012 and ₹12,00,000/- (Rupees Twelve lakhs only) by two separate cheques for an amount of CS DJ ADJ No. 516710/2016 Page No. 14/79 ₹8,42,000/- (Rupees Eight lakhs and forty two thousand only) and ₹3,58,000/- (Rupees Three lakhs and fifty eight thousand only) both dated 01.12.2012. Learned counsel for the plaintiff submitted that the possession of the suit property was handed over by the defendant to the plaintiff on 01.12.2012.
18. Sh. Aggarwal, learned counsel for the plaintiff further submitted that the plaintiff in October 2013 found that the possession of the suit property had been forcibly taken by the defendant. The plaintiff found one Nitin Mehta, in possession of the suit property on the basis of an undated but attested rent agreement (Ex.PW1/4). The plaintiff lodged a complaint with the police station Dwarka on 15.10.2013.
19. The learned counsel for the plaintiff further submitted that the plaintiff through her counsel issued a legal notice dated 12.03.2014 (Ex.PW1/7), wherein the plaintiff unequivocally stated that the plaintiff is ready and willing to pay the balance sale consideration and asked the defendant for registration and execution of sale deed before the concerned Sub Registrar on 30.03.2014, as per the terms and conditions of the agreement to sell (Ex.PW1/1). The learned counsel for the plaintiff submitted that the plaintiff replied to the notice dated 12.03.2014 through a reply dated 19.03.2014. Learned counsel submitted that with the defendant failed to execute the sale deed of the suit property in favour of the plaintiff, the plaintiff had no choice but to seek recourse to legal remedy. Learned counsel submitted that the plaintiff preferred a suit for permanent injunction titled as Sushila CS DJ ADJ No. 516710/2016 Page No. 15/79 Jain v. Shashi Kant Sharma - Civil Suit No. 68/2014 against the defendant, however, the same was withdrawn with liberty to file a fresh suit for recovery or specific performance vide order dated 05.04.2014 (Ex.PW1/13). Thereafter, the plaintiff preferred the present suit for recovery of money on 07.04.2014.
20. The learned counsel for the plaintiff submitted that the parties are well known to each other and have had money dealings between themselves. Learned counsel for the plaintiff submitted that it is admitted that the relations were cordial between the parties.
21. The learned counsel for the plaintiff submitted that what is germane for any plaint is the cause of action. Learned counsel for the plaintiff further submitted that the plaintiff has averred substantial cause of action in her plaint and the defence urged by the defendant that he is not liable to refund the money is untenable. Learned counsel for the plaintiff further submitted that the defence urged by the defendant in the written statement that the plaintiff has not approached the court with clean hands is also a farce.
22. The learned counsel for the plaintiff submitted that it was the plaintiff' prerogative to prefer a suit for recovery of money or a suit for specific performance and the plaintiff is within her lawful right to seek recovery of money by way of the present suit.
23. The learned counsel for the plaintiff submitted that the defendant has taken different stances before different courts and drew attention of the court to the cross-examination of DW1 recorded on CS DJ ADJ No. 516710/2016 Page No. 16/79 02.03.2015 and submitted that the defendant admitted that the word 'security' was not mentioned in the agreement to sell - Ex.PW1/1. The learned counsel for the plaintiff further submitted that the defendant during his cross-examination admitted that the cheque in sum of ₹15,00,000/- (Rupees Fifteen lakhs only) was filled by him.
24. The learned counsel for the plaintiff further submitted that DW1 (defendant in person) admitted that the total sale consideration was ₹30,00,000/- (Rupees Thirty lakhs only), as per the agreement to sell (Ex.PW1/1) and the sale deed was to be executed on 30.03.2014 and also admitted receipt of notice issued by the plaintiff for execution of sale deed.
25. The learned counsel for the plaintiff further submitted that contradictions are also apparent from the testimony of DW2 dated 15.04.2015, who is the wife of the defendant.
26. Sh. Aggarwal, learned counsel for the plaintiff submitted that the case of the plaintiff is that she advanced ₹30,00,000/- (Rupees Thirty lakhs only) by two different transactions. The first transaction emanates from the agreement to sell dated 30.11.2012, which is a subject matter of the present suit. As per the agreement between the parties, the total sale consideration for the suit property was ₹30,00,000/- (Rupees Thirty lakhs only) out of which the plaintiff paid ₹15,00,000/- (Rupees Fifteen lakhs only), ₹3,00,000/- (Rupees Three lakhs only) in cash on 30.11.2013 and ₹12,00,000/- (Rupees Twelve lakhs only) by two cheques on 01.12.2012. Learned counsel for the CS DJ ADJ No. 516710/2016 Page No. 17/79 plaintiff further submitted that the cutoff date for the sale deed was 30.03.2014, by when the plaintiff could pay the balance sale consideration and get the sale deed registered of the suit property. Learned counsel further submitted that the plaintiff preferred a suit for permanent injunction against the defendant on 28.02.2014, which was dismissed as withdrawn on 05.04.2014 with liberty to file a fresh. Thereafter, the plaintiff on 07.04.2014 preferred the second suit, which is the present suit, seeking recovery of money along with interest from the defendant.
27. The learned counsel for the plaintiff submitted that the second transaction between the parties pertain to the loan of ₹15,00,000/- (Rupees Fifteen lakhs only) advanced in cash by the plaintiff to the defendant on 11.04.2013. Learned counsel for the plaintiff submitted that the defendant in lieu of the loan issued a cheque dated 30.04.2013 for an amount of ₹15,00,000/- (Rupees Fifteen lakhs only), as the loan advanced was interest free. Learned counsel for the plaintiff submitted that it was agreed between the parties that the money was to be returned by the defendant to the plaintiff within 19 days. Learned counsel for the plaintiff submitted that the plaintiff deposited the cheque in July 2013 and the same was dishonoured on 27.07.2013, and thereafter the plaintiff herein on 12.09.2013 preferred a complaint against the defendant herein under Section 138 of the Negotiable Instruments Act, 1881.
CS DJ ADJ No. 516710/2016 Page No. 18/7928. The learned counsel for the plaintiff submitted that the suit of the plaintiff for the money claim ought to be decreed along with interest.
29. Sh. Anuj Jain, learned counsel for the defendant contended the arguments advanced by the learned counsel for the plaintiff. Sh. Jain, learned counsel for the defendant submitted that the plaintiff has preferred a money claim against the defendant on the basis of two documents, an agreement to sell dated 30.11.2012 (Ex.PW1/1) and a receipt dated 30.11.2012 (Ex.PW1/2).
30. The learned counsel for the defendant submitted that the basics of law are that the contract, as per the agreed terms and conditions and remedy, as per law. With regard to enforcement of rights in a contractual transaction, a suit for enforcement of rights is preferred seeking the remedy available at law.
31. Sh. Anuj Jain, learned counsel for the defendant submitted that on the cause of action urged by the plaintiff in the plaint, the plaintiff preferred a summary suit under Order XXXVII, CPC. Learned counsel for the defendant submitted that the plaintiff has not approached the court with clean hands and above all the question which needs to be answered is whether a court can come to the aide of a litigant, who seeks recovery of unaccounted money.
32. The learned counsel for the defendant further submitted that the facts are stated in the pleading, which arise on the basis of cause of action, as per Order II, Rule 2(i) and (ii), CPC.
CS DJ ADJ No. 516710/2016 Page No. 19/7933. Sh. Jain, learned counsel for the defendant submitted that as per the plaint, the cause of action arose on 30.11.2012, 15.10.2013, 19.10.2013 and 12.03.2014 and it is the defence of the defendant that the plaintiff cannot maintain a suit on the basis of a cause of action averred in the plaint.
34. The learned counsel for the defendant placed reliance upon Bachhaj Nahar v. Nilima Mandal 1 and submitted that when the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention by framing an appropriate issue.
35. The learned counsel further placed reliance upon Hardesh Ores Pvt Ltd. v. Hede and Company2 and submitted that to determine cause of action, the averments made in the plaint are to be seen and read as whole and it is not permissible in law to read the plaint by culling out few words and sentences and the same be read in isolation of the context i.e. dispute between the parties.
36. The learned counsel for the defendant submitted that on bare perusal of the agreement to sell (Ex.PW1/1) it is apparent that the same was not intended to be a sale-purchase agreement with regard to the suit property, as the same has an unusual longer time period for completion and execution of a sale deed i.e. 1 year and 5 months and no prudent mind would enter into such an agreement. Learned counsel further submitted that for the sake of arguments, assuming the parties
1. (2008) 17 SCC 491 2. CA No.2517/2007 CS DJ ADJ No. 516710/2016 Page No. 20/79 entered into an agreement to sell for the sale purchase of the suit property, but there can be no plausible explanation for Clause 6 of the agreement to sell (Ex.PW1/1) qua the ₹3,00,000/- (Rupees Three lakhs only) of the balance sale consideration of ₹15,00,000/- (Rupees Fifteen lakhs only) out of the total sale consideration of ₹30,00,000/- (Rupees Thirty lakhs only).
37. The learned counsel for the defendant further submitted that the address mentioned in Clause 10 of the agreement to sell is of a person, who deposed as a witness for the plaintiff that he lent ₹15,00,000/- (Rupees Fifteen lakhs only) to the plaintiff to pay to the defendant and there is no such agreement, contract between the plaintiff and such person.
38. Sh. Jain, learned counsel for the defendant submitted that Ex.PW1/1 i.e. an agreement to sell is a security document, to secure the loan of ₹12,00,000/- (Rupees Twelve lakhs only) taken by the defendant from the plaintiff. It is the plaintiff who has not come clean and has covered up the advancement of loan, as a sale-purchase transaction of an immovable property.
39. The learned counsel for the defendant submitted that to the facts of the case, the provisions of Section 54 and 55 of the Transfer of Property Act, 1882 (hereinafter "TPA") are attracted. The learned counsel for the defendant submitted that Section 55(4)(b) of TPA states that where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, the seller is CS DJ ADJ No. 516710/2016 Page No. 21/79 entitled to a charge upon the property in the hands of the buyer in case of any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase money or any part remaining unpaid and for interest on such amount or part from the date on which possession has been delivered.
40. The learned counsel for the defendant submitted that the defendant never wanted delivery of possession of the suit property, else the plaintiff would have preferred a suit for specific performance. The learned counsel further submitted that the present case is covered under Section 27 - 30 of the Specific Relief Act, 1963 and with the plaintiff not having sought the reliefs of declaration, rescission and/or specific performance of contract, the plaintiff cannot claim any money decree against the defendant, as the plaintiff has suppressed material facts from this court.
41. The learned counsel for the defendant shifted his wave of attack on the plaintiff by drawing attention of the court to the testimony of the PW1 (plaintiff in person). The learned counsel submitted that the testimony of PW1 reeks of falsehood, and the same is apparent from the conduct and non-disclosure of the source of funds. The learned counsel for the defendant submitted that PW1 denied being a money lender, whereas, the defendant has led evidence and proved that the plaintiff was a registered money lender and she deposed falsely before the court of law. The learned counsel for the defendant submitted that law and court frowns upon litigants who foul the stream of justice by CS DJ ADJ No. 516710/2016 Page No. 22/79 not only relying to utter falsehood but also testify on the edifice of blatant lies. The learned counsel for the defendant submitted that the defendant led evidence and defendant' witnesses have deposed that the plaintiff and her family members are money lenders, who advanced money as loan on way higher interest. The learned counsel for the defendant submitted Ex.PW7/A and Ex.PW7/B contradict the testimony of PW1. Learned counsel for the defendant submitted that Ex.PW7/A depicts various entries and particularly of renewal of the money lender's licence of the plaintiff. The learned counsel re-agitated his submissions that the suit is not maintainable in the present form, as there have been material concealment by the plaintiff and the plaintiff has not approached the court with clean hands.
42. The learned counsel for the defendant submitted that the cheque No. 73513 was given as a security cheque by the defendant to the plaintiff and the same is apparent nay evident from the perusal of the bank statement of the defendant marked as Ex.PW2/B for the relevant period of 29.11.2012 - 31.12.2012. The learned counsel further submitted that thus the story advanced by the plaintiff is not convincing at all and clearly depicts that the plaintiff did not approach this court with clean hands.
43. Sh. Jain, learned counsel for the defendant submitted that the case urged by the plaintiff is demolished not only on law but also on facts. The learned counsel submitted that the demolition of plaintiff's case on the law point is centred on the rights of a buyer under the TPA CS DJ ADJ No. 516710/2016 Page No. 23/79 and the remedy provided under Section 34 and 22 of the Specific Relief Act, 1963.
44. The learned counsel for the defendant submitted that the plaintiff's case implode on facts, as the same is based upon the falsehood, above all the defendant has proved that the plaintiff held a money lender's license, which the plaintiff repeatedly denied. The learned counsel submitted that the plaintiff has averred that pursuant to signing of the agreement to sell - Ex.PW1/1, the plaintiff claims to be in possession of the suit property until dispossessed by the defendant, however, the plaintiff failed to prove her possession for the alleged interregnum period.
45. Sh. Jain, learned counsel for the defendant submitted that the plaintiff failed to shift the preponderance of probabilities and the plaintiff's claim is a false claim. The learned counsel for the defendant further submitted that the Clause 7 of the agreement to sell - Ex.PW1/1 refers/mentions about an Annexure - 'A', whereas there is no such Annexure - 'A'.
46. The learned counsel for the defendant contended that the agreement to sell dated 30.11.2012 - Ex.PW1/1 cannot be relied upon, as the same was required to be compulsorily registered and the same must be impounded by this court.
47. The learned counsel for the defendant further submitted that the agreement to sell dated 30.11.2012 - Ex.PW1/1 neither has any forfeiture clause nor any provision/clause with regard to refund of CS DJ ADJ No. 516710/2016 Page No. 24/79 money. The learned counsel for the defendant further submitted that this court vide order dated 10.09.2014 in paragraph Nos.7 and 8 observed that the cheque of ₹15,00,000/- (Rupees Fifteen lakhs only) was an additional security to the plaintiff and it was also observed that the plaintiff appears to be engaged in business of money lending. The learned counsel further submitted that the order dated 10.09.2014 remains unchallenged by the plaintiff and the plaintiff has not approached the court with clean hands.
48. Sh. Jain, learned counsel for the defendant submitted that the narration of facts by the plaintiff is preposterous, as on one hand the plaintiff has averred that she entered into an agreement to sell for purchase of the suit property and had even taken the possession of the suit property from the defendant, whereas on the other hand, the plaintiff has averred that the defendant forcibly dispossessed the plaintiff and inducted one tenant sometime in the month of October, 2013. Learned counsel for the defendant submitted that there is no averment by the plaintiff with regard to the status of possession of the suit property, as alleged by the plaintiff to have been taken pursuant to the agreement to sell Ex.PW1/1 until being forcibly dispossessed by the defendant i.e. October 2013. Learned counsel for the defendant submitted that the possession of the suit property was never handed over to the plaintiff by the defendant and thus it is apparent nay evident that the plaintiff has suppressed material facts and not approached this court with clean hands.
CS DJ ADJ No. 516710/2016 Page No. 25/7949. The learned counsel for defendant further submitted that Ex.DW4/C, which is the testimony of one Harish Chauhan in a complaint case titled as Sunila Jain v. Shashikant Sharma - CC No.1355/2013 recorded on 07.08.2014 reveals that no such money of ₹7,00,000/- (Rupees Seven lakhs only) was provided by him to the plaintiff as claimed by the plaintiff. Learned counsel submitted that on perusal of Ex.DW4/C, it is crystal clear that no such money was provided by Harish Chauhan to the plaintiff, as Harish Chauhan testified that he can neither produce any document with regard to transactions between the plaintiff herein and himself nor he had mentioned about the loan of ₹7,00,000/- (Rupees Seven lakhs only) in his income tax return. The learned counsel further submitted that the plaintiff's claim of having received an amount of ₹7,00,000/- (Rupees Seven lakhs only) from Harish Chauhan falls flat on its face, merely for the reason that no document has been produced by the plaintiff and/or by Harish Chauhan to corroborate the claim of the plaintiff having taken a loan from Harish Chauhan.
50. Similarly, learned counsel for the defendant attacked the claim of plaintiff by drawing attention to the testimony of Sanjay Kumar Gupta - Ex.DW4/B, recorded in Sunila Jain v. Shashikant Sharma - CC No.1355/2013 recorded on 07.08.2014 with regard to having advanced a loan of ₹8,00,000/- (Rupees Eight lakhs only) to the plaintiff herein. The learned counsel submitted that from Ex.DW4/B it CS DJ ADJ No. 516710/2016 Page No. 26/79 is apparent that Sanjay Kumar Gupta was a tutored witness and the address of Sanjay Kumar Gupta mentioned in his testimony is the very same address, which is mentioned in Clause 10 of agreement to sell dated 30.11.2012 - Ex.PW1/1. Learned counsel further added that Sanjay Kumar Gupta is a commission agent and the nexus between Sanjay Kumar Gupta, and the husband of the plaintiff of advancing loans to each other is quite apparent from Ex.DW4/B1.
51. Sh. Jain, learned counsel for the defendant submitted that on perusal of the testimony of Sunila Jain (plaintiff herein) - Ex.DW4/A1 in Sunila Jain v. Shashikant Sharma - CC No.1355/2013 recorded on 09.05.2014 clearly portrays that the story forwarded by the plaintiff cannot be believed at all. The learned counsel further submitted that the plaintiff herein deposed in Sunila Jain v. Shashikant Sharma - CC No.1355/2013 that she did not give any loan to any person other than the accused (plaintiff herein), whereas the plaintiff' witnesses have testified that there were repeated loan transactions between them. The learned counsel submitted that it is for this reason also the testimony of the plaintiff and the claim urged by her can neither be believed nor be allowed. The learned counsel submitted that on one hand, the plaintiff has testified that she is a house wife and has no source of income, whereas on the other hand, contrary to her financial capacity, the plaintiff advanced a loan of ₹15,00,000/- (Rupees Fifteen lakhs only) to the defendant.
CS DJ ADJ No. 516710/2016 Page No. 27/7952. Sh. Jain, learned counsel for the defendant submitted that there are a few law points involved in the present dispute, which disentitle the plaintiff from claiming any relief from the court of law. The learned counsel submitted that the defence urged by the defendant to the plaintiff's claim is that a loan transaction between the parties was secured by keeping the property documents of the defendant by the plaintiff and the same were to be returned. The learned counsel further submitted that the plaintiff has not approached the court with clean hands and the plaintiff has not complied with Order II, Rule 1, CPC.
53. The learned counsel for defendant placed reliance upon Lakhbir Singh v. Arun Khanna3 and submitted that the present suit preferred by the plaintiff is hit by Order II, Rule 2, CPC.
54. The learned counsel further submitted that the plaintiff has not sought the relief of specific performance and to the contrary has sought the relief of recovery of money against the defendant. Learned counsel for the defendant further submitted that the parties are at loggerheads, wherein the plaintiff has urged that an agreement to sell was entered between the parties and the defendant has contended that there was no such agreement to sell between the parties, and the nature of transaction between the parties was that an advancement of loan, which was secured by the security documents - agreement to sell (Ex.PW1/1), receipt (Ex.PW1/2), cheque, and also by deposit of title documents of the suit property by the defendant with the plaintiff.
3. RFA (OS) 111/2014 CS DJ ADJ No. 516710/2016 Page No. 28/79
55. The learned counsel for the defendant submitted that the answer to the question, whether the plaintiff can ask recovery for money without asking for specific performance of contract is in the negative. The learned counsel for defendant further submitted that the plaintiff cannot seek the relief of recovery of money, as the only relief which the plaintiff could have asked for is rescission of contract in terms of Section 29 and 30 of the Specific Relief Act, 1963. The learned counsel for the defendant submitted that the reason why the plaintiff has not preferred a suit for specific performance is because the plaintiff is a money lender, who is not interested in purchase of the suit property.
56. To buttress his submission, learned counsel for the defendant placed reliance upon Indira Rai v. Bir Singh,4 Dalip Singh v. State of Uttar Pradesh & Ors.,5 S.P. Chengalvaraya Naidu v. Jagannath,6 Parmanand Kansotia v. Seetha Lath & Anr.,7 and submitted that the courts cannot come to the rescue of a plaintiff who has not approached the same with clean hands and based her claim on falsehood.
57. The learned counsel for the defendant submitted that the transaction in question is of an unaccounted money and accordingly placed reliance upon the judgment passed by the Apex Court in G. Pankajakshi Amma v. Mathai Mathew.8
4. 176 (2011) DLT 301
5. (2010) 2 SCC 114
6. AIR 1994 SC 853 7 188 (2012) DLT 661
8. CA Nos.4101-02/1998 CS DJ ADJ No. 516710/2016 Page No. 29/79
58. Sh. Jain, the learned counsel for defendant placed reliance upon Shaival Sahay v. Govind Verma & Ors. 9 and submitted that the plaintiff cannot seek recovery of money from the defendant without filing a suit for specific performance.
59. The learned counsel for the defendant submitted that issue with regard to Section 55(6) of TPA has been adequately dealt by the Hon'ble Supreme Court in Videocon Properties Ltd v. Dr Bhalchandra Laboratories & Ors.10 The learned counsel submitted that the payment made by the plaintiff to the defendant would attract the applicability of Section 55(6)(b), TPA.
60. With regard to the non registration and inadequate stamp duty paid on the agreement to sell, the learned counsel for the defendant placed reliance upon the judgment passed by the Hon'ble High Court of Delhi in Deewan Arora v. Tara Devi Sen & Ors.11
61. The learned counsel for the defendant further submitted that the issue of non registration of an agreement to sell has been adequately dealt by the Hon'ble High Court of Delhi in Shiv Kumar v. Sumit Gulati12 and the Court declined to grant any protection under Section 53A of the Transfer of Property Act, 1882.
62. Sh. Aggarwal, learned counsel for the plaintiff rejoined his arguments and submitted that the defendant is mixing two
9. 209 (2014) DLT 795
10. (2004) 3 SCC 711
11. 163 (2009) DLT 520
12. 225 (2015) DLT 591 CS DJ ADJ No. 516710/2016 Page No. 30/79 transactions, as the parties to the suit are not strangers and the contrary are well known to each other.
63. The learned counsel for the plaintiff submitted that with regard to a friendly loan advanced by the plaintiff to the defendant, the plaintiff had initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881, wherein the defendant herein was convicted. Learned counsel for the plaintiff further submitted that against the conviction order, the defendant preferred an appeal before the Sessions Court and the decision of the trial court was reversed by the Sessions Court. The learned counsel for the plaintiff submitted that the plaintiff herein has challenged the decision of the Sessions Court by way of an appeal before the Hon'ble High Court of Delhi and the same is pending decision.
64. The learned counsel for the plaintiff submitted that the defence urged by the defendant that the agreement to sell was entered between the parties was for collateral security purpose only and the defendant did not enter into any sale purchase of the immovable property is incorrect. The learned counsel for the plaintiff submitted that it is admitted by the defendant that he received money from the plaintiff. The learned counsel for the plaintiff further submitted that the receipts are also admitted by the defendant.
65. To contest the law reports relied upon by the learned counsel for the defendant, the learned counsel for the plaintiff placed reliance CS DJ ADJ No. 516710/2016 Page No. 31/79 upon Suresh Kumar v. Satish Mehra & Ors., 13 on the point that once a document has been admitted in evidence, such document cannot be called in question at any stage in the same suit or proceedings. The learned counsel for the plaintiff further placed reliance upon Section 36 of the Indian Stamp Act, 1899 and also the pronouncement in Shyamal Kumar Roy v. Sushil Kumar Agarwal, 14 and stated that Section 36 of the Indian Stamp Act, 1899 would operate even if a document has been improperly admitted in evidence and thus it is of little or no consequence whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof thereof.
66. The learned counsel for the plaintiff further submitted that the question of impounding of the document, particularly, agreement to sell does not arise, as once an instrument is admitted in evidence, the same cannot be impounded later on and accordingly placed reliance upon Ashok Kamal Capital Builders v. State15 and Barium Chemicals Ltd. v. Vishwa Bharati Mining Corporation & Anr.16
67. With regard to the nature of transaction and the character of the payment made by the plaintiff to defendant, the learned counsel for the plaintiff placed reliance upon the judgment passed by the Hon'ble
13. (2012)192 DLT 172
14. (2006) 11 SCC 331
15. (2009) 162 DLT 396
16. (2009 ) 16 SCC 262 CS DJ ADJ No. 516710/2016 Page No. 32/79 High Court of Delhi in Ella Ghosh v. Prateek Aggarwal.17 The learned counsel further submitted that assuming for the sake of argument, the language used in the agreement to sell is neutral, even then the payment made by the buyer to the seller would be interpreted as part payment and the same would be recoverable in principle by the buyer from the seller.
68. The learned counsel for the plaintiff placed reliance upon Harbans Lal v. Daulat Ram18 and submitted that the arguments advanced by the learned counsel for defendant that the plaintiff cannot maintain a suit for recovery of money without seeking the relief of specific performance are hollow. The learned counsel drew attention of the court to paragraph No.8 of the judgment and submitted that in case the seller (defendant herein) under an agreement to sell defaults in the discharge of his obligation, the purchaser (plaintiff herein) has the option of filing a suit for specific performance and for also seeking additional relief in terms of Section 22 of the Specific Relief Act, 1963.
69. Lastly, Sh. Aggarwal placed reliance upon Mukesh Kumar v. Chander Pal Singh19 and submitted that the onus to prove to seek recovery of money is on the plaintiff and once the plaintiff has discharged the onus, the same is shifted upon the defendant to dispel that there was no money transaction between them and the plaintiff
17. (2013) 204 DLT 471
18. 2007 I ILR (Delhi) 706
19. 2016 IV AD (Del) 746 CS DJ ADJ No. 516710/2016 Page No. 33/79 has no right to seek recovery of money from the defendant. The learned counsel submitted that the defendant has failed to show when and how he returned the amount of ₹15,00,000/- (Rupees Fifteen lakhs only) to the plaintiff.
70. The learned counsel for the plaintiff submitted that the question urged by the defendant in defence that whether plaintiff is a money lender or not is of no relevance. The learned counsel submitted that the fact of plaintiff being registered, as a money lender could not be recalled by the plaintiff when deposing as a witness. The learned counsel for plaintiff added that it is the defendant who has contradictions in his own cross examination and has admitted that he lied before this court and also before the court of learned Metropolitan Magistrate, South West District, Dwarka, Delhi.
71. Sh. Aggarwal, learned counsel for the plaintiff further submitted that Section 29 of the Specific Relief Act, 1963 applies in the case of suit for specific performance, whereas the case at hand is that of recovery of money.
72. The learned counsel for the plaintiff rejoined that the objection taken by the learned counsel for the defendant to the agreement to sell in question for not being adequately stamped was never taken at the time of tendering of evidence and thus the same cannot be taken at this stage and seek that the document be impounded. To strengthen his submission, the learned counsel for the plaintiff placed reliance upon CS DJ ADJ No. 516710/2016 Page No. 34/79 the pronouncements - Suresh Kumar v. Satish Mehra and Anr., 20 Shyamal Kumar v. Sushil Kumar Agarwal. 21 The learned counsel stated that it is quite evident from the pleadings of the defendant that no such objection, defence was urged.
73. Sh. Anuj Jain, learned counsel for the defendant advanced submissions as sur-rejoinder to rejoin his rebuttal arguments to the rejoining arguments by learned counsel for the plaintiff. The learned counsel submitted that the ratio of Harbans Lal v. Daulat Ram22 is distinguishable on facts and not applicable to the present case.
74. The learned counsel for the defendant further submitted that the judgment passed in Ella Ghosh v. Prateek Aggarwal23 is also not applicable to the present case, as the said judgment was passed with regard to forfeiture of earnest money.
75. The learned counsel for defendant stated that similarly the judgment passed in Suresh Kumar v. Satish Mehra & Ors. 24 is not applicable to the present case, as the same pertains to a document on which adequate stamp duty had not been paid can be relied upon for collateral purpose. The learned counsel further submitted that the said judgment is for non stamp duty but it does not cover the aspect of registration. The counsel for the defendant concluded on the note that the plaintiff has failed to prove her case and it has come in evidence 20 2012(6) RAJ 633 (Del) 21 (2006) 11 SCC 331 22.2007 I ILR (Delhi) 706
23.(2013) 204 DLT 471
24.(2012)192 DLT 172 CS DJ ADJ No. 516710/2016 Page No. 35/79 that the plaintiff has not approached this court with clean hands and thus no relief can be granted to the plaintiff.
Reasoning & Findings
76. I, have perused the complete case record considered and deliberated the submissions advanced by the learned counsel for the plaintiff and the defendant. My issue-wise findings ensue in the following paragraphs of this judgment.
Issue No. 1Whether the defendant never entered into Agreement to Sell dated 30.11.2012 with the plaintiff and the said document was executed as a measure of security for repayment of loan to the plaintiff in addition to cheque of Rs.15,00,000/-?
77. The onus to prove issue No. 1 was saddled upon the defendant. The plaintiff has preferred a money recovery suit of ₹15,00,000/- (Rupees Fifteen lakhs only) against the defendant. The case of the plaintiff that the defendant was well known to her and her family members. The defendant approached the plaintiff when he was in need of money and offered to sell the suit property. The plaintiff agreed to purchase the suit property from the defendant for an amount of ₹30,00,000/- (Rupees Thirty lakhs only) by an agreement to sell dated 30.11.2012 - Ex.PW1/1. As per the agreement to sell dated 30.11.2012
- Ex.PW1/1, the plaintiff paid an amount of ₹3,00,000/- (Rupees Three lakhs only) in cash to the defendant on 30.11.2012, as bayana/earnest money. The plaintiff also paid ₹12,00,000/- (Rupees Twelve lakhs only) to the defendant through two cheques, one for an CS DJ ADJ No. 516710/2016 Page No. 36/79 amount of ₹8,42,000/- (Rupees Eight lakhs forty two thousand only) and the second cheque for an amount of ₹3,58,000/- (Rupees Three lakhs fifty eight thousand only) to the defendant. The possession of the suit property was handed over to the plaintiff by the defendant on 01.12.2012.
78. The plaintiff has urged in her plaint that on 15.10.2013, the defendant extended threats to them when they were coming out of the court room in Dwarka Courts, Delhi and when they rushed to the suit property, the plaintiff was shocked to see that one person named Nitin Mehta was in the occupation of the suit property and who told the plaintiff and her husband that the defendant has let out the suit property to him for a period of 11 months until August 2014 by a rent agreement dated 05.10.2013. The plaintiff lodged a complaint against the defendant at police station Dwarka North with regard to her dispossession from the suit property. The plaintiff issued a notice dated 12.03.2014 to the defendant and called upon the defendant for the signing, registration and execution of sale deed on or before 30.03.2014, as per the agreement to sell dated 30.11.2012. The plaintiff through the said notice apprised the defendant that she is ready and willing to pay the balance sale consideration of ₹15,00,000/- (Rupees Fifteen lakhs only) by way of a demand draft. The defendant replied to the plaintiff's notice and refused to execute a sale deed in favour of the plaintiff of the suit property. The plaintiff preferred a suit for permanent injunction against the defendant before CS DJ ADJ No. 516710/2016 Page No. 37/79 the Court of Ld. Civil Judge, South West District, Dwarka Courts, Delhi titled as Sushila Jain v. Shashi Kant Sharma - Civil Suit No. 68/14. The suit was dismissed as withdrawn with a liberty to file a fresh suit on the same cause of action by order dated 05.04.2014 - Ex.PW1/13. Thereafter, the present suit was filed by the plaintiff against the defendant on 07.04.2014 seeking return of ₹15,00,000/- (Rupees Fifteen lakhs only) along with interest @18%p.a.
79. The defendant in his defence has urged that the possession of the suit property was never handed over to the plaintiff by him. The main plank of the defence by the defendant is that the agreement to sell dated 30.11.2012 was entered as a security for repayment of loan and above all the plaintiff had advanced a loan of ₹12,00,000/- (Rupees Twelve lakhs only) and not ₹15,00,000/- (Rupees Fifteen lakhs only). The defendant has urged the defence that an amount of ₹3,00,000/- (Rupees Three lakhs only) was included in the agreement to sell dated 30.11.2012 (Ex.PW1/1), which was the interest component of the loan of ₹12,00,000/- (Rupees Twelve lakhs only). The defendant never intended to sell the suit property to the plaintiff.
80. To determine true nature of a transaction, what is necessary to determine is the intention of the parties, as well as the circumstances attributing thereto and also the wordings used in document in question
- See Umabai v. Nilkanth Dhondiba Chavan.25 25 (2005) 6 SCC 243 CS DJ ADJ No. 516710/2016 Page No. 38/79
81. This court observes that in a money claim i.e. recovery of money what needs to be seen is whether the money exchanged hands between the parties i.e. creditor and the debtor and once that is proved, the second question which needs to be addressed whether the money was returned by the recipient (debtor) to the giver (creditor).
82. The Apex Court in its latest pronouncement in Madhukar Nivrutti Jagtap & Ors. v. Smt. Pramilabai Chandulal Parandekar & Ors.26 wherein amongst three fold basic questions, one question of whether an agreement had been for sale or had been the document executed towards the security for a loan had been answered. The relevant extract of the Apex Court pronouncement is reproduced as under:
"11. On the submissions made by the learned counsel for the parties and in the given set of fact and circumstances, the principal point for determination in this appeal is as to whether the High Court was justified in entertaining the second appeal; and in upsetting the judgment and decree impugned? Three-fold basic questions need to be addressed to for determination of this point. The first question is as to whether the agreement dated 20.09.1965 and supplementary agreement dated 28.04.1966 had been for sale and had not been the documents executed towards security for a loan taken by the defendant Nos. 1 to 3? If the answer to the first question is in favour of the plaintiffs and the agreements in question are held to be those for sale of property, the second question would be as to whether the plaintiffs were always ready and willing to perform their part of the contract and no personal bar operates against them so as to enforce the specific 26 Civil Appeal No. 5382 of 2007 decided on 13.08.2019 CS DJ ADJ No. 516710/2016 Page No. 39/79 performance of the agreement in question. For effective disposal of this matter, the third question would be as to whether the appellants had not been bona fide purchasers and the sale transactions in their favour relating to the property in question are hit by the doctrine of lis pendens? However, as shall be noticed hereafter later, even if the questions foregoing are answered in favour of the plaintiffs, another point would still arise for determination as to whether, on the facts and in the circumstances of this case, the decree passed by the High Court, for the relief of specific performance on enhanced market value of the suit property, is justified or if any other form of relief shall meet the ends of justice?
Nature of transaction between the plaintiffs and defendant Nos. 1 to 3
12. As regards the question concerning the nature of transaction under the agreements in question, as noticed, the Trial Court and the First Appellate Court held that such agreements had been towards security and not for sale. The High Court has, however, disagreed and has held that such findings by the subordinate Courts suffered from perversity and the documents in question were not towards security for any loan transaction; neither the documents say so nor there was any evidence on record to hold that these agreements were executed by way of security for a loan transaction.
12.1. We have minutely examined the translated copies of the said agreements dated 20.09.1965 and 28.04.1966, as placed before us for perusal. In the initial agreement dated 20.09.1965, after mentioning the area, survey number and boundaries of the land in question, the vendors had stated as under:-CS DJ ADJ No. 516710/2016 Page No. 40/79
"The land accordingly within the boundaries, including stones, earth , well, trees, shrubs, etc. This land agreed to be sold at the rate of Rs. 450/per acres, area 50 Acres, 39 Gs. for total price of Rs. 22951/- Rs. Twenty-two thousand, Nine Hundred and fifty one. This agreement is accordingly made. Today and earnest amount of Rs. 3500/- Rs. three Thousand, five hundred. The remaining amount or Rs. 19451 is to be paid at the time of sale deed. The sale transaction would be completed on Chaitra Sud I, Shake 1, 1888 or thereabout.
The expense to be incurred for sale-deed are to borne by you. The sale deed is to be executed by us and to be taken by you. This agreement is accordingly executed, for execution of sale deed. All our heirs shall sign the sale deed. The encumbrances shall be extinguished or Havala shall be given and the said amounts shall be deducted at the time of execution of sale deed and thus the land would be free from any charge. Out of the land, there is crop of groundnut and Toor. After same would be reaped, actual possession would be delivered at the time of sale deed by the end of November of 1965.
The remaining whole land would be actually delivered to you by completing the sale transaction. Accordingly, subject to fulfilling the abovementioned conditions, the sale transaction would be completed within limit prescribed. If anybody would commit breach CS DJ ADJ No. 516710/2016 Page No. 41/79 of conditions he will take action and expenditure shall be borne by him. The earnest amount of Rs. 3500 Rs. Three thousand and five hundred) is received.
This Sathekhat given in writing on 20.09.1965. Dastur Bhagwa-n Vaman Palaskar resident of Solapur. The sa-le deed of the transactions.
Note: The sale deed of the dealings (property) shall be executed in your name or in the names of other persons suggested by you.
The sale deed would be executed -in your name or in the names others suggested by. The earnest amount of earnest of Rs. 3500 received. No complaint.
This Sathekhat dt. 20.09.1965. Dastur Bhagwan Vaman Palaskar, resident of Solapur."
12.1.1. As noticed, another payment of Rs. 2,000/- was made by the plaintiffs to the defendant No. 1 and an endorsement for adjustment of such payment against the sale price was made on this very document on 24.11.1965 as follows:-
"I have purchased the house building and also purchased she-buffalos. For that, I have received Rs. 2000 in cash from you. That amount should be deducted being paid. The remaining amount of Rs. 17451 would be received from you and as per the conditions CS DJ ADJ No. 516710/2016 Page No. 42/79 of the Sathekhat, the transaction of sale would be completed. Sd/-.
Date :24.11.1965"
12.1.2. In the supplementary agreement dated 28.04.1966, the vendors acknowledged that they had received Rs. 6,000/- from the plaintiffs under the agreement dated 20.09.1965; and also stated that they had delivered possession of a part of the land in question on 14.11.1965 and that they had delivered the possession of entire land to the vendees in part performance. The vendors also stated that there was a charge of approximately Rs. 5,000/- on the land in question and, therefore, after deducting in all a sum of Rs. 11,000/-, the vendees shall pay the remaining amount of Rs.
11,961/and the sale deed would be executed in their favour.
12.2. There had not been even a remote suggestion in the documents in question that there was any loan or borrowing transaction between the parties and the said documents were being executing towards security. On the contrary, the recitals and stipulations in the said agreements had only been in affirmation of the agreement for sale and of the receipt of part payment from time to time against the sale consideration. Of course, defendant No. 1, while deposing as DW1 attempted to suggest that he had approached the plaintiff No. 3 seeking loan to the tune of Rs. 5000-5500/through a broker; and, at the instance of the plaintiff No. 3, executed the document in question as security while taking loan at the interest rate of 1 per cent per month. This defendant also admitted having obtained another sum of Rs. 2,000/- from the plaintiff No. 1 and having put an endorsement on the document in question. He, however, denied having received any other amount or having delivered CS DJ ADJ No. 516710/2016 Page No. 43/79 possession of the suit property. The evidence on the part of the defendants in this case remains rather vague and sketchy; and it is difficult to accept the oral assertions of defendant No. 1 as against the recitals in the agreements.
12.3. It is also noticed that the subordinate Courts proceeded to doubt if the transaction was at all intended to be of sale while questioning as to why the parties fixed the consideration in odd figures i.e., Rs. 22,951/-; and while observing that when as per the documents, the land was being sold @ Rs. 450/- per acre, the total consideration for the land in question would come to Rs. 22,938.75 and not Rs. 22,951/-. The Trial Court also raised doubts on the suggestion of the plaintiffs that possession of the land in question was handed over to them. The First Appellate Court even observed that as against the sale consideration, only a paltry amount was paid in advance and questioned as to why the supplementary agreement was executed after serving of notice. On the other hand, the High Court minutely examined the evidence on record and observed that there was not even a whisper about the loan transaction; and that as per the endorsement made on 24.11.1965, another amount of Rs. 2,000/- was received by the defendant Nos. 1 to 3. As regards the supplementary agreement dated 28.04.1966, the High Court again found that there was no whisper about any loan transaction or any security for such a transaction and the document was clearly executed as being the supplementary agreement for sale while even referring to the encumbrances of Rs. 5,000/-, which were to be discharged. The High Court observed that by no stretch of imagination these two agreements could be termed as and by way of security for a loan.
12.4. Having examined the matter in its totality, we have no hesitation in upholding the findings of the High Court CS DJ ADJ No. 516710/2016 Page No. 44/79 that have been returned after due consideration of the material on record and with reference to the law applicable to the case. It is plain and obvious that the Trial Court and the First Appellate Court proceeded on entirely irrelevant and rather baseless considerations while failing to consider that such findings on the nature of transaction evidenced by the agreements in question could not have been rendered on surmises and conjectures.
12.4.1. As to whether the possession of the land in question was delivered to the plaintiffs or not, could not have been taken as a factor decisive as regards nature of transaction. Moreover, execution of the supplementary agreement after notice dated 05.04.1966 and after receiving further an amount of Rs. 500/- by the defendant Nos. 1 to 3 could only show reaffirmation of the intention of the parties towards the sale transaction. Significantly, in the supplementary agreement, the defendants not only acknowledged the receipt of part consideration to the tune of Rs. 6,000/- but further agreed for adjustment of Rs. 5,000/- towards encumbrances and, therefore, agreed to receive remaining Rs. 11,921/- at the time of execution of the sale deed. In our view, looking to the dealings of the parties, this circumstance about execution of the supplementary agreement only strengthens the case of the plaintiffs rather than operating against them.
12.4.2. The other observations of the subordinate Courts as regards quantum of consideration are difficult to be appreciated. Such hair-splitting exercise by the Trial Court, that on the agreed rate, sale consideration ought to have been Rs. 22,938.75 and as to why the parties agreed for Rs. 22,951/-, had been entirely baseless, rather unwarranted. The observation of the Trial Court as to why the sale consideration was in odd figures is CS DJ ADJ No. 516710/2016 Page No. 45/79 itself of such oddity that any finding on that basis could only meet with disapproval. Rounding up of the amount of consideration and addition of one rupee in the last is not unknown to such transactions. In fact, quite contrary to what was observed by the Trial Court, the figure of sale consideration rather fortifies the deduction that the intention of the parties had only been towards the transaction of sale. In the ultimate analysis, we are satisfied that the High Court has rightly disapproved the baseless findings of the subordinate Courts and has rightly held that the agreements in question were executed for the sale of suit property. Thus, the first question is answered in favour of the plaintiffs."
[Emphasis added by underlining and highlighting of text]
83. The impugned agreement to sell dated 30.11.2012 (Ex.PW1/1), reads as under:
"AGREEMENT TO SELL AND PURCHASE This Agreement is executed at Delhi, on this 30/11/2012 BETWEEN SHRI SHASHI KANT SHARMA S/O SHRI B.N. SHARMA R/O FLAT NO.173, POCKET-4, SECTOR-12, SHUBHAM APPARTMENTS, DWARKA, NEW DELHI-110078. (hereinafter called the FIRST PARTY) AND MRS. SUNILA JAIN W/O SH. ASHOK JAIN R/O FLAT NO.1, POCKET-4, SHUBHAM APPARTMENTS, SECTOR-12, DWARKA, NEW DELHI-110078 (hereinafter called the SECOND PARTY) CS DJ ADJ No. 516710/2016 Page No. 46/79 The expression of both the Parties wherever they occur in the body of this agreement shall means, and include their respective heirs, legal representative, administrators, executors, successors, and assigns.
Whereas the First Party is the exclusive OWNER OF OFFICE BEARING NO.F-1, LSC, MANISH CHAMBER NO.II, PLOT NO.5, SECTOR-12, DWARKA, NEW DELHI HAVING SUPER AREA OF 154 SQ.FTS., AND COVERED AREA MEASURING 107.25 SQ.FTS. , ON THE FIRST FLOOR OF THE BUILDING WITH THE PROPIRTIONATE FREEHOLD RIGHTS OF LAND UNDERNEATH (HEREINAFTER REFERRED TO AS FLAT OR THE SAID FLAT) CONSTRUCTED AS PER PLANS AND SPECIFICATIONS APPROVED BY THEOWNER.
Whereas First Party for his/her/their needs and requirements has agreed to sell the aforesaid OFFICE BEARING NO.F-1, for a total sale consideration of Rs.30,00,000/- (THIRTY LACS ONLY) and Second Party has agreed to purchase the same on the following terms and conditions of this agreement:-
NOW THIS AGREEMENT WITNESSETH AS UNDER:
1. That out of the said total sale consideration , a sum of Rs.3,00,000/- (Rupees THREE LACS ONLY) as bayana amount has been received by the First Party from Second Party by cash on dated 30/11/2012, and a part payment of Rs.12,00,000/- (twelve lacs only) has been received comprising cheque nos. 291564 dated 01/12/2012 for Rs.8,42,000/- (Eight lac forty two thousand only) and cheque no.291565 dated 01/12/2012 for Rs.3,58,000/- (Three lac fifty eight thousand only) both drawn on PUNJAB AND SIND BANK, SECTOR-6, DWARKA, NEW DELHI-110075, on dated 01/12/2012.CS DJ ADJ No. 516710/2016 Page No. 47/79
2. That the balance sale consideration amount of Rs.15,00,000/- (Rupees FIFTEEN LACS ONLY) will be paid by Second Party to First Party on or before 30/03/2014.
3. That all dues/liabilities such as Electricity Bills Water Bills, House Tax etc. up to the date of finalisation of this deal will be paid by First Party and thereafter the same will be paid by the Second Party after finalisation of this deal.
4. That the First Party shall not create any charges over the said property after the execution/signing of this agreement and First Party has/have no right to sell the said property to any body else after the execution/signing of this agreement.
5. That First Party hereby assures the Second Party that the said property is at present free from all kinds of encumbrances, mortgage, exchange, lien, court injunction, court decree, surety, security, acquisition, notification, Will, gift, dispute, legal flaw, burden, court notice, litigation, charge, claim, demand court case, liability, attachment, prior sale etc. etc. and there is no legal defect in the title of the First Party and Second Party has agreed to purchase the said property from First Party on the condition that First Party undertake/s to bear all losses which may be suffered by Second Party, in case the ownership title of First Party of the said property is found to be defective.
6. That the First Party will deliver the vacant physical possession of the said property at the time of part payment of Rs.12,00,000/- dated 01/12/2012 vide cheque nos.291564 dated 01/12/2012 and cheuque no.291565 dated 01/12/2012 and registration of concerned documents in favour of Second Party at the time of full and final payment.
7. That the first party will done the construction work as per ANNEXTURE-A attached.
8. That all the expenditure regarding registration shall be borne by the Second Party.CS DJ ADJ No. 516710/2016 Page No. 48/79
9. That both the parties hereby, further confirm and declare that this Agreement to Sell & Purchase is IRREVOCABLE and shall be final and binding on them, their heirs, executors, administrators and assigns.
9. That both the parties will pay a commission of 1% each to M/s DELHI ASSOCIATES, FLAT NO.2, GROUND FLOOR, SECTOR-12, POCKET-7, DWARKA, NEW DELHI-
110075 IN WITNESSES WHEREOF BOTH THE PARTIES HAVE PUT THEIR RESPECTIVE HANDS ON THIS AGREEMENT IN PRESENCE OF THE FOLLOWING WITNESSES FIRST PARTY WITNESSES:
1.
2.
SECOND PARTY ATTESTED"
[Emphasis added by underlining and highlighting of text]
84. The receipt (Ex.PW1/2) in question reads as under:
"Receipt Received a sum of Rs.15,00,000/- (Rupees fifteen Lac only comprising of Rs.3,00,000/- by cash dated 30.11.2012 and Rs.12,00,000/- vide cheque details given in the agreement above) at the time of execution of this receipt against the sale of Shop No.F-1, LSC, Manish Chamber No.II, Plot No.5, Sector-12,Dwarka from Sunila Jain w/o Sh. Ashok Jain under the terms and conditions of Agreement to Sell & CS DJ ADJ No. 516710/2016 Page No. 49/79 Purchase dated 30.11.2012 against Agreement No.IN-DL-
50500060233359K.
The Executant doth hereby confirm the receipt of the said amount.
In Witness Whereof, I have signed this receipt at Delhi on this in the presence of witnesses given below:
EXECUTANT WITNESSES
1. Rishabh Jain, Flat No.1, Pkt-4 Sector-12, Dwarka, New Delhi-110078
2. Seema Sharma, Flat No.177, Pkt-4, Sector-12, Dwarka"
[Emphasis added by underlining and highlighting of text]
85. The legal demand notice dated 12.03.2014 (Ex.PW1/7) is reproduced in verbatim as under:
"Legal Notice Dear Sir, Under instruction and on behalf of my client namely Smt. Sunila Jain, W/o Sh. Ashok Jain, R.o Flat No.1, Pocket - 4, shubham Apartments, Sector 12, Dwarka, New Delhi - 110078, I hereby serve upon you with the following notice :-
1. That my client is a law abiding, peace loving citizen of India and is residing at the above mentioned address with her family members.
2. That my client is legally wedded wife of Sh. Sh. Ashok Jain and residing at the above said address.CS DJ ADJ No. 516710/2016 Page No. 50/79
3. That in the month of November, 2012, you, the addressee was in the dire need of money and hence approached to my client and offered for sale of your shop/ office bearing No.F-1, ISC, Manish Chamber No.II, Plot No.5, Sector -12, Dwarka, New Delhi - 110078.
4. That my client and her family members were known to you, the addressee for last many years being the neighbour and my client agreed to purchased the above mentioned property from you, the addressee for a sum of Rs. 30,00,000/-
(Rupees Thirty Lacs Only).
5. That on 30.11.2012, my client entered into an agreement to sale and purchase dated 30.11.2012 with you, the addressee and my client paid Rs.3,00,000/- (Rupees Three Lacs Only) in cash as Bayana/ earnest money to you, the addressee at the time of execution of the agreement to sale and purchase.
6. That on the same day, my client also made part payment to you, the addressee of Rs 12,00,000/- (Rupees Twelve Lacs Only) by way of two cheques bearing No.291564 for Rs. 8,42,000/- (Eight Lakh, Forty Two Thousands Only) dated 01.12.2012 and another cheque bearing No. 291565 for Rs. 3,58,000/- ( Rupees Three Lacs and Fifty Eight Thousand Only) dated 01.12.2012 both drawn on Punjab & Sind Bank, Sector-6 Dwarka, New Delhi which was duly honoured with your banker.
7. That after receiving the payments as mentioned above towards the sale of the aforesaid property, you, the addressee had duly signed the receipt for receiving of the payments totalling Rs. 15,00,000/- (Rupees Fifteen Lacs Only) dated 30.11.2012 in presence of the witnesses.
8. That thereafter, on dated 01.12.2012, you, the addressee handed over the vacant peaceful physical possession of the above mentioned property to my client and CS DJ ADJ No. 516710/2016 Page No. 51/79 my client locked the same by four locks on two shutters of the above mentioned property.
9. That on 15.10.2013 when my client alongwith her husband visited the shop they came to know that you have taken the possession by way of breaking the locks, which were put on 01.12.2012 at the time of vacant peaceful physical possession handed over to my client by you, the addressee.
10. That my client is ready and willing to pay the rest of the amount i.e. Rs 15,00,000/- (Rupees Fifteen Lacs Only) as per the agreement dated 30.11.2012 to you, the addressee and requested to intimate my client regarding the execution of the said document fixed a date within 07 days from the receipt of this legal notice.
I, therefore, call upon you, through this legal notice to handover the vacant peaceful physical possession of the above said property to my client within 07 days from the receipt of this legal notice and further called upon you to get registered the property before the Sub- Registrar, Kapashera, New Delhi on or before 30.03.2014 as mentioned in agreement to sale and purchase. I further call upon you that my client is ready to make the balance payments of Rs. 15,00,000/- to you on 28.03.2014 by way of D.D. vide No. 772999 dated 12.03.2014 issued from Yes Bank Ltd., Branch at Sector - 12, Dwarka, New Delhi - 110078, at the time of registration of the sale deed to you, the addressee , get registered the documents on the same day, as the 30.03.2014 is declared as holiday, in case, you, the addressee failed to handover the vacant peaceful possession of the above said property to my client and failed to get executed the sale documents in favour of my client, in that event my client has given me clear instruction to file the suit for specific performance/ Recovery against you, the addressee at your risks, costs and consequences.
CS DJ ADJ No. 516710/2016 Page No. 52/79You are once again called upon that Rs.11,000/- towards sending this Legal Notice as of my professional fees will be borne by you.
A copy of this notice is being kept in my office for record and future reference.
(AJAY SINHA) Advocate"
86. The defendant's reply to legal demand notice dated 19.03.2014 (Ex.PW1/12) is also reproduced in verbatim as under:
"VISHNU KANT PANDEY ADVOCATE 35, Lawyer's Chambers, Supreme Court of India, New Delhi-
110001 Date:19/03/2014 To Ajay Sinha, Advocate Chamber No.511, Lawyers Chamber Block, Dwarka Court, Dwarka, New Delhi SUB: REPLY TO YOUR LEGAL NOTICE DATED 12/3/2014 ON BEHALF OF SUNILA JAIN W/O ASHOK JAIN Dear Sir, My client, Sh. Shashi Kant Sharma has placed before me your legal notice dated 12/3/2014 which was sent by you for & on behalf of your client Smt. Sunila Jain W/o Ashok Jain and as per the instructions of my client please find the reply of your said legal notice and the same is as under :-
Preliminary objections CS DJ ADJ No. 516710/2016 Page No. 53/79 By going through the entire notice, it appears that your client has not supplied you with the true and complete facts. The contents of your legal notice dated 12/3/2014 are absolutely false and after thought and entire story stated in the notice under reply is self generated just in order to grab the property of my client illegally. It is submitted that my client has never agreed to sell the property mentioned in your legal notice. The agreement to sell mentioned in the notice under reply was never executed by my client in favour of your client for the sale of the properly of my client. The alleged agreement to sell is the document which is being created by your client for the purpose of security only.
Para Wise Reply
1. That the content of para w.r.t. the law abidance is absolutely wrong and denied. It is submitted that your client is the person who is playing with the legal procedure in order to take illegal advantages thereof. Rest of the para needs no reply.
2. That the contents of para 2 needs no reply.
3. That the contents of para 3 is absolutely wrong and denied emphatically. It is submitted that my client has never offered his property for sale to your client in the dire need of money.
4. That in reply to the para, it is submitted that my client never offered the property bearing no.F-1, LSC, Manish Chamber No.II, Plot No.5, Sector-12, Dwarka, New Delhi- 110078 to your client. The alleged figure of Rs.30,00,000/- is falsely created by your client.
5. That the contents of para 5 are completely wrong and denied. It is denied that my client has entered into the alleged agreement to sell and obtained the bayana of Rs.3,00,000/- in cash from your client. It is submitted that there were no such transactions entered into by my client with your client. The entire story is absolutely wrong and concocted one.CS DJ ADJ No. 516710/2016 Page No. 54/79
6-7. That the contents of para 6 and 7 are again absolutely wrong & false and hence denied in toto. It is submitted that there was no transactions with your client for the sale of the property as above, hence there no questions arise for taking any part payment in furtherance of the alleged sale. The entire story is made by your client in order to grab the property of my client. The payment details in the para under reply have no connections with the property as above and the same was never made to my client as the part payment for the sale of the property as above.
8-9. That the contents of para 8-9 are absolutely wrong & denied. It is submitted that my client never lost the possession of the aforesaid property. My client never handed over the possession of the above said property to your client. As the property was always in possession of my client hence there is no question arise for the breaking of the locks of the property.
10. That the contents of para 10 has no relevance as it has already submitted that my client has never agreed to sell the property to your client, therefore there is no question arises for the execution of any document of sale in favour of your client. It is hardly matter that your client is ready to pay or not any amount to my client.
That on reading rest of the paras of your notice, it is crystal clear that your client is working in a pre-planned manner as your client has stated to be made already the demand draft of some amount which clearly shows the malafide intention of your client as without any alleged transactions your client is unnecessarily pressurizing my client and trying to create false grounds and stories by making the alleged drafts and sending the notice under reply.
In view of above submissions, you are hereby submitted to direct your client to withdraw the notice under reply with immediate effect or there will be no options with my client but to take the criminal actions against your client CS DJ ADJ No. 516710/2016 Page No. 55/79 for sending the false notices and threatening my client for filing of the false cases against my client.
(V.K. PANDEY, ADVOCATE) Copy to Sunila Jain W/o Sh. Ashok Jain Flat No.1, Plocket-4, Shubham Apartment, Sector-12, Dwarka, New Delhi-110078"
[Emphasis added by underlining and highlighting of text]
87. I, place reliance upon Section 92 of the Evidence Act, 1872 that once there is an agreement in writing between the parties, then the parties cannot plead an oral agreement to show that the agreement was not the agreement as was entered into between the parties but there was some other agreement.
88. I, also place fruitful reliance upon the judgment passed by the Hon'ble High Court of Delhi in Rajender Kumar v. Rama Bala Gupta,27 wherein His Lordship, Valmiki J. Mehta, upheld the trial court's finding and decision whether the transaction between the parties was an agreement to sell, as contended by the appellant/plaintiff and denied by the respondent/defendant or whether the transaction was only a loan agreement.
89. The relevant extract of Rajender Kumar v. Rama Bala Gupta,28 is reproduced as under:
"5. The first issue was as to whether the transaction between the parties was an agreement to sell as contended by the 27 RFA No. 322/2017 date of decision 14.01.2019 28 ibid.CS DJ ADJ No. 516710/2016 Page No. 56/79
appellant/plaintiff and denied by the respondent/defendant or whether the transaction between the parties was only a loan agreement entered into as was the case of the respondent/defendant. The trial court has held this issue, which was subject matter of issue no. 1, against the respondent/defendant and in favour of the appellant/plaintiff and in this regard the trial court has relied upon Section 92 of the Evidence Act, 1872 that once there is an agreement in writing between the parties, then the parties cannot plead an oral agreement to show that the agreement was not the agreement as was entered into between the parties but there was some other agreement. The trial court, accordingly, by reference to the terms of the Agreement to Sell dated 20.02.2008/Ex.PW1/1 and the MOU of the same date/Ex.PW1/2 has rightly held that there was indeed an Agreement to Sell between the parties and simultaneously the respondent/defendant agreed under the second agreement being the MOU that in case the Agreement to Sell does not go through, then in such a situation the respondent/defendant will refund the sum of Rs. 4.50 lakhs, received by the respondent/defendant, to the appellant/plaintiff, as received under the Agreement to Sell. To these findings of the trial court, in my opinion, there cannot be any valid counter arguments because admittedly the Agreement to Sell/Ex.PW1/1 and the MOU/Ex.PW1/2 are admitted to have been signed not only by the respondent/defendant but also the fact of the matter is that the husband of the respondent/defendant was admittedly a witness to both the Documents dated 20.02.2008, and this is so admitted by the husband of the respondent/defendant when he appeared as DW-2. The trial court has dealt with these aspects in detail from paras 8 to 8.5 of the impugned judgment and I agree with this reasoning and the said paras are reproduced as under:-
"ISSUE NO. 1 :-
Whether the transaction between the parties was that of a loan and not of agreement to sell? OPD.CS DJ ADJ No. 516710/2016 Page No. 57/79
8. The onus is upon the defendant to prove the transaction between the parties was that of a loan and not of agreement to sell. In her affidavit, DW1 Ram Bala Gupta has affirmed that on account of solemnization of marriage of her daughter Anuradha on 09.03.2008, she took a friendly loan of Rs.4 lac on 20.02.2008 from the plaintiff and it was agreed that the said loan was to be refunded on or before 18.08.2008. The marriage card of the daughter of the defendant is Ex.DW1/1. It was mutually agreed that at the time of refund of money the defendant would return Rs.4.50 lac in place of loan of Rs.4 lac which included Rs.50,000/-as interest. In her cross- examination, DW1 has stated that she is a graduate. She admitted her signatures on Ex.PW1/1(agreement to sell / bayana) which is bearing her signatures at point X, X1 and X2. The signature at point X3 of her husband has also been identified by her. It would be appropriate to reproduce the relevant portion of Ex.PW1/1 an agreement to sell/bayana executed between the defendant and the plaintiff on 20.02.2008 in respect of the suit property which is as under:- ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ...
8.1 DW1 Ram Bala Gupta has stated that she signed Ex.PW1/1 on the mutual understanding with the plaintiff as he requested her to sign the same. She did not remember whether any undue influence or force was used by the plaintiff for obtaining her signatures onEx.PW1/1. She did not read the document before signing. Her husband did not read it in her presence. The original sale deed of the suit property was with the plaintiff. It was given to him as he requested for some security for loan given by him to her. She did not know whether any document was prepared for the loan taken by her from the plaintiff. She volunteered that her husband must be aware. She did not remember whether any other document was signed by her apart from Ex.PW1/1.CS DJ ADJ No. 516710/2016 Page No. 58/79
8.2 DW2 Shri Surender Dayal Gupta, husband of the defendant also admitted that all the original documents of the suit property were with the plaintiff. They handed over the same to him in good faith. No loan document was executed between the plaintiff and the defendant and himself.
8.3 It is not believable that DW1 Ram Bala Gupta signed Ex.PW1/1 only on the request of the plaintiff. The defendant herself states that she did not remember whether any undue influence or force was used by the plaintiff for obtaining her signatures onEx.PW1/1. The defendant did not read the document before signing. No prudent literate person would ever sign a written or typed document only on the request of somebody. This is beyond comprehension and appears to be a white lie. If any undue influence or force had been exercised upon her she would have certainly remembered the same. Her evasive answer reflects that the plaintiff did not use any undue influence or force upon her to sign Ex.PW1/1. If it was not a deal / transaction in respect of the suit property there was no reason to hand over the original sale deed of the suit property to the plaintiff. If the transaction had got nothing to do with the suit property, it is unbelievable that for a loan of Rs.4 lacs the defendant would handover the documents of the suit property which was worth much more than Rs.4 lacs. DW1 Ram Bala Gupta stated that she did not know whether any document was prepared for the loan taken by her from the plaintiff. If there had been a loan agreement, the parties would have certainly executed some loan agreement, but from the documents on record it can be clearly made out that it was a property transaction and not a loan agreement.
8.4 DW2 Shri Surender Dayal Gupta admitted that Ex.PW1/1 bears his signatures at point X, X1 and X2 and that of the plaintiff at point A. He stated that as and when he signed the document he read it before signing. He admitted that M.O.U Ex.PW1/2 bore his signatures at point Y-2 and that of his wife at point Y and Y-1. He admitted that he signed Ex.PW1/1 and CS DJ ADJ No. 516710/2016 Page No. 59/79 Ex.PW1/2 after reading the contents. It would be relevant to refer to the contents of Ex.PW1/2 which also gives a clear picture regarding the nature of transaction:- ... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ...
8.5 The oral evidence brought on record on behalf of the defendant is contrary to the documentary evidence. Whenever the oral evidence is contrary to the documentary evidence the documentary evidence is always given precedence over the oral testimony. Documentary evidence has more value than the oral evidence. Court is bound to accept the documentary evidence but oral evidence may be taken into consideration but that needs some corroboration. If there are two types of evidence given by the parties, oral and documentary evidence, the value of oral evidence is less than documentary evidence because the law always requires the best evidence. Oral proof cannot be substituted in the place of written document where written documents exists in proof of certain transactions referred to in Section 91 of the Evidence Act as the written document is of higher grade, more certain and more reliable than oral evidence. As per Section 91 of the Evidence Act, when the terms of contract have been reduced to the form of a document, no evidence can be given in proof of the terms of such contract except the document itself. The document itself is the best evidence to prove the fact regarding the terms of contract between the parties. Section 92 of the Indian Evidence Act says that when the terms of any contract have been reduced in the form of a document no evidence of oral agreement shall be admitted, for the purpose of contradicting, varying, adding to or subtracting from its term. The documentary evidence always takes precedence over oral evidence. Accordingly, I hold that the transaction between the parties was not that of a loan but it was an agreement to sell."
[Emphasis added by underlining and highlighting of text] CS DJ ADJ No. 516710/2016 Page No. 60/79
90. This court finds that the defendant in his written statement has admitted receiving an amount of ₹12,00,000/- (Rupees Twelve lakhs only) - See paragraph No. 4 of the preliminary submissions to the written statement. The defendant has also admitted his signatures on the agreement to sell dated 30.11.2012 (Ex.PW1/1) and the receipt dated 30.11.2012 (Ex.PW1/2). It is observed that the defendant in his written statement has admitted receipt of ₹12,00,000/- (Rupees Twelve lakhs only) as loan, whereas in reply dated 19.03.2014 (Ex.PW1/12) to the legal notice dated 12.03.2014 (Ex.PW1/7), the defendant has denied entering into any such transaction.
91. With regard to the nature of transaction between the plaintiff and the defendant under the agreement in question it is observed that there is not even a remote suggestion in the documents relied by the plaintiff that there was any loan or borrowing transaction between the parties for an amount of ₹12,00,000/- (Rupees Twelve lakhs only). It is further observed that on the contrary, the recital and stipulations in the agreement to sell (Ex.PW1/1) and of the receipt of earnest money and part payment against the total sale consideration are in affirmation. It is observed that not only the defendant but also his wife deposed as DW2 admitted their signatures on Ex.PW1/1 and Ex.PW1/2. It has also come in evidence that DW1 and DW2 have admitted of having received money from the plaintiff. It is observed that the evidence on the part of the defendant with regard to non-payment of ₹3,00,000/- (Rupees Three lakhs only) and qua possession of the suit property CS DJ ADJ No. 516710/2016 Page No. 61/79 remains rather vague and sketchy. It is also observed that the defendant has acknowledged receipt of the legal notice dated 12.03.2014 (Ex.PW1/7) and that the defendant replied to the said notice by reply dated 19.03.2014 (Ex.PW1/12). On careful perusal and scrutiny of the reply dated 19.03.2014, this court observes that the defendant has denied entering into any transaction with the plaintiff. The testimony of defendant (DW1) recorded on 02.03.2015 29 clearly records that the defendant received an amount of ₹12,00,000/- (Rupees Twelve lakhs only). DW1 also admitted that the word 'security' has not been mentioned in the agreement to sell (Ex.PW1/1) and receipt (Ex.PW1/2).
92. With regard to the question whether the possession of the suit property in question was delivered to the plaintiff or not, cannot be taken as a factor decisive as regards nature of transaction.
93. It is not out of place to observe that on one hand the defendant has averred that the plaintiff and her family members are money lenders and he has had prior financial dealings with them, and on the other hand why would the defendant append signatures on the documents - agreement to sell (Ex.PW1/1) and receipt (Ex.PW1/2). The signatures of the defendant and his wife are not refuted on the Ex.PW1/1 and Ex.PW1/2 by them.
94. This court also observes that though the learned counsel for the defendant at length argued that the plaintiff could not have preferred a 29 See p. 121 - 135 of the judicial file CS DJ ADJ No. 516710/2016 Page No. 62/79 suit for recovery of money and it would have been a suit for specific performance along with relief under Section 27 - 29 of the Specific Relief Act, 1963, whereas the defendant has averred in his written statement and urged the defence that the entire story has been cooked up by the plaintiff to grab the property. It is observed that the plaintiff did issue a notice to the defendant along which a copy of the demand draft of the balance sale consideration of ₹15,00,000/- (Rupees Fifteen lakhs only) was also sent. It is observed that the plaintiff by the present suit has merely sought the recovery of money advanced by her to the defendant along with interest and as a matter of fact, the defendant has not disputed the receipt of ₹12,00,000/- (Rupees Twelve lakhs only). It is observed that the defendant has admitted receiving the amount of ₹12,00,000/- (Rupees Twelve lakhs only) from the plaintiff and that too via banking channel.
95. With regard to the reliance placed by the learned counsel for the defendant upon Bachhaj Nahar v. Nilima Mandal,30 it is observed that the same is not applicable to the case at hand as no such question arises for adjudication herein. This court further observes that reliance upon Hardesh Ores Pvt Ltd. v. Hede and Company 31 is also misplaced, there is substantial cause of action in favour of the plaintiff to maintain to her money claim against the defendants, merely for the reason that the defendant has overtly admitted receipt of ₹12,00,000/-
30. (2008) 17 SCC 491 31. CA No.2517/2007 CS DJ ADJ No. 516710/2016 Page No. 63/79 (Rupees Twelve lakhs only) and has not led any evidence to prove the return of the same to the plaintiff.
96. I, am not in consonance with the submissions advanced by the learned counsel for the defendant and also the reliance placed upon Lakhbir Singh v. Arun Khanna32 on the submission that the present suit preferred by the plaintiff is hit by Order II, Rule 2, CPC. It is observed that the submissions advanced by the learned counsel for the defendant lost me in the high seas with regard to the applicability of Order II, Rule 2, CPC.
97. The object of Order II, Rule 2, CPC is two fold. First is to ensure that no defendant is sued and vexed twice in the regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action.
98. The effect of Order II, Rule 2 of CPC is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.
99. The Hon'ble Supreme Court in Gurbux Singh v. Bhoora Lal33 [AIR 1964 SC 1810] held:
"In order that a plea of a bar under O. 2, R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the
32. RFA (OS) 111/2014 33 AIR 1964 SC 1810 CS DJ ADJ No. 516710/2016 Page No. 64/79 previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) 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. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."
100. Unless the defendant pleads the bar under Order II, Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action.
101. In the present case it is apparent from the order dared 05.04.2014 (Ex.PW1/13) that the plaintiff submitted that she does not intend to pursue the suit against the defendant, as she wants to file a fresh suit for specific performance of agreement to sell / recovery of the advance amount. It is observed that the learned counsel for the defendant gave his no objection in case the suit is disposed of as withdrawn. The Ld. Civil Judge dismissed the suit as withdrawn with a liberty to plaintiff to file a fresh suit on the same cause of action.
CS DJ ADJ No. 516710/2016 Page No. 65/79Thus, it does not lie in the mouth of the defendant to urge that the present suit of the plaintiff is hit by Order II, Rule 2, CPC.
102. The learned counsel for the defendant placed reliance upon Indira Rai v. Bir Singh,34 Dalip Singh v. State of Uttar Pradesh & Ors.,35 S.P. Chengalvaraya Naidu v. Jagannath,36 Parmanand Kansotia v. Seetha Lath & Anr.,37 and submitted that the courts cannot come to the rescue of a plaintiff who has not approached the same with clean hands and based her claim on falsehood. It is observed that the learned counsel for the defendant threw the entire weight of his submissions on the ground that the plaintiff did not approach this court with clean hands and she deposed falsely about her not having a money lender's license.
103. This court cannot lose sight of the fact that the parties to the suit are not strangers and it is admitted case that they were well known to each other and had family relations between themselves. It is also averred by the parties in their pleadings that they were neighbours the transaction between them happened on account of their good cordial relations. However, over the period of time their relationship soured and the parties are engaged in multiple rounds of litigation between themselves and their family members over various money dealings.
34. 176 (2011) DLT 301
35. (2010) 2 SCC 114
36. AIR 1994 SC 853 37 188 (2012) DLT 661 CS DJ ADJ No. 516710/2016 Page No. 66/79
104. It is well settled that maxim falsus in uno, falsus in omnibus, that is to say, false in one thing, false in everything is neither a sound rule of law nor a rule of practice. The maxim falsus in uno, falsus in omnibus is not applicable in India and has not received general acceptance and it is merely a rule of caution and does not have the status of a rule of law - See Rajinder Singh v. Haryana.38 All that it amounts to is that in cases where part of a witnesses' testimony has been shown to be untrue the testimony may be disregarded, not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called a mandatory rule of evidence - See Nisar Ali v. State of Uttar Pradesh.39
105. It is observed that if part of a story is found doubtful, it will not necessarily falsify the whole account, but in that case the rest of the story told by the witness (to be read as a party) must be examined carefully before it is relied upon. There is no better criterion of the truth, no safer rule for investigating cases of conflicting evidence, where perjury and fraud perforce must exist on one side or the other, that to consider what facts are beyond dispute and to examine which of the two cases best accords with these facts, according to the ordinary course of human affairs and the usual habits of life.
106. This court cannot lose sight that not only the defendant but also his wife, who deposed as defendant's witness (DW2) admitted their 38 (2009)11 SCC 382 39 AIR 1957 SC 366 CS DJ ADJ No. 516710/2016 Page No. 67/79 signatures on the agreement to sell and the receipt in question. The defence urged by the defendant is hit by the best evidence rule. The plaintiff having a money lender's licence is irrelevant for the adjudication of the dispute, as the defendant never disputed receiving money from the plaintiff. The defendant has urged in his defence that firstly, the money transferred by the plaintiff to the defendant was a loan and not payment towards sale consideration of the suit property. Secondly, the amount paid by the plaintiff to the defendant was ₹12,00,000/- (Rupees Twelve lakhs only) and not ₹15,00,000/- (Rupees Fifteen lakhs only), the defendant has denied receiving an amount of ₹3,00,000/- (Rupees Three lakhs only) in cash from the plaintiff. I am of the considered view that the question of whether the plaintiff had a money lender's licence or not is wholly irrelevant for the adjudication of the dispute and thus the ratio of Indira Rai v. Bir Singh,40 Dalip Singh v. State of Uttar Pradesh & Ors., 41 S.P. Chengalvaraya Naidu v. Jagannath,42 Parmanand Kansotia v. Seetha Lath & Anr.,43 have no applicability to the present case.
107. The learned counsel for the defendant submitted that the transaction in question is of an unaccounted money and accordingly placed reliance upon the judgment passed by the Apex Court in G. Pankajakshi Amma v. Mathai Mathew. 44 It is observed that on one
40. 176 (2011) DLT 301
41. (2010) 2 SCC 114
42. AIR 1994 SC 853 43 188 (2012) DLT 661
44. CA Nos.4101-02/1998 CS DJ ADJ No. 516710/2016 Page No. 68/79 hand the defendant has admitted of having received money from the plaintiff and on the other hand the defendant is assailing the transaction between the parties was of an unaccounted money. It is observed that the plaintiff's claim is of recovery of money and the defendant has neither pleaded nor led any evidence that he returned the money whether borrowed or part payment towards sale of the suit property to the plaintiff. In short, the reliance placed by the learned counsel for the defendant upon G. Pankajakshi Amma v. Mathai Mathew45 does not come to the rescue of the defendant, as there are clear admissions by the defendant of having received money from the plaintiff.
108. Sh. Jain, the learned counsel for defendant placed reliance upon Shaival Sahay v. Govind Verma & Ors.46 and submitted that the plaintiff cannot seek recovery of money from the defendant without filing a suit for specific performance. It is observed that the judgment in Shaival Sahay v. Govind Verma & Ors.47 was passed on a leave to defend application, wherein the Hon'ble High Court granted unconditional leave to the defendants to defend the suit. The plaintiff therein had preferred a money recovery suit under Order XXXVII, CPC against the defendants with regard to advancement of loan and when the defendants failed to return the loan, a joint property to be developed by the plaintiff and the defendants would be sold and the
45. ibid.
46. 209 (2014) DLT 795
47. ibid.
CS DJ ADJ No. 516710/2016 Page No. 69/79amount realised would be adjusted towards the return of the loan. It is observed on perusal of paragraph No. 6 of the judgment, particularly,
(viii), (ix) and (xi) that the facts of the case are clearly distinguishable from the present case. It is held that no fruitful reliance can be placed upon the said judgment.
109. The learned counsel for the defendant submitted that issue with regard to Section 55(6) of TPA has been adequately dealt by the Hon'ble Supreme Court in Videocon Properties Ltd v. Dr Bhalchandra Laboratories & Ors.48 The learned counsel submitted that the payment made by the plaintiff to the defendant would attract the applicability of Section 55(6)(b), TPA.
110. The argument advanced by the learned counsel for the defendant that the plaintiff's suit is hit by Section 55(6)(b) of TPA is a hara kiri and the reason I observe so is because on one hand the defendant states that the underlying transaction was a loan transaction and the agreement to sell dated 30.11.2012 was a mere security document and on the other hand the defendant wants to stifle the plaintiff's claim under Section 55(6), TPA. It is well settled that to blow hot and cold in the same breath is impermissible and thus this challenge to waylaid the plaintiff's suit by the defendant is to be rejected. This court also observes that it is not the case of the defendant that he is ready and willing to sell the suit property to the
48. (2004) 3 SCC 711 CS DJ ADJ No. 516710/2016 Page No. 70/79 plaintiff and above all no counter-claim has been filed by the defendant against the plaintiff.
111. With regard to the non registration and inadequate stamp duty paid on the agreement to sell, the learned counsel for the defendant placed reliance upon the judgment passed by the Hon'ble High Court of Delhi in Deewan Arora v. Tara Devi Sen & Ors.49 It is observed on careful reading of the judgment of His Lordship, S.R. Bhat, J. (As His Lordship then was) that inadequate stamping and non-registration of an agreement to sell is not dispositive and the Court has to independently examine whether even otherwise the material on record entitles the plaintiff to the decree sought for by him. 50 The ratio of a judgment cannot be read and applied as Euclid's theorem to the case at hand and I hold that the judgment of Deewan Arora v. Tara Devi Sen & Ors.51 is clearly distinguishable from the facts at hand.
112. The learned counsel for the defendant further submitted that the issue of non registration of an agreement to sell has been adequately dealt by the Hon'ble High Court of Delhi in Shiv Kumar v. Sumit Gulati52 and the Court declined to grant any protection under Section 53A of the Transfer of Property Act, 1882. The aforesaid judgment was passed by the Hon'ble High Court of Delhi in a second appeal having arisen from a suit for ejectment/possession, which was decreed
49. 163 (2009) DLT 520 50 See 163 (2009) DLT 520, pp. 7, p. 523
51. 163 (2009) DLT 520
52. 225 (2015) DLT 591 CS DJ ADJ No. 516710/2016 Page No. 71/79 by the trial court under Order XII, Rule 6, CPC and the same was upheld the first appellate court. It is observed that the Hon'ble High Court dismissed the second appeal. It is observed that in the appeal before the Hon'ble High Court, the relief sought by the appellant/defendant was that of possession/ejectment. The Hon'ble High Court observed that the alleged agreement to sell entered between the parties in the month of November 2007 was unregistered and the effect of non-registration of the agreement to sell, even if the same is presumed to have been so executed, as claimed by the appellant/defendant and disputed by the respondent/plaintiff, is that the appellant/defendant cannot claim to have come into possession of the suit property under the alleged agreement and cannot claim to be in possession in part performance of the alleged agreement to sell and thus, the appellant/defendant cannot claim protection under Section 53A, TPA.
113. In the preceding paragraph, I have found and observed that neither the plaintiff nor the defendant has clearly averred about the status of the suit property for the interregnum period i.e. 30.11.2012 to October 2015. It is observed that none of the parties have led any shred of evidence to show and prove that they were in the possession of the suit property during the said period. Above all, the present suit is not a possessory suit and is a simple money claim preferred by the plaintiff against the defendant. In short, the plaintiff has neither based her case on part-performance nor filed a suit for possession inclusive CS DJ ADJ No. 516710/2016 Page No. 72/79 the relief of specific performance. It is observed that the plaintiff has sought return of money after the defendant declined to accept the balance sale consideration of ₹15,00,000/- (Rupees Fifteen lakhs only) against the total sale consideration of ₹30,00,000/- (Rupees Thirty lakhs only).
114. In view of the above discussions and observations, I am of the considered view that the agreement in question was not executed as a measure of security for repayment of loan and the same was towards the sale-purchase of suit property. Accordingly, issue No. 1 is decided against the defendant and in favour of the plaintiff.
Issue No. 2Whether the plaintiff is entitled to the recovery of suit amount?
115. The onus to prove issue No. 2 was saddled upon the plaintiff. The plaintiff has preferred a claim of ₹15,00,000/- (Rupees Fifteen lakhs only) against the defendant along with interest @18%p.a.
116. Before I proceed further, I deem appropriate to observe that the defendant has not denied receipt of ₹12,00,000/- (Rupees Twelve lakhs only) from the plaintiff. It is observed that there is clear and unequivocal admission by the defendant that he received an amount of ₹12,00,000/- (Rupees Twelve lakhs only) from the plaintiff through banking channel. Thus, the fact of ₹12,00,000/- (Rupees Twelve lakhs only) being paid by the plaintiff to the defendant is not disputed by the defendant. It is also observed that it is not the case of the defendant that he has returned the amount of ₹12,00,000/- (Rupees Twelve lakhs CS DJ ADJ No. 516710/2016 Page No. 73/79 only) to the plaintiff. In short, the liability of ₹12,00,000/- (Rupees Twelve lakhs only) stands admitted by the defendant.
117. Now coming to the balance amount of ₹3,00,000/- (Rupees Three lakhs only) of the plaintiff's claim of ₹15,00,000/- (Rupees Fifteen lakhs only), the defendant has denied receipt of ₹3,00,000/- (Rupees Three lakhs only) in cash from the plaintiff. The plaintiff to prove her money claim has relied upon the receipt dated 30.11.2012 (Ex.PW1/2), which is for an amount of ₹15,00,000/- (Rupees Fifteen lakhs only) issued by the defendant in favour of the plaintiff. The defendant has though declined the receipt of ₹3,00,000/- (Rupees Three lakhs only) in cash but admitted the receipt of ₹12,00,000/- (Rupees Twelve lakhs only) from the plaintiff. It is observed that the factum of encashment of cheques is also not disputed by the defendant.
118. This court observes and finds that not only the defendant but also his wife have admitted their signatures on Ex.PW1/1 i.e. agreement to sell dated 30.11.2012 and Ex.PW1/2 i.e. receipt dated 30.11.2012, wherein the reference is about the total sale consideration of ₹30,00,000/- (Rupees Thirty lakhs only) and out of which ₹15,00,000/- (Rupees Fifteen lakhs only) had been paid by the plaintiff to the defendant. The onus to prove issue No. 2 was saddled upon the plaintiff and who shifted the onus by proving the documents
- Ex.PW1/1 and Ex.PW1/2. It is observed that no evidence has been led by the defendant to refute and negate the claim of the plaintiff and CS DJ ADJ No. 516710/2016 Page No. 74/79 also prove the non-receipt of ₹3,00,000/- (Rupees Three lakhs only) has been led by the defendant. It is observed that the defendant has led no evidence that his signatures were obtained forcibly, fraudulently and/or by misrepresentation by the plaintiff and her family members on 30.11.2012. It is observed that the defendant has not led any evidence to show and prove that he lodged his protest with the defendant with regard to non-receipt of ₹3,00,000/- (Rupees Three lakhs only) in cash from the plaintiff. It is also observed that there is complete inaction on the part of the defendant to lodge his protest in any manner with the plaintiff that he did not receive any cash and why the same was mentioned in both the documents i.e. agreement to sell and receipt.
119. I am in complete consonance with the reliance placed by the learned counsel for the plaintiff on Harbans Lal v. Daulat Ram53 as His Lordship, T.S. Thakur, J., (As His Lordship then was) in paragraph 8 held that the demand of the earnest money back from the seller in itself constitutes 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. It was held that 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 and institution of a suit for specific performance for
53. 2007 I ILR (Delhi) 706 CS DJ ADJ No. 516710/2016 Page No. 75/79 taking a refund of the earnest money in such an event would be wholly unnecessary.
120. As the issue No. 1 has been ruled against the defendant and in favour of the plaintiff, the nature of transaction being a loan transaction has been negated and the plaintiff has proved that she did send the balance sale consideration by way of a demand draft to the defendant, the plaintiff's claim of return of money sans a suit for specific performance and/or rescission of contract is maintainable. I accordingly decline the challenge and arguments advanced by the learned counsel for the defendant that the plaintiff ought to have filed a suit for specific performance and/or rescission of contract.
121. In my opinion, the plaintiff successfully discharged the onus to prove issue No. 2 upon her and it is the defendant, who miserably failed to prove that he did not receive any amount of ₹3,00,000/- (Rupees Three lakhs only) in cash from the plaintiff.
122. This court observes and holds that not only the defendant but also his wife has admitted the agreement to sell and the receipt in question and they have also admitted their signatures on the duo. The defendant has not led any evidence in contrary that no amount in cash to the tune of ₹3,00,000/- (Rupees Three lakhs only) was paid by the plaintiff to her. It is also observed that the defendant has not led any evidence to show and prove that his wife' and his signatures were sought by the plaintiff and her family members under duress, force, coercion, etc. The documents do prove that money i.e. ₹15,00,000/-
CS DJ ADJ No. 516710/2016 Page No. 76/79(Rupees Fifteen lakhs only) was paid by the plaintiff to the defendant in terms of agreement to sell and receipt and the same remains unpaid by the defendant to the plaintiff even after the notice dated 12.03.2014 (Ex.PW1/7) and reply to the notice dated 19.03.2014 (Ex.PW1/12).
123. In view of the above discussions and observations, this court finds that the plaintiff is entitled for the recovery of ₹15,00,000/- (Rupees Fifteen lakhs only) from the defendant. The issue No. 2 is accordingly decided in favour of the plaintiff and against the defendant.
Issue No. 3If answer to issue No.(ii) is in affirmative, whether plaintiff is entitled to interest thereupon? If so, at what rate and for what period?
124. The onus to prove issue No. 3 was also casted upon the plaintiff. The plaintiff has sought interest at the rate of 18%p.a. on the amount of ₹15,00,000/- (Rupees Fifteen lakhs only).
125. Though, the present suit is a money recovery suit but the same is not based upon a bills of exchange or any other negotiable instruments. The defendant has admitted that he had taken a sum of ₹12,00,000/- (Rupees Twelve lakhs only) from the plaintiff and that too was transferred to the bank account of the defendant by the plaintiff through banking channel. In the preceding paragraphs, this court has found and held that the plaintiff is entitled for recovery of ₹15,00,000/- (Rupees Fifteen lakhs only), and it is accordingly held CS DJ ADJ No. 516710/2016 Page No. 77/79 that the plaintiff be entitled to interest @7%p.a., as the interest @18% p.a. is way on the higher side.
126. Accordingly, the issue No. 3 is decided in favour of the plaintiff and against the defendant.
Issue No. 4Relief
127. In view of the observations and findings in the preceding paragraphs of this judgment, the plaintiff is held entitled for her money claim of ₹15,00,000/- (Rupees Fifteen lakhs only) against the defendant.
128. Order XX, Rule 11(1), CPC states that where a decree is for the payment of money, the Court may for any sufficient reason incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that payment of the amount decreed shall be postponed or shall be made by instalments with or without interest, notwithstanding anything contained in the contract under which the money is payable.
129. However, it is not out of place to observe that the subsequent to the final arguments advanced by the counsels for the parties appeared in court and expressed his intention to amicably settle the matter with the plaintiff. Though, the plaintiff was not present on 16.10.2019 and 23.10.2019, the husband of the plaintiff and the son were present in court and declined to settle the matter amicably with the defendant.
CS DJ ADJ No. 516710/2016 Page No. 78/79130. That said, in light of the above findings and discussions, the plaintiff is held entitled for the money decree from the defendant for a sum of ₹15,00,000/- (Rupees Fifteen lakhs only) along with simple interest @7%p.a. from the date of the filing of the suit until the date of its actual realisation. I, deem appropriate to exercise the power vested in this Court under Order XX, Rule 11, CPC and direct the defendant to pay the decreetal amount in four instalments to the plaintiff, wherein the first instalment be payable on 01.01.2020; the second instalment be payable on 30.03.2020; the third instalment being payable on 30.06.2020 and the fourth instalment be payable by the defendant to the plaintiff on or before 30.09.2020. . The costs of the suit are also awarded to the plaintiff. Decree sheet be drawn, accordingly.
131. File be consigned to record room only after due compliance and necessary action, as per Rules. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2019.11.11 16:12:13 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on November 11, 2019 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 516710/2016 Page No. 79/79