Delhi District Court
Kush Nandan vs Satya Dev on 22 February, 2025
DLSE010069542018
THE COURT OF DISTRICT JUDGE-03
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
(PRESIDED OVER BY: SACHIN MITTAL)
CS DJ No. 1268/2018
In the matter of:
Kush Nandan
S/o Sunil Kumar,
R/o- H. No.-A-2/1313,
Block-A/2, J.J. Colony,
Madanpur Khadar,
New Delhi-110076. .... Plaintiff.
VERSUS
Satya Dev
S/o Late Shri Deepchand,
R/o- H. No. A-1/710, Block-A/1,
J.J. Colony, Madanpur Khadar,
New Delhi-110076. .... Defendant.
SUIT FOR SPECIFIC PERFORMANCE, FORECLOSURE/SALE,
RECOVERY OF POSSESSION, OR IN THE ALTERNATIVE,
RECOVERY OF AMOUNT OF RS.5,99,500/- ALONGWITH
PENDENTE LITE AND FUTURE INTEREST.
Date of Institution : 24.08.2018
Date on which arguments concluded : 21.10.2024
Date of Judgment : 22.02.2025
Result : Dismissed
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Satya Dev Digitally signed
SACHIN by SACHIN
MITTAL
MITTAL 16:02:14
Date: 2025.02.25
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JUDGMENT
1. Vide this Judgment, I shall decide the suit, filed on behalf of the plaintiff, praying therein for the reliefs of specific performance of contract, foreclosure/sale, recovery of possession, or in the alternative, recovery of a sum of Rs.5,99,500/- alongwith pendente lite and future interest and costs of the suit, against the defendant.
PLAINT:
2. The necessary facts, as pleaded in the plaint, upon which the suit of plaintiff is based, can be summarized as under:
(a) The defendant represented to the plaintiff that he is the owner of the property bearing no. A-1/710, land admeasuring 22 sq. meter, Block A/1, J.J. Colony, Madanpur Khadar, New Delhi-110076 (hereinafter 'the suit property'). He had further represented that the suit property was allotted to him by the DDA on 25.11.2000;
(b) In July, 2016, the defendant approached the plaintiff and requested him for a friendly loan of Rs.2,50,000/- for a period of one year on the ground that he was in dire need of money for marriage of his daughter. He had also offered to sell the suit property if he would be unable to repay the said loan amount within one year;
(c) The plaintiff agreed to advance the said loan to the defendant.
On 09.07.2016, the defendant, after receiving loan amount of Rs.2,50,000/-, executed a mortgage agreement, wherein he agreed that if he would fail to repay the said loan by CS DJ No. 1268/2018 Kush Nandan Page 2 of 20 v.
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08.06.2017, he would hand over vacant possession of the suit property to the plaintiff;
(d) The defendant, at the time of execution of the aforesaid mortgage agreement, had also handed over the title documents of the suit property to the plaintiff with an intent to create a security. The defendant had also executed various other documents i.e. GPA, agreement to sell and purchase, affidavit, possession letter, Will and payment receipt, in favour of the plaintiff. However, the defendant had kept the physical possession of the suit property with himself only;
(e) When the defendant failed to return the aforesaid loan amount, the plaintiff got a legal notice dated 08.03.2017, therein demanding physical possession of the suit property, sent to the defendant;
(f) The defendant, upon receiving the aforesaid legal notice, approached the plaintiff. He gave an undertaking dated 19.03.2017, in the presence of respectable persons of the locality. In the said undertaking, the defendant admitted that he had sold the suit property to the plaintiff and also promised that if he could not repay the loan amount of Rs.2,50,000/- alongwith interest of Rs.1,57,000/-, totaling Rs.4,07,000/- by 04.05.2017, he would hand over the physical possession of the suit property to the plaintiff by 05.05.2017;
(g) The defendant, despite the expiry of more than one year after the aforesaid undertaking, neither repaid the said loan amount and interest thereupon, totaling Rs.4,07,000/-, nor did he hand CS DJ No. 1268/2018 Kush Nandan Page 3 of 20 v.
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Digitally signed
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SACHIN MITTAL
MITTAL Date:
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over the physical possession of the suit property to the plaintiff till date;
(h) The plaintiff is, thus, entitled to further interest at the rate of 7% per month i.e. a sum of Rs.1,92,500/-, on the aforesaid amount of Rs.4,07,000/-. The total amount arrives at Rs.5,99,500/-;
(i) The plaintiff is also entitled to the recovery of physical possession of the suit property from the defendant;
(j) The plaintiff is also entitled to pendente lite and future interest at the rate of 18% per annum;
(k) The cause of action arose in July, 2016, when the defendant had approached the plaintiff for loan; on 09.07.2016, when the loan of Rs.2,50,000/- was advanced and a mortgage agreement was executed; on 06.07.2016, when the defendant sold the suit property to the plaintiff by executing the documents i.e. GPA, agreement to sell and purchase, affidavit, possession letter, Will and payment receipt in favour of the plaintiff; and on 19.03.2017, when the defendant gave an undertaking to the plaintiff. The cause of action is still continuing;
(l) The defendant resides and works within the local limits of this Court. The cause of action has arisen within the local limits of this Court. This Court, therefore, has the territorial jurisdiction;
(m) The suit for the purpose of court fees and pecuniary jurisdiction is valued at Rs.5,99,500/- and an ad valorem court fees of Rs.8,196/- has been affixed;
(n) The suit is within the limitation period;
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Satya Dev Digitally
signed by
SACHIN
SACHIN MITTAL
MITTAL Date:
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16:02:43
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3. It is in the background of the aforesaid facts that the plaintiff has made following prayers in the plaint:
"It is, therefore, most respectfully prayed that this Hon'ble Court may be kindly be pleased to pass:-
a. A decree for a specific performance of contract; b. A decree of foreclosure/sale direct the defendant to formally execute the sale deed of the suit property and hand over the vacant physical possession of the suit property to the plaintiff in terms of Mortgage Agreement dated 09.07.2016;
c. In the alternative, pass the decree of sum of Rs.5,99,500/- (Rs. Five Lakh Ninety Nine Thousand Five Hundred Only) in favour of the plaintiff and against the defendant;
d. Pendentelite and future interest @18% p.a. be awarded to the plaintiff from the date of institution of the present suit till its realisation;
e. Cost of the suit be passed in favour of the plaintiff and against the defendants;
f. Such other reliefs be also granted to the plaintiff as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
WRITTEN STATEMENT:
4. The defence of the defendant as pleaded in the written statement can be summarized as under:
(a) The plaintiff had misused the friendly relations by obtaining the signatures of the defendant on plain papers on the pretext of arranging the loan from some bank/ financial institutions. The plaintiff had also taken original papers of the suit property and photographs from him, which he has never returned;
(b) The defendant is an illiterate person and had signed the blank papers in good faith;
(c) The plaintiff has forged the fabricated documents so as to create false evidences;CS DJ No. 1268/2018 Kush Nandan Page 5 of 20
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(d) The various documents i.e. GPA, agreement to sell and
purchase, affidavit, possession letter, Will and payment receipt etc. are pre-dated as 06.07.2016;
(e) The aforesaid documents dated 06.07.2016, being unregistered documents, are not admissible in evidence;
(f) The defendant has never mortgaged or sold the suit property to the plaintiff;
(g) The defendant had never made any such representation to the plaintiff as alleged in the plaint;
(h) The plaintiff in the plaint has stated that the defendant needed the money for marriage of his daughter, however, in the alleged handwritten receipt filed with the plaint, it has been stated that the money was required by the defendant for his son's marriage. The daughter of the defendant is already married having grown up children;
(i) As per the aforesaid documents allegedly executed on 06.07.2016, the possession of the suit property is stated to have been handed over to the plaintiff. However, the plaintiff in the prayer of the plaint is seeking the recovery of the possession of the suit property;
(j) The defendant neither received the alleged legal notice, nor did he ever approach the plaintiff. The defendant has also not given the alleged undertaking to the plaintiff and the same as filed with the plaint is a forged and fabricated document;
(k) The plaintiff is not entitled to the recovery of the claimed amount alongwith interest. He is also not entitled to the recovery of possession of the suit property;
(l) No cause of action has arisen in favour of the plaintiff.
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Satya Dev Digitally signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.02.25 16:03:05 +0530 REJOINDER:
5. The plaintiff has filed a rejoinder to the written statement of the defendant, which is more or less in denial of the allegations/averments stated in the written statement and in re-
affirmation of those stated in the plaint. It has also been stated in the rejoinder that the Deed Writer had committed a typographical mistake in writing 'daughter's marriage', instead of 'son's marriage' and that is why in the plaint and elsewhere also the 'daughter's marriage' was inadvertently mentioned. As a matter of fact, the defendant had taken the loan for his son's marriage only.
APPLICATIONS:
6. The defendant alongwith the written statement had also filed an application under Order VIII Rule 1 CPC therein seeking condonation of delay in filing the written statement. The said application was allowed by this Court vide Order dated 07.01.2019.
While the case was at the stage of plaintiff's evidence, the defendant filed another application under Section 151 CPC therein seeking permission to file an additional document i.e. a copy of complaint dated 02.02.2019 filed by the defendant against the plaintiff before the police. The said application was also allowed by this Court vide Order dated 05.12.2019.
ISSUES:
7. On 24.07.2019, this Court framed following issues for trial:
Issue no.1: Whether plaintiff had obtained signature of the defendant on plain papers on the pretext of providing loan from financial institution and thereafter misused the same? OPD Issue no.2: Whether the plaintiff is entitled for a decree of CS DJ No. 1268/2018 Kush Nandan Page 7 of 20 v.
Satya Dev Digitally
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SACHIN
SACHIN MITTAL
MITTAL Date:
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foreclosure/sale of the suit property in favour of the plaintiff by execution of a sale deed and handing over of the physical possession in terms of mortgage agreement dated 09.07.2016 or in the alternative the plaintiff is entitled for recovery of the suit amount as claimed? OPD Issue no.3: Whether the plaintiff is entitled for interest, if so at what rate and for which period? OPP PLAINTIFF'S EVIDENCE:
8. The plaintiff, in order to prove his case, examined two witnesses: (i) plaintiff himself as PW-1, and (ii) Sunil Kumar (father of the plaintiff) as PW-2.
8.1 Plaintiff himself, PW-1 was examined-in-chief by way of tendering of affidavit, Ex.PW1/1, wherein he relied upon following documents:
Sr. No. Document Mark/Exhibit
1. Site plan of the suit property Ex. PW1/A
2. Allotment letter issued by DDA Slum Ex.PW1/B (OSR) Department vide File No. F7 (198) 200/NP/A-523/LM/SEZ/647 dated 25.11.2000
3. Draft Cheque No. 167217 dated Ex.PW1/C (OSR) 03.02.2001
4. Mortgage agreement dated Ex.PW1/D (OSR) 09.07.2016
5. GPA dated 06.07.2016 Ex.PW1/E (OSR)
6. Agreement to sell dated 06.07.2016 Ex.PW1/F (OSR)
7. Affidavit dated 06.07.2016 Ex.PW1/G (OSR)
8. Possession letter dated 06.07.2016 Ex.PW1/H (OSR)
9. Will dated 06.07.2016 Ex.PW1/I (OSR) CS DJ No. 1268/2018 Kush Nandan Page 8 of 20 v.
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10. Payment receipt dated 06.07.2016 Ex.PW1/J (OSR)
11. Legal notice dated 08.03.2017 Ex.PW1/K (OSR)
12. Undertaking dated 19.03.2017 Ex.PW1/M (OSR) 8.2. The plaintiff as PW-1 was cross-examined on behalf of the defendant on 06.06.2023 and then he was discharged. The testimony of the witness, PW-1 will be dealt with, wherever relevant, while returning the findings on the issues. 8.3. Sunil Kumar, PW-2 was examined-in-chief by way of tendering of affidavit, Ex.PW2/1, wherein he relied upon the documents, which were already exhibited as Ex.PW1/B to Ex.PW1/M in the examination of PW-1.
8.4. PW-2 was cross-examined on behalf of the defendant on 21.12.2023 and then he was discharged. The testimony of the witness, PW-2 will be dealt with, wherever relevant, while returning the findings on the issues.
8.5. The plaintiff did not examine any other witness and closed his evidence vide a separate statement of the Ld. Advocate of the plaintiff recorded to this effect on 21.12.2023. DEFENDANT'S EVIDENCE:
9. The defendant, in his defence, examined himself as the only witness as DW-1.
9.1. The defendant himself, DW-1 was examined-in-chief by way of tendering of affidavit, Ex.DW1/A, wherein he relied upon following document:
Sr. No. Document Mark/Exhibit
1. Police complaint against the plaintiff Ex.DW1/1 (OSR)
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SACHIN MITTAL
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9.2. DW-1 was cross-examined on behalf of the plaintiff on 03.06.2024 and then he was discharged. The testimony of the witness, DW-1 will be dealt with, wherever relevant, while returning the findings on the issues. The defendant did not examine any other witness and closed his evidence in affirmative on 03.06.2024. ARGUMENTS:
10. I have heard Sh. Amit Kumar, Ld. Counsel for the plaintiff and Sh. Vikas Dudeja alongwith Sh. Rizwan Ali, Ld. Counsels for the defendant. I have carefully perused the judicial record as well.
FINDINGS ON ISSUES:
11. Issue no.1: Whether plaintiff had obtained signature of the defendant on plain papers on the pretext of providing loan from financial institution and thereafter misused the same? OPD Issue no.2: Whether the plaintiff is entitled for a decree of foreclosure/sale of the suit property in favour of the plaintiff by execution of a sale deed and handing over of the physical possession in terms of mortgage agreement dated 09.07.2016 or in the alternative the plaintiff is entitled for recovery of the suit amount as claimed?
OPD Issue no.3: Whether the plaintiff is entitled for interest, if so at what rate and for which period? OPP 11.1. All the issues framed in the suit are being taken up together.
11.2. The whole case of the plaintiff is based upon mortgage agreement dated 09.07.2016, Ex.PW1/D (OSR); GPA dated 06.07.2016, Ex.PW1/E (OSR); agreement to sell dated 06.07.2016, Ex.PW1/F (OSR); affidavit dated 06.07.2016, Ex.PW1/G (OSR); possession letter dated 06.07.2016, Ex.PW1/H (OSR); Will dated CS DJ No. 1268/2018 Kush Nandan Page 10 of 20 v.
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MITTAL
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06.07.2016, Ex.PW1/I (OSR); payment receipt dated 06.07.2016, Ex.PW1/J (OSR); and undertaking dated 19.03.2017, Ex.PW1/M (OSR). The defence of the defendant as stated in the written statement is that he had not executed these documents; that the plaintiff had taken the signatures of the defendant on various blank papers on the pretext of arranging the loan from some bank/ financial institution; and that the plaintiff later on forged the aforesaid documents on the signed blank papers. Ld. Counsel for the plaintiff argued that the defendant in his cross-examination on 03.06.2024 admitted that he did not know the contents of his affidavit in evidence towards his examination in chief. Basis this, Ld. Counsel argued that the defence of the defendant as stated in the written statement should not be considered. Ld. Counsel then argued that the defendant in his cross- examination also admitted his signatures on aforesaid various documents. Lastly, Ld. Counsel argued that the aforesaid documents, therefore, should be treated as having been proved. However, I do not find any merit in the said submission. Pertinently, the plaintiff has failed to examine any of the witnesses, who purportedly signed the aforesaid various documents as witness. The only witness apart from himself examined by the plaintiff was his father. Indubitably, the plaintiff's father was not one of the witnesses in any of the aforesaid documents. Further, plaintiff's father being an interested witness, much credence cannot be given to his testimony. A mere proof of signature of the opposite party does not prove the execution of the document. It is required to be proved that the opposite party affixed his signature after reading and understanding the contents of the document. A contract cannot be said to have come into an existence unless consensus ad idem between the parties is proved. In view of CS DJ No. 1268/2018 Kush Nandan Page 11 of 20 v.
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this, it is held that the plaintiff has failed to prove the execution of aforesaid various documents.
11.3. Though the aforesaid finding in itself is sufficient to dismiss the present suit, now, I shall proceed on the assumption (though not proved) that the execution of aforesaid various documents has been proved.
11.4. The first relief sought by the plaintiff is the specific performance of the agreement to sell dated 06.07.2016, Ex.PW1/F (OSR). An agreement to sell and purchase is a contract between the prospective buyer and the prospective seller, whereby, they agree upon the terms regarding completion of sale transaction. The prospective buyer and the prospective seller in such a contract agree upon the terms regarding sale consideration, the date/time of delivery of possession, the date/time of registration of the sale deed, among others. As per Section 54 of the Transfer of Property Act, 1882, a sale of an immovable property of the value of Rs.100/- and upwards can be made only by a registered instrument. However, in the agreement to sell and purchase, in the present case, there is no mention of the date/time for completion of the transaction by the execution of a registered instrument. Rather, it has been stated on page no.2 of the said agreement to sell and purchase that the plaintiff has become the absolute owner of the suit property. The specific performance of such an agreement to sell and purchase, therefore, cannot be granted. 11.5. As per the plaintiff's case, the defendant, vide the said agreement to sell and purchase dated 06.07.2016, Ex.PW1/F (OSR) had agreed to sell the suit property to the plaintiff. The suit property was allotted to the defendant vide allotment letter dated 25.11.2000, Ex.PW1/B (OSR), issued by the DDA. The conditions of allotment as stated at point no. 6 & 8 in the said allotment letter clearly state that CS DJ No. 1268/2018 Kush Nandan Page 12 of 20 v.
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the allotment of the land is on temporary basis; the allotment is by way of license on the basis of license fees; the allottee will not have ownership over the allotted land; and the allottee can neither transfer the allotted land, nor can he rent it out to anyone. As per Section 7 of the Transfer of Property Act, a property can be transferred only by a person, who is either entitled to the said property, or who is authorized to dispose of the property not belonging to him. As per Section 8, upon transfer of a property, only those interests are transferred to the transferee, which the transferrer is capable of transferring. In the present case, in view of the clear conditions of the allotment letter, neither the defendant was entitled to the suit property, nor was he authorized to dispose of the same. Therefore, the sale of the suit property by the defendant would also not transfer the ownership in the suit property in favour of the plaintiff. For all these reasons also, the specific performance of the alleged agreement to sell and purchase dated 06.07.2016, Ex.PW1/F (OSR) cannot be granted. 11.6. As per Section 16(c) of the Specific Relief Act, 1963, specific performance of the contract cannot be enforced in favour of a person, who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. In the present case, one of the important terms required to be performed by the plaintiff as a prospective buyer was to pay the sale consideration to the defendant as a prospective seller. The plaintiff has alleged that he had paid the sale consideration of Rs.2,50,000/- to the defendant vide payment receipt allegedly executed on 06.07.2016, Ex.PW1/J (OSR). However, in para 11.2. herein above, it has already been held that the plaintiff has failed to prove the alleged various documents, including the aforesaid payment CS DJ No. 1268/2018 Kush Nandan Page 13 of 20 v.
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receipt. For this reason also, the relief of specific performance cannot be granted to the plaintiff.
11.7. The second relief sought is the foreclosure/sale of the suit property in terms of mortgage agreement dated 09.07.2016, Ex.PW1/D (OSR). The right to foreclosure or sale is a statutory right available to the mortgagee as recognized under Section 67 of the Transfer of Property Act only when it is proved that the mortgage agreement has been executed as per the law.
11.8. According to Section 58 (a) of the Transfer of Property Act, 1882, a 'mortgage' is the transfer of an interest is the specific immovable property for the purpose of securing: (i) the payment of money advanced (or to be advanced) by way of loan; (ii) an existing or future debt, or (iii) the performance of an engagement which may give rise to a pecuniary liability. There are six kinds of mortgage, as outlined in Section 58: (1) simple mortgage; (2) mortgage by conditional sale; (3) usufructuary mortgage; (4) english mortgage; (5) equitable mortgage; and (6) anomalous mortgage.
11.9. As per Section 59, there are three ways in which property may be transferred by way of mortgage: (i) registered instrument; (ii) delivery of possession; or (iii) deposit of title deeds. In the case of a mortgage other than a mortgage by deposit of title deeds, if the principal money secured is Rs.100/- or upwards, a registered instrument is compulsory. When the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required. When the principal money secured is less than Rs.100/-, a mortgage may be effected either by a registered instrument or by deliver of possession.
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However, in the case of a 'simple mortgage', as there is no delivery of possession, it must be effected by a registered instrument, irrespective of the amount secured by such mortgage.
11.10. Now, it becomes necessary to examine as to which kind of mortgage was executed in the present case. In the present case, the mortgage agreement dated 09.07.2016, Ex.PW1/D (OSR) provides that in case the defendant would fail to repay the loan amount of Rs.2,50,000/-, he would handover the possession of the suit property to the plaintiff. Such mortgage does not come within the meaning of 'simple mortgage' as the right of the mortgagee to cause the mortgaged property to be sold and proceeds to be applied in payment of the mortgage money has not been provided in the mortgage agreement. The mortgage in the present case also does not fall within the meaning of 'mortgage by conditional sale' because the mortgaged property has in fact not been sold to the plaintiff/mortgagee. Needless to state, the sale takes place by way of a registered instrument, and not through GPA, agreement to sell etc. The mortgage in the present case is also not the 'usufructuary mortgage' because as per the plaintiff's case itself the possession of the mortgaged property was not handed over to the plaintiff/mortgagee. The mortgage in the present case is not 'English mortgage' because the mortgaged property has not been absolutely transferred to the plaintiff/ mortgagee and further there is no condition that the mortgagee shall re-transfer the mortgaged property to the mortgagor upon payment of the mortgage money. The mortgage in the present case is also not 'mortgage by deposit of title deeds' firstly, because an agreement in writing has been executed between the parties; and secondly, because mortgage by depositing of title deeds cannot be executed in Delhi. A CS DJ No. 1268/2018 Kush Nandan Page 15 of 20 v.
Satya Dev Digitally signed SACHIN by SACHIN MITTAL MITTAL 16:04:24 Date: 2025.02.25 +0530 mortgage which does not come within the purview of any of the aforesaid five kinds of the mortgages is called 'anomalous mortgage'. In view of the discussion under para 11.9. herein above, it can thus be said that the mortgage in the present case was compulsorily required to be executed by way of an registered instrument. However, the mortgage agreement in the present case being an unregistered document, the mortgage cannot be said to have been validly executed.
11.11. As per Section 67, a right to foreclosure or sale of the mortgaged property is the statutory right of the mortgagee. A right to foreclosure is to debar, by way of a decree from the Court, the mortgagor from exercising his right of redemption. A mortgagee also has a right to sue the mortgagor for a decree from the Court that the mortgaged property be sold and the sale consideration be applied in repayment of the mortgage money. As per Section 60 and 62, an important right possessed by the mortgagor is the right to seek redemption of the mortgage and recovery of possession from the mortgagee (in case of usufructuary mortgage). 'Redemption' means paying of the mortgage money, and getting back the mortgaged property. Upon payment or tender of the mortgage money, the mortgagor has right to get back the mortgaged property. Section 60 provides that at any time after the money has become due, the mortgagor has right, on payment or tender, at a proper time and place of the mortgage money, to require the mortgagee to deliver the mortgage deed and all documents relating to the mortgage property and where the mortgagee is in possession of the mortgage property, to deliver possession thereof to the mortgagor. However, as discussed herein above, the right to foreclosure or sale is not available to the CS DJ No. 1268/2018 Kush Nandan Page 16 of 20 v.
Satya Dev SACHIN Digitally signed by SACHIN MITTAL MITTAL 16:04:31 +0530 Date: 2025.02.25 plaintiff because the mortgage agreement has not been executed as per the law.
11.12. The plaintiff is also seeking the recovery of a sum of Rs.5,99,500/- alongwith pendente lite and future interest at the rate of 18% per annum. The said principal amount of Rs.5,99,500/- comprises of the alleged loan amount of Rs.2,50,000/-, plus an amount of Rs.1,57,000/- towards interest calculated at the rate of 84% per annum till 19.03.2017, plus an amount of Rs.1,92,500/- towards interest calculated at the rate of 84% per annum till the date of filing this suit. This amount is being claimed by the plaintiff on the basis of allegation that he vide payment receipt dated 06.07.2016, Ex.PW1/J (OSR) had advanced a sum of Rs.2,50,000/- by way of loan to the defendant. This relief is liable to be declined for the reasons as discussed in para 11.2. herein above, wherein it has been held that the plaintiff has failed to prove the execution of various documents, including the aforesaid payment receipt. Furthermore, even if it is assumed (though not proved) that the defendant had signed an undertaking dated 19.03.2017, Ex.PW1/M (OSR), I am of the view that the contract providing for repayment of the alleged loan amount alongwith an exorbitant and unconscionable interest at the rate of 84% per annum is opposed to the public policy and, therefore, the consideration of the contract cannot be said to be 'lawful' as provided under Section 23 of the Contract Act. As per Section 2(g), an agreement not enforceable by law is void. As per Section 2(h), an agreement enforceable by law is a contract. Section 10 then provides that an agreement is a contract if among other conditions it is for a lawful consideration and with a lawful object. However, in the present case as the consideration of 84% interest is opposed to public policy, the same is not lawful. Such an agreement is, therefore, void and not enforceable under the law.
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MITTAL 2025.02.25 16:04:37 +0530 11.13. There are so many other flaws as well in the case of the plaintiff:
(a) In the mortgage agreement, legal notice dated 08.03.2017, and in the plaint, the plaintiff alleged that the defendant had taken the loan of Rs.2,50,000/- for his daughter's marriage. However, when the defendant in his written statement took the defence that his daughter was already married with grown up children, the plaintiff in his rejoinder changed his previous stand and stated that the fact of daughter's marriage was mentioned in various documents and in the plaint due to typographical error committed by the Deed Writer. I do not find the said explanation to be plausible. Ld. Counsel for the plaintiff argued that the defendant in his cross-examination on 03.06.2024 stated that the loan was required for marriage of his son. Ld. Counsel, therefore, argued that there is an admission on the part of the defendant that he had taken the loan. I find no merit at all in the said argument as the defendant had merely stated that the loan was required for his son's marriage, he had not admitted that the loan was in fact taken from the plaintiff. It has always been the case of the defendant that the plaintiff had taken his signatures on several blank papers on the pretext of arranging the loan from some bank/ financial institution;
(b) In the various documents, agreement to sell, affidavit and possession letter, it has been stated that the defendant has already handed over the possession of the suit property to the plaintiff.
However, one of the reliefs sought in the plaint is the recovery of possession of the suit property on the premise that the same is still with the defendant;
(c) The documents, GPA, agreement to sell, possession letter, affidavit, Will, payment receipts etc. purport to have been CS DJ No. 1268/2018 Kush Nandan Page 18 of 20 v.
Satya Dev Digitally signed by SACHIN SACHIN MITTAL MITTAL Date:
2025.02.25 16:04:44 +0530 executed on 06.07.2016. However, the plaintiff during his cross- examination on 06.06.2023 stated that these documents were executed by the defendant one year after the execution of the mortgage agreement, which as per the case of the plaintiff himself was executed on 09.07.2016. There is thus contradiction in the case of the plaintiff;
(d) The mortgage agreement at one place mentions that the loan was taken by the defendant for a period 24 months. At so many other places in the pleadings and documents, the period of loan has been mentioned to be one year. The plaintiff during his cross-
examination on 06.06.2023 stated that mentioning of 24 months in the mortgage agreement was a typographical error. It shows that these documents were prepared by the plaintiff himself in a haphazard manner;
(e) The plaintiff got a legal notice dated 08.03.2017 sent to the defendant before the expiry of 9 months, when it is the case of the plaintiff himself that the loan was advanced to the defendant for a duration of 12 months. There is no explanation as to why the legal notice was sent before the expiry of loan period;
(f) In the aforesaid legal notice, there is an allegation of defendant selling the suit property to the plaintiff. However, there is no mention about the alleged mortgage agreement;
(g) The plaintiff is seeking the recovery of loan amount of Rs.2,50,000/- alongwith exorbitant and unconscionable interest at the rate of 84% per annum. However, he during his cross- examination admitted that there was no understanding with regard to the payment of interest on the alleged loan amount. 11.14. Lastly, the Ld. Counsel for the plaintiff placed reliance upon the judgment of the Hon'ble Delhi High Court in Shri Ramesh Chand v. Suresh Chand & Anr., RFA No. 358/2000 for the purpose of CS DJ No. 1268/2018 Kush Nandan Page 19 of 20 v.
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by SACHIN
SACHIN MITTAL
Date:
MITTAL 2025.02.25
16:04:51
+0530
contending the execution of customary documents, agreement to sell, GPA, possession letter, affidavit, Will, payment receipt etc. create some right in favour of the person in whose favour these documents are executed. I fail to understand as to how the said decision helps the plaintiff in as much as these documents have not even been proved by the plaintiff to have been executed.
CONCLUSION:
12. In view of the findings recorded herein above, the present suit is liable to be dismissed. Ordered accordingly.
13. This Court finds the claim of the plaintiff to be false as well as vexatious. The superior Courts time and again have called upon the Trial Courts to impose realistic costs to not only discourage the litigants from resorting to filing such false or vexatious claim/defence, but also to suitably compensate the opposite party. In view of this, a cost of Rs.25,000/- is also imposed upon the plaintiff.
14. Decree sheet be prepared accordingly. File be consigned to Record Room, after due compliance.
SACHIN Digitally signed by SACHIN MITTAL Announced & dictated in MITTAL Date: 2025.02.25 16:05:00 +0530 the open court on 22.02.2025 (Sachin Mittal) DJ-03/South-East District, Saket Courts, New Delhi/22.02.2025 Certified that this judgment contains 20 pages and each page bears my signatures. SACHIN Digitally signed by SACHIN MITTAL MITTAL Date: 2025.02.25 16:05:10 +0530 (Sachin Mittal) DJ-03/South-East District, Saket Courts, New Delhi/22.02.2025 CS DJ No. 1268/2018 Kush Nandan Page 20 of 20 v.
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