Delhi High Court
Rajesh Kumar Bhola vs Ravinder Singh & Ors on 7 December, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: 7th December, 2015
+ I.A. No.20253/2015 in CS(OS) No.207/2014
RAJESH KUMAR BHOLA ..... Plaintiff
Through Mr.Sanjay Jain, Adv. with
Mr.Paras Aggarwal, Adv.
versus
RAVINDER SINGH & ORS ..... Defendants
Through Mr.Jasmeet Singh, Adv. for D-1.
Mr.Amit Khanna, Adv. for D-2 & 3.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By way of this order, I propose to decide the above mentioned
application filed by the plaintiff under Order XII Rule 6 CPC.
2. The plaintiff filed the suit for recovery and damages. The
defendant No.1 was served with the summons on 2nd June, 2014. The
plaintiff supplied the complete set of the paper-book on 22nd July,
2014. The written statement was filed by defendant No.1 on 24th
September, 2014. Despite of that, the time for filing the written
statement was extended and the plaintiff's application under Order
VIII Rule 10 CPC was disposed of.
3. The case of the plaintiff is that he with intent to purchase and
the defendant No.1 with an expression to sell executed an Agreement
to Sell dated 19th September, 2010 with the plaintiff in respect of
property bearing 4/60, WEA, Karol Bagh, New Delhi admeasuring
260.9sq. yds. (hereinafter referred to as the 'suit property').
3.1 The defendant No. 1 entered into an agreement for Sale and
Purchase of the suit property on 28th July, 2010 with the defendant
Nos. 2 and 3, the owners of the suit property and in furtherance of the
right conferred as per clause (7) of the said Agreement dated 28 th
July, 2010, the defendant No. 1 executed an Agreement to Sell dated
19th September, 2010 with the plaintiff qua sale of the suit property.
3.2 In view of the Agreement to Sell dated 19th September, 2010,
the plaintiff paid an amount of Rs. 5.12 crores to the defendant No. 1
as earnest money for the purchase of the suit property. But the
defendant Nos. 2 and 3 cancelled the Agreement to Sell dated 28 th
July, 2010 executed with the defendant No. 1 by virtue of deed of
cancellation dated 21st January, 2011 without the knowledge of the
plaintiff and by virtue of the said deed of cancellation, the defendant
No. 1 who lost his locus to deal with the suit property, expressed his
inability to the plaintiff to perform his obligation under the Agreement
to Sell dated 19th September, 2010 and thereby defeated and deprived
the plaintiff of the fruits of the suit property ,despite the defendant No.
1 having received substantial consideration pursuant to the Agreement
to Sell dated 19th September, 2010 from the plaintiff.
3.3 It is alleged in the plaint that the defendant No.1 in collusion
with the defendant Nos. 2 and 3 hatched a conspiracy with intent to
deceive the plaintiff after receiving valuable consideration of Rs.5.12
crores in garb of the Agreement to Sell qua the suit property.
3.4 It is alleged that the defendant No. 1 rather filed a frivolous suit
for permanent injunction against the plaintiff before this Court seeking
a permanent injunction restraining the plaintiff from projecting himself
as vendor in respect of the suit property being suit No. CS (OS) No.
169/2011, titled "Ravinder Singh Vs. Rajesh Kumar Bhola and others".
In para 11 of the said plaint it was stated that he is ready and willing
to pay the balance amount of Rs.4.5 crores with interest to the
plaintiff. This Court in view of the stand taken by the defendant No. 1
herein, vide order dated 25th January, 2011 in the said suit directed
him to deposit a sum of Rs.4.5 crores with this Court within four weeks
from that date. However, the defendant No. 1 despite obtaining
adjournment for about one year failed to deposit Rs.4.5 crores as
directed by this Court in compliance of the orders passed in the said
suit. Ultimately, this Court by order dated 23rd May, 2012 while
observing that the defendant No. 1 manifestly has not complied with
the directions of deposit passed by this Court, dismissed the suit filed
by the defendant No. 1 with cost of Rs.1 lac for causing harassment to
the plaintiff herein and for non compliance of the said directions.
3.5 The defendant No. 1 during the pendency of the earlier suit filed
yet another suit against the plaintiff herein being CS (OS) No.
808/2011 before this Court for permanent injunction seeking certain
reliefs in which the plaintiff herein filed his defence by way of written
statement. The defendant No. 1 in para no. 8 of the said suit admitted
his liability to pay Rs.4.5 crores along with appropriate interest to the
plaintiff herein and sought 8 months to make such payments.
However, the said averment made by defendant No.1 is not admitted
by the plaintiff because his liability to the plaintiff is Rs.5.12 crores
plus interest and in part payment whereof he had issued cheques
bearing No. 212087 and 212090 totalling to Rs.5.12 crores, initially to
ensure the payment of the balance amount which, of course, has not
been paid till date. The same has been stated to show the unequivocal
admission made by the defendant No.1 of having received valuable
consideration from the plaintiff and his liability to refund it to the
plaintiff herein. Besides, the defendant No. 1 has also filed frivolous
criminal complaints against the plaintiff before criminal courts.
4. The defendant No.1 has filed the written statement. It is stated
in the written statement inter alia, that the plaintiff and his agents
have received money from the said defendant in discharge of the
defendant's obligations who has already initiated criminal proceedings
and the same are pending before Metropolitan Magistrate at Tis Hazari
Courts. The plaintiff has intentionally and malafidely not mentioned
the said cases and the plaint is liable to be dismissed on this count
alone. The present suit is barred by limitation and even if without
admitting that any sum is due and payable, the defendant has already
made payments to the defendant.
5. Written statement on behalf of the defendant Nos. 2 and 3 has
also been filed wherein it was admitted by them that the said
defendants were the owners of the suit property and defendant No. 1
had no right, title or authority to enter into any agreement in relation
to the suit property. The factum of Agreement to Sell dated 28th July,
2010 between the defendants, in respect of the suit property is not
denied, however it is denied that this Agreement to Sell conferred any
right to defendant No.1 to enter into any agreement qua this property.
Clause 7 of the said agreement clearly states that on the final
execution i.e. sale registry would be done in the name of the
defendant No.1 or his nominee if he so desires but this does not confer
any right on defendant No.1 to enter into any further agreement qua
this property. The agreement dated 28th July, 2010, in respect of the
suit property was cancelled as defendant No.1 was unable to perform
his part of obligation and approached the defendants to cancel the
agreement dated 28th July, 2010, in respect of the suit property and
as such this agreement was cancelled vide Deed of Cancellation dated
21st January, 2011. The defendant No.1 had no right, title or authority
to enter into any agreement in relation to the aforementioned
property.
5.1 There has never been any conspiracy between them and
defendant No.1. They were induced by the defendant No.1 to enter
into the Agreement to Sell dated 28th July, 2010 which the defendant
No.1 never intended to perform. Defendant No.1 had malafide
intentions since the beginning and played fraud on them. Besides, the
counsel appearing on their behalf has also referred various other paras
of the written statement.
6. Subsequently, the plaintiff filed the application under Order XI
Rules 1 and 2 CPC to serve the interrogatories to defendant No.1 to
give the answer thereof as raised by the plaintiff in view of the stand
taken by the said defendant in his written statement. The Joint
Registrar of this Court passed the order on 18th May, 2015 directing
defendant No.1 to file the reply to the interrogatories by way of
affidavit. The said order was challenged by defendant No.1 by filing of
a chamber appeal being O.A. No.261/2015. In order to curtail the
details, this Court by order dated 13th July, 2015 asked the defendant
No.1 to file the detailed affidavit about the return of the amount to the
plaintiff as alleged by defendant No.1 in the written statement. The
defendant No.1 filed the affidavit as well as two original receipts dated
19th May, 2011 and 8th July, 2011 for the sum of Rs.50 lac and Rs.43
lac respectively, allegedly paid by defendant No.1 to the agent of the
plaintiff. Thereafter, the defendant No.1 was asked to file all the
original documents by order dated 10th August, 2015. However, he
has only filed the copies of two receipts as mentioned above and one
affidavit of Mr.Ashok Kumar who deposed that he has paid a sum of
Rs.50 lac received from defendant No.1 to Mr.Rajender Kapoor and
Mr.Anil Ghai for the plaintiff in March, 2011 at Mr.Manjit Singh's office
at Flat No.7-A, Ashoka Chamber, Pusa Road, New Delhi against pay
order dated 21st January, 2011. In his affidavit dated 7th August,
2015, the defendant No.1 in para 1 has made the following statement:
"1. That I had received the amount of Rs.5.50 crores from
the plaintiff. Since the transaction could not materialise on
account of impossibility of performance, I have returned the
amount received from the plaintiff as under: -
(i) I made a payment of Rs. 50 lakhs in cash to Mr.
Rajender Kapoor who accepted it for and on behalf of
Mr. Rajesh Kumar Bhola as his Agent, at his office
Shankar Road, Rajender Nagar, New Delhi, it was
against a receipt which was executed in December,
2010 and on receiving said amount in cash he
destroyed the receipt.
(ii) I made a payment of Rs.50 lakhs by pay order on
21.01.2011 bearing Pay Order No. 421882 drawn on
HSBC, New Delhi. Since, the plaintiff wanted cash,
the said pay order was returned to me in March,
2011 and the plaintiff received cash in the presence
of Shri Rajender Kapoor and Shri Anil Ghai. Shri
Rajender Kapoor and Shri Anil Ghai are agents of
Shri Rajesh Kumar Bhola and received the money-for
and on behalf of Mr. Rajesh Kumar Bhola.The said
amount of Rs.50 lakhs in cash was paid on the
assurance of Shri Upender Singh and Shri Manjit
Singh at Ashoka Chambers at Pusa, Roads.
(iii) That another sum of Rs.50 lakhs was paid to Shri
Rajender Kapoor who accepted it for and on behalf of
Mr. Rajesh Kumar Bhola as his Agent, on 06.04.2011
at Malcha marg. A sum of Rs.45 lakhs was paid on
12.04.2011 to Shri Rajender Kapoor who accepted it
for and on behalf of Mr. Rajesh Kumar Bhola as his
Agent, at Jor Bagh Market. Till 12.04.2011 the
plaintiff had received Rs.1.95 crores.
(iv) On 19.05.2011 another sum of Rs.50 lakhs received
by Shri Anil Ghai the receipt for the same was hand
written by Shri Rajender Kapoor and signed by Shri
Anil Ghai, who accepted it for and on behalf of Mr.
Rajesh Kumar Bhola as his Agent.
(v) On 08.07.2011 another sum of Rs.43 lakhs was -
received by Shri Rajesh Kumar Bhola making a total
of Rs.2.88 crores. The said sums of money were
received by the plaintiff in full and final settlement of
all his dues. It is for this reason that cheque bearing
No.2120817 dated 30.04.2011 drawn on HSBC Bank
for Rs.3.05 crores which was in favour of the plaintiff
was not presented for encashment as the same was
also settled in view of the payments made above and
nothing is due outstanding."
7. In the meanwhile, the abovementioned application has been filed
by the plaintiff under Order XII Rule 6 CPC for passing the judgment
on admission.
8. Notice of this application was issued to the defendants on 24th
September, 2015 who sought two weeks time to file the reply.
However, defendant No.1 did not file the reply and on 2 nd November,
2015, two weeks more time was granted to him, subject to cost of
Rs.20,000/- and the matter was adjourned to 16th November, 2015.
On 16th November, 2015, when the matter was taken up, learned
counsel for defendant No.1 sought further time to file the reply. The
request was opposed by the learned counsel for the plaintiff who
submitted at that time that the cost has also not been paid. In view of
the nature of the case, the learned counsel for the plaintiff is pressing
for hearing of the present application. The same was heard and the
order was reserved. However, subsequently the learned counsel for
the defendant No.1 informed the Court that the reply has been filed
and the cost will also be paid to the learned counsel for the plaintiff.
After reserving the order, the reply filed by defendant No.1 was called
from the Registry.
9. In the reply filed on behalf of the defendant No.1 to the
application filed by the plaintiff it is stated that the plaintiff accepted
Rs. 2.88 crores as on 8th July, 2011 towards full and final satisfaction
to all his dues. The plaintiff did not present Cheque No. 212087 dated
30th April, 2011 for a sum of Rs 3.05 crores for encashment despite
being in possession of the same and also returned Cheque No. 212088
dated 24th May, 2011 for Rs. 2.5 crores later.
10. It is stated by the defendant No.1 that a decree under Order XII
Rule 6 CPC cannot be passed as the same would take away a valuable
right on evidence trial confronting the witness with questions and
should not be invoked lightly or on the basis of assumptions/
conjectures. The admission must be clear and unambiguous and
unequivocal in order to enable the Court to pass a decree in terms
thereof. As there are no clear admissions made by the defendant No.2,
a question of a decree under Order XII Rule 6 CPC does not arise at
all.
11. Both sides have made their submissions, the defendant Nos.2
and 3 in a way supported the case of the plaintiff except it is stated
that no suit is maintainable against them as there is no conspiracy
between the defendant No.1 and them. The defendant No.1 had
admitted that the plaintiff and the defendant No.1 executed an
Agreement to Sell dated 19th September, 2010 in respect of the suit
property. Pursuant to the said agreement, the plaintiff paid and the
defendant No.1 received an amount of Rs.5.50 crores as part of sale
consideration from the plaintiff.
12. The law in deciding the application under Order XII Rule 6 is
quite settled. In Uttam Singh Duggal & Co. Ltd. vs. United Bank
of India, (2000) 7 SCC 120, it has been held as follows :
"In the objects and reasons set out while amending the said
rule, it is stated that "where a claim is admitted, the court
has jurisdiction to enter a judgment for the plaintiff and to
pass a decree on admitted claim. The object of the Rule is
to enable the party to obtain a speedy judgment at least to
the extent of the relief to which according to the admission
of the defendant, the plaintiff is entitled." We should not
unduly narrow down the meaning of this Rule as the object
is to enable a party to obtain speedy judgment. Where other
party has made a plain admission entitling the former to
succeed, it should apply and also wherever there is a clear
admission of facts in the face of which, it is impossible for
the party making such admission to succeed."
13. This Court in the case of Zulfiquar Ali Khan (dead) through
LRs and Ord. vs. Straw Products Limited & Ors. 2000 (56) DRJ
590 in para 10 observed as under:
"10. This is a notorious fact that to drag the case, a
person so interested often takes all sorts of false or legally
untenable pleas. Legal process should not be allowed to be
misused by such persons. Only such defense as give rise to
clear and bona fide dispute or triable issues should be put to
trial and not illusory or unnecessary or mala fide based on
false or un- tenable pleas to delay the suit. The issues will
be framed in a suit only when pleadings raise material
proposition of law and/or fact which need investigation and
so could be decided after trial giving parties opportunities to
adduce such relevant evidence as they may think necessary
and proper. Material proposition of law or fact would mean
such issues which are relevant and necessarily arise for
deciding the controversy involved. If a plea is not valid and
tenable in law or is not relevant or necessary for deciding
the controversy involved, the Court would not be bound and
justified in framing issue on such unnecessary or baseless
pleas, thereby causing unnecessary and avoidable
inconvenience to the parties and waste of valuable court
time."
14. It is a rule of law of evidence, which is also known as the "best
evidence rule" that in case a written document is available, no oral
evidence can be lead in that regard. In the present case, in the face of
a document in writing, the pleas of the defendant cannot be permitted
to be taken and are barred by the provision of Section
92 of the Evidence Act. The following cases are relevant in this
regard:
(a) In M/s. Kusum Enterprises and Ors. Vs. Vimal Kochhar
and Anr. 207(2014)DLT172, it was observed as follows:
"(c) Section 91 of the Indian Evidence Act, 1872 provides
that where the terms of a contract have been reduced in
the form of a document and where the matter is required
by law to be reduced in the form of a document, no
evidence shall be given in proof of the terms of such
contract except the document itself; Section 92 of the
Evidence Act provides that where the terms of the
contract required by law to be reduced in the form of a
document have been proved according to Section 91, no
evidence of any oral agreement between the parties for
the purpose of contradicting, varying, adding to, or
subtracting from its terms shall be admitted; though
there are exceptions to both the said provisions but the
same have not been invoked by the respondents/plaintiffs
or their counsel and the case is not found to be falling in
any of the exceptions;
(d) it is also the settled position in law (See Chandrakant
Shankarrao Machale Vs. Parubai Bhairu Mohite (2008) 6
SCC 745 and S. Saktivel Vs. M. Venugopal Pillai (2000) 7
SCC 104) that the terms of a registered document can be
varied/altered by a registered document only; in Raval &
Co. Vs. K.G. Ramachandran (1974) 1 SCC 424 it was
specifically held that any variation of rent reserved by a
registered lease deed must be made by another
registered instrument."
(b) In the case of Roop Kumar v. Mohan Thedani (2003) 6 SCC
595, it was held as follows:
"Section 91 relates to evidence of terms of contract,
grants and other disposition of properties reduced to form
of document. This section merely forbids proving the
contents of a writing otherwise than by writing itself; it is
covered by the ordinary rule of law of evidence, applicable
not merely to solemn writings of the sort named but to
others known some times as the "best evidence rule". It
is in really declaring a doctrine of the substantive law,
namely, in the case of a written contract, that of all
proceedings and contemporaneous oral expressions of the
thing are merged in the writing or displaced by it. (See
Thaver's Preliminary Law on Evidence p. 397 and p. 398;
Phipson Evidence 7th Edn. p. 546; Wigmore's Evidence p.
2406.) It has been best described by Wigmore stating
that the rule is no sense a rule of evidence but a rule of
substantive law. It does not exclude certain data because
they are for one or another reason untrustworthy or
undesirable means of evidencing some fact to be proved.
It does not concern a probative mental process - the
process of believing one fact on the faith of another. What
the rule does is to declare that certain kinds of facts are
legally ineffective in the substantive law; and this of
course (like any other ruling of substantive law) results in
forbidding the fact to be proved at all. But this prohibition
of providing it is merely the dramatic aspect of the
process of applying the rule of substantive law. When a
thing is not to be proved at all the rule of prohibition does
not become a rule of evidence merely because it comes
into pay when the counsel offers to "prove" it or "give
evidence" of it; otherwise any rule of law whatever might
reduced to a rule of evidence. It would become the
legitimate progeny of the law of evidence. For the
purpose of specific varieties of jural effects - sale,
contract etc. there are specific requirements varying
according to the subject."
15. Defendant No.1 has not denied that he had filed a suit CS(OS)
No. 169/2011 titled as "Ravinder Singh Vs. Rajesh Kumar Bhola &
Anr." before this Court for permanent injunction against the plaintiff
seeking a decree of permanent injunction restraining the plaintiff
herein from projecting himself as vendor in respect of the suit
property.
In that plaint defendant No.1 categorically admitted as under:-
"..............
5. That based upon the receipt-cum-agreement dated
28.07.2010 the Plaintiff and defendant had entered into, an
agreement to sell in September, 2010 in respect of the suit
property for a total sale consideration of Rs.13.5 crores. Out
of said sale consideration the Plaintiff had received a sum
ofRs.5.5 crores as under:-
(i) Rs.2 crores in cash in September, 2010.
(ii) Rs.1 crores by cheque No.176203 on 12.10.2010.
(iii) Rs.2 crores in cash on 12.10.2010.
(iv) Rs.50 lakhs in cash on 20.12.2010. "
"11. That since the agreement to sell of September, 2010
executed between the Plaintiff and the defendant has
become void on account of supervening circumstances and
subsequent events, the Plaintiff in accordance with Section
56(2) of the Indian Contract Act is ready and willing to
return the balance sum of Rs.4.5 crores along with interest
to the defendant as under:-
Sl. Cheque No. Dated Drawn on Amount (Rs)
No.
(i) 212075 28.02.2011 HSBC Bank 1,12,50,000/-
(ii) 212076 30.03.2011 HSBC Bank 1,12,50,000/-
(iii) 212077 30.04.2011 HSBC Bank 1,12,50,000/-
(iv) 212078 30.05.2011 HSBC Bank 1,12,50,000/-
(v) 212079 30.05.2011 HSBC Bank 7,50,000/-
The last cheque being cheque No.212079 is towards the interest.
16. It is also undisputed fact that this Court in C.S(OS) 169/2011
realizing the conduct of defendant No.1 herein, by order dated 25th
January, 2011, directed the defendant No.1 herein (Plaintiff in that
suit) to deposit Rs.4.5 crores, within four weeks, by way of FDR, in the
name of Registrar General of this Court, in view of his admissions in
that plaint as well.
17. Defendant No.1 during the pendency of the first suit being
CS(OS) No.808/2011 titled as "Ravinder Singh Bawa Vs. Rajesh
Kumar Bhola" before Tis Hazari Court for permanent injunction
admitted his liability to the extent of paying Rs.4.57 crores to the
plaintiff as under:-
"7. That the plaintiff was constrained to file suit being
CS(OS) No. 169/2011 for injunction against the defendant
restraining the defendant from projecting himself as a
vendor in respect of property bearing No. 4/60 WEA Karol
Bagh, New Delhi - 110005 and along with the said suit the
plaintiff also tendered 5 cheques as under:-
Sl. No. Cheque No. Dated Drawn on Amount (Rs)
(i) 212075 28.02.2011 HSBC Bank 1,12,50,000/-
(ii) 212076 30.03.2011 HSBC Bank 1,12,50,000/-
(iii) 212077 30.04.2011 HSBC Bank 1,12,50,000/-
(iv) 212078 30.05.2011 HSBC Bank 1,12,50,000/-
(v) 212079 30.05.2011 HSBC Bank 7,50,000/-
(8) That the plaintiff has all along been ready and willing
to repay the balance sum of Rs.4.5 crores along with
appropriate interest to the defendants. However the plaintiff
would require about 8 month's time to make the said
payment and has already informed defendant No.1 about
the same.
(16) Even though the plaintiff has always admitted his
liability to pay the balance sum of Rs.4.5 crores to the
defendant, the defendant No.1 is continuing with his illegal
acts of causing substantial disrepute to the plaintiff resulting
in heavy business losses which cannot be either measured
or compensation in terms of money"
It is apparent and clear that the defendant No.1 in both the suits
filed by him against the plaintiff unequivocally and unconditionally
admitted his liability to pay a sum of Rs.4.57 crores to the plaintiff
along with the appropriate interest.
18. It is also a matter of fact that by order dated 30th May, 2011, in
CS (OS) No. 169/2011, this Court granted the defendant No.1's
request to comply with the directions passed by this Court vide order
dated 25th January, 2011 in the said suit further four weeks time.
However, this Court made it conditional that the summons in the said
suit would be issued subject to the defendant No. 1 complying with the
order dated 25th January, 2011.
Defendant No.1 failed to comply with orders dated 25th January,
2011 and 30th May, 2011 passed by Tis Hazari Court in CS (OS) No.
169/2011. He has also failed to challenge the said order. As the
defendant No.1 failed to comply with the orders and directions passed
by the Court in the said suit, this Court by order dated 23rd May, 2012,
dismissed the suit CS (OS) No. 169/2011 filed by the defendant No.1
against the plaintiff with cost of Rs.1 lakh for non-compliance. It is
pertinent to mention here that from January, 2011 when such
directions were passed till 23rd May, 2012, no pleas were raised by the
defendant No.1 about the making of any payment against receipts
dated 19th May, 2011 and 8th July, 2011 which are now relied by the
defendant No.1 nor the said two receipts now filed were pleaded in the
written statement filed in 2014.
19. It is not denied by the counsel appearing for him that the
defendant No.1 issued two cheques to the plaintiff towards his
admitted liability amounting to Rs.5.12 crores bearing No.212087 for
Rs.3,05,00,000/- dated 30th April, 2011 and cheque No.212090 for
Rs.2,07,00,000/- dated 13th July, 2011. However, the cheque
No.212090 dated 13th July, 2011 for Rs.2,07,00,000/- was
dishonoured on presentation while the other cheque No.212087 for
Rs.3,05,00,000/- was stalled.
20. In compliance of the order dated 13th July, 2015 passed by this
Court, the defendant No.1 filed his affidavit, making claims
which are apparently after thought, incorrect and contrary to the
admission made in the earlier suits filed by him as well as
his written statement. The pleas raised now are that certain payments
were made to the plaintiff's agent on his behalf and the plaintiff in the
year 2011 settled the overall claims for sum of Rs.2.88 crores
which have been paid and nothing is due. Two original
receipts are only of Rs.93.00 lakhs while the defendant No.1 had to
pay to the plaintiff Rs.4.50 crores along with interest due. He has also
filed one affidavit of Mr. Ashok Kumar who is a third party. The said
affidavit of third party was filed without permission to mislead the
Court.
21. The contents of two receipts are reproduced along with
translation herein below :
Translated Receipt :
"Receipt
Received an amount of Rs.50,00,000/- (Rs.Fifty Lacs only)
in cash and a cheque No.212088, dt. 24/5/11 for
Rs.2,50,00,000/- (Rs.Two crore & fifty lacs only) from Shri
Ravinder Singh. This payment is against cheque No.212086
dt. 30.11.11 for Rs.3,00,00,000/- which is returned to
Mr.Shri Ravinder Singh.
Sd/-
(Anil Ghai)
19/5/11"
Translated Receipt :
"July 8, 2011
Receipt
Received an amount of Rs.43,00,000/- (Rs. Forty Three Lacs
only) in cash from Shri Ravinder Singh S/o Shri G.S. Lily,
Resident of 6/4, WEA, Karol Bagh, New Delhi, as account of
part payment towards refund of advance paid to Shri
Ravinder Singh on A/c of sale of property No.4/60, WEA,
Karol Bagh, New Delhi.
Sd/-
Rajesh Kumar Bhola
8/7/11
Sd/-
(Ravinder Singh)"
22. The defendant No.1 has filed two original receipts dated 19th
May, 2011 and 8th July, 2011. In his affidavit dated 7th August, 2015
the defendant No.1 has given the details in order to demonstrate that
he has paid the following payments to the agents of the plaintiff. The
same are read as under :-
i. Rs. 50 Lac cash in December, 2010.
ii. Rs. 50 Lac cash in March, 2011.
iii. Rs. 50 Lac cash in 12th April, 2011.
iv. Rs. 50 Lac cash in 19th May, 2011.
v. Rs. 43 Lac cash in 8th July, 2011.
23. The first receipt of Rs.50 lac is admittedly not signed by the
plaintiff. It is alleged that the payment has been made through agent
in cash. The said receipt was never pleaded in the written statement.
24. The second receipt is of Rs.43 lac dated 8th July, 2011 is
allegedly signed by the plaintiff, as per the typed copy, however in his
affidavit it was not alleged that the said payment was received by the
plaintiff under his signature. The alleged signature of the plaintiff as
appearing in the second receipt dated 8th July, 2011 is denied by the
plaintiff. In the typed copy the name of the plaintiff is typed. The
scanned copy of the signature appeared in the said receipt is shown as
under :
25. The signature of the plaintiff appearing on various documents
filed by the plaintiff includes the signature appearing in the
agreement to sell, the execution of the same is not
denied by defendant No.1 is reproduced herein
below :
26. By no stretch of imagination one can say that the said two
signature of the plaintiff appearing on the second receipt match with
the actual signature of the plaintiff. The Court is aware that the Court
cannot give its opinion by comparing the signatures, but, once if Court
finds that a party is making the false statement on the face of the
record, there would be no bar for the Court to compare the same. In
the present case, the name of the plaintiff is typed in the typed copy
filed along with the second original receipt. The original receipt does
not mention the name of the plaintiff. It is also a matter of fact that in
his affidavit, the defendant No.1 has not specifically mentioned that
the second receipt contains the signature of the plaintiff. Both two
signatures are wholly different. The date of the filing of the second suit
is 29th March, 2011. In para 7, 8 and 16 of the plaint/suit filed by the
defendant No.1 he made the admissions stating that he is ready and
willing to repay the amount alongwith interest. In para 16 he
admitted his liability of the entire amount. The date of dismissal of first
suit being C.S (OS) No.169/2011 is 23rd May, 2012. The plaintiff has
denied having received of any amount. No details about the payments
as mentioned in his affidavit were mentioned in his written statement
filed in the present suit. It is pertinent to mention here that the
summons were issued in the second suit CS (OS) No.808/2011
filed by the defendant No.1 against the plaintiff subject to compliance
orders passed on 25th January, 2011 in the first suit CS (OS)
No.169/2011 to deposit the entire amount which was not
deposited by the defendant No.1 despite of many opportunities
granted. Ultimately, the suit was dismissed on 23rd May, 2012 with
cost of Rs.1 lac.
27. The period 25th January, 2011, the date of order passed in CS
(OS) No.169/2011 to deposit the amount till the date of dismissal of
suit on 23rd May, 2012, which is relevant period of payment if made as
alleged in both receipts now filed by the defendant No.1 dated 19th
May, 2011 and 8th July, 2011 were never filed nor produced and
placed. It was never informed to the Court on 23rd May, 2012 when his
suit was dismissed due to non-deposit of amount as directed that the
any amount has been made. The written statement filed in the
present case is silent about it. These circumstances would clearly
show that these two receipts of cash amount are cooked
up/manufactured by the defendant No.1 otherwise, they would have
been produced and pleaded at the appropriate stage. Hence, no
material is placed on record to show that the plaintiff has been
receiving any payment/amount directly by the defendant No.1. It is
evident that the receipts filed by the defendant No.1 do not contain
the signatures of the plaintiff.
28. The statement made by him in his affidavit is wholly contrary to
the statement made in the said suit which is also supported by his own
affidavit.
29. Under these circumstances, the Court is of the considered view
that defendant No.1 is misleading the Court by telling lie. He is
changing his stand from time to time, despite of admissions made by
him in his earlier two suits.
30. In view of the aforementioned reasons, the plaintiff's application
under Order XII Rule 6 is allowed. Consequently, a decree on
admissions made by the defendant No.1 is passed in favour of the
plaintiff for a sum of Rs.5.12 crores along with cost against the
defendant No.1. The plaintiff is also entitled to the interest @ 18% per
annum thereon with effect from 19th September, 2010 till the date of
payment.
31. The suit against the defendant Nos.2 and 3 has become
infructuous.
32. Decree be drawn accordingly.
(MANMOHAN SINGH)
JUDGE
DECEMBER 07, 2015
