Delhi High Court
Bhandari And Sagar Charitable ... vs P.B.Memorialcharitable Trust on 13 December, 2010
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 13.12.2010
+ IPA 3/2000
BHANDARI AND SAGAR
CHARITABLE FOUNDATION
..... Petitioners
- versus -
P.B.MEMORIALCHARITABLE
TRUST ..... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. Mohit Gupta
For the Respondents : None.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported
in Digest?
V.K. JAIN, J. (ORAL)
1. This is a petition under Order 33 Rule 1 of the
Code of Civil Procedure for permission to sue the
respondents as an indigent person.
2. Petitioner No.1 is a trust whereas petitioners No.2
& 3 are its trustees. The case of the petitioners is that
respondents No.2 & 3 namely Shri Baldev Krishan Bhandari
and Lt.Gen.(retired) Prem Sagar, who are the trustees of
petitioner No.1 - Bhandari and Sagar Charitable Foundation
as also the trustees of respondent No.1 Pran Bhandari
Memorial Charitable Trust, sold land belonging to petitioner
No.1 trust for a consideration of Rs.19,20,000/-. After sale
of land, the money was transferred from the account of
petitioner No.1 to the account of respondent No.1. It is
alleged in the petition that the petitioner does not possess
sufficient means of court fee and, therefore, wants to sue as
indigent person.
3. Order 33 Rule 1 of the Code of Civil Procedure, to
the extent it is relevant provides that a person is an indigent
person if he is not possessed of sufficient means (other than
property exempt from attachment in execution of a decree
and the subject-matter of the suit) to enable him to pay the
fee prescribed by law for the plaint in such suit.
4. The petitioners have examined three witnesses.
PW-1 Smt.Kumkum Gandotra who is one of the trustees of
petitioner No.1 - Bhandari and Sagar Charitable Foundation
has stated that petitioner No.1 has no immovable property
and has no source of income. She further stated only a
sum of Rs.925.25 is left in the bank account of petitioner
No.1. During cross-examination, she stated that a sum of
Rs.16612.310 was transferred by respondents No.2 & 3 to
respondent No.1 and this was followed by transfer of FDR of
Rs.3 lakhs and some other amount from petitioner No.1 to
respondent No.1. PW-2 Subhash Chandra, is an official of
Punjab National Bank, Delhi Cantt. He has stated that on
19.11.1999, the balance in the account of petitioner No.1
with their bank was Rs.835.25. The balance in the account
at the time this witness was examined in the Court was
Rs.942.25. PW-3 Shri Paramjeet Singh is an official of
Punjab & Sind Bank, Vasant Vihar Branch. He has stated
that there was nil balance in the account of petitioner No.1
with Punjab & Sind Bank, Vasant Vihar after transfer of
Rs.1626612.30 to Saving Bank Account No.2896.
5. No evidence has been led by the respondents to
show that the petitioners possess sufficient means to pay
the prescribed court fee.
6. A perusal of the order of this Court dated
12.05.2009 shows that after sale of 12 acres of land in
Village Deeg, Ballabgarh, which belonged to petitioner No.1,
by respondent No.3 as one of its trustees, respondent No.2,
filed a suit in Faridabad Court in the name of petitioner
No.1 trust for cancellation of the sale deeds executed by
respondent No.3. That suit was dismissed by the trial court
on 29.08.2007. Respondent No.2 filed an appeal against
that judgment which was allowed on 09.03.2009. As a
result of appeal being allowed, the land which was sold by
respondent No.3 on behalf of petitioner No.1 trust reverted
back to the trust.
7. Two appeals were then filed one by the purchaser
of the land and other by respondent No.3 against the
judgment of the First Appellate Court and those appeals are
stated to have been admitted by Punjab & Haryana High
Court. The appeals are stated to be still pending before the
High Court.
8. In their written synopsis, respondents No.1 & 2
have alleged that in April, 1987, a land measuring 12.78
acres was purchased in the name of petitioner No.1 Trust in
Village Deeg, Ballabgarh and respondent No.3 Lt. Gen(retd.)
Prem Sagar was entrusted with the responsibility of looking
after the land. It is further alleged that respondent No.3
entered into an agreement to sell with Shri Bijender Singh
for a total consideration of Rs.44,80,000/- and also received
Rs.4,80,000/- as earnest money. When respondent No.2
who at that time was abroad, returned to India, he was
informed by respondent No.3 that the price of the land
having fallen, the land had been sold for a total sum of
Rs.19,20,000. However, on enquiry, respondent No.2 came
to know that in fact the land had been sold for
Rs.44,80,000/- and the balance amount had been pocketed
by respondent No.3. It is further alleged that the amount of
Rs.19,20,000/- was deposited in Account No.2877 of
petitioner No.1 with Punjab & Sind Bank of Vasant Vihar
Branch from where an amount of Rs.16,16,612.30 was
transferred to the account of respondent No.1 with the same
bank and later a further sum of Rs.3,08,000/- was
transferred by respondent No.3 in favour of respondent
No.1. The transfers are alleged to be in violation of clause 4
of the Trust Deed of petitioner No.1. The case of
respondents No.1 & 2, therefore, is that in fact the
petitioners have no cause of action against them since land
in question was sold only by respondent No.3 who later on
transferred that amount to the account of respondent No.1.
9. Since the respondents have not produced any
evidence to show that the petitioners possess sufficient
means to pay the prescribed court fee, I see no reason to
disbelieve the deposition of PW-1 in this regard, which also
finds collaboration from the statement of the bank officials.
The balance in the account of petitioner No.1 was less than
Rs.1,000/- when the bank official was examined in the
Court. There is no evidence of any movable or immovable
property being owned by petitioner No.1. The individual
assets of petitioners No.2 & 3 cannot be taken into
consideration since they are suing in their capacity as the
trustees of petitioner No.1 and not in their individual
capacity. Explanation III to Order 33 Rule 1 of Code of Civil
Procedure provides that where the plaintiff sues in a
representative capacity, the question whether he is an
indigent person shall be determined with reference to the
means possessed by him in such capacity. It is thus quite
obvious that the petitioners do not possess requisite means
to pay the court fee required to be paid in a suit for recovery
of Rs.26,39,296/-.
10. Though the case of respondents No.1 & 2 is that
the petition discloses no cause of action against them, the
case of the petitioners as set out in the petition is that there
was connivance between respondents No.2 & 3 for sale of
the land belonging to petitioner No.1. Learned counsel for
the petitioners has drawn my attention to a letter dated
27.05.2009 written by Punjab & Sind Bank to respondent
No.2 Baldev Krishan Bhandari, stating therein that the
money to Saving Bank Account 2896, which is the bank
account of respondent No.1 Pran Bhandari Memorial
Charitable Trust was transferred on his instructions. At
this stage, the Court cannot go into truthfulness of the case
set up by the petitioners in this regard and, therefore, it
cannot be said that the petition does not disclose any cause
of action qua respondent No.2. As far as respondent No.1 is
concerned, since the money from the account of petitioner
No.1 has been transferred to its account, it cannot be
claimed that the petitioners have no cause of action against
it. Respondent No.3 having sold the land on behalf of
petitioner No.1 it can hardly be disputed that the petition
does disclose a cause of action against him.
11. In view of the above discussion, the petitioners are
granted permission to sue as indigent persons. The petition
be registered as suit.
12. Summons for settlement of issues be issued to the
defendants on filing of process fee for 9th February, 2011.
The matter be listed before the Joint Registrar on that date
for completion of pleadings and admission/denial of
documents.
IA 15705/2008
This application is dismissed as not pressed.
(V.K. JAIN)
JUDGE
DECEMBER 13, 2010
'SN'
