Ram Swaroop vs Sh. S.J.P. S. Kanwar
2012 Latest Caselaw 7072 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No. 2021/2000
%                                                     11th December, 2012

RAM SWAROOP                                                  ...... Plaintiff
                            Through:     None.


                            VERSUS

SH. S.J.P. S. KANWAR                                         ......Defendant
                            Through:         None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

This is a suit filed by the plaintiff for recovery of Rs.25 lakhs.

The suit for recovery has been filed on the ground that the plaintiff had

given this amount of ` 25 lakhs to the defendant for purchasing land, but the

defendant failed to purchase the land or return back the amount.

2. The facts of the case are that plaintiff has been carrying out the

affairs of a society namely, Sarvpriya Sehkari Avas Samity Ltd. as its

President. The defendant is stated to be an old friend and family

acquaintance of one Sh. Sukhdev Singh, Ex-DCP, Delhi Police who was

also an office bearer of the society. Plaintiff also knew the defendant for

more than 7 years. The society's membership is stated to be consisted of

mainly Defence and Paramilitary personnel. During 1996, the society

sought to purchase/acquire land to meet the demands of its members and

therefore, it was decided to purchase suitable land in NOIDA in Uttar

Pradesh (U.P.) to induct the waiting members. It is further pleaded in the

plaint that the defendant represented that he had a definite proposal in hand

for negotiating and purchasing of 20 acres of land with clear title which

would be suitable to the society. Plaintiff pleads that the defendant pleaded

to have good relations with the Chief Minister of U.P. and said that he would

therefore organize the smooth transfer of the land. Defendant also pleaded

to be an industrialist with political and bureaucratic contacts which therefore

would make easy the purchase of the land. The defendant is said to have

represented the plaintiff that the purchase of the land would be got

completed by December 1997 and the initial agreement in writing would be

entered into in October 1997. For the purpose of the aforesaid purchase of

land the defendant demanded an amount of Rs.25 lakhs which was paid by

the plaintiff to the defendant on 07.07.1997 in cash which was

acknowledged by the defendant by signing a receipt of the same date. The

plaintiff further pleads that thereafter the defendant failed to perform his part

of the deal. He not only failed to enter into formal agreement as promised by

October, 1997 but also failed in effecting the purchase/transfer of the land by

December 1997. The defendant, when approached by the plaintiff,

expressed his inability to return the advance amount of Rs.25 lakhs and he

stated that he had used the money for his business to tide over certain

financial crisis, instead of using the money for purchase of the land. The

defendant is said to have promised to return back the amount of Rs. 25

lakhs but he failed to fulfill his promise. The plaintiff then sent a registered

demand notice dated 19.05.2000 which yielded no response and, therefore,

the subject suit has been filed.

3. The defendant appeared and filed his written statement. The

defendant disputed that he received the amount of Rs. 25 lacs. The

defendant however did not dispute that he did sign on document dated

07.07.1997, but he pleaded that he never received an amount of Rs. 25 lakhs

from the plaintiff and instead the fact is that the plaintiff (who is known to

the defendant) approached the defendant and promised him that he can

arrange for a residential plot for the defendant in a colony which is being

developed by the Samiti which the plaintiff represents, and it is in that

context that the defendant signed a blank stamp paper with certain other

papers for the stated purpose for completion of formalities for enrolment as a

member of the society. The defendant claims to have in fact paid

Rs.10,000/- to the plaintiff in cash. The defendant has therefore denied the

suit claim pleading that the document dated 07.07.1997 is a forged and

fabricated document.

4. The following issues were framed in the suit on 09.02.2007 :

"1. Whether the plaint has been signed and verified and the suit instituted by a duly authorized person? OPP

2. Whether the plaintiff had paid or delivered an amount of Rs. 25 lakhs or any other amount in cash on 7th July, 1997? OPP

3. Whether the defendant made any prayers or assurance to assist the plaintiff in any land transfer? OPP

4. Whether the document dated 7th July, 1997 was executed by the defendant? OPP

5. Whether the defendant paid a sum of Rs.10,000/- to the plaintiff towards enrollment as a member of the society? OPD

6. Whether the plaintiff is entitled to the recovery of Rs. 25 lakhs?

OPD

7. Whether the plaintiff is entitled to interest on the decretal amount? If so at what rate, at what amount and from what date?

8. Relief."

5. Issue No. 1 is as to the due and proper filing of the suit. The

suit is filed by the plaintiff as an individual on the ground that he himself

paid an amount of Rs. 25 lakhs to the plaintiff. Therefore, the suit need not

have been instituted by the Sarvpriya Sehkari Avas Samiti Ltd. In any case,

the plaintiff has proved on record the resolution of the society as Ex. PW-1/2

for entering into of the transaction with the defendant. Plaintiff has also

proved the bye-laws of the society as Ex. PW-1/1. The certificate of the

society stating that the plaintiff was the office bearer of the society till 2001

has been proved and exhibited as Ex. PW-1/6. The resolution of the society

authorizing the plaintiff to file the suit on behalf of the society is proved and

exhibited as Ex. PW-1/5. Therefore, independently of the fact that the

plaintiff had paid an amount of Rs. 25 lakhs to the defendant, it has been

proved and established from the record that there is due authority of the

plaintiff to file the suit on behalf of the Sarvpriya Sehkari Avas Samiti Ltd.

This issue, therefore, is decided in favour of the plaintiff and against the

defendant.

6. These issues can be taken together because the crux of the

matter is whether the plaintiff gave a sum of Rs.25 lakhs or whether the

defendant signed the document dated 07.07.1997 in blank for the purpose of

being enrolled as a member of the society.

7. Plaintiff has stepped into the witness box as PW-1. Evidence

has also been filed on behalf of Sh. Sukhdev Singh as PW-2. Another

witness of the plaintiff is one Sh. Gurpreet Singh who has deposed as PW-3

being the witness of the transaction of the amount of Rs. 25 lakhs paid to the

defendant.

8. The defendant has failed to step into the witness box and has

led no evidence. Evidence of the defendant was, therefore, ultimately closed

on 02.12.2010.

9. I have seen the affidavits which have been filed on behalf of

PW-1 to PW-3, namely, Sh. Ram Swaroop, Sh. Sukhdev Singh and Sh.

Gurpreet Singh and all the three of them have deposed to the transaction of

the defendant having received Rs. 25 lakhs for purchase of the land.

Nothing has been elucidated by them in their cross-examination of any

substance that the amount of Rs.25 lakhs was not paid to the defendant. In

fact, as will be discussed subsequently, since the defendant admits his

signatures on the document Ex. PW-1/4 of the receipt of Rs. 25 lakhs,

actually it was for the defendant to show that the document Ex. PW-1/4 was

signed in blank.

10. When we see the document Ex. PW-1/4, the same shows that it

is on a stamp paper admittedly containing the signatures of the defendant.

The signatures are to be almost at the 40% point from the top of the stamp

paper and just after three odd inches from the stamp printing, and therefore it

is not likely that the signatures would have been taken on a blank stamp

paper. In fact the signatures appear after about 5 lines written in hand of the

defendant having received Rs. 25 lakhs. Therefore, I have no reason to hold

that the document PW-1/4 was signed in blank. In any case, the defendant

has failed to lead any evidence and therefore, a person who leads no

evidence and does not have the courage to stand the test of cross-

examination has necessarily to be disbelieved.

11. In addition to the fact that the receipt of Rs. 25 lakhs by the

defendant has been proved through Ex. PW-1/4, defendant has failed to file

any document of payment of Rs. 10,000/- to the plaintiff, and which was

allegedly given for taking of membership in the society.

12. In view of the above and the fact that the plaintiff has led

affirmative evidence and defendant has failed to lead evidence, issue Nos. 2

to 6 are answered in favour of the plaintiff and against the defendant. It is

held that the plaintiff is entitled to recovery of Rs. 25 lakhs from the

defendant and the defendant did not sign Ex. PW-1/4 in blank for the

purpose of taking membership of the society and the defendant did not pay a

sum of Rs. 10,000/- to the plaintiff for enrolment as a member of the society.

13. In my opinion, plaintiff will be held entitled to interest pendente

lite and future @ 12% per annum simple in view of the fact that the

defendant has dishonestly retained the amount and which the defendant has

wrongly utilized in his business instead of purchase the land for the society.

RELIEF

14. In view of the above said discussion, the suit of the plaintiff is

decreed for a sum of Rs. 25 lakhs against the defendant along with pendente

lite and future interest @ 12% simple. Plaintiff will also be entitled the costs

of the suit in terms of the rules of this Court. Decree sheet be prepared.

DECEMBER 11, 2012                             VALMIKI J. MEHTA, J.
ib