Shri Tamal Basu vs Shri M.L. Ashiwal
2016 Latest Caselaw 4705 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RSA No. 147/2016

%                                                                 21st July, 2016

SHRI TAMAL BASU                                                    ..... Appellant
                          Through:       Ms. Ritika Mitra, Advocate.
                          versus

SHRI M.L. ASHIWAL                                                ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff against the two

concurrent Judgments of the courts below; of the Trial Court dated 27.3.2012

and the First Appellate Court dated 11.2.2016; by which the suit of the plaintiff

for recovery of Rs.1,50,000/- alongwith interest has been dismissed.

2. The facts of the case are that the appellant/plaintiff as a buyer

entered into an Agreement with the respondent/defendant on 8.7.2005 to

purchase a flat bearing no. 12, 3rd Floor, in property no.271, Masjid Moth, New

Delhi-49. Appellant/plaintiff paid a sum of Rs.3 lacs out of agreed sale

consideration of Rs. 19.50 lacs. The agreement however could not go through

and therefore the respondent/defendant returned a sum of Rs.1.50 lacs with

balance of Rs.1.50 lacs remaining. It is for this amount the suit was filed with

the claim of interest.

3. Respondent/defendant has filed the written statement and taken up

a stand that the appellant/plaintiff had concealed the factum of execution of a

Receipt dated 30.10.2006 whereby it was agreed between the parties that the

appellant/plaintiff will only receive a sum of Rs.1 lac out of the sum of Rs.1.50

lacs and the amount of Rs.50,000/- was waived by the appellant/plaintiff. This

receipt was proved and exhibited by the respondent/defendant before the trial

court as Ex.PW1/D1. The case of the respondent/defendant was that the

appellant/plaintiff failed to receive the amount of Rs.1 lac in spite of tendering

of the same and which amount was paid before the trial court during the

pendency of the suit.

4. The appellant/plaintiff claimed that the signatures on the receipt

were forcibly taken but this aspect has been disbelieved by both the courts

below. The first appellate court in this regard has given the following relevant

observations:-

"Perusal of the cross examination of the appellant/plaintiff who examined himself as PW1 before the Ld. Trial Court reveals that on the said receipt Ex.PW1/D1, the appellant/plaintiff admitted his signatures below the averment "balance Rs.1 lac only". By way of volunteer, PW1 stated that his signatures were obtained by force.

PW1 also admitted that the said receipt was bearing the signatures of Sh. P.D. Upadhaya as a witness. PW1 further asserted in his cross examination that he knew Sh. P.D. Upadhaya, who was his friend. PW1 further admitted that he failed to lodge any complaint against the defendant for obtaining his signatures forcibly on the said receipt. PW1 further admitted it to be correct that he had not mentioned any fact regarding the alleged forcible signatures by the defendant on Ex.PW1/D1 in the plaint. PW1 further admitted it to be correct that in the legal notice dated 18.06.2007 which is Ex.PW1/2 on record, there was no averment regarding the alleged forcible signatures on the receipt Ex.PW1/D1. In the next cross examination, PW1 further admitted that he had not stated the fact regarding the receipt Ex.PW1/D1 in the plaint or in his evidence by way of affidavit or in the legal notice. In the light of the abovesaid cross examination of PW1, I am of the opinion that the Ld. Trial Court has rightly observed in the judgment and decree dated 27.03.2012 that the factum of execution of the said receipt Ex.PW1/D1 was neither disclosed by the plaintiff in the plaint nor in the legal notice. I am of the opinion that it has been rightly observed by the Ld. Trial Court in the judgment dated 27.03.2012 that the plaintiff also failed to disclosed that his signatures were obtained forcibly. The said fact was also not mentioned in the legal notice dated 18.6.2007. I am also of the opinion that it has been rightly observed by the Ld. Trial Court in the judgment and decree dated 27.03.2012 that no complaint in writing was ever lodged by the appellant/plaintiff in this regard. I am also of the opinion that it has been rightly observed that the appellant/plaintiff also failed to examine Sh. P.D. Upadhaya, who was admittedly a friend of the appellant/plaintiff and who was a witness in the said receipt. I am of the opinion that the submissions of the appellant/plaintiff as contained in the present appeal are fallacious when it is argued that the onus of prove the said receipt was upon the respondent/defendant. To my mind, once the appellant/plaintiff admitted his signatures and the signatures of Sh. P.D. Upadhaya, who was a witness in the said receipt on the said receipt Ex.PW1/D1 on record, the said receipt was not required to be proved further by the respondent/defendant. A perusal of the said receipt Ex.PW1/D1, to my mind, leads only to one conclusion that the appellant/plaintiff had agreed to receive back only Rs.1 lac out of the remaining amount of Rs.1.5 lacs and since, the said amount of Rs.1 lac was received by the appellant/plaintiff during the pendency of the present suit on 17.07.2008, the Ld. Trial Court has rightly come to the conclusion that the appellant/plaintiff was not entitled to the suit amount. I am also of the opinion that the Ld. Trial Court has rightly observed that the appellant/plaintiff was not entitled to any interest since the appellant/plaintiff was not entitled to any principal amount. In the present appeal, it has been argued that at least, the appellant/plaintiff was entitled for the interest from 18.06.2007 till 17.07.2008 but I am of the opinion that the respondent/defendant has himself averred in the written statement that he was always ready and willing to pay the balance amount of Rs.1 lac but the appellant/plaintiff failed to approach him. The fact remains that the said amount of Rs.1 lac was paid by the respondent/defendant during the pendency of the suit before the Ld. Trial Court on 17.07.2008." (underlining added)

5. I completely agree with the aforesaid conclusions of the courts

below, especially the observations of the first appellate court reproduced above,

inasmuch as, if the signatures on the receipt Ex.PW1/D1 were forcibly taken

from the appellant/plaintiff then surely the appellant within few days of

execution of the receipt should at least have sent a letter to the

respondent/defendant to put this on record, however appellant/plaintiff not only

failed to do so but when appellant/plaintiff sent a Legal Notice for recovery only

much later on 18.6.2007 however even in this legal notice, the courts below

note, that the appellant/plaintiff concealed the factum of receipt Ex.PW1/D1.

The receipt is witnessed by the friend of the appellant/plaintiff Mr. P.D.

Upadhaya.

6. Counsel for the appellant/plaintiff finally sought to argue that the

appellant/plaintiff is entitled to interest on Rs. 1 lac till the amount was paid to the

appellant/plaintiff in court by the respondent/defendant, but I note in this regard

that there is a finding of fact holding that the appellant/plaintiff failed to ask for the

amount of Rs.1 lac and thus no interest can be awarded, and which conclusion

being not grossly illegal or perverse, the same does not raise a substantial question

of law under Section 100 CPC for this second appeal to be entertained.

7. Dismissed.

JULY 21, 2016/ib                                            VALMIKI J. MEHTA, J