Delhi District Court
Sh. Rajesh Gupta vs Smt. Premlata on 16 September, 2014
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. 352/14
Case I.D. Number : 02402C0028382011
IN THE MATTER OF :
Sh. Rajesh Gupta
S/o Late Sh. Ramesh Gupta
R/o B43, East Jyoti Nagar,
Shahdara, Delhi110032. ........ Plaintiff
VERSUS
Smt. Premlata
W/o Sh. Hari Prashad Sharma
R/o 32/52, Gali No. 11,
Vishwas Nagar, Shahdara,
Delhi110032. ........ Defendant
Date of Institution of suit : 25.01.2011
Received in this Court :11.04.2014
Date of argument : 10.09.2014
Date of Judgment/Order : 16.09.2014
Decision : Suit is dismissed with cost
CS No. 352/14 page 1 of 18
Rajesh Gupat Vs. Premlata
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Suit for recovery of damages of Rs. 5 lakh
.
J U D G M E N T
1. The plaintiff filed this suit for recovery of Rs. 5 lakh as damages in respect of the agreement dated 21.05.2002 regarding property No. E801/1, Land measuring 100 Sq. Yards out of Khasra No. 311 situated in the area of Village Babarpur, in the abadi of Chhajjupur Ilaqua Shahdara, Delhi along with interest @ 24 % per annum and cost of the suit against the defendant.
Briefly stated the plaintiff's case is that the defendant being absolute owner of the above said property entered into an agreement to sell with plaintiff on 21.05.2002 for Rs. 7,50,000/. Defendant received Rs. 2,50,000/ out of total consideration of Rs. 7,50,000/ in the present of witnesses at the time of execution of the agreement to sell. The balance amount of Rs. 5 lakh was to be paid after decision of the case filed by the defendant against the tenant in respect of the suit property at the time of execution of sale deed. The defendant also executed a power of attorney in presence of her husband and son in continuation of the agreement to sell dated 21.05.2002 to prosecute/defend the suit against the tenant when the case was fixed on 24.05.2007 before Ld. Civil Judge for final arguments, defendant withdrawn the suit by way of application and tried to create third party interest contrary to the terms and conditions of the agreement to sell executed in favour of the plaintiff. The plaintiff requested the defendant not to sell the premises to any other person and also approached to the subregistrar but of no avail. The CS No. 352/14 page 2 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. plaintiff was ready and willing to purchase the suit property in view of the agreement to sell dated 21.05.2002. On suit for specific performance along with permanent injunction before Ld. District Judge was filed by the plaintiff which was dismissed with liberty to file the suit against the owner of the suit property as the defendant stated that she has already disposed the suit property before filing the said suit. The application of the plaintiff to implead the purchaser was also dismissed vide order dated 10.02.2010. The appeal and SLP filed by the plaintiff against the said order dated 10.02.2010 also has been dismissed. As the defendant contrary to the agreement dated 21.05.2002 sold the property to Sh. Pradeep Sharma on 03.05.2007, the plaintiff suffered damages but the plaintiff claimed the double amount of advance money in pursuance of agreement to sell as per the prevailing custom in the market. Hence, this suit.
2. In written statement, the defendant stated that suit is not maintainable and is barred by limitation; the plaintiff has no locus standi to file this suit; the plaintiff has suppressed the material facts and this suit is filed on the basis of false, forged and fabricated agreement to sell dated 21.05.02. As contended, no agreement to sell was executed between the plaintiff and defendant nor the defendant received the amount of Rs. 2,50,000/ as alleged. As further mentioned this suit is barred U/S 11 of CPC as the similar suit has been dismissed by Ld. ADJ vide order dated 10.02.2010. The defendant further contended that this suit is bad for misjoinder and nonjoinder of the parties and filed without any cause of action. The defendant on merit denied the CS No. 352/14 page 3 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. ownership of the property in question being sold to Pradeep Sharma on 05.03.2007, receiving any amount of Rs. 2.5 lakh or execution of any agreement to sell. The defendant further admitted the execution of Power of attorney in good faith contending that this suit is filed to harass the defendant.
3. Replication was not filed by the plaintiff to the written statement of defendant. In view of the pleading of the parties, following issues were framed vide order dt. 20.07.2011:
(i) Whether plaintiff is entitled to decree for recovery of Rs. 5,00,000/ ( Rs. 5 lakh) along with interest @ 24 % per annum from the date of filing of suit till realization ? OPP
(ii) Whether the suit of the plaintiff is barred U/S 11 of CPC in view of the order dated 10.02.2011 passed in Suit No. 169/07 titled as Rajesh Gupta Vs. Smt. Prem Lata ? OPD
(iii) Whether the suit of the plaintiff is barred by limitation ? OPD.
(iv) Relief.
The case was thereafter fixed of Plaintiff's Evidence.
4. Plaintiff examined three witnesses i.e. himself as PW1, Sh. Pramod Kumar as PW2 and Sh. Yogesh Kumar, Ahlmad from the Court of Ld. ADJ also as PW2.
PW 1/plaintiff has filed his affidavit by way of evidence Ex. PW1/A and deposed regarding the case. The witness has deposed nothing but the averments made in the plaint. The witness has also deposed regarding the relevant documents i.e. Agreement to Sell Ex. PW 1/ 1, Certified copy of CS No. 352/14 page 4 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Power of Attorney Ex. PW 1/ 2, Certified copy of order dated 10.02.2010 Ex. PW1/3, copy of order dated 06.07.2010 by Hon'ble Delhi High Court Mark A and certified copy of order dated 20.09.2011 by Hon'ble Supreme Court Ex. PW1/5.
PW2 Pramod Kumar by way of affidavit Ex. PW2/A deposed regarding the agreement to sell dated 21.05.2002 between plaintiff and defendant Ex. PW1/1 and other facts as deposed by the plaintiff. Other witness Yogesh Kumar i.e. Ahlmad appeared with the case file No. 169/07 i.e. Rajesh Gupta Vs. Prem Lata dismissed on 10.02.2010. As no other witness remained to be examined by the plaintiff, the PE was closed and the case was fixed thereafter defendant's evidence.
5. The Defendant filed her evidence by way affidavit Ex. DW1/A and examined herself as DW1. The witness has deposed regarding the contentions as mentioned in the written statement and prayed to dismiss this suit. As no other witness remained to be examined by the defendant , DE was closed.
6. I have heard the Ld. counsel for the parties and gone through the relevant materials on record. I have also considered the relevant provisions of law.
7. 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 amount as prayed in the suit. It is further argued the defence of the defendant is shame, CS No. 352/14 page 5 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. vague and fanciful, the defendant failed to comply the terms and conditions of the agreement; this suit is filed within limitation. The Ld. Counsel for the plaintiff further prayed to decree the suit in favour of the plaintiff and against the defendant.
8. The Ld. Counsel for the defendant on the other hand, having drawn my attention to the 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, plaintiff has no right, title or interest, this suit is false. It is also submitted by Ld. counsel for the defendant that plaintiff has no locus standi to file this suit and plaintiff has concealed the material facts and therefore, the suit is liable to be dismissed. The Ld. Counsel for the defendant further argued that this suit of the plaintiff barred by limitation. The Ld. Counsel for the defendant prayed to dismiss the suit with cost.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : Issue No. i, ii & iii
(i) Whether plaintiff is entitled to decree for recovery of Rs. 5,00,000/ ( Rs. 5 lakh) along with interest @ 24 % per annum from the date of filing of suit till realization ? OPP
(ii) Whether the suit of the plaintiff is barred U/S 11 of CPC in view of the order dated 10.02.2011 passed in Suit No. 169/07 titled as CS No. 352/14 page 6 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Rajesh Gupta Vs. Smt. Prem Lata ? OPD
(iii) Whether the suit of the plaintiff is barred by limitation ? OPD.
10. The onus to prove the issue No. i regarding entitlement for the amount claimed in the suit was on the plaintiff though the onus to prove the issue No. ii and iii was upon the defendant. 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, CS No. 352/14 page 7 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. 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."
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 CS No. 352/14 page 8 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. (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.
11. 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 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. As held in CS No. 352/14 page 9 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
12. In the present case there is no admission by the defendant. It is reiterated that the onus to prove this case was upon the plaintiff for entitlement of the amount as prayed in the suit. The Ld. Counsel for the defendant vehemently argued this suit for recovery of damages filed by the plaintiff is barred by limitation. The Ld. Counsel for the plaintiff on the other hand controverted this submission. Whether the suit of the plaintiff is barred by limitation or not, the court is bound to look into this plea. In this regard, the Judgment Sh. N.S.Chohan & Ors Vs. Bhoop Singh & Ors. 32 CCC 548 SC is applicable. The relevant para is reproduced as under:
" Ordinarily, we would not have inferred in such matter. However, it appears to be a gross case. Appellants before us have been able to show that the exparte decree dated 19.04.1990 passed by the Ld. Additional District & Sessions Judge, Jorhat exfacie suffers from non application of mind. Had the Ld. Judge applied its mind even to the averments made in the plaint, he should have asked himself the question as to whether in the absence of any acknowledgment in writing, as a result CS No. 352/14 page 10 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
whereof the period of limitation would start running afresh, the suit could have been decreed. Section 3 of the Limitation Act , 1963 mandates that a Court would not exercise its jurisdiction for any relief in favour of a party if the same is found to be barred by limitation. Although such a defence has not been raised, the statue obligated upon the court of law to consider as to whether a suit is barred by limitation or not. In the event, it was found that the suit was barred by limitation, the Court had no jurisdiction to pass a decree. It was therefore essential for the Ld. Trial Judge to pose unto itself the right question, particularly when without abduction of oral evidence the pleading raised in the plaint could not Suit No. 113/11 Sh. N.S.Chohan & Ors Vs. Bhoop Singh & Ors. 33 be said to have been established. It was, therefore, not a case where the court could have invoked the provisions of Order 10 Rule 8 of the CPC. Even otherwise, the suit was set down CS No. 352/14 page 11 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
for exparte hearing. The Ld. Trial Judge stated that only a prima facie case was found out from the plaint and other documents which were not sufficient for passing a decree as therefor the plaintiff was bound to prove his case.
13. This court is further supported with the judgment reported as 2007(3) CCC 248 in this respect and the relevant para is reproduced as under:
"In terms of Section 3 of the Limitation Act, it is for the Court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties. Such a jurisdictional fact need not, thus,be pleaded. In any event, the said evidence was admissible for the purpose of contradicting a witness, which being a relevant fact should have been considered in its proper perspective. If the contents of Ex B8 were accepted, it was not for the High Court to consider the consequences flowing therefrom., and, thus, but the fact whether the figure(s) contained therein CS No. 352/14 page 12 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
could be verified Suit No. 113/11 Sh. N.S.
Chohan & Ors Vs. Bhoop Singh & Ors. 34
from the books of account might not be
very relevant. Whether, it would be in
consonance with the pleadings of
Appellants was again of not much
significance if it can be used for
demolishing the case of plaintiffs and defendant No. 1. If the figures contained in ExB8 were accepted, it was for defendant No. 1 to explain the same and not for appellants. The High Court, in our opinion, thus, committed a manifest error in not taking into consideration the contents of ExB8 in its proper perspective."
As mentioned the plaintiff has filed this suit for recovery of damages on the basis of agreement to sell dated 21.05.2002. The plaintiff has filed this suit on 27.01.2011. Before filing of this suit, the plaintiff has filed one suit for specific performance and permanent injunction against the defendant before Ld. ADJ, Tis Hazari which was dismissed vide order dated 10.10.2010. Admittedly, the property in question in respect of which the alleged agreement to sell was entered between plaintiff and defendant was sold by the defendant on 03.05.2007 to one Sh. Pradeep Sharma. The suit was filed by CS No. 352/14 page 13 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. plaintiff for specific performance and permanent injunction before Ld. ADJ on 30.05.2007 i.e. after more than period of three years from the date of agreement. As mentioned in the said order dated 10.02.2010 by Ld. ADJ itself Ex. PW1/3, the plaintiff suppressed and concealed the material facts regarding sell by the defendant and the suit was dismissed have become infructous this order of Ld. ADJ dated 10.02.2010 was upheld by Hon'ble Delhi High Court as well as Hon'ble Supreme Court. The said suit was also dismissed on 10.02.2010 with liberty to file suit against the owner i.e. defendant in this matter. It is relevant to note that the plaintiff did not file any suit for recovery against the defendant at any stage and therefore the plaintiff cannot claim enlargement of limitation period in respect of any such claim by virtue of the liberty in order dated 10.02.2010 of Ld. ADJ. Even otherwise the limitation period is not extended by any stretch of imagination in view of order dated 10.02.2010. I have also gone through the alleged agreement to sell Ex. PW1/1 relied by the plaintiff. In view of the said agreement the remaining payment was to be made at the time of execution of sale deed. As admittedly the defendant sold the property to Pradeep Sharma on 03.05.2007, the period of limitation for claim of compensation started from the said date for breach of contract on behalf of the defendant. Moreover, even if the contention of the Ld. Counsel for the plaintiff is considered that remaining payment was to be made after the disposal of the suit filed by the defendant against her tenant, the suit of the plaintiff also appears to be barred by limitation as the said suit was withdrawn on 24.05.2007 itself.
CS No. 352/14 page 14 of 18 Rajesh Gupat Vs. Premlata
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. The plaintiff has filed this suit for recovery on 27.01.2011. The period of limitation for filing a suit for compensation for breach of a promise to do anything at a specified time, or upon the happening of specified contingency is three years from the date when the time specified arrived or the contingency happens. Further more, in view of article 55 of the Schedule to the Limitation Act, the suit for compensation for the breach of any contract, expressed or implied not herein specially provided for is three years when the contract is broken or when the breach in respect of which the suit is instituted occurs. Computing the period of limitation in view of the aforesaid provisions of Limitation Act along with facts of this case, the suit of the plaintiff is filed beyond the prescribed period of limitation of three years and is therefore barred by limitation. The issue No. iii is decided in favour of the defendant and against the plaintiff and it is held that as the suit of the plaintiff is barred by limitation, the plaintiff is not entitled for any relief as prayed in the suit.
14. It is argued by Ld. Counsel for the defendant that this suit of the plaintiff is not maintainable and is barred by Section 11 of CPC. This contention of Ld. Counsel for defendant is not sustainable as the suit No. 169/07 titled Rajesh Gupta Vs. Prem Lata filed by the plaintiff before Ld. ADJ at Tis Hazari Courts dismissed vide order dated 10.02.2010 was not examined or disposed on merits. Resjudicata is a doctrine applied to give finality to the proceedings and means that an issue or a point decided and attaining finality should not be allowed to be reopned and reagitated . As CS No. 352/14 page 15 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. mentioned in order dated 10.02.2010 itself, the plaintiff was granted liberty to file the suit against the owner of the property. In any case the suit of the plaintiff is not barred by Section 11 of CPC. The issue NO. ii is decided in favour of the plaintiff and against the defendant.
15. The defendant has denied execution of any agreement to sell though admitted the execution GPA in favour of the plaintiff. As mentioned the suit has to be decided on the basis of preponderance of probabilities. The plaintiff claimed to advance Rs. 2.5 lakh in cash to the defendant taking from the PW2 Pramod Kumar when the said agreement to sell was executed. The testimony of the plaintiff/PW1 and PW2 Pramod Kumar was totally shaterred during crossexamination of the witnesses. Admittedly, the GPA was executed by the defendant in favour of the plaintiff after the execution of the agreement to sell but there is no mention of the said agreement to sell either in the GPA or in the court proceedings where the statement of the plaintiff was recorded regarding the said agreement to sell between the plaintiff and defendant. The same itself cast shadow and the plaintiff failed to explain any reason in this respect. This court also finds inherent contradiction in the testimony of the PW1 as compared to PW2 with respect to the presence of the witnesses at the time of execution of agreement to sell, regarding place and execution of the agreement to sell, regarding the payment, notarization of the agreement to sell etc. There is no material on record to show or prove any payment of Rs. 2.5 lakh to the plaintiff except the said agreement to sell Ex. PW1/1, the execution of which is denied by the plaintiff. The testimony of the defendant CS No. 352/14 page 16 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. on the other hand remained unimpeached and uncontroverted in one way or the other.
16. The plaintiff claims to have paid Rs. 2.5 Lakh to the defendant in cash after taking from PW2 Pramod Kumar but no such record regarding the transaction is proved including the Income Tax Return of PW2. The said payment of Rs. 2.5 lakh by PW2 to plaintiff is also not mentioned in his affidavit which was controverted during his crossexamination. It is not specified in the plaint how the payment was made and from where it was arranged. There is no acknowledgment or receipt in this respect on record of the defendant. Further the payment of Rs. 2.5 lakh by the plaintiff to defendant in cash itself raises queries and suspicion regarding the transaction along with attraction of violation of relevant laws of Income Tax etc. There is no acknowledgment regarding the payment by defendant. Moreover, the source of payment of Rs. 2.5 lakh in cash by the plaintiff or PW2 is also not explained by the plaintiff along with corroborative evidence.
17. I have gone through the judgment reported AIR 2008( NOC) 2495( KAR.) which is squarely applicable in the facts and circumstances of the case. Further the judgment reported as 2009 (107) DRJ 271 squarely applies in the facts and circumstances of this case. The plaintiff has not filed even a single document to show the availability of cash in such large volume along with the source of the same. Further there is no explanation as to why such large sum of money was transacted in cash etc. CS No. 352/14 page 17 of 18 Rajesh Gupat Vs. Premlata Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
18. In view of the aforementioned discussions and examining the case of the plaintiff even on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiff failed to discharge the onus. The plaintiff failed to prove the execution of any agreement to sell by the defendant or the payment of consideration. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff is not entitled for relief as prayed in the suit. Issue No. i is decided against the plaintiff and in favour of the defendant.
RELIEF
19. In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff is not entitled for any relief as prayed in this suit and the suit of the plaintiff is barred by limitation. The suit of the plaintiff is accordingly dismissed with cost.
20. Decree sheet be drawn accordingly.
21. File be consigned to record room after necessary compliance. Announced in open Court on this 16th day of September, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 352/14 page 18 of 18 Rajesh Gupat Vs. Premlata