Delhi District Court
Mrs. Abida vs Mohd. Shahid on 31 October, 2014
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS, DELHI
CS N0. 212/12.
UID No. 02401C0508122012.
1. Mrs. Abida
W/o. Late Mohd. Jamil
R/o. 1613, Gali Tajran, Suiwalan
Darya Ganj, New Delhi
2. Mrs. Shahida Begum
W/o. Mohd. Haneef
R/o. 2795, Gali Garhiya, Kucha Chelan
Darya Ganj, New Delhi
........... Plaintiffs
Versus
Mohd. Shahid
S/o. Mohd. Yamin
R/o. 1454, Gali Murliban, 4th Floor
Bazar Chitli Qabar
Delhi-110006.
......... Defendant
Date of institution of suit : 26.10.2012.
Date of reserving for order : 21.10.2014.
Date of judgment : 31.10.2014.
JUDGMENT
1. The is a suit for mandatory injunction or in the alternative for recovery of Rs. 16,00,000/- filed by the plaintiff.
2. Brief facts of the case are :
CS No. 212/12Mrs. Abida Vs. Mohd. Shahid Page 1
a) Defendant is known to the plaintiff and he approached the
plaintiffs for advancement of friendly loan of Rs. 16 lacs as the defendant was in need of money because of his financial difficulties. He also allured the plaintiffs to advance the said amount for a short period of four months and in security of the same, the defendant represented himself as owner of 4th floor portion forming part of property bearing no. 1454, Gali Murliban, Bazar Chitli Qabar, Delhi-110006 and agreed to execute the sale deed of the said 4 th floor portion, in case the defendant fails to make the payment within stipulated period of four months.
b) Considering the financial difficulty and relations with the defendant, the plaintiff advanced a sum of Rs. 16 lacs to the defendant on 22/05/2012 and an agreement dated 22/05/2012 was also executed between the parties. The defendant clearly acknowledged and admitted the receipt of said amount.
c) After the lapse of four months, when the plaintiffs approached and contacted the defendant for refund of said amount, the defendant shown his inability to make the payment of said amount. The plaintiffs have asked the defendant to fulfill his part of obligation by executing the sale deed in respect of 4th floor as per agreement dated 22/05/2012 and to adhere the terms and conditions of the said agreement but the defendant has failed to perform his part of the obligation for executing the sale deed. On 05/10/2012, the plaintiffs along with their brother visited the defendant and also requested him to refund their hard earned money. It was further requested that in case the defendant is not able to refund the said amount, to execute a sale deed in respect of 4th floor, but the defendant instead of paying any heed to the requests of the plaintiffs threatened the plaintiffs that he will neither make any payment not execute any sale deed in favour of the plaintiffs.
CS No. 212/12Mrs. Abida Vs. Mohd. Shahid Page 2
e) Plaintiffs got issued a notice dated 10/10/2012 to the defendant
calling him to pay / refund the amount of Rs. 16 lacs with interest @ 18% p.a. or to execute the documents of the suit property in favour of the plaintiff but the defendant neither gave any reply nor complied with the terms of the notice. Hence, this suit.
3. Written statement filed by the defendant wherein the defendant denied for receiving of any money from the plaintiff. It is further stated that the plaintiff is not the owner of the property as mentioned in the plaint because father of the plaintiff is the owner of the property no. 1454, Gali Mutrliban, Bazar Chitli Qabar, Delhi-6. The defendant was never agreed to execute the alleged sale deed qua the said property in favour of the plaintiff. The plaintiff had assured the defendant to advance a loan from his well known person and got the signature of the defendant on blank papers and now the plaintiff has filled in the same to suit his own convenience. The signatures of the defendant on the alleged agreement are not of him. Rest of the contents of the plaint are denied.
4. Replication filed by the plaintiff to the written statement of the defendant wherein it is denied that the plaintiff is neither the owner nor the landlord of the property as mentioned in the plaint. It is denied that father of the plaintiff is the owner of property no. 1454, Gali Murliban, Bazar Chitli Qabar, Delhi-6. Rest of the contents of the written statement are denied and averments made in the plaint are re-iterated and affirmed.
5. This court by order dated 22/05/2013 framed following issues :
"i) Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC ? OPD.
ii) Whether the plaintiff is entitled for decree for mandatory injunction, as prayed ? OPP.
Iii) Whether the plaintiff is entitled for recovery of the suit CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 3 amount as alternative relief ? OPP.
iv) Whether the plaintiff is entitled for pendente lite and future interest on decree amount ? If so, at what rate ? OPP.
v) Relief."
6. To prove his case, the plaintiff examined herself as PW1 and tendered her evidence by way of affidavit Ex. PW1/A. She further relied upon documents Ex. PW1/1 to Ex. PW1/4. The plaintiff further examined Sh. Salauddin as PW2 who tendered his evidence by way of affidavit Ex. PW2/A. The plaintiff further examined Sh. Azizuddin as PW3 who tendered his evidence by way of affidvit Ex. PW3/A. All the witnesses of the plaintiff were cross-examined by the counsel for the defendant. In defence, the defendant examined himself as DW1 and tendered his evidence by way of affidavit Ex. DW1/1. The defendant further examined Mohd. Shamim as DW2 who tendered his evidence by way of affidavit Ex. DW2/A. Both these witnesses were cross-examined by ld counsel for the plaintiff and vide separate statement, ld counsel for hte defendant closed DE.
7. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. My issuewise findings are :
Issues No. 1, 2 and 3Issue No. 1 : Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC ? OPD.
Issue No. 2 : Whether the plaintiff is entitled for decree for mandatory injunction, as prayed ? OPP.
Issue No. 3 : Whether the plaintiff is entitled for recovery of the suit amount as alternative relief ? OPP.
Since evidence pertaining to all these issues are common, therefore, I am going to dispose of all these issues by common findings. Contents of Ex. PW1/A are similar to the averments made in CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 4 the plaint. During cross-examination, PW1 admitted that there are only two witnesses and there is no other witness from the defendants side in the agreement. The agreement is Ex. PW1/1. She has further stated that at the time of preparation of the agreement Ex. PW1/1, she, her sister and Sahid, Salauddin and Uzma were present. She has further admitted that there is no cash receipt against cash except Ex. PW1/1. She has further admitted that she had not made payment through cheque. The payment was made by the plaintiff in 2-3 transaction. A suggestion was given that father of the defendant is the owner of the property and the suggestion is denied. It is further stated by PW1 that she has received the amount after selling of the share of the property which is situated at Okhla and Trans Yamuna, Delhi. PW2 has stated in his affiavit Ex. PW2/A that the defendant in his presence received the amount of Rs. 16 lacs. During cross- examination, it is stated that plaintiff no. 1 is his real sister. He has stated that he did not remember how many transactions were made to the defendant. He has further stated that three persons were present at the time of lending loan amount to defendant namely Uzma, he himself and the plaintiff. He has further stated that he had purchased the stamp paper in presence of the defendant. He has further stated that Ms. Uzma who is witness of the agreement Ex. PW1/1 was the relative of the defendant. PW3 also stated that the amount was given to the defendant in his presence by the plaintiff. During cross- examination, it is stated by PW3 that he knew the plaintiff through his brother Mr. Salauddin who is having the same business. He has also stated that money was handed over in his presence, though agreement was already prepared. Payment was made in cash in one time. Contents of Ex. DW1/A are similar to the written statement except in Ex. DW1/A, the defendant stated that the property belongs to the father CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 5 of the defendant whereas in written statement it was the case of the defendant that the father of the plaintiff is the owner. During cross- examination, it is stated by DW1 that first floor of the property is in possession of his father Mohd. Yameen and he is living with his younger brother Mohd. Rashid. The second floor was sold by his father. The third floor is in possession of his younger brother Zahid and Wahid since last forty years. The fourth floor is in possession of his younger brother Wahid and fifth floor is in his possession consisting of two rooms. He has admitted that he has not filed any document in the court to show that his father is the owner of the property. A suggestion was given that since his father is not the owner of the property, therefore, he has not filed any document in the court and he replied that since the court has not asked him to file any document under possession of the ground floor has been sold to its occupants by his father. However, the defendant did not put himself for further cross- examination and left during cross-examination. Therefore, testimony of DW1 cannot be believed upon as he did not make available himself for cross-examination by the plaintiff. DW2 stated that the plaintiff took the signature of the defendant on blank stamp papers in his presence and also took the photograph of the defendant but no cash loan was ever advanced to the defendant by the plaintiff in his presence. During cross-examination, it is stated that Ex. PW1/1 bore the photograph of the defendant but signature on the same are not of the defendant. A suggestion was given that the plaintiff had not taken any signature on the blank paper from the defendant in his presence. The suggestion was denied. DW2 further denied the suggestion that the plaintiff had lent money to the defendant and the defendant had signed the agreement dated 22/05/2012 in presence of the witness. He has also admitted that he is deposing at the instance of the defendant. After CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 6 perusing all the evidence, this court is of the considered opinion that since the defendant has not given complete opportunity to the plaintiff to cross-examine his testimony, therefore, his testimony cannot be believed upon but the fact remains that the testimony of the plaintiff also does not inspire confidence in the mind of this court. The plaintiff has stated that she had paid Rs. 16 lacs in 2-3 transactions whereas PW2 stated that he did not remember how many transactions were made and PW3 stated that payment was made in cash in one time. It is a material contradiction. An amount of Rs. 16 lacs is not a small amount and if the said amount was paid then definitely there should not be any such contradiction as appeared in testimony of PW1, PW2 and PW3. Moreover, it is stated by PW1 that at the time of preparation and execution of agreement, she, her sister and Sahid, Salauddin and Uzma were present there whereas it is stated by PW2 that at the time of lending loan amount, he, Uzma and the plaintiff were present. PW3 stated that he was present when the amount was paid. He was present when the plaintiff had paid the amount but the fact remains that neither PW1 nor PW2 stated that PW3 was present when the amount was given. Therefore, the testimony of PW2 and PW3 cannot be believed upon. The plaintiff has stated that she has brought this amount after sale of the property at Okhla. She has also stated that the amount was of denomination of currency note of Rs. 1,000/- and Rs. 500/-. If such a huge amount was paid then no document has been brought on the record regarding sale of payment of property at Okhla or Trans Yamuna. Therefore, testimony of PW2 cannot be relied upon regarding amount of Rs. 16 lacs. Moreover, if such a huge amount was paid then definitely documentary proof regarding sale of property at Trans Yamuna or Okhla must be prepared but no such document has been brought on the record. In such circumstances, this CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 7 court is of the considered opinion that the story brought by the plaintiff regarding payment of Rs. 16 lacs is only a cooked up story. The Hon'ble High Court has held in Mahesh Kumar Wadhwa Vs. Bimal Lutra 2009 (107) DRJ 271 passed by the Hon'ble High Court wherein it was observed :
"D. There is also no explanation as to why such large sums of monies were transacted in cash.
E. The plaintiff has not filed a single document to show the availability of cash in such large volume with him on the dates alleged.
F. A party who transacts in such casual manner, does so at his own peril. The purport of Order 37 is to provide benefit of summary procedure to plaintiffs who take care to have their transactions properly documented in accordance with law. The summary procedure is intended to encourage due recording / documentation in the course of trade / commerce. A person who while lending / advancing money makes as proper valid bill of exchange hundi, promissory note or a contract was intended to be bestowed advantage of quicker recovery of money without protracted trial. A party to avail of such significant benefit ought to take care in the making and execution of the document and lend money by cheque only, so as to eliminate defences of denial. The abridgement of procedure of trial for adjudication of factual disputes in Order 37 is an exception and cannot be extended to cases where the document itself is suspect or leaves scope for denial of receipt of money. The banking sector has developed immensely in the country over the years, with all having access to the banks. In these modern times transactions in large sums of monies, in cash and through non banking channels will always remain open to challenge and cannot claim preference in procedure for adjudication. To hold otherwise would be to give encouragement to such transactions, which otherwise need to be curbed. With the introduction of Section 138 in the Negotiable Instruments Act, judicial notice can be taken of the fact that normally post dated cheques in refund of monies lent/advanced are taken. Even if the plaintiff was lending money in cash, the plaintiff in the normal course would have been expected to take cheques for refund. All these CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 8 circumstances, in the present case lead me to the conclusion aforesaid. Nothing said here should however be understood as laying down that Order 37 CPC would not be applicable wherever transaction is in cash. If the cash is explained and supported by other documents, action would lie.
However, in this case notwithstanding specific plea in leave to defend application that the plaintiff had no means and had not disclosed the said monies in his income tax returns, the plaintiff has in his reply evaded answering the said pleas and also not filed any document to controvert the same. There cannot be two stands permitted to any party, one for purposes of taxation and other for litigation."
Further the Hon'ble Delhi High Court in Abhey Dewan & Ors. Vs. Manoj Sethi & Ors. 202 (2013) Delhi Law Times 392 observed in para 12 :
"The principle of public policy is, ex dolo malo non - oritur action i.e. no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the litigant's own stating or otherwise, the cause of action appears to arise ex turpi causa or in transgression of a positive law of the country, the Court will refuse to render its assistance to such a litigant. The Supreme Court in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander AIR 1968 SC 1165 held that in a case in which a litigant must rely upon his own illegality, the Court may refuse him assistance. Similarly in Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar AIR 1965 SC 1364 also it was held that if the litigant seeks the assistance of the Court to effectuate an illegal transaction, the Court will refuse to assist him. In Sita Ram Vs. Radha Bai AIR 1968 SC 534 it was held that the principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto potior est conditio defend entis. Similarly in Kedar Nath Motani Vs. Prahlad Rai AIR 1960 SC 213 it was held that where a party rests its case upon an illegality, then public policy demands that it should not be allowed to take advantage of the position. Mention in this context may also be made of S.P. Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1 holding that the Courts of law are meant for imparting justice between the parties; that a person whose case is based on falsehood has no right to CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 9 approach the court and can be summari ly thrown out at any stage of litigation. It was also noted that the process of the court is being abused - property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. I am also tempted to refer to Ram Sewak Vs. Ram Charan AIR 1982 Allahabad 177. It was a case of concealment of profits; the parties had been keeping double set of accounts for evading payment of income tax and sal es tax. The Lower court reported the matter to the Taxation Authority. The High Court held that the Courts should have refused to entertain the suit on the ground of public policy, as it involved directing the recovery of an amount found to be due to either party as a share of the profits which had been deliberately concealed by the parties from the books of account in order to evade the payment of taxes. It was held that no Court can countenance a deliberate evasion of tax laws of the country and to lend the aid of the court for recovering an amount which had been deliberately kept concealed by the parties in order to evade payment of taxes due thereon. It was further held that if the courts were to do so , it would amount to aiding and abetting evasion of the laws by the court itself. It was further held that since the object of the parties was found to be that the profits will be earned in such a way or retained in such a manner as to evade the payment of taxes which was forbidden by law and which defeats the provision of the tax laws, therefore the object of the agreement was forbidden by law and is opposed to public policy. The agreement between the parties to earn concealed profits being void, it was held that the court could not enforce the agreement by directing an inquiry into that amount or the destination of the concealed profits in order to enforce the recovery of the share therein of one party from another. Reference may also be made to the Full Bench decision in Ghulam Ahmed v. Mohd. Iqbal AIR 1970 J&K 165 where a partnership which entailed transfer of truck and its route permit to the partnership business, in contravention of the provisions of the Motor Vehicle Act was held to be void in entirety. "
In view of the law discussed herein above, the plaintiff is not able to discharge the onus to prove issues no. 2 and 3 in accordance with law. Similarly, defendant is also not able to discharge the onus to prove issue no. 1. Therefore, these issues are answered accordingly by this CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 10 court.
8. Issue No. 4Whether the plaintiff is entitled for pendente lite and future interest on decree amount ? If so, at what rate ? OPP. Onus to prove issue no. 4 is upon the plaintiff. Since the plaintiff is not able to discharge the onus to prove issue no. 3, therefore, this issue is also answered against the plaintiff.
9. Issue No. 5.
Relief In view of the observations made herein above, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 31/10/2014. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 212/12 Mrs. Abida Vs. Mohd. Shahid Page 11 CS No. 212/12 31/10/2014 Present : None.
By separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra)
Additional District Judge-09
Central District, Tis Hazari Courts
Delhi/ 31.10.2014
CS No. 212/12
Mrs. Abida Vs. Mohd. Shahid Page 12