Delhi High Court
Des Raj Bhatnagar vs Smt. Chandrawati on 23 September, 2008
Author: Pradeep Nandrajog
R-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 519/1985
DES RAJ BHATNAGAR ..... Appellant
Through: Mr. Raman Kapur, Advocate
versus
SMT. CHANDRAWATI .....Respondent
Through: Nemo
DATE OF DECISION:
% 23.09.2008
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R.MIDHA
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Dig
PRADEEP NANDRAJOG, J.(Oral)
1. The appellant had filed a suit for specific performance
against the family members of Nathu Singh, alleging that on 9.1.1979
Nathu Singh had agreed to sell 45 sq. yds. of land with a room and a
veranda constructed thereon to the appellant for a consideration of
Rs.30,000/-; the property was stated to be bearing Municipal
No.791/5, Sukhdev Nagar, Kotla, Mubarak Pur. It was asserted that
the bargain between the parties was recorded in a receipt dated
RFA No.519/1985 Page 1 of 7
9.1.1979 executed by Nathu Singh when he received Rs.5,000/- as
part sale consideration vide cheque bearing No. PPT-126098 dated
9.1.1981 drawn on Punjab National Bank, Lodhi Road Branch, New
Delhi.
2. It was stated that the sale was agreed to be completed by
8.9.1979.
3. Since Nathu Singh had died on 2.8.1980, specific
performance of the agreement was sought to be enforced against his
legal heirs.
4. Defendants No.1, 3 and 4 filed a written statement
alleging that defendant No.2, Jaswant Singh, a son of Nathu Singh,
was behind the frivolous suit. They alleged that Nathu Singh did not
receive any money from the plaintiff much less executed any receipt.
They alleged that Jaswant Singh who was having inimical relations
with his father and was behind the mischief.
5. Needless to state, the only material issue which arose for
consideration at the trial was whether Nathu Singh had entered into
an agreement to sell and whether he received Rs.5,000/- from the
plaintiff towards earnest money.
6. The cheque in question in sum of Rs.5,000/- stated to
have been issued in the name of Nathu Singh by the plaintiff drawn
on Punjab National Bank, Lodhi Road was proved at the trial as
RFA No.519/1985 Page 2 of 7
Ex.PW-1/1. The cheque evidences that it was issued on 15.1.1979
and was cut out as an „Account Payee‟ cheque. The date 15.1.1979
has been scored of and overwritten by the date 9.1.1979. The
cheque has been issued by the plaintiff (appellant), Des Raj
Bhatnagar, in favour of Nathu Singh. At the reverse of the cheque, 2
signatures of Des Raj Bhatnagar are found appended. Next to them
are signatures in Urdu, probably purporting to be those of Nathu
Singh.
7. The witness from the bank examined by the plaintiff,
namely PW-1, an accountant of the bank stated that it appears that
the signatures in Urdu at the place mark „B‟ on the cheque Ex.PW-1/1
evidenced that somebody presented the cheque for encashment by
drawing cash and since the cheque was an „Account Payee‟ cheque
the, the bank refused to accept the cheque and that the cheque got
represented for cash payment on 9.1.1979 with the date 15.1.1979
scored of, the notation „Payee Account only‟ scored of, the notation
„or bearer‟ which was originally scored of had the word „bearer'
written in hand with signatures of Des Raj Bhatnagar at every place of
overwriting or correction. With reference to signatures of Des Raj
Bhatnagar i.e the plaintiff at the rear of the cheque at the place mark
„A‟, the witness stated that it was apparent that Des Raj Bhatnagar
had presented the cheque and had received the money for the reason
RFA No.519/1985 Page 3 of 7
at the place where the printed words "or bearer" which were
originally struck off were replaced by the word "bearer" written in
hand with signatures of Des Raj Bhatnagar at the said place.
Similarly, where the words "payee account only" were written were
struck off and signatures of Des Raj Bhatnagar were appended.
8. Jaswant Singh, son of Nathu appeared as PW-2 and
deposed that the signatures at the place mark „B‟ on the cheque
Ex.PW-1/1 were his father‟s signatures. He also stated that the
counterfoil Ex.PW-2/2 bore the signatures of his father at mark „A‟.
He stated that he was present when the agreement in question was
arrived at between his father and the plaintiff. He stated that the
talks were held on 1.1.1979. He further stated that his father
received the cheque in his presence. He stated that his father asked
him to persuade the plaintiff to pay him Rs.5,000/- on 7.1.1979. He
stated that his father went to withdraw the money on 9.1.1979 but
the cheque was not honoured for want of funds.
9. The learned Trial Judge has disbelieved the story of the
plaintiff by disbelieving the testimony of Jaswant for the reason the
plaintiff never stated that Jaswant was present when the bargain was
struck. The purported receipt Ex.PW-2/1 dated 9.1.1979 stated to
have been executed by Nathu has been disbelieved. Further, the
version given by Jaswant pertaining to the cheque being issued on
RFA No.519/1985 Page 4 of 7
7.1.1979 was contrary to the case pleaded by the plaintiff. The
plaintiff‟s testimony was disbelieved that Nathu had withdrawn
Rs.5,000/- under the cheque. From the testimony of the witness of
the bank, learned Trial Judge has opined that the evidence probablize
that the plaintiff had withdrawn the money under the cheque.
10. The learned Trial Judge has noted that there was evidence
on record to establish inimical relationship between Jaswant and
Nathu.
11. We need not pen a lengthy judgment at the appellate
stage as we are satisfied with the view taken by the learned Trial
Judge.
12. We only note some additional features which strengthen
the view taken by the learned Trial Judge.
13. The first important feature is that the receipt Ex.PW-2/1
does not bear the signatures of Nathu Singh. At the place mark „A‟
where Nathu Singh has purportedly executed the receipt we find a
smudged thumb impression with hardly any legible impression of the
thumb.
14. Now, as noted above, according to the plaintiff he had
given the cheque in question to Nathu Singh for encashment. As
noted above, at the rear of the cheque are to be found some
signatures in Urdu. If Nathu Singh had signed in Urdu while receiving
RFA No.519/1985 Page 5 of 7
the cheque, we fail to understand as to why would he affix his thumb
impression on the receipt Ex.PW-2/1.
15. That apart, the cheque in question makes an interesting
reading. It bears the signatures of Des Raj Bhatnagar at 5 places on
the face of the cheque and 2 signatures at the rear.
16. It is known to one and all that when a cheque which is a
bearer cheque or is not drawn as an account payee cheque is
presented for encashment, the person presenting the cheque signs at
the rear of the cheque when the token is handed over. This event
takes place before the clerk who has the ledger pertaining to the
account on which the cheque is drawn. Thereafter, the person
concerned moves to the teller and when the teller receives the
cheque after process, when money is tendered under the cheque, the
token is taken back by the teller and a second signature is obtained of
the person who has presented the cheque and receives the money.
17. The 2 signatures at the rear of the cheque at the place
mark „A‟ completely probablize that Des Raj Bhatnagar received the
money under the cheque.
18. Indeed, the plaintiff tacitly admitted said fact when he
stated that after making corrections in the cheque he accompanied
Nathu Singh to help him withdraw the money.
19. Even otherwise, noting the time lag between the date
RFA No.519/1985 Page 6 of 7
when the suit was filed and the date when we are deciding the appeal
i.e. today, assuming if the appellant is correct, we would still not be
inclined to enforce specific performance of the agreement
whereunder only 1/6th of the sale consideration stands paid.
20. We find no merit in the appeal.
21. The appeal is dismissed.
22. Since none appears for the respondent at the hearing
today, there shall be no order as to costs.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
SEPTEMBER 23, 2008
mm
