Delhi District Court
Anisha Begum vs . Rajdeep Ghosh on 5 July, 2013
Anisha Begum Vs. Rajdeep Ghosh
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL : ADDL. DISTRICT
JUDGE (CENTRAL) 08, TIS HAZARI, DELHI
CS No.233/12
Mrs.Anisha Begum
w/o Nazakat Ali
R/o T-220/1, 2nd floor,
Savitri Nagar, New Delhi-110017
...Plaintiff.
Vs.
1.Mr.Rajdeep Ghosh
son of Sh.Prabodh Kumar Ghosh
2.Mrs.peali Ghosh
w/o Sh.Rajdeep Ghosh
both r/o C-19-A, 1st floor,
Panchsheel Vihar, New Delhi-17
3.Sub-Registrar,
Sub District-V,
Mehrauli, New Delhi.
... Defendants
Date of institution of the suit: 11.12.2007
Date of reserving judgment :31.05.2013
Date of judgment : 05.07.2013
JUDGMENT
1. Mrs.Anisha Begum (hereinafter referred as plaintiff) filed the suit seeking cancellation of sale deed registered vide registration no. 9725, book no.1, Vol.No.7530 on pages 169 to 177 dt.23.07.07 in the office of Sub Registrar-V, Mehrauli, seeking declaration that she be declared owner and injunction against the defendants not to interfere in the life of the plaintiff against Sh.Rajdeep Ghosh and Mrs.Peali Ghosh (hereinafter referred as defendants no.1 and
2) and the Sub Registrar-V, Mehrauli. The suit was initially filed C. S. No. 233/12 1 Anisha Begum Vs. Rajdeep Ghosh before the court of Senior Civil Judge but vide order dt.24.09.08 it was observed that it is beyond the pecuniary jurisdiction of Ld.Civil Judge, hence the matter was sent to Ld.District Judge and the file came to my Ld.Predecessor. Plaintiff alleged that she is owner of house no.T-220/1, Second floor, Savitri Nagar, New Delhi (hereinafter referred as suit property). She decided to sell the suit property and thought of purchasing a big house as her family has grown in size. Defendant no.1 and 2 approached the plaintiff through one dealer Sh.Akash Deep Taneja, who was tenant of the plaintiff's husband. An agreement to sell with respect to the suit property was reached. It was reduced into writing on 25.05.07. Earnest money of Rs.2,00,000/- was given by defendants no.1 and 2 to the plaintiff and within 45 days the sale deed was to be executed. Lateron Rs.1,50,000/- was given and cheque of Rs.1,50,000/- was also given by defendant no.1 and 2 in the presence of Sh.Prabodh Kumar Ghosh and the dealer Akash Deep Tanjena. But the cheque was lateron taken back on the pretext that they will pay the entire amount in the form of demand drafts. The plaintiff without suspecting any foul play returned the cheque to defendant no.1 and 2 in good faith. On 23.07.07 after the expiry of 45 days Mr.Prabodh Kumar Ghosh called the plaintiff and asked her to come in the office of Sub Registrar, Mehrauli i.e.defendant no.3 for registration of sale deed. She was also told that bank officials are also present on the spot along with demand drafts and if the plaintiff will not reach, the demand draft would be cancelled. She reached the sub Registrar office and demanded the drafts. Defendant no.1 and 2, C. S. No. 233/12 2 Anisha Begum Vs. Rajdeep Ghosh Mr.Prabodh Kumar Ghosh and Akash Deep Taneja told the plaintiff that bank officials were just there. They are already having the photocopy of the demand drafts. Nos. of the demand drafts has already been mentioned in the registry. The plaintiff was assured that she need not worry and payment will be made on which she signed the documents but decided not to hand over the possession of the suit property. After some days Akash Deep Tanjeja also vacated the tenanted premises. Plaintiff contacted defendant no.1 and 2 and asked them about the demand drafts but defendant no.1 and 2 asked for the original papers which the plaintiff refused unless the payment is made even the terrace rights were also not sold. On 20.09.07 plaintiff received a notice sent by M/s.S.N.Kalra and Co., Solicitors and Advocates on behalf of the defendant no.1 and 2 alleging that defendant no.1 and 2 have already paid the entire consideration amount and asked the plaintiff to deliver the possession and also extended threat of initiation of criminal proceedings. Lateron they also threatened to sell the property to third party or muscleman. On 23.11.07 husband of plaintiff visited the office of M/s.G.E.Money, Pitampura, from where the loan was got sanctioned by the defendants no.1 and 2 and the Manager of M/s.G.E.Money told the husband of plaintiff that the loan has been cancelled. As defendants no.1 and 2 were pressurizing the plaintiff, therefore a criminal complaint mentioning all the facts was made against the defendants no.1 and 2, Sh.Prabodh Kumar Ghosh and Mr.Akash Deep Taneja. Despite requests plaintiff did not receive the demand drafts and hence the suit.
C. S. No. 233/12 3Anisha Begum Vs. Rajdeep Ghosh
2. Summons sent to the defendants. Defendants no.1 and 2 filed the written statement alleging that the plaintiff filed the present suit with malafide intention. It is also bad for non joinder of necessary parties and without any cause of action. It is alleged that defendant no.1 and 2 entered into an agreement to sell to purchase the suit property and that they have also paid amount to the plaintiff. But it is denied that they have taken back the cheque or that the cheque was returned by the plaintiff to the defendants. It is alleged that plaintiff informed the defendant that the cheques have been lost and as such the defendants did not took any step as the defendants were agreeable to pay the amount as per the agreement. It is denied that demand draft was not handed over to the plaintiff. The demand drafts was handed over to the plaintiff at the time of execution of the sale deed. However, it is admitted that plaintiff had not delivered the actual physical possession of the property but the reason was that she demanded more money which was refused by the defendants no.1 and 2. It is denied that defendants told the plaintiff that the demand drafts would be handed over to the plaintiff lateron. It is admitted that plaintiff contacted the defendants no.1 and 2 but not for the demand drafts but for demanding the more money. It is alleged that in fact plaintiff demanded Rs.7.50 lacs more to hand over the possession as the prices of the property has gone up. Plaintiff wanted Rs.25 lacs instead of Rs.18.50 lacs. It is also admitted that plaintiff refused to hand over the original title deeds of the property. It is denied that they extended any threat. It is alleged that plaintiff has sold the property, received the total consideration and C. S. No. 233/12 4 Anisha Begum Vs. Rajdeep Ghosh therefore, plaintiff is not entitled to any such declaration.
3. Plaintiff filed the replication to the written statement reaffirmed the facts mentioned in the plaint and denied the averments made in the written statement.
4. During the pendency, the defendants were proceeded ex-parte and the case was fixed for ex-parte evidence. Defendant moved an application for setting aside the ex-parte. That application was dismissed vide order dt.17.12.12.
5. In the evidence plaintiff appeared in the witness box as PW1. Sh.Ravi Trehan, UDC from the office of Sub Registrar-V Mehrauli was examined as PW2. He proved the record of the sale deed and the photocopy of the record was proved as Ex.P2/A.
6. Sh.Tushar Ranjan from Axis Bank was examined as PW3. He deposed that Axis Bank was earlier known as UTI Bank Ltd. He further stated that Demand draft no.018842 dt.21.7.07 was issued by the bank in favour of Anisha Begum, but the same was got cancelled on 25.09.07. He also deposed that the cheque which was issued from the joint account of defendants no.1 and 2 bearing no.127185 the payment of same was got stopped.
7. Sh.Mrinal Maji was also examined as PW-3 from Axis Bank. He deposed that the demand draft for a sum of Rs.1,89,000/- bearing no.018842 dt.21.7.07 was got cancelled and another cheque bearing no.117528 dt.08.06.07 issued in favour of Mrs.Anisha Begum for a sum of Rs.1,50,000/- was requested for stop payment vide letter dt.26.9.07 on behalf of Mr. Pramad Kumar Ghosh. The document in this regard was proved as Ex.PW3/D collectively.
C. S. No. 233/12 5Anisha Begum Vs. Rajdeep Ghosh
8. Sh.Ashwani Kumar, Executive, GE Money was examined as PW4. He poved the record of home loan application in the name of Rajdeep Ghosh and Peali Ghosh. He deposed that the loan has been cancelled and the two EMIs paid by them vide cheque no. 127196 dt.4.8.07 and 133253 dt.7.8.08 for Rs.13,762/-, totalling to Rs.27,524/ were refunded. He further deposed that in lieu of this loan two cheques bearing no.002824 dt.26.06.07 for Rs.9 lacs and 002826 dt.26.6.07 for Rs.2,61,000/- drawn on HDFC Bank were issued and another cheque no.002825 dt.26.6.07 for Rs. 59,584.- was issued in the name of Rajdeep Ghosh. The documents have been proved on record as Ex.PW4/1.
9. Sh.Brijinder Singh from HDFC Bank was examined from HDFC Bank as PW5. He brought the statement of account of GE Money and proved the record as Ex.PW5/1 the entire statement of account. There is no entry that instrument bearing no.002824 dt.26.06.07 for a sum of Rs.9 lacs and instrument bearing no. 002826 dt.26.06.07 for a sum of Rs.9 lacs and instrument bearing no.002826 dt.26.6.07 for Rs.2.61 lacs drawn on HDFC Bank that those were presented.
10. Sh.Narpal Singh, Manager, Central Bank of India, Malviya Nagar was examined as PW6. He brought the statement of account of the plaintiff for the period 1.6.07 to 01.01.08 proved the same as Ex.PW6/1. Thereafter the plaintiff closed the evidence and the case was fixed for arguments.
11. I have heard the Ld.counsel for plaintiff but I could not hear the Ld.counsel for defendant.
12. Ld.counsel for plaintiff submitted that the total sale consideration C. S. No. 233/12 6 Anisha Begum Vs. Rajdeep Ghosh of the suit property was Rs.18.50 lacs, out of which Rs.3.50 lacs was paid in cash, Rs.2 lacs at the time of execution of agreement to sell and Rs.1,50,000/- after few days thereof. Thereafter a cheque of Rs.1,50,000/- was issued but the same was taken back, though the defendant alleges that it was never taken back. The statement of account of the plaintiff clearly shows that cheque no.117528 was not credited in her account. The statement of account is Ex.PW6/1. On the other hand the witness PW3 from the Axis Bank deposed on oath that the cheque no.117528 was issued on 8.6.07. It was issued in favour of the plaintiff but vide letter dt.26.9.07 Prabodh Kumar got the payment stopped. Ld.counsel submitted that it clearly shows that defendants have not made the payment and also requested that cheque be cancelled. This has been proved on record as Ex.PW3/D. Ld.counsel submitted that from this it is clear that this amount of Rs.1,50,000/- was also not paid. In fact the remaining payment of Rs.16.50 lacs was also not paid by the defendants within 45 days as agreed. However on 23.07.07 on the request of the defendants and Sh.Prabodh Kumar she reached there for execution of sale deed Ex.PW2/A. It was told that demand drafts will be paid to her. She signed the documents as she was told that demand drafts were ready but only photocopies were delivered. ld.counsel submitted that original demand drafts was never delivered. In the sale deed it was mentioned that Rs.9 lacs will be paid vide pay order no.002824 dt.26.6.07 drawn on HDFC Bank and Rs.2,61,000/- vide pay order no.002826 dt.26.6.07 drawn on HDFC Bank. Ld.counsel submitted that Ashwani Kumar C. S. No. 233/12 7 Anisha Begum Vs. Rajdeep Ghosh executive from G.E.Money appeared as PW4 and he stated on oath that the defendants got cancelled the loan and even the EMIs paid by them were refunded.
" In the entire statement of A/cs, there is no instruments bearing number 002824 dated 26.06.2007, for a sum of Rs.9 lacs and instrument bearing number 002826 dated 26.06.07, for a sum of Rs.2,61,000/- both drawn on HDFC ;Bank have been presented in the A/c"
So far as the demand draft of Rs.1,89,000/- is concerned that was also got cancelled as deposed by the witness from UTI Bank examined as PW3, who stated that the photocopy of draft no. 018842 dt.21.07.07 issued by the said bank in favour of Anisha Begum, photocopy has been duly certified by the Manager of the bank and same is Ex.PW3/A. The said bank draft was got cancelled on 24.09.07. Ld.counsel submitted that in view of this fact it is clear that no payment what so ever has been made by the defendants to the plaintiff, though they took the plea that this payment would be paid to her, it was also mentioned in the sale deed Ex.PW2/A having no intention what so ever to make the payment. In the written statement also they took a false plea supported by the affidavit that this payment was made though it was never made. Ld.counsel submitted that in view of all these facts it is clear that plaintiff was tricked into sign and execute the sale deed by making her to believe that entire consideration amount is being paid to her, whereas the defendants were not having any such intention and have in fact even got cancelled the C. S. No. 233/12 8 Anisha Begum Vs. Rajdeep Ghosh instruments vide which the payment was to be made. Ld.counsel prayed that in view of this the sale deed Ex.PW2/A be cancelled as the same was obtained by fraud.
13. After hearing the arguments and going through the record, I found that admittedly an agreement to sell was executed between the parties and admittedly sale deed was also executed. The total sale consideration was agreed at Rs.18.50 lacs out of which Rs. 3.50 lacs was paid in cash and remaining amount was agreed to be paid within 45 days. For which defendants issued a cheque of Rs.1,50,000/- bearing no.117528 dt.8.6.07, two pay orders one of Rs.9 lacs no.002824 dt.26.6.07 drawn on HDFC Bank and Rs. 2,61,000/- no.002826 dt.26.6.07 drawn on HDFC bank and another pay order of Rs.1,89,000/- no.018842 dt.21.07.07 issued by UTI Bank. Ld.counsel submitted that all these documents have already been got cancelled, even the loan which they got sanctioned from G.E.Money was also got cancelled. According to the evidence which has come on record the demand drafts of Rs. 1,89,000/-was got cancelled on 26.09.07 and similarly the cheque of Rs.1,50,000/- bearing no.117528 dt.8.6.07 was also got cancelled on 26.09.07. The pay orders no.002824 and 002826 were never delivered to the plaintiff. These pay orders were got issued by GE Money through their bank HDFC bank but infact entire loan was got cancelled and hence these pay orders were never got encashed. In fact defendants got back their paid EMIs on 15.09.07 even before they issued the legal notice dt.20.09.07 which clearly shows that they had no intention to pay the amount and even before issuing the notice they got the loan cancelled and C. S. No. 233/12 9 Anisha Begum Vs. Rajdeep Ghosh the cheques were returned back. Under the circumstances it is clear that the defendants got the sale deed Ex.PW2/A executed from the plaintiff by playing fraud upon her making her to believe that consideration is being paid to her knowing that no consideration is being paid. Under the circumstances, as this document was obtained by fraud the same can not stand and is hereby cancelled. Consequently the plaintiff is declared owner. As defendants are having no right, title what so ever in the suit property, therefore, they are restrained from creating any third party interest or transferring or selling the property in any manner what so ever on the strength of sale deed Ex.PW2/A.
14. The suit of the plaintiff is hereby decree with cost. Decree sheet be prepared accordingly. File be consigned to R/R. VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI Announced in open court on 05.07.13 C. S. No. 233/12 10 Anisha Begum Vs. Rajdeep Ghosh Suit No.233/12 05.07.2013 Present: None.
Vide separate judgment, The suit of the plaintiff is hereby decree with cost. Decree sheet be prepared accordingly. File be consigned to R/R VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI C. S. No. 233/12 11