Delhi District Court
Urmila Devi vs Ajay Kumar Rai on 29 November, 2022
IN THE COURT OF MS. DEEPIKA THAKRAN: CIVIL
JUDGE-II, SOUTH WEST: DWARKA COURTS : DELHI
CS No. 25571/16
IN RE:
Urmila Devi
W/o Sh. Kasi Prasad Yadav
R/o: H. No. 72, Block K-6,
Gali No. 8, Mohan Garden
Delhi-59. .....Plaintiff
Vs.
Ajay Kumar Rai
S/o Sh. Jamuna Rai
R/o: H. No. 106, Defence Enclave
Mohan Garden, Delhi-59. .....Defendant
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
Date of Institution : 04.11.2016
Date of reserving judgment : 19.11.2022
Date of judgment : 29.11.2022
Final Judgment : Dismissed
Suit No. 25571/16
Urmila Devi Vs. Ajay Kumar Rai
Page no.1/24
JUDGMENT
1. The brief facts of the present case as mentioned in the plaint are that the plaintiff is the owner in possession of land bearing Khasra No. 40/18 and 40/19, ad measuring 58 sq. yds. (16' X 32.5') situated in the area of Village Hatsal, Delhi and colony known as K-6, Block, Mohan Garden, Uttam Nagar, New Delhi (hereinafter called as suit property). Further mentioned that the said property was purchased by the plaintiff from one Sh. Ramesh Kapoor S/o Late Sh. D.N. Kapoor, R/o: T-34, Rajouri Garden, New Delhi on 09.04.2013 vide GPA, Agreement to Sell, WILL, Affidavit executed on the said date in favour of plaintiff by Sh. Ramesh Kapoor and after execution of the said documents the possession was also handed over to the plaintiff and thereafter she constructed a house over the suit property and got installed an electricity meter and since then residing in the said property. Copy of electricity bill, Aadhar Card of the plaintiff and other relevant photographs and documents has been filed. Further mentioned that the husband of the plaintiff in the month of April, 2014 for their bonafide requirements approached the defendant for a loan of Rs. 50,000/- (Rupees Fifty Thousand Only) for a period of one year and the defendant agreed to give the loan at 5% interest per month. Also the defendant took the property papers i.e. GPA, Agreement to Sell, WILL, Affidavit executed in favour of the plaintiff as surety and also the defendant had taken some signatures of Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.2/24 the husband of the plaintiff on some blank papers and printed papers. Thereafter, the husband of the plaintiff returned the loan amount in the month of May, 2014 and asked for return of his property papers but to the shop of the plaintiff, the defendant after receiving the money refused to return the papers of the suit property with dishonest intention to grab the suit property, he asked the plaintiff to pay interest rate @ 20% per month otherwise he will not return the property papers. It is averred that defendant with the company of some anti social elements came to the house of the plaintiff on 13.12.2015 and misbehaved with the plaintiff and her family members and threatened to sell the property and throw them out, the plaintiff seeing no alternative made a police complaint to PS Ranhola on dated 28.12.2015. Earlier the suit was filed before the Ld. Senior Civil Judge, Tis Hazari Court, Delhi, however, later when it was found that the territorial jurisdiction of the area has been transferred to this court, the plaintiff had withdrawn the suit with liberty to file fresh suit before this court. In view of the facts mentioned supra the plaintiff has a cause of action which is still continuing, requisite court fee has been annexed. Hence the present suit for permanent and mandatory injunction.
2. On service of summons the defendant no. 1 only has appeared and filed written statement taking preliminary objection that the present suit is not maintainable and the allegations of the plaintiff qua availing of loan of alleged Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.3/24 amount of Rs. 50,000/- (Rupees Fifty Thousand Only), execution of title documents in favour of defendant are all contrary and require filing of suit for foreclosure of mortgage and the plaintiff has no cause of action to file the present suit and the plaintiff has not approached the court with clean hands and has suppressed true and material facts from the court as he has concealed that her husband had taken a loan of Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) from the defendant for construction of his house and considering the relations between the parties, the plaintiff advanced the said amount and a total amount of Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) was paid, Rs. 4,65,950/- (Rupees Four Lakh Sixty Five Thousand Nine Hundred Fifty Only) was paid by cash on 10.04.2013 and Rs. 2,00,000/- in cash on 15.04.2013, in presence of a common friend and it was agreed by the husband of the plaintiff herein that he will return the loan amount before 14.02.2014. The agreement was executed by the plaintiff's husband on dated 15.04.2013 at Mohan Garden, New Delhi in presence of the witness/common friend namely Sh. Krishan Kumar, R/o: H.No. 41A, Street No. 16, Sai Enclave, New Delhi and he had handed over all the original deeds and documents relating to the suit property and it was mentioned in the agreement that the defendant will hand over the property documents qua suit property back to the plaintiff after receiving loan amount on the date decided by both the parties. Copy of agreement Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.4/24 and title documents are enclosed herewith. Further mentioned that after completion of a year when the defendant demanded back his money as he was in need plaintiff's husband started taking time from him on one pretext or other but the plaintiff's husband has not paid the same and when in the evening of 19.12.2015, the defendant went to the house of plaintiff to demand the loan amount, the husband of the plaintiff misbehaved with the defendant and straightaway denied to return the loan amount and said they have 10-12 persons in his home and all are criminals and he also boasted about his political and police contacts and he cannot cause any harm to him and cannot take even a single penny from him. The defendant started reeling under the fear and the plaintiff filed a complaint with SHO, PS Ranhola and DCP, Rajouri Garden Copy of the complaints are attached. It is averred that the husband of the plaintiff has never paid even a single penny to the defendant out of the total loan amount till date and withholding his hard earned money with malafide intention. Further the defendant has filed a suit for recovery of Rs. 8,85,713/- (Rupees Eight Lakh Eight Five Thousand Seven Hundred Thirteen Only) against the husband of the plaintiff titled as Shri Ajay Kumar Rai Vs. Shri Kashi Yadav, which as on date is pending in the court of Sh. Mohd. Farooq, Ld. ADJ, Dwarka, Delhi and further the plaintiff has concealed that the summons of the aforesaid case were duly served upon her husband and he appeared on 08.02.2016 and has been directed to file the Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.5/24 written statement therein and the NDOH is for 15.02.2017. Copy of the plaint annexed. The present suit is also barred under Section 10 CPC. The purchase of the property by the plaintiff from its erstwhile owner is not disputed but it has been denied that plaintiff is the owner of the suit property as on date, in view of the documents executed in favour of the defendant herein, plaintiff is claimed to be not owner of the suit property. The giving of loan of Rs. 50,000/- (Rupees Fifty Thousand Only) has been denied and it is specifically mentioned that Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Only) was taken as loan by the husband of the plaintiff. Remaining avertments made in the plaint are also denied and prayer for dismissal of the suit with exemplary cost has been made.
3. On the basis of the pleadings following issues were framed on 23.07.2018:-
a) Whether the plaintiff is entitled for a decree of permanent injunction in her favour and against the defendant, as prayed for? OPP
b) Whether the plaintiff is entitled for a decree of mandatory injunction in her favour and against the defendant, as prayed for? OPP
c) Relief.
4. In order to prove her case plaintiff has examined five witnesses including herself. PW-1 is Smt. Urmila Devi Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.6/24 (plaintiff herein). She tendered her evidence by way of affidavit Ex. PW-1/A and relied upon the following documents: Photocopy of Aadhar Card Ex. PW-1/C (OSR), The photocopies of title documents Mark A, the photocopy of electricity bill Mark B, the photocopies of complaint dated 28.12.2015 alongwith two postal receipts Ex. PW- 1/E. During her cross-examination she stated that her family consists of her husband, two sons and daughter. She is an illiterate lady and she can sign in Hindi Language and she stated that Mr. Radhey Shyam is her relative and resides nearby her house and she knows Mr. Balbir Yadav as he is her neighbour and he also resides nearby to her house and same is the case of Ms. Meena. Further stated that except the suit property she has another property situated nearby the place of residence of Sh. Balbir Yadav which she bought 5-7 years ago. Stated that H. No. 72, Block-K-6, Mohan Garden was purchased and constructed in the year 2013. She is a house wife and in the year 2013 her husband worked as gas cylinder agent in gas agency at Vikaspuri, Delhi. Stated that her husband had gone alone to take the loan from defendant in April 2013 and she is not aware what amount was taken, her husband told her that loan amount is Rs. 50,000/- (Rupees Fifty Thousand Only). Admitted that she had not clarified regarding the loan amount from the defendant. Further admitted that she is not aware what documents were executed at the time of taking loan between her husband and defendant as she was not present at that time. Denied that her husband had taken Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.7/24 loan of Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) from the defendant. She do not know whether any agreement was executed between defendant and her husband or not. Denied that a loan of Rs. 4,65,950/- (Rupees Four Lakh Sixty Five Thousand Nine Hundred Fifty Only) on 10.04.2013 and Rs. 2,00,000/- (Rupees Two Lakh Only) on 15.04.2013 from the defendant in cash was taken and an agreement to that effect was executed. Stated that her husband had taken Rs. 50,000/- from the defendant for purchase of H. No. 72, Block-K-6, Mohan Garden, Delhi. She do not know when did her husband handed over the original documents chain of the property, however, later on her husband had told her about the same and she came to know about the said fact when the police officials started visiting her house. Stated that she did not took any acknowledgment/receipt regarding returning Rs. 50,000/- (Rupees Fifty Thousand Only) to the defendant in May 2014. She could not depose satisfactorily as to para No. 6 mentioned in her affidavit Ex. PW-1/A wherein it is mentioned that the defendant took the property papers as surety in April 2013. Stated that she made the complaint to PS Ranhola against the defendant for not returning the original documents. She do not remember the date, month, year of the said complaint. Stated that prior to this complaint dated 28.12.2015 (Ex. PW-1/E) made to PS Ranhola, she has not filed any complaint against the defendant. Denied that no complaint was filed prior to 28.12.2015 as no payment was made to Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.8/24 the defendant and no request was made for returning the documents to the defendant. Admitted that on 19.12.2015 defendant came to her house for demanding back the loan amount. Her husband was present at that time. Denied that her husband refused to return the loan amount and misbehaved and threatened defendant. She is not aware whether the defendant made any complaint against her husband with PS Ranhola after this incident. Denied that complaint dated 28.12.2015 is the counter complaint to complaint dated 20.12.2015 made by the defendant. She do not know whether plaintiff has filed a recovery suit against her husband which is also pending in Dwarka Court. Denied that present suit is counter to the recovery suit filed by the defendant against her husband. Denied that her husband had taken a loan of Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) from the defendant and did not returned the same. Denied deposing falsely.
b) PW-2 is Ct. Satyapal, he had brought record of letter dated 30.09.2019 regarding the complaint dated 28.12.2015. As per record available there is no complaint dated 28.12.2015 in PS Ranhola. Copy of letter is Ex. PW- 2/1.
c) PW-3 is Sh. Radhey Shyam Yadav and he has testified that the plaintiff had bought the suit property in which Rs. 50,000/- was deficient and her husband Mr. Kashi Yadav had taken Rs. 50,000/- from the defendant at 5% interest rate per month. Husband of the plaintiff had returned the Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.9/24 said amount alongwith interest after one year in the month of May, 2014 in front of him. During cross-examination stated that plaintiff is his sister-in-law. He is residing at Mohan Garden, Uttam Nagar since last 5 years. Stated that husband of plaintiff took Rs. 50,000/- in the office of the defendant in his presence, however, no documents were executed between them regarding Rs. 50,000/-. It was taken in April 2013, however, he do not remember the date. Further stated that except him, Mr. Kashi Yadav and defendant Mr. Ajay Kumar were present at the time of taking loan in the office of defendant. Denied that no such amount of Rs. 50,000/- was taken by Mr. Kashi Yadav at any point of time from the defendant as there are no documents. Admitted that he do not have any proof as to giving and taking of the loan of Rs. 50,000/- in his presence. Denied deposing falsely.
d) PW-4 is Ms. Meena Devi Goswami, she has tendered her evidence by way of affidavit Ex. PW4/A bearing her signatures at points A and B. During cross-examination stated that she is not much literate. She can sign in Hindi. Her family consist one daughter and two sons. Her husband is residing separately from them. Stated that today i.e. 11.11.2021 (on the date of deposition) she has appeared before the Court to depose at the instance of Sh. Kashi Prasad Yadav (husband of plaintiff). Stated that in 2015, she used to work in a beauty parlor at Mahavir Enclave, New Delhi and the owner of the parlor name is Ms. Anjali. Her timings were from 10.00 a.m. to 07.30 p.m. She used Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.10/24 to inform to her owner Ms. Anjali via phone, if she is taking any leave from her work. However, she do not remember her phone number. She do not remember her phone number which she was using in December 2015. On 13.12.2015, she was on leave as her younger son namely Nitin was suffering from Fever for the last one week. She cannot bring any document to show that on 13.12.2015, she was on leave. She also cannot show any medical document to show that her son was unwell on 13.12.2015. Denied that she cannot show any document of her leave as well as medical document because on that day she was not on leave and her son was also not ill. She knows Mr. Ajay Rai since 2014-2015 who is the defendant no. 1 in the present case. She knows Mr. Ajay Rai because of Mr. Kashi Prasad Yadav. Mr. Kashi Prasad Yadav was her neighbour and now she is residing at the house of Mr. Kashi Prasad Yadav on rent. Nobody told her about the money dispute between the Mr. Kashi Prasad Yadav and Mr. Ajay Rai. She heard about the dispute somewhere. She did not make any police complaint or any 100 number call on 13.12.2015. Admitted that on 13.12.2015 Mr. Kashi Prasad Yadav and his family members had not made any police complaint in her presence. Denied that on 13.12.2015 no such incident mentioned in para number 4 of her evidence affidavit took place. Denied that she is deposing falsely at the instance of Kashi Prasad Yadav and his family members.
Suit No. 25571/16Urmila Devi Vs. Ajay Kumar Rai Page no.11/24
e) PW-5 is Sh. Kashi Yadav i.e. husband of the plaintiff, he has tendered his evidence by way of affidavit which is exhibited as Ex. PW5/A bearing his signatures at points A and B and he has relied upon the document i.e. copy of complaint alongwith postal receipts Ex. PW1/E. During cross-examination stated that in the year 2013, he was earning Rs. 15,000/- to 16,000/- per month. He also owned Mahindra Maxima Pickup Van which he used on commercial basis and he used to earn Rs. 25,000/- to 30,000/- per month from the said vehicle. He do not have any documents to show his aforesaid income from the said commercial vehicle and his employment. He was the sole bread earner of her family in the year 2013. It is denied that he had procured a loan of Rs. 6,65,950/- from the defendant for construction of her house at the suit property on 10.04.2013 and 15.04.2013. Then, witness was shown the agreement dated 15.03.2013 with stamp paper of 15.04.2013 Ex. DW1/PW5 to which witness has admitted his signatures at points A on each page. He do not know English language and he was not told about the contents of Ex. DW1/PW5. He do not remember who got document Ex. DW1/PW5 signed from him but he had signed this document against loan from the defendant. He had availed loan of Rs. 50,000/- from the defendant. He had signed on certain papers at the time of availing loan of Rs. 50,000/- from the defendant. The said documents/agreement has been filed in the present case by the plaintiff (her wife) and it is only a photocopy of the said agreement. Then, witness Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.12/24 is shown case record but he is unable to point out any such agreement. Admitted that on or around 15th April 2013, he and his brother-in-law (Jija) had handed over original chain of documents of suit property to defendant copies of which are already marked as Mark A. Apart from the present case, no other proceedings has been initiated by him and his wife i.e. plaintiff against the defendant for return of original documents. He do not have any document to show return of Rs. 50,000/- to defendant as stated in para 6 of his evidence affidavit Ex. PW5/A. Denied that he had not returned Rs. 50,000/- to the defendant and that is why he do not have any document in this respect. He had not served any notice upon the defendant to return original documents of suit property as stated in para 6 and 7 of his evidence affidavit Ex. PW5/A. He was asked that in para 8 of his affidavit Ex. PW5/A he has stated that defendant no. 1 visited his house with anti social elements and issued threats. To this he stated that no such incident took place except on 13.12.2015. He did not filed any complaint as to incident dated 13.12.2015 and hiswife had filed one complaint. He was present at his house at the time of alleged incident. His wife had filed complaint on 27-28.12.2015. His wife did not filed complaint immediately and the same was filed after 15 days because his wife as she is illiterate. Denied that no incident took place on 13.12.2015 that is why complaint was filed after 15 days in this respect. He acquired knowledge of agreement Ex. DW1/PW5 on or around Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.13/24 13.12.2015. He has not filed any complaint against the defendant in respect to agreement Ex. DW1/PW5 till date except his wife. Again said his wife has filed complaint against the defendant only as to incident dated 13.12.2015. Denied that deposing falsely.
5. Vide separate statement recorded on 13.04.2022 plaintiff stated that she has filed certified copy of the statement of the record clerk of Ct. Pawan Kumar, No. 1914/OD, presently posted at PS Ranhola alongwith order dated 10.08.2020 of DCP outer district Delhi which was filed by the Ct. Pawan Kumar in connected matter titled as Ajay Rai Vs. Kashi Yadav, CS-16517/2016 Ex. PW-1/F (colly page 1 to 5) and vide same statement she closed plaintiff evidence.
6. In order to rebut the claim/case of plaintiff, defendant has examined two witnesses, himself and DW2. DW1 is Sh. Ajay Rai i.e. defendant himself, he has tendered his evidence by way of affidavit Ex.DW1/A which bears his signatures at point A and B and relied on the following documents:- a) copy of agreement dated 15.04.2013 Ex. DW-1/1 (OSR), copy of title documents Ex. DW-1/2 (OSR) (Colly), copy of complaint to SHO Concerned and DCP Rajouri Garden Delhi Mark A, certified copy of plaint Ex. DW-1/3. During cross-examination stated that he has studied upto 12th. He resided in the above mentioned address since last 20 yrs. He knows English. He knows the contents of the affidavit Ex.DW1/A. He is a property dealer by profession. He earn around Rs.5-6 lacs Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.14/24 annually. He is an income tax payer. He has filed ITR in financial year 2013-14. He do not remember whether he had mentioned in the ITR the lending of money towards Mr. Kashi Prasad, husband of the plaintiff or plaintiff. Denied that he had given loan to Mr. Kashi Prasad. He had not granted any loan to plaintiff. Denied that he had given loan to Mr. Kashi Prasad husband of the plaintiff of Rs.50,000/-. Volunteered that he had given loan to Mr. Kashi Prasad of Rs.6,65,950/-. Admitted that the suit property belongs to plaintiff. Admitted that at the time of granting loan to Mr. Kashi Prasad Yadav, husband of the plaintiff, he know that the suit property belongs to plaintiff. Denied that Mr. Kashi Prasad husband of the plaintiff had returned the loan amount of Rs.50,000/- in May 2014. Denied that he had taken the signature of Mr. Kashi Prasad Yadav husband of the plaintiff on some blank and printed paper. Denied that he had lent money to Mr. Kashi Prasad @ 5% interest per month. Denied that Mr. Kashi Prasad husband of the plaintiff returned the loan amount of Rs.50,000/- thereafter he asked him to pay interest @ 20% interest only then he would give the papers of the suit property. Denied that he had not lent the money to Mr. Kashi Prasad amounting Rs.6,65,950/-. Admitted that the plaintiff had not any liability towards me. He do not remember the exact date on which he has filed the police complaint, however, it was somewhere in December, 2015. Admitted that he had not filed any complaint against plaintiff. Denied that on 19.12.2015 he Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.15/24 alongwith 10-15 persons went to the suit property and threatened the plaintiff to throw out from suit property. Denied that he had returned the documents of the suit property even after receiving of the loan amount of Rs.50,000/-. Admitted that he has the suit property documents. Then, witness has shown Agreement to Sell Ex.as DW1/2 (OSR) (Colly), and asked whether signature at point A on page no.18 (topmost right hand side) (now circled with red pen) is his. Witness has stated that it is mine. Admitted that he had not granted loan to Mr. Kashi Prasad Yadav (husband of the plaintiff) upon the instructions of plaintiff. Admitted that Ms. Urmila Devi (plaintiff herein) was the owner of the suit property at the time when he has filed the case titled as CSDJADJ516517/2016, Ajay Rai Vs. Kashi Yadav. Admitted that he is not relying upon para no.9 of his affidavit Ex.DW1/A. Denied that on 19.12.2015 he had filed false complaint before SHO and DCP. Denied deposing falsely.
7. DW2 is Sh.Krishan Kumar and he has tendered his evidence by way of affidavit which is exhibited as Ex.DW2/A bearing his signature at points A and B. During his cross-examination he deposed that he knows the defendant and Kashi Yadav (husband of the plaintiff) since 20-25 yrs. He came to depose before the Court at the instance of the defendant. Admitted that the affidavit Ex. DW2/A was not prepared by him or upon his instructions. Admitted that signature at point A and B are his. Admitted Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.16/24 that he do not know the content of affidavit Ex. DW2/A. He knows the plaintiff since 20-25 yrs. He handed over the money to Kashi Yadav (husband of the plaintiff) in cash only of Rs.6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only). Admitted that he had not given any amount to plaintiff. He had given Rs.6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) to husband of plaintiff in one time payment. Admitted that para no. 2 of his affidavit is incorrect and he is not relying upon it. Admitted that at the time of the transaction, some papers were executed between him and husband of the plaintiff. He do not know the nature of the document. He do not know whether the said document was whether rent agreement or not. He do not know the contents of document exhibited as DW1/1. Admitted that signature at point C Ex.DW1/1 is his. Admitted that agreement Ex.DW1/1 was executed at the time of the transaction. Admitted that the signature at point A of Ex.DW1/1 was already signed by Kashi Yadav (husband of the plaintiff). Admitted that signature at point A of Ex.DW1/1 of Kashi Yadav (husband of the plaintiff) was not signed in his presence. Admitted that none of the parties to the agreement Ex.as DW1/1 had not signed in his presence. Admitted that agreement Ex.as DW1/1 was not executed in his presence and para no.3 is incorrect, he is not relying upon it. Denied deposing falsely.
8. Arguments from both the sides heard and record perused.
9. Issue No. 1 & 2 Suit No. 25571/16Urmila Devi Vs. Ajay Kumar Rai Page no.17/24 Issue No. 1 & 2 are taken up together as both are interconnected. The claim of the plaintiff is that she is owner and in possession of the suit property which was purchased by her from one Sh. Ramesh Kapoor on 09.04.2013 vide GPA, Agreement to Sell, Affidavit etc. and thereafter a house over the suit property has been constructed and the plaintiff is enjoying its uninterrupted possession. The plaintiff has further averred that in April, 2013 the husband of the plaintiff obtained a loan of Rs. 50,000/- @ 5% per month rate of interest for one year and at that time the defendant took the property papers executed in favour of plaintiff as surety and obtained signatures of the husband of plaintiff on some blank papers and printed papers. The said loan was returned in the month of 2014 and when she asked for return of her property papers, defendant with intention to grab the suit property demanded 20% per month rate of interest on the loan amount. Plaintiff has also alleged that on 13.12.2015 the defendant alongwith some anti-social elements came to the suit property and threatened the plaintiff and her family members and threatened that he will sell the suit property and throw away the plaintiff and her family members. On this a complaint dated 28.12.2015 was also lodged with PS Ranhola. To the contrary, the defendant has alleged that the case of the plaintiff is based on false facts, in fact, a loan of Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) was taken by the husband of the plaintiff for construction of his house and Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.18/24 the said amount was paid in cash, Rs. 4,65,950/- (Rupees Four Lakh Sixty Five Thousand Nine Hundred Fifty Only) on 10.04.2013 and Rs. 2,00,000/- (Rupees Two Lakh Only) on 15.04.2013 in presence of a common friend and it was agreed that the loan amount shall be returned before 14.02.2014. As to it the husband of the plaintiff executed an agreement on 15.04.2013 in presence of a common friend Sh. Krishan Kumar at Mohan Garden and he handed over all the original deeds documents relating to the suit property to the defendant and it was agreed in writing that defendant will return the same after receiving the loan repayment but the husband of the plaintiff has not paid even a single penny to the defendant and as to it a case before the court of Ld. ADJ has also been filed. During the pendency of the present case the said case has been decided in favour of the defendant which is civil suit No. 16517/16, titled as Ajay Rai Vs. Kashi Yadav decided on 06.08.2022, vide which the plaintiff has been held entitled to recovery of Rs. 8,85,713/- (Rupees Eight Lakh Eight Five Thousand Seven Hundred Thirteen Only) alongwith 6% per annum pendente-lite and future interest by the court of Sh. Sumit Dass, Ld. ADJ-04, South West, Dwarka, Delhi.
10.In order to prove the case the plaintiff has examined five witnesses including herself and her husband as PW-1 and PW-5 respectively. By way of her affidavit Ex. PW-1/A she has reiterated her case as mentioned in the plaint. She has filed photocopies of the title documents Mark A. It is Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.19/24 not disputed by the defendant that he does not have the title documents of the suit property. In fact, defendant himself has filed copy of the title documents and which has been compared with the original, which is Ex. DW-1/2 (OSR) (colly). The stand of the plaintiff is that only an amount of Rs. 50,000/- was obtained by her husband. PW- 3 in this regard has testified that plaintiff had bought the suit property in which Rs. 50,000/- was deficient and for that purpose husband of the plaintiff had taken a loan of Rs. 50,000/- from the defendant which was returned. During cross-examination he stated that at that time Sh. Kashi Yadav and defendant were present when the loan was advanced in April 2013, however no documents were executed in his presence. He does not have any proof as to giving or taking of the loan of Rs. 50,000/- in his presence. PW-1 also stated that the said loan of Rs. 50,000/- was not taken in her presence and it was told to her by her husband. As to the agreement Ex. DW-1/PW-5 she stated that she do not know whether any agreement was executed between the defendant and her husband or not. She denied clearly taking of a loan of Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) by her husband. In this regard, PW-5 has testified when Ex. DW-1/PW-5 was put to him that the same bears his signatures at point A on each page. Further, he do not remember who got this document signed from him but he had signed this document against loan taken from the defendant. He emphasized that same was signed when he availed loan of Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.20/24 Rs. 50,000/- from the defendant. When questioned about any proof as to return of the loan amounting Rs. 50,000/- he stated that he do not have any documentary proof qua the same. He also admitted that he has not served any notice upon the defendant for return of original documents of the suit property.
11.Ld. Counsel for the plaintiff has argued that the said agreement Ex. DW-1/PW-5 is antedated and date of 15.03.2013 is mentioned in the beginning of the said agreement however as per the pleading of the defendant the same was executed on 15.04.2013. In the said agreement the factum of receiving Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) has been mentioned and further that it is given for 11 months and the loan is to be repaid on or before 14.02.2014. In para 3 of the said agreement it is mentioned that the husband of the plaintiff Sh. Kashi Yadav/PW-5 has handed over all the original deeds and documents relating to the suit property to the defendant Sh. Ajay Rai and the defendant will hand over back the same after receiving the loan amount. Defendant also for disproving the case of the plaintiff and for establishing his defence has examined himself and DW-2 in whose presence the loan of Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) is claimed to have been advanced. He has categorically stated that Ex. DW-1/1 (DW1/PW-5) was executed at the time of transaction but Kashi Yadav had not signed the same in his presence. Further defendant had Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.21/24 given the said amount in one time payment. However the stand of defendant is that it was given in two installments and same is clearly mentioned in Ex. DW-1/1. Further defendant had made a complaint to SHO and DCP Rajouri Garden which is Mark A. In his evidence he has also relied upon the certified copy of the plaint of the suit filed by him which is Ex. DW-1/3. From the above mentioned evidence it is clear that firstly, the husband of the plaintiff/PW-5 has categorically admitted his signatures on Ex. DW-1/PW-5 and secondly it is the claim of the plaintiff herself at the time of advancing loan the title documents of the suit property were taken by the defendant. The factum of giving and taking of the property documents is clearly mentioned in Ex. DW-1/PW-5 which goes in favour of the defendant only. Even if for argument sake the claim of the plaintiff that signatures were obtained by the defendant on blank paper and the agreement being antedated is believed, then also this simpliciter suit for permanent and mandatory injunction will not lie, it being a mortgage by deposit of title deeds. Ld. Counsel for the defendant had argued that it is Usufructuary Mortgage, it is not so as the possession of the property or enjoyment of Usufruct thereof was not given to the defendant and only the title deeds as surety/security for loan repayment was given. The plaintiff should have filed suit for redemption of mortgage and not the simpliciter suit for injunction.
12.As to incident dated 13.12.2015 whereby the plaintiff alleges that on the said date defendant alongwith some Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.22/24 antisocial elements came to the house of plaintiff and complaint dated 28.12.2015 was made to PS Ranhola, its postal receipts being Ex. PW-1/E, in this regard PW-2 Ct. Satyapal was summoned who had brought a letter dated 30.09.2019 regarding the said complaint which mentions that there is no such police complaint in PS Ranhola. The said letter is Ex. PW-2/1. PW-4 Meena Devi in her evidence affidavit Ex. PW-4/A has stated that on 13.12.2015 at 2:30 pm she was at her home when she heard noise of some people, on coming out she saw that defendant No.1 alongwith three four people was abusing and beating the plaintiff and her family for demand of money and while leaving the house they threatened the plaintiff and her family to dispossess them. When the veracity of this statement was checked by the Ld. Opposite Counsel, PW-4 stated that on the said date she was on leave on account of illness of her son. She stated that she did not made the said police complaint. She heard about the dispute somewhere, which implies that she herself had not seen any such incident happening. If any such incident happened then why the plaintiff and her husband did not lodge the complaint on the same day or immediately thereafter. Further the complaint has not been proved on record as PW-2 stated that no record of such complaint exists in PS Ranhola.
13.Therefore, as per above discussion the plaintiff has failed to prove that her husband had taken only Rs. 50,000/- from the defendant and no proof as to its repayment has been Suit No. 25571/16 Urmila Devi Vs. Ajay Kumar Rai Page no.23/24 adduced. To the contrary, defendant has adduced documentary proof as to the loan amounting Rs. 6,65,950/- (Rupees Six Lakh Sixty Five Thousand Nine Hundred Fifty Only) taken by husband of plaintiff from the defendant, here the issue is not as to the validity of agreement Ex. DW-1/1 but whether the plaintiff is entitled for injunction against the defendant and further mandatory injunction seeking direction to the defendant for return of the title documents of the suit property. Since the plaintiff has failed to prove her case, therefore, the issue No. 1 & 2 are decided against the plaintiff and accordingly the suit filed by the plaintiff is dismissed, however without any cost.
RELIEF
14. In view of the aforesaid discussion, the suit of the plaintiff is dismissed for the relief of permanent and mandatory injunction, however without any cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room, after due compliance.
Digitally signedDEEPIKA by DEEPIKA THAKRAN THAKRAN Date: 2022.11.29 16:56:20 +0530 Announced in the Open Court (Deepika Thakran) on 29.11.2022. Civil Judge- II, Dwarka Courts South West District, New Delhi 29.11.2022.
Suit No. 25571/16Urmila Devi Vs. Ajay Kumar Rai Page no.24/24