Delhi District Court
Nitin Uppal vs . Tirath Prakash Gupta on 24 March, 2015
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
RCA No. 66/14
Nitin Uppal Vs. Tirath Prakash Gupta
Sh. Nitin Uppal
S/o Sh. Joginder Uppal,
R/o 1896/142, Tri Nagar,
Delhi110035. ............. Appellant
Versus
Sh. Tirath Prakash Gupta
S/o Late Sh. Sua Lal Gupta,
R/o C93, Avantika. Sector1
Delhi110085.
............. Respondent
Date of Institution of the case : 26.09.2014
Date of hearing the arguments : 24.03.2015
Date of announcing the order : 24.03.2015
ORDER
1. By this order, I shall decide one appeal filed against the impugned judgment and decree dated 26.07.2014 passed by Sh. Naveen Gupta, Additional Senior Civil Judge, Small Causes CourtCumGuardian Judge, N/W, Rohini Courts, Delhi. Vide this judgment suit has been decreed in favour of the respondent / plaintiff. RCA No. 65/14 Page No. 1/7 Sh. Nitin Uppal Vs. Sh. Tirath Prakash Gupta
2. The facts of the case filed by the appellant in brief are as under:
Respondent has filed suit for recovery alleging that he has entered into an agreement to sell of plot no. 194, PocketG, Sector3, Bhawana Industrial Area, Delhi for a sale consideration of Rs. 51 lacs. Earnest money of Rs. 5 lacs was to be paid up to 22.04.2010. Respondent paid Rs. 21,000/ vide a receipt dated 19.04.2010 and further paid Rs. 1,79,000/ on 20.04.2010 and balance amount of Rs. 3 lacs was agreed to be paid on 22.04.2010.
It has been alleged by the respondent that appellant has refused to receive further amount of Rs. 3 lacs and caused breach of the agreement.
Appellant has submitted in his written statement that no agreement to sell was ever executed in between the parties, nor any receipt of Rs. 21,000/ has been executed and nor any payment of Rs. 1,79,000/ has been made by the respondent / plaintiff. Defence so taken by the appellant is that appellant came to know that DSIDC was going to cancel the plot of those persons who have not raised construction over their respective plots. When the appellant when to the office of DSIDC he met with the respondent who offered to resolve the entire matter and alleged himself as liasoning agent. After two days, respondent came to his house and asked the appellant to handover the cash and documents and obtained the photocopies of the documents of the plot and blank signed cheque in the name of DSIDC and certain other signed blank documents alongwith cash of Rs. 15,000/. Respondent stated thereafter that the file of the plot has been sent for cancellation and asked him to arrange some buyer for the plot. Appellant refused and stated that he was not interested to sell the plot, however, RCA No. 65/14 Page No. 2/7 Sh. Nitin Uppal Vs. Sh. Tirath Prakash Gupta respondent pressurized and threatened him. On 24.04.2014, respondent again threatened him and appellant informed the police at 100 number and matter was sorted out. Appellant later on came to know that respondent has misused the blank papers and filed a false suit thereafter against him.
3. Grounds of appeal taken by the appellant in brief are as under:
(i) Ld. Trial Court has failed to appreciate that there are various contradictions in the testimony of PW1, 2 & 3.
(ii) Ld. Trial Court has failed to appreciate that respondent has failed to prove the amount of money so claimed to have been paid by him to the appellant and the oral contentions raised by the respondent is unreliable.
The story narrated by the respondent is completely unreliable as he was property dealer who took the receipt of Rs. 21,000/, however, did not take receipt of Rs. 1,79,000/. Respondent himself has stated that he was not know to the appellant prior to the said incident whereas PW2 has stated that respondent knew him for fairly long time.
(iii) The document Ex.PW1/1 is suspicious enough to falsify the claim of respondent. The testimony of respondent cannot be relied upon. Ld. Trial Court has failed to appreciate that respondent is seeking recovery of money instead of seeking the specific performance of the agreement. The conduct of the respondent is, therefore, not appropriate.
4. Respondent has not filed the reply and argued the appeal orally. The appeal is strongly opposed by the counsel for the respondent alleging that appeal is RCA No. 65/14 Page No. 3/7 Sh. Nitin Uppal Vs. Sh. Tirath Prakash Gupta filed beyond the period of limitation. It is further stated that appropriate court fees has not been filed. It is further stated that there are not material contradictions in the testimony of the PWs and PWs have duly established the case of the plaintiff and defendant has failed to controvert the documentary and oral evidence led by the plaintiff. It is prayed that appeal is liable to be dismissed.
5. Arguments are heard at length.
Record perused throughly.
6. The issue of limitation of period is taken up first.
Counsel for the respondent has taken the objection on the appeal filed by the appellant alleging that it is filed beyond the period of limitation. The impugned judgment is dated 26.07.2014 whereas the appeal has been filed on 26.09.2014.
In the interest of justice, after hearing the arguments of the parties, the delay in filing the appeal is condoned accordingly.
One of the main ground so taken by the appellant is that there are various contradictions in the testimony of PW1, 2 & 3 which are so material and grave in nature that they disentitled the claim of the plaintiff.
In the light of these submissions, the testimony of PWs is perused. Plaintiff has examined himself as PW1. Plaintiff has stated and reiterated all the facts alleged by him in the plaint. Legal notice dated 24.04.2010 is also given and stated that the false and frivolous reply has been given.
Now the cross examination of plaintiff/ PW1 is perused. No material contradictions seems to have been emerged from the cross RCA No. 65/14 Page No. 4/7 Sh. Nitin Uppal Vs. Sh. Tirath Prakash Gupta examination of PW1.
Now crossexamination of PW2, Suresh Chand is perused wherein he has deposed very briefly that Rs. 21,000/ were paid in his presence on 19.04.2010 against the receipt and Rs. 1,79,000/ were paid in his presence on 20.04.2010, however, no receipt was executed for this amount. PW2, Suresh Chand has further stated that defendant has executed the receipt in his presence. This fact that Rs. 21,000/ was paid in his presence has been duly corroborated by the PW2. PW1 has stated that he was not knowing the PW2 prior to the appeal where as PW2 has stated in his crossexamination that plaintiff was known to him. Similarly contradictions has emerged from the crossexamination of PW3 and it is reflected that is contradictions with regard to the acquittance of PW1, 2 & 3 among themselves, however, such contradictions is not so material and grave which could effect the merits of the case as alleged by the appellant in the present appeal.
Impugned judgment is also perused in this regard. Ld. Ld. Trial Court has duly considered all these facts in the impugned judgment at length, therefore, I am of the considered opinion that there does not seems any infirmity and illegality in the said observation so made by the Ld. Trial Court in this regard and Ld. Trial Court has rightly considered and appreciated all these facts in the impugned judgment dated 26.07.2014.
Coming to the other ground taken by the appellant that plaintiff has manipulated certain blank signed documents issued by the appellant / defendant and no such transaction of sale of plot had ever taken place. In this regard, the evidence RCA No. 65/14 Page No. 5/7 Sh. Nitin Uppal Vs. Sh. Tirath Prakash Gupta led by the defendant is seen and defendant has only examined one witness i.e. defendant himself. Defendant has stated that no such agreement was ever entered into in between the parties. Appellant / defendant has not denied and disputed his signatures upon the receipt of Rs. 21,000/ The plaintiff in this regard has examined two witnesses in support of his contentions that receipt of Rs. 21000/ has been executed. In all these circumstances, background and evidence led by the plaintiff carries more weight which is supported by the independent witness. All these aspects have been appreciated and considered by the Ld. Trial court in para no. 16, 17, 18 & 19 of the impugned judgment. It is also reflected from the record that defendant allegedly made a call at 100 number. No such complaint has been filed on record before the Ld. Trial Court. Therefore, the submissions made by the appellant / defendant that he had made a complaint at 100 number is not supported with any evidence, hence, versions alleged by the defendant / appellant cannot be relied upon in the absence of the evidence to the contrary. Ld. Trial court has also considered this fact in brief in the impugned judgment dated 26.07.2014.
7. In the light of the above observation and after perusal of the record, it is reflected vide impugned judgment dated 26.07.2014 that Ld. Trial Court rightly considered and appreciated the fact that receipt of Rs. 21,000/ has been duly executed which is duly supported with the evidence of the PW 2 & 3. These witnesses who are individual witnesses. The onus in such case is considered to have been shifted upon the defendant / appellant. The appellant has not disputed his signatures RCA No. 65/14 Page No. 6/7 Sh. Nitin Uppal Vs. Sh. Tirath Prakash Gupta upon the said receipt, however, he has stated that the said receipt is forged and fabricated for which no other witness has been examined by him besides the defendant himself. The alleged complaint made at 100 number is also filed on record for which there has to be some record maintained by the police department as a matter of practice as the police head quarter has to maintained the record for each and every call made at 100 number.
In such circumstances, therefore, I am of the considered opinion that Ld. Trial Court has rightly came to the conclusion and has rightly decreed the suit filed by the respondent / plaintiff.
In such circumstances, the appeal filed by the respondent / appellant is dismissed as without merits. No order as to cost.
8. Case file be consigned to record room after completion of all necessary formality and copy of the order and trial court record be sent to the Ld. Trial Court for intimation.
Announced & dictated in the (Prashant Kumar) open court today i.e. on 24.03.2015. ADJ04(NW)/Rohini Courts Delhi/24.03.2015 RCA No. 65/14 Page No. 7/7 Sh. Nitin Uppal Vs. Sh. Tirath Prakash Gupta