Delhi District Court
Shri Ajay Rai vs Shri Kashi Yadav on 6 August, 2022
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CNR No.DLSW010021602016
CS No.16517 of 2016
In the matter of:
Shri Ajay Rai
S/o late Sh. Jamna Rai,
Resident of 106, Defence Enclave,
PartI, Mohan Garden,
Uttam Nagar,
New Delhi110059. .......Plaintiff.
VERSUS
Shri Kashi Yadav,
S/o Shri Kalu Yadav,
R/o Plot No.72, K6 Block,
Mohan Garden, Uttam Nagar,
New Delhi110059. ......Defendant.
Date of Filing : 08.01.2016
Date of Arguments: 05.08.2022
Date of Decision : 06.08.2022
JUDGMENT
1. Vide this judgment, I shall dispose off captioned suit filed by the plaintiff seeking recovery of a sum of Rs.8,85,713/ along with interest against defendant.
CS No. 16517/16 Page No. 1/172. The facts as pleaded in the plaint are that plaintiff and defendant are residing in the same locality and having good friendly and family relations. In the month of April, 2013, the defendant had approached the plaintiff for a loan of Rs.6,65,950/ for construction of his house. The plaintiff considering the request of the defendant, had advanced to the defendant a total loan of Rs.6,65,950/ i.e. Rs.4,65,950/ by way of cash on 10.04.2013 and Rs.2,00,000/ by cash on 15.04.2013 in the presence of common friend. It was agreed that the defendant will return the loan amount before 14.02.2014.
2.1 At the time of taking loan, defendant executed an Agreement dated 15.04.2013 in the presence and witness of a common friend namely Shri Krishan Kumar. The defendant had handed over all the original deeds and documents relating to the property - portion of plot no.72, land area measuring 58 sq yards out of Khasra No.40/18 & 40/19, situated in the area of Village Hastsal, Delhi colony known a Block K6, Mohan Garden, Uttam Nagar, New Delhi to the plaintiff and it was mentioned in the agreement that plaintiff will return the above mentioned documents of above mentioned property to the defendant after receiving loan amount on the date decided by both the parties.
2.2 It is further stated that after completion of a year, the plaintiff had requested the defendant to return the loan amount but the defendant avoided the same on one pretext or the other and finally on 19.12.2015, the defendant refused to return the loan amount and threatened the defendant. Plaintiff had CS No. 16517/16 Page No. 2/17 Ajay Rai v/s Kashi Yadav filed a complaint with SHO concerned and DCP, Rajouri Garden in this regard. As per plaintiff, the defendant is liable to pay Rs.6,65,950/ to him along with interest at the market rate of 1% per month which amount comes to Rs.2,19,763/ till 14.01.2016, which comes to Rs.8,85,713/. Plaintiff has also prayed for sale of portion of plot no.72, land area measuring 58 sq yards out of Khasra No.40/18 & 40/19 situated in the revenue estate of village Hastsal, Delhi and the colony known as Block K6, Mohan Garden, Uttam Nagar, New Delhi110059. As such the instant suit.
3. Summons for settlement of issues were directed upon the defendant. Defendant had duly entered appearance and filed his Written Statement.
3.1 Defendant in his Written Statement has raised the preliminary objection that the suit is neither maintainable nor sustainable in the eyes of the law as the plaintiff has no locus standi to file the present suit. It is further stated that suit is further not maintainable and is liable to be dismissed owing to the doctrine of res sub judice. It is also stated that wife of the defendant has already filed a suit for permanent and mandatory injunction against the plaintiff herein i.e. suit bearing No.03/2016 titled as "Urmila Devi vs. Ajay Kumar Rai & Anr." prior to filing of the present suit, in which the plaintiff has already filed Written Statement.
3.2 It is further stated that the defendant in the month of April, 2013 CS No. 16517/16 Page No. 3/17 Ajay Rai v/s Kashi Yadav had approached the plaintiff and taken a loan of Rs.50,000/ at the interest rate of 5% per month and the plaintiff had taken above said property papers as security. It is stated that plaintiff had taken signatures of defendant on some blank printed papers and it was agreed that the plaintiff will return those documents to the defendant after satisfaction of the loan amount. It is further stated that the defendant had returned the whole loan amount to the plaintiff in the month of May 2014 and requested the plaintiff to return the property papers but plaintiff refused to return the property papers and asked interest at the rate of 20% p.a. The defendant denied the contrary version of the plaint in toto and sought dismissal of the suit.
4. Replication was filed to the Written Statement. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
5. On the basis of material available on record and the pleadings of the parties, vide order dated 25.05.2016, Ld. Predecessor had settled following Issues:
(i) Whether the suit is not maintainable under the doctrine of res sub judice? OPD
(ii) Whether the present suit has been under valued for the purposes of court fees and jurisdiction?OPD
(iii) Whether the plaintiff is entitled to decree for sum of Rs.8,85,713/ along with pendentelite interest as prayed for?
OPP CS No. 16517/16 Page No. 4/17 Ajay Rai v/s Kashi Yadav
(iv) In the alternative, whether the plaintiff is entitled to direct sale of portion of plot no.72, land area measuring 58 sq yards out of Khasra No.40/18 & 40/19 situated in the revenue estate of village Hastal, Delhi and the colony known as Block K6, Mohan Garden, Uttam Nagar, New Delhi59 ?
(v) Relief.
6. In evidence, plaintiff tendered his evidence by way of affidavit Ex.PW1/A and relied upon following documents:
(1) The photocopies of title documents executed by Sh. Ramesh Kapoor in favour of Smt. Urmila Devi is Ex.P1(colly) as the same is admitted by the opposite party;
(2) The photocopies of title document dated 24.11.2012 executed by Sh. Kashi Yadav in favour of Sh. Ramesh Kapoor are Ex.P2 (colly) as the same is admitted by the opposite party; (3) The photocopies of title document dated 24.11.2012 executed by Sh. Vikas Gandhi in favour of Sh. Kashi Yadav are Ex.P3 (colly) as the same is admitted by the opposite party; (4) The photocopies of title document dated 05.11.2012 executed by Sh. Asha Devi in favour of Sh. Vikas Gandhi are Ex.P4 (colly) as the same is admitted by the opposite party;
(5) The photocopies of title documents dated 01.03.2012 executed by Sh. Virender Singh in favour of Smt. Asha Devi are Ex.P5 (colly) as the same is admitted by the opposite party; (6) The title documents in photocopy dated 25.03.2011 executed by Ms. Alisha Gandhi in favour of Sh. Ashish Singhal are Ex.P6 CS No. 16517/16 Page No. 5/17 Ajay Rai v/s Kashi Yadav (colly) as the same is admitted by the opposite party; (7) The photocopies of documents executed by Sh. Surender Yadav in favour of Ms. Alisha Gandhi dated 29.04.2010 and registered Will dated 30.04.2010 are Mark P7 (colly) (in the affidavit it is shown as Ex.P7);
(8) Documents executed by Sh. S.R. Yadav in favour of Sh.
Surender Yadav dated 19.04.2010 are mark P8 (colly) (in the affidavit it is shown as E.P8);
(9) Documents executed by Sh. Hemant Yadav in favour of Sh. S.R. Yadav dated 07.04.2004 are mark P9 (colly) (in the affidavit it is shown as E.P9);
(10) Documents executed by Sh. Rajender Yadav in favour of Sh. Hemant Yadav dated 24.10.1994 are Mark P10 (colly) (in the affidavit it is shown as E.P9);
(11) Complaint to DCP, ACP, SHO of concerned PS are Ex.P11 (colly) (OSR);
(12) Loan Agreement between Kashi Yadav and Ajay Rai dated 15.04.2013 are Ex.P12 (OSR).
He was crossexamined at length and discharged.
6.1 Plaintiff has also examined Sh. Krishan Kumar as PW2 who tendered his evidence by way of affidavit Ex.PW2/A. He is attesting witness in the Agreement dated 15.04.2013 executed between plaintiff and defendant regarding taking of alleged loan by the defendant from the plaintiff. He deposed in consonance with the case set forth in the plaint.
CS No. 16517/16 Page No. 6/17Ajay Rai v/s Kashi Yadav 6.2 PW3 ASI Anoop Singh was a summoned witness who had brought the record i.e. the complaint dated 21.12.2015 received in complaint branch, DCP office, West District, Rajouri Garden against the defendant bearing diary no. 35632 dated 23.12.2015 which was proved as Ex. PW3/A. He was cross examined and thereafter PE was closed vide statement of the plaintiff got recorded on 06.02.2018.
7. Defendant entered into witness box as DW1 and tendered his evidence by way of affidavit Ex.DW1/1. He relied upon photocopy of police complaint dated 28.12.2015 mark A1.
7.1 Defendant examined Ct. Pawan Kumar as DW2. He had brought copy of order dated 10.08.2020 of DCP, Outer District, Delhi regarding destruction of record for the year 2012 to 2017 and exhibited the same as Ex.DW2/A. 7.2 DW3 was Meena Devi Goswami w/o Guddu Goswami who had filed her affidavit Ex. DW3/A. She had deposed in consonance with the stand of the defendant that on 13.12.2015 at about 2.30 pm she saw the plaintiff Ajay Kumar Rai threatening and abusing the defendant and his family. She was duly cross examined.
7.3 Sh. Radhey Shyam Yadav s/o Jagroop Yadav was also a witness on behalf of the defendant examined as DW4 and he had tendered his CS No. 16517/16 Page No. 7/17 Ajay Rai v/s Kashi Yadav evidence by way of affidavit as Ex. DW4/1. He was a witness to the fact that defendant Kashi Yadav had taken the loan of Rs. 50,000/ at the interest of 5% per month for a period of one year which was returned by the defendant with interest.
He was cross examined by Ld. Counsel for plaintiff whereafter DE was closed on 13.04.2022 by the defendant.
8. I have heard the arguments advanced by either side as well as perused the record.
9. My issuewise findings are as under:
Issue No.(i) Whether the suit is not maintainable under the doctrine of res sub judice? OPD Insofar as issue no.(i) is concerned, onus to prove this issue was casted upon the defendant. Necessarily if res sub judice is sought to be pressed upon, it was incumbent upon the defendant to at least place on record pleadings of the earlier suit whereby the true test i.e. if the earlier suit ought to have been decided it would operate as resjudicata could be ascertained/deciphered. Except by merely contending that a separate suit was filed by wife of the defendant inasmuch as property documents were in possession of the plaintiff pertaining to the property which is owned by wife of the defendant, nothing much else has been substantiated or asserted.CS No. 16517/16 Page No. 8/17
Ajay Rai v/s Kashi Yadav So much so since parties in both the suits are different otherwise also the first basic test that both the cases should be between the same parties is also not met herein. I need not dwell further on this point. Nothing has been stated during the course of arguments as to the fate of the said suit or otherwise as to how the said suit had any bearing in the facts of the present case. This issue is decided in favour of the plaintiff and against the defendant.
9.1 Issue No.(ii) Whether the present suit has been under valued for the purposes of court fees and jurisdiction?OPD Coming to issue no.(ii) i.e. question of Court fee, the suit is for recovery.
Recovery is sought to be enforced as well through alleged mortgage so created. It is a suit for recovery of Rs.8,85,713/ upon which required Court fee has been filed of Rs.11050/ and on this aspect nothing else was argued by either side. The legality of the mortgage or otherwise is not the subject matter of this issue. If I dwell on this aspect and again glanced through the written statement nothing has been stated in para 7 of the preliminary objections or in response to para no. 14 of the plaint. Rather in para no.14 i.e. with respect to the purposes of Court fees and jurisdiction it is stated that it is a matter of record. As such issue no.(ii) is decided in favour of the plaintiff.
9.2 Coming to the core issues. Same are as under :
Issue No.(iii)Whether the plaintiff is entitled to decree for sum of Rs.8,85,713/ along with pendentelite interest as CS No. 16517/16 Page No. 9/17 Ajay Rai v/s Kashi Yadav prayed for?OPP Issue No.(iv)In the alternative, whether the plaintiff is entitled to direct sale of portion of plot no.72, land area measuring 58 sq yards out of Khasra No.40/18 & 40/19 situated in the revenue estate of village Hastal, Delhi and the colony known as Block K6, Mohan Garden, Uttam Nagar, New Delhi59?
Issue Nos.(iii) and (iv) are interconnected and based on same evidence and therefore conveniently decided together.
The case set forth by the plaintiff is predicated on document Ex.P12 which is an Agreement dated 15.04.2013. This Agreement is on stamp paper of Rs.50/. Said stamp paper has been issued to defendant Sh. Kashi Yadav. Terms and conditions of the Agreement are stated hereunder:
1.That the first party has received the said loan amount of Rs.6,65,950/ (Rupees Six Lacs Sixty Five Thousand Nine Hundred Fifty only) from the second party for a period of 11 months, and the detail of the payment as per given below: a. Rs.4,65,950/ by cash on dated 10/04/2013.
b. Rs.3,00,000/ by cash on dated 15/04/2014.
2.That first party will pay the said loan to the second party within 11 months from the date of execution of this Agreement i.e. on or before 14/02/2014.
3.That the first party has handed over all the original deeds and documents relating to the said property to the second party.
4.That second party will rehandover the above mentioned deeds and document (original) in respect of the said property to the first party after receiving his/her loan amount.
5.That if the first party fails to pay the said loan amount to the second party within the prescribed period then the second party shall be fully entitled and empowered to sell the aforesaid CS No. 16517/16 Page No. 10/17 Ajay Rai v/s Kashi Yadav property as per market value and recover his/her loan amount from the said sale consideration and balance amount will be paid by the second party to the first party.
6.That if the first party fails to pay the said loan amount to the second party within the prescribed period then the second party have the right to take legal action against the First Party.
Agreement Ex.P12 bears signature and thumb impression of plaintiff as well as defendant. This Agreement is witnessed by one Sh. Krishan Kumar and allegedly notarized on 15.04.2013.
9.3 Ld counsel appearing on behalf of the defendant argued that the due execution of this Agreement Ex.P12 has not been substantiated, inasmuch as defendant had only taken Rs.50,000/ against the documents of their plot (owned by her wife) and since said amount was returned and usurious rate of interest was sought to be charged by the plaintiff, documents were not returned and first suit was filed by them. Ld. counsel for the defendant submits that crossexamination of PW1 and PW2 who is attesting witness on the said Agreement Ex.P12 makes it clear that said agreement is a forged one/later on manipulated on the strength of the documents which were got signed by the plaintiff in blank at the time of granting of loan.
9.4 Whereas on the other hand, Ld counsel for the plaintiff argued that first of all defendant had acknowledged receipt of the amount by way of said Agreement Ex.P12 which was given in two tranches and also entire chain of documents with regard to the property was given to plaintiff as security. To CS No. 16517/16 Page No. 11/17 Ajay Rai v/s Kashi Yadav contend that said chain of documents of property was given for measly amount of Rs.50,000/ is untenable/unbelievable. Ld counsel for the plaintiff submits that PW1 and PW2 have duly proved execution of the loan documents Ex. P
12. 9.5 Let me now first of all ascertain the validity/ due execution of the document in the backdrop of the evidence adduced by the plaintiff. The plaintiff as PW1 has testified with regard to execution of documents and the fact that property documents were handed over to him. During his cross examination, he admitted that he knows the defendant for the last 1112 years and he is a property dealer. Vizaviz loan documents, he stated that the same were prepared by defendant at Balaji Chowk, Mohan Garden and the same was prepared by one Sh. Sohan Jha at Priyadarshni Documents. He was given suggestion vizaviz loan of Rs.50,000/, to which he reiterated that Rs.50,000/ was not the loan amount and total loan was Rs.6,65,950/. He also testified that he had not charged any interest and it was friendly loan initially. On the aspect of having the availability of funds he deposed that he had kept the money in bank and at home for the marriage of his daughter.
Nothing much has been elicited during the crossexamination of PW1. In fact it was not even put to him as to when Rs. 50,000/ was returned by the defendant or the interest thereon was paid or as to when the defendant had sought for/insisted for return of the original documents of the property. In simpler words the crucial dates or the events with regard to said facts i.e. CS No. 16517/16 Page No. 12/17 Ajay Rai v/s Kashi Yadav returning the amount/interest have not at all been put to PW1 nor the defendant had spelled out the same during his evidence. Needless to submit there is no document with regard to returning of the loan or otherwise insistence of return of documents on behalf of the defendant.
9.6 Sh. Krishan Kumar who is attesting witness was examined as PW2. This witness had stated as under:
It is wrong to suggest that when I signed the agreement, it was not having the signatures of any other person. Vol. The said agreement was already signed by the defendant. Thereafter, I signed it. I do not know whether the plaintiff has signed on the agreement or not. It is wrong to suggest that I had signed on blank papers. I do not recollect whether I signed on some other papers also. No other witness has signed the agreement in my presence.
Exception was taken by Ld counsel for the defendant on the basis of the said part of the testimony to contend that agreement was prepared later on and blank documents given by the defendant were misused.
Now already the defendant had propounded a case that the documents were given and a loan for Rs.50,000/ was obtained. Delving on this aspect the testimony of DW2 is that the plaintiff had taken the signatures on some blank and printed papers [as deposed in para 5 of the affidavit by way of evidence]. As mentioned earlier the documents not only were signed but also carried the thumb impression. Viz aviz thumb impression aspect, I need not say much but the aspect that the document did not contain the thumb CS No. 16517/16 Page No. 13/17 Ajay Rai v/s Kashi Yadav impression of the defendant could have been very well established by minimum efforts by calling the expert in the said regard. The thumb impressions of any individual are distinct hence, the defendant could have very well demolished the case of the plaintiff had the documents being forged by the plaintiff or anyone on his behalf. Qua the said aspect no attempt was made by the defendant to substantiate that said documents were not signed/his thumb impressions were not there on the document. Merely by contending that signatures were not his, is not sufficient. Thumb impressions are at all the three pages of Agreement Ex.P12 and to contend that the same were manipulated later on is untenable.
9.7 Delving a little on the testimony of PW2 particularly the extracted portion as culled out herein above. The first line reveals that it was suggestion which was denied by PW2. The volunteered portion was intended to signify that the document when signed by the attesting witness had the signatures of defendant or was signed by him first. Thereafter, the attesting witness had signed on the same. The next follow up question as to the fact whether the plaintiff had signed the agreement or not has to be seen in the light of the fact that the case of the defendant is that the agreement was manipulated later on. No specific question otherwise also was put qua the said aspect by the defendant. In simpler words merely on the said answer "I do not know whether the plaintiff had signed on the agreement or not" does not unequivocally mean or conclude that the agreement was subsequently prepared or later on manipulated.CS No. 16517/16 Page No. 14/17
Ajay Rai v/s Kashi Yadav 9.8 Coming to the evidence of DW1 Kashi Yadav, he has deposed that he had taken loan of Rs.50,000/. However, as to when said loan amount was returned is not specified in the evidence by way of affidavit. One witness namely DW4 has been examined who has deposed that Kashi Yadav had returned the loan in the month of May, 2014. DW4 has admitted that he is the brother inlaw of the defendant. Relevant to note herein despite he being related to the defendant his name was not reflected in the written statement as to the person in whose presence the loan was returned. The said omission to my mind completely negates his evidence or denudes its evidentiary value.
9.9 It is also stated that the loan was repaid in May, 2014, however, insofar as the present suit is concerned the same was filed in the year 2016. and the cause of action is stated to be as on 19.12.2015 when there was a dispute upon the plaintiff demanding the return of the money. Thus it is also improbable that in the eventuality that the original documents were with the plaintiff, the defendant would keep mum for more than one year after payment of entire loan amount.
10. The amount reflected in documents whereby property was acquired by defendant's wife from Sh. Ramesh Kapoor reveals that amount was Rs.10,00,000/ and the date is 09.04.2013. This land/plot is 58 sq yards. The contention that documents were handed over as security for Rs.50,000/ is also untenable. Entire chain of documents of property of defendant's wife are with the plaintiff.CS No. 16517/16 Page No. 15/17
Ajay Rai v/s Kashi Yadav
10.1 In fact the entire chain of documents since the property was purchased by Rajender Yadav in favour of Hemant Yadav followed up by subsequent buyers is with the plaintiff. The response of the defendant is tepid, notwithstanding the fact that the original documents of the property are with the plaintiff and he had repaid the loan amount still, the defendant had not lodged any complaint with regard to the said documents till 19.12.2015 when dispute arose between them.
10.2 Defence of the defendant is shaky, inconsistent and does not have any leg to stand. Once document Ex.P12 is taken into consideration/duly proved to have been executed, the version of the defendant pales into significance.
In view of the aforesaid discussion issue no.(iii) is decided in favour of the plaintiff and against the defendant.
10.3 Coming to Issue No.(iv), the document Ex.P12 by no means can be treated as mortgage deed for the reason that it is an unregistered document. Plaintiff is not a bank or financial institution which can take property documents for creation of equitable mortgage. At best this is simply a loan transaction.
Issue no.(iv) is decided accordingly.
11. Relief: In view of the above findings, the suit of the plaintiff is to be decreed. Decree of recovery for an amount of Rs.8,85,713/ (Rupees eight CS No. 16517/16 Page No. 16/17 Ajay Rai v/s Kashi Yadav lakh eighty five thousand seven hundred and thirteen only) is hereby passed in favour of the plaintiff and against the defendants alongwith costs till realization. Interest is kept at 6% per annum pendentelite and future. A Cost is also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly and file be consigned to Record Room.
Announced in open court (Sumit Dass)
on 06.08.2022. Additional District Judge04
South West District, Dwarka Courts,
New Delhi.
CS No. 16517/16 Page No. 17/17
Ajay Rai v/s Kashi Yadav