Delhi District Court
Sh. Hari Niwas Gupta vs M/S Om Propmart (P) Ltd. & Ors on 8 September, 2016
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 424/16
IN THE MATTER OF :
Sh. Hari Niwas Gupta
S/o late Lala Ram Kanwar Gupta
R/o 16/4, New Rohtak Road,
Guru Gobind Singh Marg,
Karol Bagh,
New Delhi110005 ........ Plaintiff
V E R S U S
(1) M/s Om Propmart ( P) Ltd.
(a Company duly incorporated under
the Company Act, 1956),
Registered Office:
B-2/426, Yamuna Vihar,
New Delhi-110053.
Branch Office:-
B-377, Sector-C-8,
Tronica City, Loni,
Ghazibad( UP)
(2) Sh. Satish Kumar
S/o Sh. Atal Upadhayay Singh
B-2/426, Yamuna Vihar,
New Delhi-110053
(3) Sh. Pankaj Tyagi
S/o Sh. Sauraj Singh
permanent resident of:-
163, Village Kaland
Tehsil Sardhana,
Meerut( U.P). 250342
CS No. 424/16 page 1 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Presently residing at:-
D-7, Ground Floor,
East Jyoti Nagar,
Durga Puri,
Shahdara, Delhi-110093.
(4) Sh. Pawan Tyagi
S/o Sh. Basant Singh
Permanent resident of:-
Village Panchi-II,
Tehsil Sardhana,
Meerut(UP) 245206
Presently residing at:-
D-7, Ground Floor,
East Jyoti Nagar,
Durga Puri,
Shahdara, Delhi-110093 ........ Defendants
Date of Institution of suit : 14.05.2010
Received in this Court : 29.07.2016
Date of argument : 01.09.2016
Date of Judgment/Order : 08.09.2016
Decision : Suit is dismissed.
SUIT FOR RECOVERY
J U D G M E N T
1. The plaintiff filed this suit for recovery U/o XXXVII CPC of Rs.
50,00,000/ alongwith pendentelite and future interest @ 18 % per annum
from filing of the suit till realization against the defendants.
2. As per the plaint, the facts are that one of the business acquaintances
of the plaintiff Mr. Lalit Gogia introduced him to defendant Nos. 2 to 4 who
represented themselves to be reputed estate agents carrying on business
CS No. 424/16 page 2 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
under the name and style of defendant No. 1, company and they were its
directors and were carrying on their business of estate agents in the locality
of Loni, Tronica City and all adjoining areas of Ghaziabad, Baghpat, Baraut,
Meerut, etc. On further inquiry, the plaintiff found out that defendant No. 1 is
a duly registered company under the provisions of the Companies Act, 1956,
having its registered office at B2/426, Yamuna Vihar, New Delhi.
As the defendants learnt about the plaintiff's desires of purchasing
industrial lands, the defendant Nos. 2 to 4 represented to the plaintiff that
they could help the plaintiff acquire industrial plots in the state of Uttar
Pradesh and stated that in order to secure a reasonably priced and hassle
free land he should be prepared to invest money being 'advance
consideration/ earnest money' to the tune of atleast Rs. 50,00,000/
thereafter, they induced the plaintiff to invest money through them by
drawing crossed cheques in favour of the defendant No. 1 company. The
plaintiff also agreed to give certain advances i.e. 'finance' in the name of
defendant No. 1 company to enable the defendant Nos. 2 to 4 to clinch the
deals by making spot payments of earnest money/ advance consideration of
the prospective sellers.
The plaintiff initially paid a sum of Rs. 15,00,000/ to the defendant
No. 1 by a cheque dt. 02.04.08, bearing No. 717624 drawn on the Union
Bank of India, and further, paid a sum of Rs. 25,00,000/ by a cheque dated
28.05.08 bearing No. 717641 drawn on the Union Bank of India. The said
two cheques were encashed by the defendants on 04.04.08 and 31.05.08
respectively and thus, total sum of Rs. 50,00,000/ was received by the
defendants from the plaintiff. It is stated by the plaintiff that after receiving
Rs. 50,00,000/ the defendants failed to procure the land for the plaintiff as
CS No. 424/16 page 3 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
promised by them. Further, it is stated that when the plaintiff insisted the
defendants ought to keep their promise that the defendants while expressing
their inability and issued five post dated crossed cheques payable to plaintiff
drawn on HDFC Bank Limited. The details of the said five cheques is given is
as follows:
Cheque No. Dated Amount( in Rupees)
507609 12.07.2008 2,50,000/-
507610 12.08.2008 2,50,000/-
507611 12.09.2008 2,50,000/-
507612 12.10.2008 2,50,000/-
507613 12.11.2008 40,00,000/-
Total 50,00,000/-
When he presented the first cheuqe bearing No. 507609 for
encashment on 12.07.2008, the bankers of the defendants returned the said
cheque "unpaid" with their endorsement "Insufficient" Account balance/
Funds Insufficient". Thereafter, the remaining four cheques issued by the
defendants also when presented for encashment wee returned "unpaid" with
their endorsement " Funds Insufficient". It is stated that these four cheques
were dishonoured by the defendant's bankers on different dates during the
month of February, 2009. Therefore, the plaintiff served a legal notice dated
09.03.2009 upon the defendants in terms of Sections 138 to 142 of the
Negotiable Instruments Act, 1881 asking the defendants to pay their
acknowledged dues of Rs. 50,00,000/. On 21.03.2010, the advocate of the
defendants herein sent a reply, acknowledging the issuance of the above
mentioned five cheques and contending that the aforesaid five cheques
ought not to have been issued by his clients but were issued for the purpose
CS No. 424/16 page 4 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
of maintaining "Long business terms".
It is alleged by the plaintiff that as it became clear from the acts of the
defendant Nos. 2 to 4 that they have no intention of refunding the advance of
Rs. 50,00,000/ the plaintiff filed the instant suit for recovery of the said
amount. The plaintiff has also instituted a criminal complaint against the
defendants in terms of Section 138 to 142 of the negotiable Instruments Act,
1881 and the said matter is subjudice in the court of Metropolitan Magistrate
At Tis Hazari, Delhi since 2009.
3 As observed, the plaintiff filed this suit U/o XXXVII CPC for recovery
before Hon'ble Delhi High court. After service of the summons for
appearance of the defendant, leave to defend application was filed on behalf
of defendants which was allowed vide order of Hon'ble High court dt.
02.02.12 granting leave to defend the suit to the defendants.
4. The defendants in the written statement contended that the suit filed
by the plaintiff is not maintainable and the plaintiff has failed to disclose
material facts before this court. It is stated that the entire plaint is false and
fabricated and the defendants have no liability to pay any amount to the
plaintiff.
As per the defendants, the real facts are that the plaintiff is known to
them since 20052009, as the plaintiff has been dealing with them for liaison
work of sale, purchase and for getting transfer of plots at Tronica City, Loni
Ghaziabad( UP). The plaintiff represented himself as a businessman and
desirous of purchasing for himself an industrial land with a view to set up
industrial units in the locality of Tronica City. According to the defendants, the
plaintiff is not a genuine industrialist, but, in fact, he is an investor and
financer in properties and had purchased 67 industrial plots, but did not set
CS No. 424/16 page 5 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
up any industrial unit till date. The plaintiff besides purchasing and selling the
industrial plots through the defendants also got their services for preparation
and lodging of documents with the authorities of UPSIDC Ltd. at Tronica
City, to facilitate the transfer of plots.
The defendants have filed copies of the transaction/documents of the
plots purchased by the plaintiff through other estate agents or through the
defendants, as Annexures D1 to D6 collectively. The defendants further
submit that apart from the aforesaid plots, the plaintiff entered into a deal
with defendant No. 1 for purchase of an industrial plot, bearing No. G186,
Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP) vide
agreement to sell dated 02.04.08 duly executed and signed by both the
plaintiff and defendant No. 1 in the presence of the witnesses. The said plot
was the subject matter of agreement to sell dated 01.04.08 between one Sh.
Sanjay Tyagi( owner of the plot)and defendant No. 1.
The contention of the defendants is that the plaintiff, after examining
the agreement dated 01.04.08 and satisfying himself, entered into the
agreement to sell dated 02.04.08 with defendant No. 1 for purchase of the
abovementioned plot for a total agreed consideration amount of Rs.
60,00,000/, out of which a sum of Rs. 15,00,000/ as advance was paid vide
cheque No. 717624 dated 02.04.2008 drawn on Union Bank of India,
Overseas Branch, Connaught Place, New Delhi, at the time of signing the
said agreement, to the defendant No. 1Company. He further agreed to pay
the balance amount of Rs. 45,00,000/ on or before 12.06.08 and the said
agreement was duly signed by both the parties in the presence of the
witnesses, namely, Pawan Tyagi and Dev Kumar. It is stated by the
defendants that Dev Kumar is the same person to whom the plaintiff had sold
CS No. 424/16 page 6 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
his plot No. C27, Sector A1 at Tronica City, Loni Ghaziabad(UP). The
defendants stated that the original agreement dated 02.04.08 is with the
plaintiff and only the photocopy thereof is available with them and the same
has been filed alongwith the application as Annexure D8.
As contended, the plaintiff has deliberately concealed the above said
agreement in the plaint which was entered into between them. The relevant
clauses No. 3, 5 and 6 of the agreement read as under:
"3. That in case the first party cancel the deal or rebute from the
deal after receiving the earnest money, the first party will pay the
double amount of earnest money to the second party. On the
other, if second party does not paid the full and final payment to
the first party within the stipulated time, the money paid by the
second party will be forfeited by first party.
4. x x x x x
5. That all expenses on account of file charges, stamp duty,
registration charges and transfer charges will be payable by the
second party............
6. That the second party will be at liberty to
sale/contract/contract/engage/ advertise for the sale of this plot to
other parties."
After entering into the agreement dated 02.04.2008, the plaintiff
studied the real estate market and due to recession and on pressing demand
for the balance payments by the defendants for the plot which is the subject
matter of the agreement to sell dated 02.04.08, the plaintiff backed out from
the deal on the ground of recession and informed the defendants that he was
not interested in blocking his further money, when the defendants pointed out
to him Clause3 of the agreement, the plaintiff with the intervention of the
CS No. 424/16 page 7 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
market persons, namely, Pawan Tyagi and Dev Kumar, after certain rounds
of meeting entered into a Memorandum of Understanding(hereinafter
referred to as the "MOU") on 24.05.08 with the defendants in writing which
was signed by the parties and witnessed by said Pawan Tyagi S/o Sh. Shiv
Raj Tyagi R/o Flat No. F4, Plot No. A95, Krishna Apartment, Dilshad
Colony, Delhi and Dev Kumar S/o Sh. Jaswant Singh, R/o 146B, PocketF,
Mayur ViharII, Delhi. The understanding was arrived at between them by
way of the MOU. The defendants referred Clauses8 to 10of the MOU which
read as under:
That the plaintiff agreed to make part of the balance payment of Rs.
35,00,000/( Rupees Thirty Five Lacs only) to the defendant No. 1 subject to
the condition that the defendant No. 1 will issue cheques of Rs. 50,00,000/
( Rupees Fifty Lacs Only) as a security of the payment made to the company
to the client of Some future date. This was agreed between both the parties
that these cheques will be lodged for payment only on sale of the said plot.
That the plaintiff also agreed to pay balance consideration of Rs. 10,00,000/
( Rupees Ten Lacs only) before 12.06.2008 i.e. the date of completion of
sale in agreement dated 02.04.2008.
That as per understanding in para No. 8 above, the company issued
five cheques, a security, per following denomination and particulars to the
client:
S. N. Cheque No. Dated Amount
1. 507609 12.07.08 2,50,000/
2. 507610 12.08.08 2,50,000/
3. 507611 12.09.08 2,50,000/
4. 507612 12.10.08 2,50,000/
CS No. 424/16 page 8 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
5. 507613 01.11.08 40,00,000/
Total Rupees Fifty Lacs Only)
The contentions of the defendants is that in view of the said terms
mentioned in the MOU with the agreement to sell dated 02.04.08, it is clear
that the payment made by the plaintiff is only towards purchase of plot No.
G186, Sector D1/p3, situated at Tronica City, Industrial Area, Loni
Ghaziabad(UP) and not towards any other account whatsoever as alleged by
the plaintiff. As it is evident from the counter slip of the cheque book of the
defendantcompany issued by its Banker i.e. HDFC Bank and its statement
of account for the period 01.04.08 upto 31.07.2009 which is filed as
AnnexureD10 collectively, which shows that the plaintiff issued cheques of
Rs. 35 lacs, bearing No. 717641 dated 28.05.08 drawn on Union Bank of
India, Overseas branch, Connaught Place, new Delhi to the defendant
company in view of MOU dated 24.05.08 and after receiving the five security
post dated cheques for a total sum of Rs. 50 lac from the defendants. The
defendants state that the said security cheques which were issued, were
allowed to be encashed only after sale of the plot and not in discharge of any
debt or liability, as there was no existing debt or liability of the defendants
towards the plaintiff.
It is also claimed by the defendants that the said plot which is the
subject matter of the agreement to sell dated 02.04.08, has not been sold by
the defendants to anyone till date, and the defendants are still ready and
willing to complete the sale transaction of the said plot on the terms and
conditions as agreed under the said agreement and the subsequent MOU,
subject to the plaintiff's making the balance payment of Rs. 10 lac to the
defendantcompany with reasonable rate of interest. While denying the rest
CS No. 424/16 page 9 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
of the material contentions of the plaintiff in the plaint, the defendants prayed
to dismiss the suit with cost.
5. Replication was filed by the plaintiff to the written statement of
defendants whereby the plaintiff has reiterated the contentions mentioned in
the plaint while denying the averments of the defendants in the written
statement.
6. In view of the pleading of the parties, following issues were framed
vide order dt. 10.10.2012:
(i) Whether the defendants received Rs. 50,00,000/ from the
plaintiff as part sale consideration for sale of Plot No. G186, Sector
D1/P3, Tronica City, Industrial Area, Loni Ghaziabad (UP) to the
plaintiff? OPD
(ii) Whether the cheques in question were issued by the
defendants to the plaintiff as security for performance of their
obligations under the MOU dated 24.05.08 as alleged in the written
statement?OPP
(iii) To what amount, if any, the plaintiff is entitled from the
defendants?OPP
(iv) Relief.
The case was thereafter fixed of Plaintiff's Evidence.
7. It is relevant to note that the evidence of the plaintiff in the case was
recorded by the local commissioner appointed in the Hon'ble High Court of
Delhi. The trial in the case took before Hon'ble High court of Delhi and case
was received after transfer in this court in view of the change of jurisdiction at
the stage of final arguments on 29.07.16.
8. PW 1/plaintiff has filed his affidavit by way of evidence Ex. PW1/A and
deposed regarding the case as mentioned in the plaint. The witness has also
CS No. 424/16 page 10 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
deposed regarding the documents i.e. certificate issued by the banker of
plaintiff dt. 22.04.12 regarding encashment of the cheques issued by him in
favour of defendant No. 1 Ex. PW 1/1, the bank memo in respect of the
dishonoured cheques of the defendant No. 1 Ex. PW 1/ 2 to Ex. PW 1/ 6, RTI
reports dt. 27.10.10 and 27.12.10 from UPSIDC Ex. PW 1/ 7 and Ex. PW
1/8. As no other witness was examined by the plaintiff, the PE was closed
and the case was fixed thereafter defendant's evidence.
9. The Defendant No. 4 filed his evidence by way affidavit Ex. DW1/1
and examined himself as DW1 in support of contentions. The witness
deposed regarding the defence as mentioned in the WS and also deposed
regarding the relevant documents i.e. Ex. DW 1/ A to Ex. DW 1/ Q( the
reliance of the documents Ex. DW 1/B to Ex. DW 1/F, DW 1/ K, DW 1/L,
DW1/ N and DW 1/ O was objected on the ground of mode of proof being
photocopies).
The defendants also examined independent witnesses Sh. Dev
Kumar and Pawan Tyagi vide affidavits Ex. DW 2/ A and Ex. DW 3/ A as
DW2 and 3 respectively as the witnesses of the agreement to sale dt.
02.04.08 and MOU dt. 24.05.08 executed between the plaintiff and
defendants in respect of property bearing No. G186, Sector D1/ P3,
Industrial Area, Tronica City, Loni Ghaziabad (UP). Both the witnesses
deposed that agreement dt. 02.04.08 and MOU dt. 24.05.08 was executed
between the plaintiff and defendant No. 1 in their presence. They also
deposed that original agreement and MOU after signature was handed over
to the plaintiff.
Affidavit of other witness Sh. Lalit Gogia was filed on behalf of
defendants but the witness did not appear for cross examination. As no other
CS No. 424/16 page 11 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
witness remained to be examined by the defendant, DE was closed.
10. I have heard the Ld. counsel for the parties at length and gone
through the relevant materials on record alongwith the written submissions
filed on their behalf in support of contentions alongwith the authorities relied
on their behalf in support of contentions.
11. Having drawn my attention to the pleadings of the parties, testimony of
witnesses and materials on records, it is submitted by learned counsel for the
plaintiff that plaintiff has proved his case and is entitled for the amounts as
prayed in the suit. It is further argued the defence of the defendant is shame,
vague and fanciful, the defendants failed to return the due amount to the
plaintiff despite requests and opportunities, this suit is filed within limitation. It
is further argued by the Ld. Counsel for the plaintiff that the defendants has
admitted the payment of Rs. 50,00,000/ but failed to pay the outstanding
amount; the cheques issued by the defendants towards liability has been
dishonored on presentation. The ld. Counsel for plaintiff vehemently argued
that documents i.e. agreement to sale dt. 02.04.08 and MOU dt. 24.05.08
relied by defendants not filed in original and these documents are not proved
being un registered/ un stamped ; the defendants are not the owners in
possession of the plot in respect of which an agreement dt. 02.04.08 is
stated to be executed. The Ld. Counsel for the plaintiff further prayed to
decree the suit in favour of the plaintiff and against the defendants. While
filing the written submissions, the ld. counsel for plaintiff relied upon the
following judgments reported as:
(I) ANU/SC/7314/2007 titled Smt. J. Yashoda V/s Smt. K
Shobharani
(ii) (1989) 4 ACC 39 tilted Bajaj Auto ltd V/s Behari Lal Kohli
(iii) MANU/DE/0414/1995 titled Sudhir Engineering Company
CS No. 424/16 page 12 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
V/s Nitco Roadways Ltd.
(iv) MANU/DE/1352/2001 titled Shail Kumari V/s Saraswati Devi
12. The Ld. Counsel for the defendants on the other hand, having drawn
my attention to the pleadings of the parties, testimony of the witnesses and
documents on records submitted that the plaintiff has failed to prove the case
and discharge the onus. It is argued that the plaintiff has filed this suit without
any basis and cause of action; the original agreement to sale dt. 02.04.08
and MOU dt. 24.05.08 being in possession of the plaintiff are not produced in
original; the cheques issued by the defendants in the name of plaintiff are
merely security cheques in view of MOU dt. 24.05.08 and the defendants are
not liable to make any payment to the plaintiff. Ld. Counsel for defendants
further argued that complaint U/s 138 NI Act filed by plaintiff against the
defendants has already been dismissed vide judgment of Ld. MM (NI Act )
vide judgment dt. 10.04.15 and the certified copy of the judgment is filed on
record which is not disputed by the plaintiff at all. It is argued on behalf of the
defendants that the execution of agreement dt. 02.04.08 and MOU dt.
24.05.08 has been categorically proved by the DWs and their testimonies
remained unimpeached and un controverted ; as the original of these
documents are with the plaintiff, they could not be produced by the
defendants at the trial and documents were being properly proved by
secondary evidence may be relied. It is submitted that the documents only
be for collateral purpose as well being un stamped. It is also submitted by Ld.
counsel for the defendants that plaintiff has concealed the material facts and
therefore, the suit is liable to be dismissed; the defendants are not liable to
make any payment. The Ld. Counsel for the defendants prayed to dismiss
the suit with cost. Written arguments was also filed on behalf of defendants
in support of contentions relying upon the judgments reported as :
CS No. 424/16 page 13 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(i) 2010 SCC Online Del 4088 : 175 DLT 393 titled Y.S.
Manchanda V/s Nand Singh & Ors.
(ii) (1967) 1 SCR 331 : AIR 1967 SC 878 titled Subhas Chandr
Das Mushib V/s Ganga Prasad Das Mushib & Ors.
(iii) 1998( 45) DRJ titled Space Enterprises V/s Srivivasa
Enterprises Ltd.
(iv) ILR (2008) II Delhi 638 titled Sangeeta Jewels Pvt. Ltd & Ors.
V/s Ajay Kumar Jain
(v) 2009 SCC Online Del 3183: (2009) 113 DRJ 617 titled Bharat
Bhushan Jain, Adovcate & Ors. V/s Shri Sri Ram ( Deceased)
represented by Lrs. Sh.Sunil Kumar Arora & Ors.
(vi) (2003) 8 SCC 752 titled R.VE. Venkatachala Gounder V/s
Arulmigu Viswesaraswami & V.P. Temple & Other
13. I have given my thoughtful consideration to the submissions made on
behalf of the parties. My findings issuewise are as under :
ISSUE No. I to III:
(i) Whether the defendants received Rs. 50,00,000/ from the
plaintiff as part sale consideration for sale of Plot No. G186, Sector D
1/P3, Tronica City, Industrial Area, Loni Ghaziabad (UP) to the
plaintiff? OPD
(ii) Whether the cheques in question were issued by the
defendants to the plaintiff as security for performance of their
obligations under the MOU dated 24.05.08 as alleged in the written
statement?OPP
(iii) To what amount, if any, the plaintiff is entitled from the
defendants?OPP
14. The onus to prove the issue No. II and III was upon the plaintiff
whereas the issue No. 1 was to be proved by the defendant. As all these
CS No. 424/16 page 14 of 37
Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
issues are interconnected/ interrelated and likely to be disposed in view of
the facts of case, these issues are examined and decided together.
15. It is well settled that a suit has to be tried on the basis of the pleadings
of the contesting parties which is filed in the suit in the form of plaint and
written statement and the nucleus of the case of the plaintiff and the
contesting case of the defendant in the form of issues emerges out of that.
Being a civil suit, this suit is to be decided on the basis of preponderance of
probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly
executed by the deceased Sh. Sohan Singh. The Power of
Attorney is after all a registered Power of Attorney, and more
importantly, the original title documents of the subject
property are in the possession of the respondent No. 1 and
which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
CS No. 424/16 page 15 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
16. Section 101 of the Evidence Act, 1872 defines " burden of proof"
which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until CS No. 424/16 page 16 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
17. The brief and relevant facts for filing of this suit has been mentioned at the outset. There is no dispute / denial regarding receipt of Rs. 50,00,000/ by the defendants from the plaintiff. The defendants have also admitted that the cheques as mentioned above amounting to Rs. 50,00,000/ was issued by the defendants to the plaintiff but the defendants claimed that those cheques were issued towards security in view of the MOU entered into with the plaintiff dt. 24.05.08. The plaintiff has denied the execution of any agreement to sale dt. 02.04.08 for purchase of the property bearing No. G 186, Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP) claiming that plaintiff has paid amount to the defendants to clinch the deal in respect of the property. In view of the factual matrix, the issue remained to be examined as to whether the plaintiff has paid Rs. 50,00,000/ for purchase of the aforesaid property bearing No. G186, Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP) and the defendants has issued cheques to the plaintiff as security as claimed by the defendants. This court has also to examine the contentions of the parties being reasonable and plausible in reference to the act of a reasonable man and as to the facts stated by which CS No. 424/16 page 17 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
of the parties appears to be more probable and inspire more confidence.
18. I have gone through the plaint. The plaintiff noted to be a business man who is well educated involved in many of the property transactions. The plaintiff claims to have paid Rs. 50,00,000/ to the defendants on request of Mr. Lalit Gogia, for examination of whom no steps has been taken by the plaintiff at all in this case. Mr. Lalit Gogia appears to be most relevant witness to prove the case of the plaintiff. Further this case appears to be a classic example of dealings between the parties either on the basis of trust or in most informal way of property transaction. It is relevant and interesting to note that the plaintiff is paying such huge amount merely accepting the advice of a person without knowing which property is to be purchased, where the property is to be purchased, whose property is to be purchased and at what rate property is to be purchased including other specific details regarding the property which itself appears to be not sustainable. Not even a layman shall enter into such transaction and pay huge amount to person which is not known to him ( as claimed by the plaintiff in the plaint that he is known to the defendant through Lalit Gogia only) without knowing other details regarding the transaction. It is alleged in the plaint that plaintiff was mislead or tried to be convinced by the defendants to come into the trap of defendants but the pleadings of the plaintiff in this respect is very vague. It is further relevant to note that plaintiff has not made any complaint against the defendants regarding the forgery of his signature on the documents by the defendants as claimed due to the reasons best known to the plaintiff. Even the plaintiff has not examined the forged agreement to sale dt. 02.04.08 and MOU dt. 24.05.08 relied by the defendants which is stated to be forged by them using modern techniques.
CS No. 424/16 page 18 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
19. The parties led their evidence as per their averments in the pleadings. The plaintiff examined himself as PW1 and reiterated the averments in the plaint. The plaintiff failed to answer the question as to what was the reason to pay Rs. 35,00,000/ on 28.05.08 in case the defendants failed to clinch the deals for plaintiff after payment of Rs. 15,00,000/ on 02.04.08. The plaintiff failed to answer as to when the cheques in question were issued by the defendants towards liability, why the plaintiff has not presented the cheques just after the due date and what was the reason for the plaintiff to wait and present them for encashment after lapse of time. The PW1 was cross examined at length. It is noteworthy that this is first dealing of plaintiff with defendants as claimed by him and he is paying such huge amount in respect of property transaction without knowing further details/ anything. It is also claimed by the plaintiff that defendant No. 4 is known to the plaintiff only through Mr. Lalit Gogia who is not produced by him to corroborate his version. It is also admitted that he never paid any advance amount for purchasing of the property but it is noted that plaintiff paid such amount to the defendants to whom he is not known at all. It appears that plaintiff is an innocent child who is acting only on the advice/ saying of Mr. Lalit Gogia and such contentions of the plaintiff appears to be not sustainable as the plaintiff is an educated businessman having entered into many properties transactions. During cross examination other person Anil Verma is introduced by the plaintiff who also was not produced before the court by the plaintiff to substantiate his claim and contentions. The plaintiff himself admitted that he has never given any advance money in any of the property dealing before the property deal but failed to assign any reason as to how the transaction is different. The claim of the plaintiff that he is not known to CS No. 424/16 page 19 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
DW2 Dev Kumar also appears to be false as during cross examination he admitted that agreement Ex. D1 was signed by him which is between him and Dev Kumar. It is also necessary to note that plaintiff has not produced his income tax return despite being asked to prove that amount was given for any transaction as claimed by him. The witness further admitted that before purchasing the property, he used to verify the physical verification but in this case, the claim of plaintiff is different while claiming that he advance Rs. 50,00,000/ without any further information which is unbelievable. The witness was asked during cross examination about his signature on agreement mark D1 i.e. agreement to sell dt. 02.04.08 and MOU dt. 24.05.08 mark D2 to which he replied " Since it is a photocopy, I cannot say whether the same bears my signatures or not". The Plaintiff has not specifically denied the execution of agreement to sell dt. 02.04.08 and MOU dt. 24.05.08 during his cross examination. The defendants have explained that the original agreement to sell and MOU was handed over to the plaintiff and this contentions of defendants appears to be plausible as buyer is supposed to keep the originals of the documents. In any case, plaintiff has not categorically denied his signatures on agreement to sale dt. 02.04.08 mark D1 and MOU dt. 24.05.08 mark D2. The complaint U/s 156(3) Cr. PC filed by plaintiff has been dismissed; the said order was challenged before ld. ASJ in revision which has also been dismissed. In one way or the other the testimony of the plaintiff was totally impeached / controverted during the cross examination.
20. The defendant No. 4 examined himself as DW1 who deposed regarding the transaction with the plaintiff, execution of agreement to sale and MOU in the presence of the witnesses i.e. DW 2 and 3 and categorically CS No. 424/16 page 20 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
deposed that original documents were handed over to the plaintiff. The witnesses i.e. DW2 and DW3 have also deposed that transaction between the plaintiff was executed in respect of property No. G186, Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP). DW 2 and DW3 examined by the defendants also categorically deposed regarding the execution of agreement to sell dt. 02.04.08 and MOU dt. 24.05.08. The DWs were cross examined at length but this court has no hesitation in holding that the testimonies of DWs remained unimpeached/ uncontroverted in respect of transaction with the plaintiff alongwith execution of the documents i.e. agreement to sell dt. 02.04.08 and MOU dt. 24.05.08 ; handing over the original documents to plaintiff etc. Infact no question was asked during cross examination of the witnesses in respect of the the material aspect of execution of the documents and not even suggestion was put to the witness in this respect. Same is the effect of the testimony of these witnesses relied by plaintiff during cross examination of the witnesses which was recorded before Ld. MM during the trial of complaint U/s 138 NI Act. It is deposed by the DW1 at the time of cross examination as well as the during the arguments that the defendants are ready to handover the possession of the suit property No. G186, Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP) to the plaintiff which is still in their possession after the plaintiff pay the balance consideration. It is also deposed that plot is in possession of defendant even till today which they are ready to sell. Mr. Lalit Gogia though not examined by the plaintiff in this suit was examined in the complaint case U/s 138 NI Act before ld. MM and also deposed like Dws regarding payment of consideration amount, execution of documents and his testimony also could not be impeached during his cross examination. In CS No. 424/16 page 21 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
totality, the testimony of Dws remained uncontroverted and there no reason to disbelieve their testimony at all.
21. The plaintiff has relied on the RTI reply contending that plot No. G 186, Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP) is still in the name of Sanjeev Kumar but did not produce the relevant witness at all to prove his case. Sh. Sanjeev Kumar was not examined to prove that he has not agreed to sell it as claimed. At this stage, it cannot be lost sight regarding the prevailing practice among the estate / property dealers on which judicial notice was also taken by ld. ASJ vide order dt. 05.09.14 that the property is being transferred on the basis of documents like agreement and finally the end users of the property get the title documents executed in his favour by original owner / allottee.
22. In view of the aforesaid discussion and testimony of the witnesses examined by the parties, this court is of the considered view that claim of the plaintiff is against the conduct of an ordinary reasonable man and does not stand to the reason. It is reiterated that plaintiff is a educated businessman who has transacted in respect of many properties, dared to pay Rs. 50,00,000/ to the defendants whom he is known to through some other person in his first transaction without even knowing the subject of the transaction. It is hard to believe that the plaintiff would pay such an amount without formal execution of the documents or without further discussion regarding the subject matter of transaction. This court is fortified in view of ratio of judgment in re John. K. John V/s Tom K. Varghese (2007) 12 SCC 714 wherein it is held that: " The High Court was entitled to take notice of the conduct of the parties. It has been found by the High court as of fact that the complainant did not approach the court with clean hands.
CS No. 424/16 page 22 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only had no document been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent was not even in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be make to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under section 139 of the Act, no exception thereto can be taken".
The ratio of the judgment is squarely applicable in the facts of this case.
23. It is difficult to believe that plaintiff has paid an amount of Rs. 50,00,000/ to the defendants without ascertaining the subject matter of the transaction and therefore the contentions of the defendants appears to be substance. The defence of the defendants is most probable that the cheques in question was issued by defendants towards security in case the property No. G186 was sold by them. The photocopy of agreement dt. 02.04.08 and MOU dt. 24.05.08 were produced on record and Dws deposed in respect of the same. The original of the documents was with the plaintiff as sufficiently explained by the witnesses and therefore these documents were duly proved by way of secondary evidence. The plaintiff was confronted with the CS No. 424/16 page 23 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
documents during his cross examination but he simply denied that he cannot answer as these are photocopies. On the one hand, the plaintiff claimed that his signature has been forged on these documents using modern techniques but no steps has been taken in this respect by the plaintiff. The DWs deposed regarding the execution of the documents. During the examination of DW 1, ld counsel for plaintiff objected regarding mode of proof of these documents being photocopies but no such objection was taken at all by the plaintiff when the plaintiff was confronted in his cross examination regarding these documents and therefore in view of judgment of RVE Venkatachala Gounder V/s Arulmugu Vishwesaraswami (2003) 8 SCC 752, the objection being not taken at the fist instance is deemed to have been waived. As held: "Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:(1) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the documents in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. IN the first case, merely because a documents has been marked as "an exhibit" and objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the letter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode CS No. 424/16 page 24 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the documents as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection,if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on a assumption that the opposite party is not serious about the mode of proof. ON the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there: and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two tyres of objections referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a documents, the documents itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
The ratio of the judgment is squarely applicable in the facts and circumstances of the case.
CS No. 424/16 page 25 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
24. It is argued by ld. counsel for plaintiff that property No. G186, Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP) still is in the name of original allottee and therefore defendants have no right to enter into agreement to sell in respect of the same. In support of this contentions, ld. Counsel has relied upon one receipt dt. 10.05.08 issued by Mr. Sanjeev Kumar/allottee acknowledging the receipt of entire sale consideration. Mr. Sanjeev Kumar was not produced by plaintiff in support of contentions to prove either the execution of the sale receipt dt. 10.05.08 nor the receipt implies that the original allottee could not have entered into have any agreement to sale before 10.05.08. The status report filed by the police in proceedings U/s 156(3) Cr. PC initiated by the plaintiff was relied by plaintiff himself during the cross examination of DWs which shows that Mr. Sanjeev Kumar has entered into agreement to sale in January, 2008 itself with Mr. Madhusudhan; Mr. Madhusudan sold it to Vijay Kaul ; Vijay Kaul sold it to Sanjay Tyagi and thereafter Sanjay Tyagi to the defendant. The contentions of the plaintiff is accordingly not sustainable in this respect. The agreement dt. 02.04.08 and 24.05.08 being forged and fabricated by the defendants as claimed by the plaintiff is without any basis as plaintiff has not taken any steps or not examined any expert to disprove this contentions.
25. During the final arguments, the question was asked to the plaintiff as to why the cheques issued by the defendants were not presented for encashment by the plaintiff just immediately they become due for payment in case the defendant was liable to make the payment but no reasonable or plausible explanation furnished in this respect. It is further questionable that when the defendants have not searched for any property for the plaintiff after 02.04.08 till 24.05.08, why the plaintiff has paid further Rs. 35,00,000/ to CS No. 424/16 page 26 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
them without any documentation again. The cheques issued by the defendants are payable from 12.07.08 onwards and all the cheques were lastly payable on 01.11.08. What stopped the plaintiff for presenting the cheques for encashment if these cheques were not issued for security and amount was payable by the defendants?. The contentions of the plaintiff regarding oral assurance by the defendants is not acceptable as there is no correspondence as well in this respect between the parties. The none presentation of the cheques by the plaintiff when they became payable itself raises an interference regarding understanding between the parties and supported the contentions of the defendants that cheques in question was issued by the defendant only for the purpose of security and was payable when property No. G186 was sold.
26. The Ld. Counsel for plaintiff has argued that the agreement dt. 02.04.08 and MOU dt. 24.05.08 Ex. DWN and Ex. DWO are not admissible in evidence as these documents are neither registered nor stamped. As noted in this case, the original documents has never been produced on record which is stated to be in possession of the plaintiff and therefore the provisions of Stamp Act is not applicable in the fact of the case. Even otherwise, it was the duty of the plaintiff to pay stamp on these documents or atleast produce the same before the court so that it might have been impounded for recovery of stamp as per law but no such act was done. Even otherwise such objection was not taken by the plaintiff at the relevant stage/ first instance. The contentions that these documents are un registered and not admissible is also without any merits as by virtue of documents, no right, title or interest has been created which requires compulsory registration in view of section 17 of the Registration Act. There is no bar on accepting these CS No. 424/16 page 27 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
documents accordingly for collateral purposes for decision of this case.
27. Hon'ble Delhi High Court in re MANU/DE/2335/2015 titled Jai Kumari V/s Dhan Devi relied upon the judgment of Supreme Court in Bondar Singh V/s Nihal Singh reported as MANU/SC/0193/2003 wherein it was observed that: "5. The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 951931 by Fakir Chand, father of the defendants in favour of the Tola Singh, the predecessorininterest of the plaintiffs, is an admitted documents in the sense its execution is not in dispute. The only defence set up against the said documents is that it is unstamped and un registered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purposes to be seen is the nature of possession of the plaintiffs over the suit land."
28. It is claimed by the defendants that original agreement to sell dt. 02.04.08 and MOU dt. 24.05.08 was handed over to the plaintiff. The original agreement to sale was never produced on record for being impounded and payment of stamp duty. The defendants/ DWs further claimed and proved that as per the prevalent practice, the original was handed over to the plaintiff. Only original documents would have been impounded if produced for and payment of deficient stamp. As held by Hon'ble Delhi High court MANU/DE/0762/210 titled Mangat Ram & Ors. V/s Ram Narain Gupta & CS No. 424/16 page 28 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Ors:
43. Section 35 of the Stamp Act, inter alia, states that no instrument chargeable with duty shall be admitted in evidence for any purpose or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. The proviso to this section, however, permits an unstamped/ insufficiently stamped instrument to be admitted in evidence, in case the document is stamped and the penalty provided by law is paid. Consequently, an instrument that is unstamped or insufficiently stamped does not suffer from a fatal defect, and it is not rendered inadmissible in evidence altogether. If the stamp duty along with the requisite penalty is paid, the document would become admissible in evidence.
Hon'ble Supreme Court in AIR 1966 SC 292 held that: "Where the document was drawn up only to serve the purpose of proof or evidence of what had been decided by the parties, and not to form the basis of their rights in any form over the property, the same constitutes a mere memorandum recording something that has already taken place, and such a document would not require registration or stamping."
The ratio of the judgment is squarely applicable in the facts and circumstances of the case.
29. In this case, all the Dws categorically deposed that the original documents were handed over to the plaintiff and lead the secondary evidence regarding execution of these documents i.e. MOU dt. 24.05.08 and agreement to sell dt. 02.04.08. There was no basis for impounding of the MOU and agreement to sale for payment of deficient stamp as merely photocopy was produced and the original of these documents were never produced on record by the plaintiff. The contentions of the plaintiff therefore CS No. 424/16 page 29 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
that these documents being un stamped are not admissible in evidence appears to be not sustainable.
30. The objection of the ld. Counsel for plaintiff that agreement to sale dt. 02.04.08 and 24.05.08 is merely photocopies and not reliable/ admissible appears to have no substance as defendants in this case have led the secondary evidence in accordance with the provisions of section 65 of the Indian Evidence Act and these documents has been duly proved by the testimonies of the DWs. The DW1 deposed regarding the execution of these documents and DW2 and DW3 were examined as witnesses to the documents. It is reiterated that their testimony remained un impeached and their cross examination remained un controverted. This court also does not find in consonance with the arguments of Ld. Counsel for plaintiff that no application has been filed on behalf of defendants to place on record the photocopies of the agreement dt. 02.04.08 and MOU dt. 24.05.08 seeking permission to lead secondary evidence. The ratio in case titled Rajesh yadav V/s Balbir Singh , CR No. 2359/2008( decided on 06.09.14) may be relied in this respect wherein it is stated that: "13. Perusal of these statutory provisions leaves no manner of doubt that secondary evidence can be given and is receivable by the courts in specified circumstance. It is further clear that there is no express provision in the Act for making an application for leading secondary evidence. During the process of leading of evidence by a party, it it makes out a case for leading secondary evidence in terms of section 63 and 65 of the Act, it may do so and no formal permission from the court in this behalf for leading secondary evidence as required. As has already been noticed relevance, admissibility and probative value of evidence all are CS No. 424/16 page 30 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
different from each other and require separate and distinct handing. Leading of evidence cannot be shunned merely because its probative value would not be of high order."
31. The law laid down by Honble Delhi High Court in re Shir. Prem Chandra Jain(deceased) V/s Shri Sri Ram( deceased) reported as 2009 SCC OnLine Del 3183 may be also relied. As held:"
"2. A practice appears to have developed in the Trial Courts of moving an application Under Section 65 of the Evidence Act seeking permission of the courts to adduce secondary evidence. There does not appear to be any sanction therefor in law. Neither the Evidence Act nor the CPC nor any other rules & regulations or statute requires the filing of such an application.
3. Section 61 of the Evidence Act provides for proof of documents either by primary or by secondary evidence . Section 64 provides that documents must be proved by primary evidence, except in cases "hereinafter mentioned" i.e. in section 65 & Section 65 A and section 65 B. Section 65 permits secondary evidence to be led in the contingencies mentioned therein. Thus a litigant without seeking any permission from the court if satisfies the ingredients of Section 65 of the Evidence Act i.e. of the existence of the contingency or situation when secondary evidence is permitted to be led is entitled to lead such evidence.
Such evidence will have to be two fold. Firstly, as to the existence of the contingency or situation in which secondary evidence is permissible, viz that the original document is in possession or power of the person against whom it is sought to be proved etc or that the existence, condition or contents of original have been proved to be admitted or that the original has been lost or CS No. 424/16 page 31 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
destroyed or when original is not movable etc. i.e. of the various situations mentioned in Clause (a) to (g) of Section 65.
Secondly, such evidence will have to be in proof of document as also prescribed in Section 65 r/w section 63.
4. It is only after such evidence has been led can the court form an opinion whether the circumstances/ situation in which it is permissible to lead secondary evidence exist or not. For instance, whether a document has been lost or destroyed is a question of fact. It is only after the person claiming so has been cross examined, can a decision be taken as to the existence and loss or destruction of the original.
5. The court, on an application seeking permission to lead secondary evidence, even if setting out reasons as contained in either of the clauses of Section 65, cannot taken a decision on the correctness of the reasons. The application thus serves no purpose except delaying the proceedings. It is however often found that the courts allow or disallow the applications, without giving an opportunity to the parties for laying a foundation for reception or rejection of secondary evidence. Such procedure is impermissible in law. Factual controversies cannot be adjudicated on applications. That is however not to be understood as allowing a minitrial on this aspect. The party seeking to prove document by secondary evidence is to lead evidence of the existence of circumstances/ situations in which secondary evidence is permissible, during leading its evidence, whether by way of examination of witnesses or cross examination of opponents witnesses, in the suit/other proceeding itself. It will be decided at the stage of disposal of suit only, whether case for leading secondary evidence has been made CS No. 424/16 page 32 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
out or not and if so, whether document stands proved by secondary evidence."
In view of the aforesaid legal positions, it is clear that secondary evidence is admissible in evidence if the conditions /requirement of section 65 of Indian Evidence Act is satisfied; the satisfaction may be borne out from the evidence on record and there is no requirement for moving any formal application at all.
32. As observed, the foundation for leading secondary evidence in respect of the documents i.e agreement dt. 02.04.08 and MOU dt. 24.05.08 in view of section 65 of the Indian Evidence Act is laid down in this case. All the defence witnesses categorically proved the execution of these documents, payment of the amount towards such transaction, handing over of the original documents to the plaintiff etc. The provision of Section 65 is accordingly applicable in facts of the case granting opportunity to defendants to lead secondary evidence. This court does not find any basis in the argument of ld. Counsel for plaintiff that no notice was given by the defendants to produce the original documents to plaintiff at all as required section 66 of the Indian Evidence Act as from the testimony of witnesses, it is clear that plaintiff was well aware that he required to produce the documents in view of the contentions of the defendants in the pleadings. The documents is merely marked does not mean that it has not been proved in accordance with law or if a documents has been proved by adequate evidence, the exhibition or marking on the documents is not relevant. This court is fortified in view of Judgment titled Sharma Enterprises V/s Hotel Leela Venture Ltd reported as ( 2009) 159 DLT 60 in this respect.
33. The plaintiff denied the execution of the documents i.e. agreement to sell dt. 02.04.08 and MOU dt. 24.05.08 but the execution of these documents CS No. 424/16 page 33 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
were duly proved by the Dws. DWs has also categorically deposed and proved that plaintiff has paid the amount of Rs. 50,00,000/ to the defendants for purchasing property No. G186, retained the original of these documents and therefore these documents are reliable therefore the precondition for leading secondary evidence stands satisfied. The contention/ claim of the plaintiff do not inspire confidence.
34. Ld. Counsel for the plaintiff contended that the DW2 and DW3 examined by the defendants are relatives and therefore interested witnesses who are not reliable. This contentions of the ld. Counsel for the plaintiff appears to have no substance as the DW2 has the transaction with the plaintiff himself and is known to the plaintiff. The presence of both the DWs has been well accounted. Moreover from the testimonies of the witnesses and their cross examination, it is apparent that they are known to the plaintiff and defendants and therefore their presence cannot be ruled out at the time of execution of documents even otherwise merely the DW 2 and 3 being known / relative to the defendants does not make a ground for rejection of their evidence as the witnesses were cross examined at length and their testimony remained unimpeached and uncontroverted. Merely being related witnesses, it cannot be held that they are the interested witnesses and therefore contentions of the plaintiff is without any ground.
35. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes CS No. 424/16 page 34 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33). The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
36. The plaintiff led his evidence on the lines of pleadings but the cross examination of the plaintiff belied his claim. No income tax return was placed on record by the plaintiff to corroborate his claim. The case of the plaintiff appears to be improbable. It is reiterated that the plaintiff during cross examination admitted that to make any property deal no such money was ever advanced even to Mr. Gogia who was instrumental in transaction in question. It is interesting and unbelievable that the plaintiff never advanced money to Mr. Lalit Gogia who was the main person or done any deal in respect of the transaction in another property and was pleased to advance CS No. 424/16 page 35 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
payment of Rs. 50,00,000/ to the defendant in his first transaction/ dealing even being a stranger. It is further reason for not accepting the claim of the plaintiff that plaintiff has given amount to the defendant without knowing the subject matter of the transaction. In nut shell, the case of the plaintiff appears to be false and unbelievable. As noted, the documents i.e. agreement dt. 02.04.08 and MOU dt. 24.05.08 Ex. DWN and Ex. DWO have been proved by the defendants in view of testimonies of DWs. The defendants rebutted the contentions of the plaintiff and proved the contentions that cheques in question was issued as security in terms of MOU dt. 24.05.08 Ex. DWO. The cheques in question were not issued towards any liability from the plaintiff. The contention of the plaintiff regarding advance of Rs. 50,00,000/ for clinching any deal appears to be not sustainable or believable. The case of the plaintiff do not inspire confidence. This court is of the considered view that plaintiff failed to prove the payment of any money of Rs. 50,00,000/ as claimed in the plant. The defendants on the other hand categorically succeeded in proving that plaintiff has paid Rs. 50,00,000/ towards part sale consideration of plot No. G186, Sector D1/P3, Industrial Area, Tronica Cirty, Loni Ghaziabad (UP) and cheques in question were issued by defendants to plaintiff towards security for performance of their obligation under MOU dt. 24.05.08 Ex. DWO. The defendants are not liable to make payment as claimed by the plaintiff. The plaintiff is accordingly not entitled for any amount as prayed in the suit. Issue No. (i) and (ii) are decided in favour of the defendants and against the plaintiff whereas issue No. (iii) is decided against the plaintiff.
37. In view of the aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered CS No. 424/16 page 36 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
opinion that the plaintiff has failed to discharge the onus and prove the issue No. (i) and (ii). The plaintiff categorically failed to prove any payment of Rs. 50,00,000/ as contended in the plaint along with entitlement of relief/amount as prayed in the suit. Plaintiff is accordingly not entitled for any relief as prayed in the suit.
Relief : In view of the above said discussions and findings, this court is of the considered opinion that plaintiff is not entitled for the relief as prayed in the suit. The suit of the plaintiff is therefore dismissed. No order as to cost in the facts and circumstances of the case. The decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 08th day of September, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 424/16 page 37 of 37 Hari Niwas Gupta V/s M/s Om Propmart (P) Ltd. & Ors.