Delhi High Court
Dr. P.K. Chakravarty vs Smt. Debika Banerjee (Formerly ... on 14 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 243/2001
% 14th February, 2011
DR. P.K. CHAKRAVARTY ...... Appellant
Through: None.
VERSUS
SMT. DEBIKA BANERJEE (FORMERLY CHAKRAVARTY)
...... Respondent
Through: Mr. P.D. Gupta, Advocate with Mr.
Abhishek Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the 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 the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the Regular Board of this Court since
3.1.2011. Today, it is effective item No.4 on the Regular Board. It is
2.30 P.M. No one appears for the appellant. I have therefore gone
through the record and have heard the counsel for the respondent
and am proceeding to dispose of the appeal.
2. The challenge by means of the present Regular First
Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is
RFA No.243/01 Page 1 of 5
to the impugned judgment and decree dated 23.2.2001 whereby the
suit for declaration and injunction filed by the appellant/plaintiff was
dismissed.
3. The disputes between the parties pertain to the property
being flat bearing No.303, Harsh Bhawan, 64-65, Nehru Place, New
Delhi. The appellant laid down the case in the plaint that he was the
owner of the property and the respondent, who was his ex-wife, was
only a benamidar. The trial Court by the impugned judgment and
decree has disbelieved the case of the appellant and has held that
the appellant failed to show that any monies were paid by him for the
purchase of the flat and that even the monies which were allegedly
paid for the flat, came from the payments made by one company M/s.
Tractel Tirfor India Pvt. Ltd. directly to the respondent/defendant and
it could not be said from any evidence on record that those payments
were made towards the purchase of the flat in question on behalf of
the appellant/plaintiff.
4. Though the respondent was proceeded exparte in the
trial Court yet the suit was dismissed on the basis of the evidence led
being insufficient to prove the case of the appellant.
5. The trial Court has rightly analysed the relevant issues in
this case in para 5 of the impugned judgment and which reads as
under:-
"5. In the plaint it is pleaded that the defendant had taken
away the documents of the properties which are in her name.
However, plaintiffs deposed that original agreement for
purchase of the property is in custody of the plaintiff.
RFA No.243/01 Page 2 of 5
Normally, the document of title is found in possession of the
actual owner of the property. It is not mentioned in
agreement Ext. PW1/3 for purchase in flat in question that
the payments of the sale consideration was made by the
plaintiff to the vendor. The certificate Ext. PW1/4 issued by
the Chartered Accountant only certifies that the plaintiff has
made some payments to the defendant during the years
1978 to 1983. Similarly, certificate Ext.PW1/5 issued by
Chartered Accountant certifies some payments made by the
Tractel Tirfor India Pvt. Ltd. to the defendant. The certificate
Ext.PW1/6 issued by the Chartered Accountant only certifies
some payments made to the defendant by M/s. Kanak
Engineer Pvt. Ltd. The certificate Ext.PW1/7 issued by
Canara Bank only certifies some payments made to the
defendant by Tractel Tirfor India Pvt. Ltd. The certificate
Ext.PW1/8 issued by the Canara Bank certifies some
payments made by the plaintiff to the defendant during the
year 1978 to 1983. The certificate Ext.PW1/9 only certifies
some payments made by the M/s TTIP to the defendant. The
payments certified vide Ext.PW1/5, Ext.PW1/7 and Ext.PW1/9
only certifies some payments made by Tractel Tirfor India
Pvt. Ltd., to the defendant. M/s Tractel Tirfor India Pvt. Ltd. is
a corporate body and the plaintiff is an individual and if he is
the managing director of this company, he cannot take
benefit of payments in individual capacity made by Co. to the
defendant. Similarly, the payment certified vide Ext.PW1/6
with regard to M/s Kanak Engineer Pvt. Ltd. another company
to the defendant. The payment mentioned are on behalf of a
corporate body and not on behalf of plaintiff and hence can
not make sale transaction to be benami one. The certificate
Ext.PW1/4 and PW1/8 showing some payments to the
defendant by the plaintiff does not mean that these
payments were made to the defendant for purchase of the
flat in question. The computation of income tax of the
defendant for the year 1976-77, 1977-78 vide Ext.PW1/10
and Ext.PW1/11 do show income of the defendant but the
balance sheet of the defendant is not produced to show as to
whether the defendant was in financial position to purchase
the first in question. The burden to prove that the
transaction was benami in the name of defendant has been
upon the plaintiff who is claiming so. The plaintiff has not
adduced any evidence as to whether the payment of the flat
in question was directly made by him to the vendor of the
flat. He has also failed to adduce evidence that he made
payment to defendant for purchase of flat in question.
Hence, plaintiff failed to prove that he purchased the flat in
question Benami in the name of defendant. Moreover, the
limitation to file the suit for declaration is provided as three
RFA No.243/01 Page 3 of 5
years in article 58 of the Limitation Act 1963. The plaintiff
has himself pleaded in para No.17 of the plaint that the cause
of action arose to him in 1988 when the defendant filed
Eviction Petition No.144/88 against him. The flat is allegedly
purchased in the year 1978 b the plaintiff in the name of
defendant. The matrimonial dispute has arisen between the
parties and divorce decree was passed on 26/9/84. In these
circumstances, the cause of action first arose to the plaintiff
to file the present suit in 1978 when the flat in question was
purchased by him. The plaintiff should have taken steps
when there were dispute between the parties and divorce
decree was passed on 26.9.84 Subsequently, when the
defendant filed eviction petition No.144/88 on 4.7.88, plaintiff
has contesting the eviction petition as managing director of
M/s. Tractel Tirfor India Pvt. Ltd., and he should have
immediately file the suit for declaration that the defendant is
the benami owner and he is the real owner of the property in
question. Thus, the cause of action at least arose to the
plaintiff on 4.7.88 on filing of eviction petition. The present
suit having been filed by the plaintiff on 23.9.99 is thus
grossly time barred under article 58 of the Limitation Act
1963. In view of this discussion, the suit of the plaintiff fails
and the same is hereby dismissed with no order as to cost.
Decree Sheet be prepared accordingly and file be consigned
to R.R." (emphasis added)
6. I completely agree with the findings of the trial Court as
the appellant failed to prove that monies were paid by the appellant
for the purchase of flat and also that the suit was hopelessly time-
barred as being filed in 1999 when the cause of action arose in 1988
when the respondent sued the appellant for eviction from the suit
property.
7. I do not find any illegality or perversity in the impugned
judgment and decree which calls for interference by this Court.
Merely because two views are possible, this Court is not entitled to
interfere with the impugned judgment and decree unless the findings
of the trial Court are wholly illegal or perverse or cause grave
RFA No.243/01 Page 4 of 5
injustice. I do not find that any of the aforesaid ingredients exist to
persuade to this Court to interfere with the impugned judgment and
decree. The appeal being without merit is therefore dismissed,
leaving the parties to bear their own costs. Trial Court record be sent
back.
FEBRUARY 14, 2011 VALMIKI J. MEHTA, J.
Ne
