Shri Devi Lal Garg vs Shri Hari Kumar Sharma And Anr.
2011 Latest Caselaw 977 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: 28.10.2010
                         Judgment delivered on: 18.02.2011


                           RFA 543/2005

SHRI DEVI LAL GARG                     ......Appellant
         Through: Mr.S.P.Jha, Advocate


                      Versus

SHRI HARI KUMAR SHARMA & ANR.      ......Respondents
        Through: Mr. Ajay Kumar, Advocate for the
                 respondents No.1 & 2.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
     be allowed to see the judgment?                     Yes
2. To be referred to Reporter or not?                    Yes
3. Whether the judgment should be reported
     in the Digest?                                      Yes
KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 96 of the Civil

Procedure Code, 1908 the appellant seeks to challenge the

judgment and decree dated 07.04.2005 passed by the learned

trial court, whereby the suit of the respondents was decreed

for a sum of Rs.4 lacs along with interest @ 6% p.a. from

01.05.2003 till realization.

2. Brief facts of the case relevant for deciding the

present appeal are that the appellant and respondent no. 3

had taken an amount of Rs. 4 lacs from the respondent no.

1,2, and 4 in lieu of the promise that they would arrange the

services of the respondent no.1,2 and 4 in USA. However as

the appellant and respondent no.3 failed to arrange their

service in USA, the respondents sent a notice for returning

the money paid to them by notice dated 1.4.03 to the

appellant and respondent no.3, which was not replied to.

Consequently, a suit for recovery was filed by the respondent

no.1 and 2 which vide judgment and decree dated 7.4.05 was

decreed for a sum of Rs. 4 lacs alongwith interest @6 p.a from

1.2.03 till realization, in favour of the respondent and against

the appellant. Feeling aggrieved with the same, the appellant

has preferred the present appeal. However, in the present

appeal only the appellant and the respondent no.1 and 2 are

contesting parties.

3. Assailing the said judgment and decree, counsel

appearing for the appellant contended that the suit filed by

the respondents was not legally maintainable and clearly hit

by Section 23 of the Indian Contract Act. Contention of

counsel for the appellant was that as per own showing of the

respondents, an amount of Rs.4 lacs was paid by them to the

appellant for arranging their employment in U.S.A. and such a

transaction being illegal and contrary to the public policy is

hit by Section 23 of the Indian Contract Act.

4. Counsel further submitted that the suit filed by the

respondents was based on forged and fabricated documents

which were got executed from the appellant in the Police

Station, Mahipalpur under the threats extended by the

respondent No.1 with the help of one ASI namely Anil

Bhairwal. Counsel also submitted that the learned trial court

failed to appreciate the fact that the transaction of providing

employment to the respondents, who were working as

Supervisors/Managers with M/s. Concorde Enterprises Pvt.

Ltd., at the hands of the respondent No.1 who was a garbage

collector, was highly improbable. Counsel also submitted that

DW-2 Shri Jaidev Solanki in his evidence has clearly

demolished both the documents i.e. Ex.P-1 and Ex.P-2, which

documents form the sole basis on which the said monetary

claim of the respondents rests. Counsel also submitted that

the alleged receipt/promissory note was not properly

cancelled as per the requirement of Section 12 of the Indian

Stamp Act and, therefore, Ex.P-2 is inadmissible in the eyes of

law and the same cannot be enforced. Counsel also submitted

that the learned trial court has wrongly drawn adverse

inference against the appellant for an insignificant delay of

two months on the part of the appellant in lodging the

complaint with the concerned police station against the high-

handedness of the respondents and the said police official.

Based on these submissions, counsel for the appellant pleaded

for setting aside of the said judgment and decree passed by

the learned trial court.

5. In support of his submissions, counsel for the

appellant placed reliance on the judgment of this Court in

Virender Singh Vs. Laxmi Narain & Anr 135 (2006) DLT 273

and on the decision of the Rajasthan High Court in

N.Bhaironbux & Co. Vs. Kashi Ram AIR 1973 Raj 271 (V 60 C

73).

6. Refuting the aforesaid submissions of counsel for

the appellant, counsel appearing for the respondents No.1

and 2 submitted that the plea of the agreement being hit by

Section 23 of the Indian Contract Act was never taken by the

appellant before the learned trial court and no issue in this

regard was framed by the learned trial court and, therefore,

the appellant cannot now raise this new plea at the stage of

the appeal. Counsel for the respondents also submitted that

the appellant cannot also resile from his own undertaking

given by him in the shape of documentary evidence proved on

record as Ex.P-1, Ex.P-2 and DW-1/P-2. Counsel further

submitted that the said undertakings bear signatures of the

parties and also duly witnessed by Shri Jaidev Solanki DW-2

and one Shri Jagmohan Singh. Counsel for the respondent

also submitted that the legal notice dated 01.04.03 sent by

the respondents was duly received by the appellant, but no

reply thereto was sent by the appellant and, therefore, it is

quite apparent that the appellant had admitted the contents

of the said legal notice and the defence raised by the

appellant in the written statement was nothing but a mere eye

wash and an after-thought. Based on these submissions,

counsel for the respondents supported the judgment and

decree passed by the learned trial court.

7. I have heard learned counsel for the parties at a

considerable length and gone through the records.

8. As per the case set up by the respondents, an

amount of Rs.4 lacs was paid by them on their own behalf and

on behalf of one Mr.Panna Lal (respondent No.4) to the

appellant, who along with one Ashok Verma, respondent No.3

herein and defendant No.2 in the main suit, promised them an

employment in U.S.A. The appellant in his written statement

filed by him denied the receipt of the said payment and so far

execution of documents Ex.P-1, P-2 and DW-1/P-2 are

concerned, the stand taken by the appellant was that the

same were executed by him under threat and exercise of force

employed by these respondents when he was called to the

police station. The appellant also took a stand that the help of

one police official, namely, Anil Bhairwal was also taken by

the respondents in putting him under pressure to execute the

said documents. It would be therefore quite evident that it

was not the case of the appellant that the said money was

received by him along with one Mr.Ashok Verma, the same

being towards illegal gratification. The appellant vehemently

denied receiving the said amount of Rs. 4 lacs in his written

statement. The plea of the money being received under a

contract which is illegal and hit by section 23 of the contract

Act could be taken in the event had the appellant admitted

the fact of receiving the said amount from the respondents or

had taken this as an alternative plea. However, no such plea

was raised by the appellant at the stage of trial therefore, in

the absence of any defence raised by the appellant in the

written statement, no such issue was framed by the learned

trial court; no evidence was led regarding the same and

consequently there is no finding of the learned trial court on

this aspect of the case. It is a settled legal position that the

appellant cannot take a new plea at the stage of appeal when

no such issue or plea was raised by him at the stage of trial

and no evidence was led in that regard. The appellate court

cannot don the mantle of being a fact finding body when the

appellant takes a stand contrary to what has been taken by

him at the stage of trial. In the face of the stand taken by the

appellant in the written statement, the purpose of the said

transaction was not under scanner and therefore the trial

court did not frame any issue with regard to the purpose of

the said transaction and therefore this court cannot also

adjudicate on the said aspect at this belated stage. A contract

may be against public policy either from the nature of the act

to be performed or from the nature of the consideration. To

promise an employment to any person abroad cannot be

treated as an illegal act per se. It could be considered illegal

only when it involves payment of any illegal money to any

Govt. agency or for preparing any false document. The

payment of any money for arranging employment in a foreign

country cannot by itself give rise to a presumption that such

money necessarily was meant towards illegal gratification or

some illegal purpose as the same could also be for legal

purposes such as payment to some authorized or licensed

agencies or payment towards air fare or towards visa charges

etc. Illustration (f) of Section 23 of the Indian Contract Act

deals with a situation where someone promises to obtain an

employment in the public service and for that purpose money

is paid. In such a case, agreement could be void as the

payment of such money is clearly illegal and void. Illustration

(f) of Section 23 of the Indian Contract Act would thus not be

applicable in the facts of the present case.

9. It is a settled legal position that if any contract is

found to be valid then the Courts must lean in favour of the

contract, unless such a contact is clearly opposed to the

public policy or is per se illegal. It is further a settled legal

position that for alleging the agreement to be void on account

of it being opposed to public policy it must be proved as to

how such a contract is opposed to the public policy. In the

facts of the present case, the plea of the advancement of

money of 4 lacs by the respondents in favour of the appellant

being opposed to public policy has been raised only at the

appellate stage and in the absence of any specific plea raised

by the appellants in their written statement as to how the said

payment of Rs.4 lacs by itself can be treated as opposed to

public policy, this Court in exercise of its appellate powers

cannot entertain such a factual plea. The said plea of the

appellant also seems to be an afterthought in the face of the

respondents being able to successfully prove the receipt of

the said money by the appellant and the inability of the

appellant to disprove the same. Therefore, this court is of the

considered view that the plea of the respondent being a mixed

question of law and fact cannot be appreciated at this stage

when no further plea was raised by the appellant in this

regard before the trial court. The said two judgments relied

upon by the counsel for the appellant relate to the contract

being illegal and against public policy and thus the same will

be of no help to the appellant in the facts of the present case

in the face of the above discussion.

10. Coming to the next contention of counsel for the

appellant that the appellant had executed the documents

under threat and force, this Court does not find any illegality

or perversity in the findings of the learned trial court on this

aspect. As per own defence of the appellant, he was called to

the police station on 02.02.2002 pursuant to the notice

received by him under Section 160 Cr.P.C., when the

documents Ex.P-1, P-2 and DW-1/P-2 were alleged to have

been signed by the appellant and the respondents. If this

stand of the appellant is taken as correct that he was called to

the police station on 02.02.2002 pursuant to the said notice

then no explanation has come forth from the side of the

appellant that how could he sign the said documents on

02.08.2001 and 11.02.2002. Once the appellant failed to

prove the fact that the said documents were signed by him

under some threat, then these documents otherwise cannot

be ignored which clearly prove the fact that the appellant had

agreed to return back the said amount of Rs.4 lacs in terms of

the undertaking given by him in Ex.P-1, P-2 and DW-1/P-2. No

explanation has also come from the side of the appellant as to

why immediate police complaint was not lodged by him if he

was threatened by the respondents to execute the said

documents in the police station that too with the help of one

police official namely Anil Bhairwal. DW-2 Shri Jaidev Solanki

in his cross-examination also admitted the fact that he had

signed the document Ex.P-1 after he was told by the appellant

Devi Lal that the matter was compromised by him with the

respondent No.1. The said DW-2 also failed to disclose the

name of the police official who was alleged to be present at

the time of execution of the said documents. DW-1 i.e. the

appellant herein had also duly admitted his signatures on

Ex.P-1 and P-2. The appellant in fact has also admitted in his

cross-examination that Ex.PW-2 was in his own handwriting.

The appellant also admitted the fact in his cross-examination

that he had gone to the police station on receipt of a written

notice dated 1.2.2002 which was proved on record as Ex.DW-

1/P-1. As per the written notice, Ex.DW-1/P-1 the appellant

was directed to appear on 02.02.2002, while both the Exhibits

Ex.P-1 and P-2 were signed by the appellant on 02.08.2001

and 11.02.2002 respectively. The appellant has also admitted

in his cross-examination that he himself had put the date

underneath the signatures at Ex.PW-2. The appellant has

further admitted that Ex.DW-1/P-2 was also in his own

handwriting and the same bears his signatures at Point 'A'.

11. In the face of all these admissions on the part of

the appellant, it is quite evident that the appellant had taken

an amount of Rs.4 lacs from the respondents, otherwise the

appellant would not have written the documents Ex.PW-2 and

DW-1/P-2 in his own handwriting. In Ex.P-2, the appellant has

clearly admitted the receipt of Rs.4 lacs by him which he

undertook to repay by instalment of Rs.1 lac on 01.03.2002

and the remaining amount in monthly instalments of

Rs.25,000/-. Ex.P-2 is also sufficiently and properly stamped.

The question whether payment of Rs.4 lacs was meant for the

employment of the respondents in U.S.A or not, but one thing

is certain that the said amount of Rs.4 lacs was received by

the appellant which he had duly acknowledged in Ex.P-1 & P-

2. The story put forth by the appellant that he was forced to

sign Ex.P-1 and sign and write P-2 in the police station under

some threat from the respondents and with the assistance of

one police official is difficult to believe, as the appellant failed

to bring on record any material to show that the said

documents were executed by him in such circumstances. DW-

2 Shri Jaidev Solanki although has deposed that the document

Ex.P-2 was written in the police station, Mahipalpur, but his

said statement does not inspire confidence. He has even gone

to the extent of giving a new twist to the story by saying that

he had signed Ex.P-1 at the instance of the appellant who told

him that he had compromised the matter with the

respondents. This was not even the case set up by the

appellant in his written statement.

12. In the light of the above discussion, this Court does

not find any illegality or perversity in the impugned judgment

and decree passed by the learned trial court.

13. There is no merit in the present appeal and the

same is hereby dismissed.

February 18, 2011                     KAILASH GAMBHIR, J
dc