Delhi District Court
Jasvinder Singh @ Bittoo Chaudhary vs Surjeet Singh Virdhi on 6 January, 2023
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KARKARDOOMA, DELHI.
CS Comm. No. 424/22
Jasvinder Singh @ Bittoo Chaudhary
Through its Proprietor M/s Chaudhary
Property Hub, Office At: F-4/9, F-Block
Krishna Nagar, Delhi-110051.
....Plaintiff
Vs.
Surjeet Singh Virdhi
S/o Late Sh. Harnaik Singh Virdhi
R/o H. No. 5568, F-Block,
Aerocity, Mohali, Punjab-140306
......Defendant
Date of Institution : 12.07.2022
Date of Final Arguments : 06.01.2023
Date of Judgment : 06.01.2023
Decision : Dismissed
Judgment
1. This suit has been filed by the plaintiff for recovery of Rs.14.84 lacs along
with interest @ 18% per annum. This suit was initially filed under Order 37
CPC but on 09.11.2022 on the request of Ld. Counsel for plaintiff it was
treated as an ordinary suit.
Case of the Plaintiff
2. Case of the plaintiff as per plaint and the evidence led is that he is a
Property Consultant. In July 2020 defendant and his son Gurdeep Singh
contacted him for sale of property no. 64, Shanti Vihar, Delhi-110092
CS Comm. No. 424/22 Page 1
Jasvinder Singh Vs. Surjeet Singh Virdhi
consisting of ground floor, first floor and second floor with roof rights apart
from common lift and parking space. It was built on a plot admeasuring
194.66 Sq. Yards. Another shop admeasuring 7'5" X 17'5" with carpet area
163 Sq. Feet at Plot No. 3, LSC Rishabh Vihar, Delhi was also to be sold.
Upon deliberations, the plaintiff arranged for the sale of the first property
and an Agreement for Sale dated 19.10.2020 was executed for the 3 floors
of the first property for Rs.2,45,50,000/-, Rs.2,35,50,000/- and
Rs.2,61,00,000/- respectively. However, the sale deed was executed as per
the circle rate much below the above amount. As per plaintiff the defendant
caused Loss to the Exchequer and the Revenue Authorities by undervaluing
the Sale Deeds. It is case of the plaintiff that defendant left Delhi and shifted
to Mohali, Punjab without paying the requisite commission for services pro-
vided by him as a Property Consultant @ 1% of the total sale from both the
sides or 2 % from the defaulting party as the case may be. As per him he has
the necessary documentary records to support his claim which comes to
Rs.14.84 lacs.
3. Plaintiff tried to reach out to defendants repeatedly on phone followed by
issuance of legal notice dated 12.01.2022. Plaintiff approached Shahdara
DLSA for Pre-Institution Mediation which issued a Non-Starter Report
dated 06.04.2022. Having no other option left plaintiff filed this suit under
Order 37 CPC for recovery of suit amount.
4. Upon service of summons of this suit defendant entered appearance and
filed detailed Written Statement on 18.10.2022.
Defendant's Case
5. Case of the defendant as per pleadings and the evidence led is that he is an
aged man and is suffering from various ailments. He contested this suit
CS Comm. No. 424/22 Page 2
Jasvinder Singh Vs. Surjeet Singh Virdhi
through his Special Power of Attorney i.e. his son Sh. Gurdeep Singh. It is
pleaded that he was owner of the property no. 64, Shanti Vihar, Delhi which
was later constructed with stilt parking apart from 4 floors i.e. ground, first,
second and third under a Collaboration Agreement dated 09.05.2012 with
one builder. Out of the same second floor was sold by Defendant to Smt.
Meenakshi Chaudhary on 16.03.2016 along with the Builder. It is
thepleaded case that in 2021 Defendant was desirous of selling the
remaining 3 floors i.e ground, first and third with an aim to shift and settle
in Punjab. It is at that juncture that his son Gurdeep Singh came in contact
with the plaintiff through a man who offered to provide his services and
help them sale the properties. As per defendant although plaintiff did try to
get the property sold but the deals could not be finalized and subsequently
defendant and his son sold the properties on their own without any
involvement of the plaintiff. Upon execution of the Sale Deeds they shifted
to Mohali, Punjab. It is pleaded case of the defendant that no written or oral
contract was entered between them and the plaintiff for availing his services
or for payment of commission as claimed. It is pleaded that plaintiff has
filed a Compact Disk (CD) purportedly containing the recording of
telephonic conversations between the plaintiff and the defendant and
defendant's son but the same was not supplied to the defendant. However it
is stated that it was supplied post-filing of the WS but no additional reply
qua the same was filed.
6. It is claimed that the suit of the plaintiff is not maintainable as it suffers
from concealment and misrepresentation of facts. Objection qua territorial
jurisdiction of this Court was also raised. It was pleaded that the suit is
without cause of action and plaintiff has no locus standi to file the suit in the
form presented.
CS Comm. No. 424/22 Page 3
Jasvinder Singh Vs. Surjeet Singh Virdhi
7. On merits, it is specifically denied that plaintiff arranged for sale of the
property described in the plaint or that agreement for sale of amount of
Rs.2,45,50,000/-, Rs.2,35,50,000/- and Rs.2,61,00,000/- was executed with
the help of plaintiff or that actual sale deeds were executed at a rate much
less than the circle rate. As per defendant, plaintiff concocted a bogus story
so as to extract money from him. It is denied that plaintiff is entitled to
recovery of Rs.14.84 lacs. It is denied that plaintiff had issued any legal
notice to them.
Replication
8. A replication was sought to be filed by plaintiff but instead of filing the
same before the Court within 30 days as provided under Order 8 Rule 9
CPC it was filed much later on 09.12.2022 that too before Ld. LC not
before the Court. As such vide separate order the same has not been
accepted in the Order.
9. Upon Completion of pleadings, following issues were identified by this
Court vide order dated 09.11.2022:
Issues:
i. Whether the plaintiff is entitled to recover Rs. 14.84 lacs with pendente
lite and future interest @ 24% per annum?(OPP)
ii. Relief
10. In terms of Order 18 Rule 4 CPC and Order 15A Rule 6(1) CPC, Evi-
dence in this case was recorded through a Local Commissioner appointed by
this Court for the sake of timely disposal of this case. For ready reference
the Protocol designed by this Court for recording of Evidence through the
LC is reproduced hereunder:
CS Comm. No. 424/22 Page 4
Jasvinder Singh Vs. Surjeet Singh Virdhi
"Protocol for Recording of Evidence before Court Commissioner appointed by
Commercial Court, 2022"
Part - 1
Preliminary
1. Short title- This Protocol is titled "Protocol for Recording of Evidence before Court Commissioner appointed
by Commercial Court 2022."
2. Statutory Provision- This protocol is prepared as per Order 18 Rule 4 CPC and Order 15A Rule 6(l) CPC as
applicable to Commercial Court.
3. Court- Whenever the term 'Court' appears in this Protocol it should refer to Commercial Court as defined under
Section 2(b) of Commercial Court Act 2015.
Part - 2
Preparation for Assignment
4. Recording of evidence in Commercial Cases- Recording of evidence in Commercial Cases may be carried out
before the Court Commissioner.
Explanation: For reasons to be recorded, Court may retain the case for recording of evidence before the Court.
5. Appointment of Court Commissioner- As per the Protocol, on the first Case Management Hearing when the
issues are identified, the Court may pass an order for appointment of Court Commissioner.
6. Copy of order be shared with parties and Court Commissioner- Copy of the order of framing of issues,
appointment of Court Commissioner and the schedule of recording of evidence shall be supplied to the parties as
well as the Court Commissioner.
Part - 3
Recording of Evidence
7. Filing of list of witnesses- Both sides shall file list of witnesses preferably within one week but not later than 15
days of identification of issues before the Court while sharing an advanced copy thereof with the opposite party.
8. Order of assignment of Case to the Court Commissioner- While assigning the case, following aspects shall
be complied :
(i) Schedule of evidence- Recording of evidence shall start within two weeks of identification of issues.
Evidence shall continue on day to day basis, till conclusion. Any alteration in schedule for recording of
evidence, if needed, shall be decided by the Court Commissioner as per convenience of all concerned, as
far as possible. However, entire evidence shall be concluded within Eight weeks of initiation.
(ii) Judicial File- Judicial file shall not be sent or summoned for the purpose of recording of evidence by
the Court Commissioner.
(iii) Examination-in-Chief- An advance copy of examination in chief by way of affidavit shall be supplied
to opposite party preferably one week in advance. However, no adjournment shall be granted in case of
non-supply of advance copy.
(iv) Production of documents for cross-examination- In case the opposite side is desirous of production
of any document by the witness or any other entity for the purpose of cross-examination, an application
requesting the same shall be moved well in advance before the Court.
Part - 4
Duty of Court Commissioner
9. Recording of evidence by the Court Commissioner-
(i) Place and Time- Court Commissioner shall record evidence either in Lawyer's chamber, or Judges/Bar
Library, Court Room or any other public place within the Court Complex as mutually agreed by all
concerned. Evidence shall be recorded between 10.00 AM to 5.00 PM. It can carry on beyond 5.00 PM as
well in case both parties agree. It can be recorded even on a holiday if all the stakeholders are comfortable
and agree to the same.
(ii) Chronology of recording- Court Commissioner shall proceed to record the examination by first
recording the deposition of litigating party before examining additional summoned witnesses.
(iii) Oath to witnesses- Court Commissioner shall administer oath to the witnesses under examination as a
delegatee of the Court as per Oaths Act, 1969.
(iv) Recording of evidence- The evidence shall be preferably typed on a computer but can also be
recorded by hand neatly.
(v)Time frame- Court Commissioner shall conclude the recording of evidence, as early as possible, but
not later than eight weeks of assignment of a case. In case, for any reason the parties are unable to adhere
to the time schedule, extension can be sought from the Court.
(vi)Comfortable sitting space- Witnesses and their Counsel shall be provided comfortable sitting space by
the Court Commissioner.
CS Comm. No. 424/22 Page 5
Jasvinder Singh Vs. Surjeet Singh Virdhi
(vii)Exhibition of documents- Court Commissioner shall exhibit all the documents sought to be proved
by a party on record. In case of any objection to exhibition of the documents by either side, the objection
shall be recorded in some detail and left open with an assurance that mere marking of such exhibits will
not be treated as conclusive proof thereof and that admissibility of such document shall be decided by the
referral Court at final stage.
(viii)Original documents to be retained by parties- Court Commissioner shall make an observation in
the record of evidence of all original documents produced and shall sign the exhibits with an endorsement
OSR (original seen and returned) wherever necessary. If a party has filed original documents alongwith
pleadings in Court, the same can be taken back as per rules for the purpose of recording of evidence before
the Court Commissioner.
(ix)Language- Recording of evidence shall preferably be carried out in English or Court language, as the
case may be, unless requested by the parties otherwise.
(x)Adjournments- Once started, the cross-examination shall preferably concluded on the same day or
continue on day-to-day basis. In case of any hardship viz. ill health etc. the case can be deferred but
preferably for a day or two but not later than a week.
In case an evidence schedule is fixed and adjournment is sought by the opposite side, i.e the side other than
who is leading evidence, without 24 hour advance notice.
Explanation: In case a witness scheduled to be examined or under examination is reported to be unwell or
unavailable, the party leading the evidence shall produce the next witness in line in the list for recording of
evidence.
(xi)Recording of objections- All the objections raised during cross-examination/reexamination shall be
recorded in the deposition under title objections and shall be left open for the decision of the Court at the
stage of final arguments. Witness shall not refuse to answer the question asked.
(xii)Questions to be allowed- In case Court Commissioner finds any question not related to the fact and
issue, he shall record his objection but shall allow the question to be put and witness must answer.
(xiii)No third person intervention- Court Commissioner shall ensure that the witness is not assisted by
his Counsel or any other person while under examination in answering the questions.
(xiv)Recording of demeanour of witness- Court Commissioner shall record the demeanour of the witness
wherever it is found pertinent and necessary for sharing with the Court.
(xv)Copy of evidence- All parties shall be provided uncertified electronic/hard copy of the evidence
recorded, free of cost by Court Commissioner.
(xvi)Safe keeping of original deposition- Court Commissioner shall keep the original depositions in his
safe custody till such time they are filed in the Court in original upon completion of each witness
individually.
(xvii)Miscellaneous proceedings- Court Commissioner shall maintain a miscellaneous proceeding sheet
for each day of work and shall submit it in the Court at the time of submission of final report.
(xviii)Hostile Witness- In case a witness is sought to be declared hostile, then Court Commissioner shall
refer both the parties to Court at the earliest and the Court shall decide the issue within three days.
Part - 5
Miscellaneous
10. Summoning of Witness-
(i)Summons from Court- In case a litigating party is desirous of summoning a person for deposition or
production of documents, it shall obtain summons from the Court with an endorsement that such person
shall appear before the address of Court Commissioner on scheduled date, time and place.
(ii)Diet Money- Diet money shall be paid to such witness by the party desirous of summoning as per rules.
11. Advisory to Court Commissioner- While recording the evidence on commission, the Court Commissioner
shall ensure the following:
(i)Impartial- Court Commissioner shall conduct himself in an impartial way and behave in an
indiscriminate manner while recording of evidence.
(ii)Polite- Court Commissioner shall be polite with the witness and other stakeholders while recording of
evidence.
(iii)Confidentiality- Court Commissioner shall maintain confidentiality during the whole process.
(iv)Keeping professional distance- Court Commissioner shall not solicit professional work from the
parties.
(v)Integrity- Court Commissioner shall not accept remuneration or any favour in cash or kind from the
parties over and above the honorarium fixed by the Court.
(vi)Non-judgmental- Court Commissioner shall not criticize the professional conduct of lawyers and
litigating parties on their understanding of law.
(vii)Punctuality- Court Commissioner shall adhere to time schedules and shall not make excuses like
being engaged in some personal or Court work etc.
(viii)Coordination- In case of any unforeseen circumstances warranting change of dates of hearing, for his
own case or the request of other side, he shall apprise the other side in advance via phone call, email, SMS,
Whatsapp Group etc..
CS Comm. No. 424/22 Page 6
Jasvinder Singh Vs. Surjeet Singh Virdhi
(ix)No third party sharing- Court Commissioner shall not allow the deposition to be inspected by any
third party and shall not share a copy thereof with any stranger without permission of the Court.
(x)Inspection- Court Commissioner shall allow any party to inspect the recorded proceedings only in his
presence.
(xi)Recusal- In case either of the parties or Counsel for the parties are related or closely known to Court
Commissioner, he/she shall recuse self from the case and inform the referral Court.
12. Remuneration of Court Commissioner -
(i)Remuneration- In terms of Order 18 Rule 4 of the Code read with Order 15 Rule 2(l) and Rule 2(o) of
the Code, Court Commissioner shall be paid remuneration for the work carried out.
(ii)Mode of payment- Such remuneration shall be paid by the party directly for the work carried out by
way of cash, UPI, Bank Transfer, cheque or draft against due receipt.
(iii)Cost to parties- Each party shall individually bear the cost incurred in leading its evidence.
(iv)Fee to be paid- Remuneration fee for recording of evidence is fixed at Rs.10,000/- per witness.
(v)Court Commissioner shall record the Evidence himself and in case the Stenographer services are taken
it can either be arranged by a litigating party on its own cost or in case the same is arranged by Court
Commissioner, then the actual cost of typing shall be reimbursed by the party to the Court Commissioner.
(vi)Litigation Cost- Expenditure incurred in recording of evidence shall be redeemable as cost of
litigation at the end of the suit.
13. Judicial Intervention during recording of evidence-
(i)Parties to cooperate- It is expected that both the sides will cooperate with Court Commissioner as well
as with each other in recording of evidence and carry out proceedings in a cordial manner.
(ii)Dissolution of hindrances- In case of any conflict resulting into hindrance recording of evidence, it
shall be resolved amicably by the parties at their own level with the active help of the Court Commissioner.
(iii)Court intervention- However, in case of any unforeseen situation requiring judicial intervention,
Court Commissioner shall fix date and time for joint appearance of both sides before the Court for removal
of any such impediment.
14. Miscellaneous Applications-
(i)Moving the application- In case either of the parties is desirous of moving any miscellaneous
application viz. amending of pleadings, interim injunction etc. it shall share an advance copy with the
opposite side and reply thereof, if any, shall be filed and shared within seven days.
(ii)Date of hearing- Upon receipt of reply, both the sides shall get the application fixed for disposal in the
Court with the help of Reader of the Court and shall not wait till next date fixed for hearing. All such
miscellaneous applications shall be registered, numbered and indexed separately.
(iii)Evidence not to be stalled- It is clarified that, unless Court Commissioner is of the view that the
interim application moved by either of the parties is such that evidence cannot be recorded before its
disposal, the recording of PE/DE shall continue unabatedly.
Plaintiff's Evidence
11.In the evidence recorded before Ld. LC plaintiff Jasvinder Singh @ Bittoo
Chaudhary examined himself as PW1. Vide his affidavit Ex.PW1/A, he
deposed on the lines of plaint and exhibited/marked following documents:
i. Copy of Aadhar Card marked as Mark C;
ii. Copy of the Sale agreement of first floor of the suit property dated 19.10.2020
marked as Mark A (colly);
iii. Copy of sale agreement of upper ground floor of the suit property dated
19.10.2020 marked as Mark B;
iv. Copy of legal notice dated 12.01.2022 is exhibited as Ex.PW1/2;
v. Copy of original speed post receipt dated 13.01.2022 is exhibited as Ex.PW1/3;
vi. Photocopy of digital copy of non-starter report issued by Shahdara DLSA is
marked as Mark D;
vii. CD containing audio recording along with affidavit under Section 65B of Indian
Evidence Act is exhibited as Ex.PW1/5.
CS Comm. No. 424/22 Page 7
Jasvinder Singh Vs. Surjeet Singh Virdhi
12. He was cross-examined at length. In his cross-examination done on behalf of Ld.
Counsel for defendant he stated that he accepted the suggestion that he had cordial
relations with the defendant and that property no. 64, Shanti Vihar, Delhi
consisted of 4 floors. He also accepted that the second floor of the property was
the builder's floor and was not owned by the defendant. He expressed
unawareness that second floor was sold in 2016. He accepted that he had no role
to play in the sale of second floor. He stated that he was one of the witnesses in
the registered sale deed of upper ground floor and first floor of the property but is
not aware of the consideration amount of the registered sale deed of these 2 floors.
He stated that he was not witness in the sale of third floor of the property. As per
him the CD filed by him in the Court contain 91 recordings. However, it is found
that no transcript of such recording and Section 65B Evidence Act Certificate
supporting the transcript has been filed on record. PW1 expressed unawareness if
the CD reflects the telephone numbers of the persons whose calls were
purportedly recorded. He denied the suggestion that the recordings are false and
fabricated or that his claim in this suit in hand is false.
Defendant's Evidence:
13. On the other hand defendant's Special Power of Attorney son Gurdeep Virdhi
has examined himself as DW1. In his affidavit Ex.DW1/A, he deposed on the
lines of his WS and exhibited/marked following documents:
i. Special Power of Attorney dated 17.01.2022 is exhibited as Ex.DW-1/1;
ii. Copy of Collaboration Agreement dated 09.05.2012 marked as Mark A;
iii. Medical documents of defendant is exhibited as Ex.DW-1/2;
iv. Copy of sale deed dated 16.03.2016 is marked as Mark B;
v. Aadhar card of the deponent is exhibited as Ex.DW-1/3;
vi. Aadhar card of the defendant is exhibited as Ex.DW-1/4.
14. He was cross-examined by Ld. Counsel for plaintiff at length wherein he stated
that the property no. 64, Shanti Vihar, Delhi was owned by his defendant father
and it was built consisting of 4 floors i.e. upper ground, first, second and third
CS Comm. No. 424/22 Page 8
Jasvinder Singh Vs. Surjeet Singh Virdhi
floors. He admitted that his father also owned one shop in Rishabh Vihar, DDA
Market where they had an electronic repair shop. He also accepted that they know
the plaintiff since long. He also accepted that they approached the plaintiff for sale
of 3 floors. He denied that he had telephonic conversations with plaintiff qua the
sale of floors. As per him they had contacts in the locality and it is through them
that the 3 floors were sold. The approximate rate was Rs. 85 lacs upper ground
floor. He accepted the document Mark A i.e. Collaboration Agreement of
defendant with the builder dated 09.05.2012. He accepted that second floor was
sold to Ms. Meenakshi Chaudhary on 16.03.2016 for Rs.75 lacs. He denied the
suggestion that the upper ground floor was sold for Rs.2.45 crores or that 1%
commission was supposed to be paid by both sides. He denied the suggestion that
upper ground floor was sold by his defendant father to Ajay Kumar Jain. He
expressed unawareness that cheque no. 148051 dated 19.10.2020 for Rs.2.50
lacs///////////////////////////////////////////////////// was drawn by buyer in favour of his
defendant father qua the property. He denied his signatures on Agreement to Sale
dated 19.10.2020 qua the first floor of the property. He also denied the suggestion
that the third floor was sold by his father to one Mr. Praveen Chaudhary for
Rs.2.61 crore. He denied that his father is liable to pay 2% commission for sale of
3 floors. He stated that his father is undergoing treatment of Schizophrenia and
depression for the last 10 years.
15.I have heard arguments of Sh. Vinay Kumar Mishra, Ld. Counsel for the
plaintiff and Sh. Vinod Pal, Ld. Counsel for defendant. I have perused
the case file carefully.
Discussion and Findings on Issues:
Issue No. 1
(i) Whether the plaintiff is entitled to recover Rs. 14.84 lacs with
pendente lite and future interest @ 24% per annum?(OPP)
CS Comm. No. 424/22 Page 9
Jasvinder Singh Vs. Surjeet Singh Virdhi
16.While opening his submissions it is argued by Ld. Counsel for plaintiff that
the defendants have admitted that they had cordial relations with the
plaintiff and that the defendant and his son DW1 Gurdeep Singh had
approached him for sale of 3 floors at property no. 64 Shanti Vihar, Delhi.
Although it is case of the plaintiff that he did not facilitate sale of second
floor of the property and that the same was sold in the year 2016 but it is
claimed that he facilitated the sale of other 3 floors including ground floor,
first floor and third floor. As referred to supra, this plea of the plaintiff has
been categorically denied by the defendant and it is maintained that
although initially services of the plaintiff were sought but no deal could be
finalised with the help of the plaintiff and that the 3 sale deeds were
executed in the name of buyers independent of plaintiff's involvement.
17.It is interesting to observe that in para 2 of his plaint plaintiff has claimed
that he was instrumental in getting Agreement to Sell registered for the
upper ground floor, first floor and second floor for Rs.2,45,50,000/-,
Rs.2,35,50,000/- and Rs.2,61,00,000/- but in the affidavit of evidence
Ex.PW1/A he changed the material facts and denied facilitating sale of
second floor. This was done without any leave of the Court when the
plaintiff came to know that the second floor was actually sold in the year
2016 to Ms. Meenakshi Chaudhary. Furthermore, in support of his claim
plaintiff has filed photocopy of 2 purported Agreements to Sell which are
Mark A and Mark B instead of 3 agreements as claimed in para 2 of the
plaint. Document Mark A pertains to the first floor. A bare perusal thereof
shows that it is purportedly executed between defendant and buyer Sh.
Manish Kumar Gupta. This 4-paged document is signed by defendant on all
the pages but there is no signature of the said Manish Kumar Gupta
anywhere as also on the 4th page meant for appending signatures by "Second
CS Comm. No. 424/22 Page 10
Jasvinder Singh Vs. Surjeet Singh Virdhi
Party". While this document was Mark A, during the course of recording of
evidence before Ld. LC Ld. Counsel for defendant has objected to the mode
of proving of the same. As per the protocol designed by this Court this
objection was kept open for disposal by the Court during the course of final
arguments. The objection taken is that the Agreement to Sell sought to be
proved is not an original document but a photocopy and moreover it is
neither registered nor signed by the parties.
18.It goes without saying that while proving his case plaintiff has to directly
adhere to the best evidence rule and as per Section 61 and 62 of Evidence
Act every document has to be proved by primary evidence i.e. by
production of original document. In case the original document is not
available, the plaintiff has to either seek permission of the Court to lead
secondary evidence or at least bring on record and establish such facts and
circumstances which justifies pleading of secondary evidence. Neither in the
plaint nor in the affidavit in chief it has been pleaded or explained as to why
original Agreement to Sells were not produced and why plaintiff should be
allowed to lead secondary evidence.
19.An endeavour was made by Ld. Counsel for plaintiff during the arguments
to explain by stating that as a matter of practice such like Agreement to Sells
which are executed as per market value of prospectus are routinely
destroyed by the transacting parties and the dealers when the actual sale
deed is executed in so far as actual sale deeds are highly undervalued as per
circle rate. It is argued that this practice is followed not only so save stamp
duty payable to the Government but also to include payment of cash amount
which cannot be accounted for in the sale deed. This plea of Ld. Counsel for
plaintiff is nothing but an attempt to improve the case. There is no
justification for requesting the Court to take notice of any such illegal
CS Comm. No. 424/22 Page 11
Jasvinder Singh Vs. Surjeet Singh Virdhi
practice. This is not only impermissible under Section 56 of the Evidence
Act but the practice sought to be brought on record is nothing but an illegal
exercise if at all it is being carried in the manner so stated. The primary onus
of proving this issue lies only on the plaintiff as provided under Section 101
and 102 of the Evidence Act and in the absence of any material or
circumstance to show that the plaintiff is entitled to lead secondary
evidence, the objection is raised by Ld. Counsel for defendant in exhibiting
this document stands duly justified and is accordingly allowed. Moreover,
since the document Mark A does not bear signature of any second party i.e.
purported buyer the same cannot be regarded as an agreement or a contract
under Contract Act at all.
20.Likewise, similar objection is raised qua Mark B which pertains to upper
ground floor. Although this document is purportedly signed by the second
party but since this too is a photocopy and is not legally proved on record
and suffer from infirmities as stated qua document Mark A, the same too
cannot be read in evidence in favour of plaintiff.
21.The endeavour is made by Ld. Counsel for plaintiff to show locus standi and
cause of action in the matter by referring to Clause 9 of the above 2
documents. Although once this Court has concluded that these documents
are not proved on record as per Evidence Act, the contents thereof cannot
be cited and relied. However, for the sake of argument even if its contents
are read and considered, they do not in any manner justify the frame of the
suit as filed by the plaintiff in this case. For ready reference Clause 9 is
reproduced hereunder:
"Both party introduced by (1) Aachman Associates (2) M/s Jaggi Associates & (3) Sh.
Bittoo Choudhary and 1% brokerage charge of introduction of total deal from both the
parties and defaulter party will pay 2% of brokerage. Both the parties herein are fully
satisfied with the title documents and possession of the said property."
CS Comm. No. 424/22 Page 12
Jasvinder Singh Vs. Surjeet Singh Virdhi
22.Plain reading of this clause shows that it was 3 persons/entities who are
shown to be brokers in this matter i.e. M/s. Aachman Associates, M/s Jaggi
Associates and Sh. Bittoo Chaudhary i.e. plaintiff, it is provided that both
the sides i.e. buyer and seller will pay 1% brokerage each. It is also provided
that in case this Agreement to Sell does not fructify then the defaulting party
will pay entire 2% brokerage to the aforesaid dealers. In so far as it is
admitted case of both the sides that proper sale deed was executed qua the 3
floors in question, the question of defaulting party does not arise. In this
backdrop even if it is accepted that this clause was live and binding the
plaintiff's cause of action remains only to claim one-third of the brokerage
and that too both from both sides i.e. buyer and seller.
23.An attempt is made by Ld. Counsel for plaintiff to impress upon the Court
that the other 2 buyers i.e. M/s. Aachman Associates, M/s Jaggi Associates
were from the buyer's side that plaintiff was the sole dealer from the seller
side i.e. the defendant. This plea of Ld. Counsel for plaintiff is hit by
Section 91 and 92 of the Evidence Act which prohibits inclusion of oral
agreement over and above the written contract. In this regard the claim of
recovery of Rs.14.84 lacs out of cumulative suit Agreement to Sell amount
for 3 floors of Rs.7.41 crores comes to entire 2% of the deal. As such even
the calculation of the suit amount of Rs.14.84 lacs is much beyond the one-
third purported entitlement of the plaintiff from both the sides i.e. buyer and
seller. As such this suit also suffers for non-joinder of the buyers in the
matter who were also supposed to bear 50% part of the brokerage, if the
story of the plaintiff is to be believed.
24.Another flaw which is found in the case of the plaintiff is that he did not
examine any other witness apart from examining himself as plaintiff.
Admittedly, the suit in hand is not a suit in representative capacity and
CS Comm. No. 424/22 Page 13
Jasvinder Singh Vs. Surjeet Singh Virdhi
plaintiff could have examined any witness from the other 2 property dealers
i.e. M/s. Aachman Associates and M/s Jaggi Associates to show that the 3
sale deeds were executed and were actually executed with due services
provided by the plaintiff. Also plaintiff did not examine the buyers of the
properties so as to show that his services were utilised in finalising the sale
deeds. The failure of the plaintiff to examine these witnesses call for
drawing of adverse inference as provided under Section 114(g) of the
Evidence Act which is reproduced as under:
Section 114 Evidence Act: Court may presume existence of certain facts
Illustration
The Court may presume-
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the
person who withholds it;
25.The fact that the sale deeds were executed is not a fact in issue in the case in
hand rather the fact in issue is whether plaintiff was instrumental in getting
the sale deeds executed. There is no bilateral agreement between the
plaintiff and the defendant either oral or documentary which can be cited or
relied to show that there was a prior understanding between him and the
defendant that he would be paid the commission.
26.At this juncture, Ld. Counsel for plaintiff has referred to a compact disk
exhibited on record as Ex.PW1/5. The contents of this CD are claimed to be
digital recordings of telephonic conversations between plaintiff and
defendant and between plaintiff and defendant's son PW1 Gurdeep Singh.
Exhibition of this document was rightly objected by Ld. Counsel for
defendant. The objection of Ld. Counsel for defendant deserves to be
allowed not only because no Section 65B Evidence Act certificate was filed
CS Comm. No. 424/22 Page 14
Jasvinder Singh Vs. Surjeet Singh Virdhi
along with this CD but also no transcript of this document was filed on
record.
27.Furthermore, this audio recording of telephonic conversation has been prima
facie carried out illegally by the plaintiff without any consent or
concurrence of the defendant. The unauthorised recording of telephonic
conversations by any individual is also a cognisable and punishable offence
under Section 26 of Indian Telegraph Act, 1885 with imprisonment up to 3
years of Jail term. The only exception carved out is under Section 5(2) of
Indian Telegraph Act, that too when the interest of sovereignty and
integrity of the country and public order is concerned as clarified by
Hon'ble Supreme Court in People's Union of Civil Liberties Vs. Union of
India Latest Caselaw 1080 SC. The unauthorised recording of telephonic
conversations by any individual is a cognisable and punishable offence also
under Section 69B, Section 72 and Section 72A of Information and
Technology Act, 2000. Although it is a settled legal proposition that any
evidence which has been procured by illegal means i.e. unauthorised
recording of telephonic conversations cannot be read and relied under
exceptional circumstances as it violative of Fundamental Rights of the
Constitution of India as ruled in case titled Jatinder Pal Vs. CBI, 2022
Latest Caselaw 144 Delhi by Hon'ble High Court of Delhi.
28.But in the case in hand in so far as no Section 65B Evidence Act certificate
is filed and there is nothing to show that what instrument was used in
recording, which mobile phone numbers were tapped and there is no
evidence to show that the conversations are between the plaintiff and
defendant, the same cannot be read and relied in this matter. Moreover, in so
far as this was carried out illegally by the plaintiff and was in violation of
Fundamental Right of Privacy of defendants as protected under Article 21
CS Comm. No. 424/22 Page 15
Jasvinder Singh Vs. Surjeet Singh Virdhi
of Constitution of Right to Life as ruled by Nine Judge Constitution Bench
of Hon'ble Supreme Court in case titled Justice K.S. Puttaswamy Vs.
Union of India, 2017 Latest Caselaw 604 SC defendant would be at
liberty to take appropriate legal action against the plaintiff either by getting
an FIR registered against him or by filing a criminal complaint as deems fit.
29.It is vehemently argued by Ld. Counsel for defendant that the entire case of
the plaintiff is nothing but a concoction. Plaintiff tried to misuse the
information which he might have got on account of initial consultation done
by the defendant with him. It is rightly pointed out that the entire case of the
plaintiff is based on photocopy documents which are not substantiated.
30.In view of the reason cited, I have no hesitation in concluding that plaintiff
has failed to discharge the onus of proving this issue. As such this issue is
answered against the plaintiff and in favour of the defendant.
Issue No. 2
31.In view of decision of above issue suit of the plaintiff is dismissed with cost.
32.As far as assessment of the cost is concerned, relevant observations to be
placed on Section 35 of Code of Civil Procedure, 1908 as amended for
Commercial Courts Act, 2015. Same is reproduced hereunder for ready
reference:
Section 35 CPC as applicable to Commercial Suit-
Section 35 CPC: Costs:-
(1) In relation to any commercial dispute, the Court, notwithstanding
anything contained in any other law for the time being in force or Rule, has the
discretion to determine:
a) Whether costs are payable by one party to another;
b) The quantum of those costs; and
c) When they are to be paid.
Explanation-For the purpose of clause (a), the expression "costs" shall
mean reasonable costs relating to
i. the fees and expenses of the witnesses incurred;
CS Comm. No. 424/22 Page 16
Jasvinder Singh Vs. Surjeet Singh Virdhi
ii. legal fees and expenses incurred;
iii. any other expenses incurred in connection with the proceedings.
(2) If the court decides to make an order for payment of costs, the general rule
is that the unsuccessful party shall be ordered to pay the costs of the
successful party:
provided that the Court may make an order deviating from the general rule
for reasons to be recorded in writing.
Illustration: The plaintiff in his suit, seeks a money decree for breach of
contract, and damages. The Court holds that the Plaintiff is entitled to the
money decree. However, it returns a finding that the claim for damages is
frivolous and vexatious.
In such circumstances, the Court may impose costs on the plaintiff,
despite the plaintiff being successful party, for having raised frivolous
claims for damages.
(3) In making an order for the payment of costs, the Court shall have regard
to the following circumstances, including-
(a) the conduct of the parties;
(b) whether a party has succeeded on part of its case, even if that
party has not been wholly successful;
(c) whether the party had made a frivolous counter-claim leading to
delay in the disposal of the case;
(d) whether any reasonable offer to settle is made by a party and
unreasonably refused by the other party; and
(e) whether the party had made a frivolous claim and instituted a
vexatious proceeding wasting the time of the Court.
(4) The orders which the Court may make under this provision include an
order that a party must pay-
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date'.
(Emphasis Supplied)
33. In case titled Ramrameshwari Devi Vs. Nirmala Devi, 2011 Latest
Caselaw 444 SC the Apex Court while dealing with the menace of frivolous
litigants observed that the courts shall impose realistic costs on litigants who
raised frivolous plea of delay trials. The relevant paras of the same are
reproduced as under:
"52. The main question which arises for our consideration is whether the prevailing delay
in civil litigation can be curbed? In our considered opinion the existing system can
be drastically changed or improved if the following steps are taken by the trial
courts while dealing with the civil trials.
A. Pleadings are foundation of the claims of parties. Civil litigation is
CS Comm. No. 424/22 Page 17
Jasvinder Singh Vs. Surjeet Singh Virdhi
largely based on documents. It is the bounden duty and obligation of the
trial judge to carefully scrutinize, check and verify the pleadings and the
documents filed by the parties. This must be done immediately after civil
suits are filed.
B. The Court should resort to discovery and production of documents and
interrogatories at the earliest according to the object of the Act. If this
exercise is carefully carried out, it would focus the controversies involved
in the case and help the court in arriving at truth of the matter and doing
substantial justice.
C. Imposition of actual, realistic or proper costs and or ordering prosecution
would go a long way in controlling the tendency of introducing false pleadings
and forged and fabricated documents by the litigants. Imposition of
heavy costs would also control unnecessary adjournments by the parties. In
appropriate cases the courts may consider ordering prosecution otherwise
it may not be possible to maintain purity and sanctity of judicial
proceedings.
D. The Court must adopt realistic and pragmatic approach in granting mesne
profits. The Court must carefully keep in view the ground realities while
granting mesne profits.
E. The courts should be extremely careful and cautious in granting ex-parte ad
interim injunctions or stay orders. Ordinarily short notice should be
issued to the defendants or respondents and only after hearing concerned
parties appropriate orders should be passed.
F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court. G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice. I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.
54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. 5 5 . T he Apex Court observed that the other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts.
CS Comm. No. 424/22 Page 18 Jasvinder Singh Vs. Surjeet Singh Virdhi
34.In case titled Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria, 2012 Latest Caselaw 186 SC Hon'ble Apex Court thus observed:
"False claims and false defences False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.
35.After discussing Ramrameshwari Devi Judgment (supra) of Hon'ble Supreme Court and highlighting that the costs imposed by the Courts should be in consonance with pragmatic realities must be realistic. The Court imposing the cost should broadly take into consideration the prevalent fee structure of lawyers, expenses the parties must have incurred in defending the case. With these observations Hon'ble Supreme Court imposed a cost of Rs.75 lacs on the 3 litigants to be shared equally @ Rs.25 lacs each.
36.In Halsbury's Laws of England, (4th Edn.,Vol. 9, Paragraph 38) , there is a brief discussion of when "Abuse of the Process of the Court" may be a punishable contempt. It is said :
" Abuse of process in general. The Court has power to punish as contempt any misuse of the court's process. Thus the forging or altering of court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the court or the court's officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt."
37.In Morgan Stanley Mutual Fund Vs. Kartick Das, 1994 Latest Caselaw 336 SC, Hon'ble SC dealt with the issue and with intention to:
"Discourage speculative and vexatious litigation and judicial adventurism. "There is an increasing tendency on the part of the litigants to indulge in speculative and vexatious litigation and adventurism which the fora seem readily to oblige. We think such a tendency should be curbed. Having regard to the frivolous nature of CS Comm. No. 424/22 Page 19 Jasvinder Singh Vs. Surjeet Singh Virdhi the complaint, we think it is a fit case for award of costs, more so, when the appellant has suffered heavily. Therefore, we award costs of Rs.25,000/- in favour of the appellant."
38.In case titled as State of Karnataka Vs. All India Manufacturers Organisation, 2006 Latest Caselaw 217 SC, a challenge was laid to a common judgment of the High Court of Karnataka disposing of three public interest litigations whereby a direction was issued to the State of Karnataka to continue to implement a certain project known as the "Bangalore-Mysore Infrastructure Corridor Project". While dismissing the appeals, the Apex Court held that there was no merit in them. It was further directed that:-
"Considering the frivolous argument and the mala fides with which the State of Karnataka and its instrumentalities have conducted this litigation before the High Court and us, it shall pay Nandi costs quantified at Rs.5,00,000/-, within a period of four weeks of this order".
39.In Kishore Samrite Vs. The State of UP, 2012 Latest Caselaw 606 SC, Hon'ble Supreme Court expounded that:
"As and when the Courts found that a litigating party is abusing the Court process and had approached the Court with unclean hands without disclosing complete facts, they shall be burdened with exemplary and deterrent cost. In the cited case while observing that the petitioner have misused the judicial process, a cost of Rs.5 lacs was imposed."
40.In so far as defendant who is a ailing senior citizen suffering from depression and schizophrenia and is resident of Mohali, Punjab was constrained to defend this suit through his son by incurring huge expenses, defendant is awarded a cost of Rs.1 lacs.
41.File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge Commercial Court-03 Shahdara District, KKD Delhi/06.01.2023 CS Comm. No. 424/22 Page 20 Jasvinder Singh Vs. Surjeet Singh Virdhi