Dharmender Singh vs Amit
2017 Latest Caselaw 6932 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.1001/2017

                                     Reserved on: 29th November, 2017
%                                  Pronounced on: 4th December, 2017

DHARMENDER SINGH                                       ..... Appellant
                Through:                 Mr. Charan Singh, Advocate
                                         with   Mr.  S.C.     Sharma,
                                         Advocate.
                          versus
AMIT                                                    ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Nos.43384/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. Nos.43381/2017 (for condonation of delay in filing) & 43382/2017 (for condonation of delay in re-filing)

2. For the reasons stated in the application, delay of 20 days

in filing the appeal and 59 days in re-filing the appeal is condoned.

C.M.s stand disposed of.

RFA No.1001/2017 and C.M. No.43383/2017 (stay)

3. This Regular First Appeal is filed under Section 96 of

Code of Civil Procedure, 1908 (CPC) by the defendant in the suit

impugning the judgment of the Trial Court dated 31.5.2017 by which

the trial court has decreed the suit filed by the respondent/plaintiff for

recovery of Rs.15 lacs along with interest at 6% per annum.

4. The facts of the case are that the respondent/plaintiff

pleaded that he had agreed to purchase the property no. K-540, Gali

No.7, Gautam Vihar, Delhi-110053 from the appellant/defendant for a

consideration of Rs.12 lacs and with respect to which an agreement to

sell dated 9.4.2012 was entered into between the parties. The

respondent/plaintiff paid a sum of Rs.5.15 lacs as earnest money to the

appellant/defendant at the time of entering into of the agreement to

sell dated 9.4.2012. The execution of the sale deed which was to be

on or before 9.6.2012, at the request of the appellant/defendant got

postponed firstly to 9.8.2012, then to 20.9.2012 and then to 5.10.2012.

Respondent/plaintiff pleaded that he further paid certain amount to the

appellant/defendant resulting to a total amount of Rs.5.97 lacs being

paid to the appellant/defendant and which factum was duly recorded

by an endorsement on the overleaf of the first page of the agreement to

sell dated 9.4.2012. It was pleaded that on 23.9.2012 the

appellant/defendant refused to perform the agreement to sell as the

property price had shot up from the agreed price of Rs.12 lacs to Rs.15

lacs. It is then pleaded in the plaint that since the respondent/plaintiff

was still keen to purchase the property therefore he agreed to pay the

higher consideration of Rs.15 lacs to the appellant/defendant. The

respondent/plaintiff on 3.10.2012 paid the balance amount of Rs.9.03

lacs to the appellant/defendant who simultaneously executed the

documents being the agreement to sell, power of attorney, receipt in

favour of the respondent/plaintiff stating that the sale deed could not

be executed for some technical reason. The appellant/defendant

however failed to hand over possession of the property to the

respondent/plaintiff on one pretext or the other and the

respondent/plaintiff thereafter came to know that in fact the

appellant/defendant had no right in the property no.K-540, Gali No.7,

Gautam Vihar, Delhi-110053. Respondent/plaintiff therefore served a

legal notice dated 27.12.2012 upon the appellant/defendant and

thereafter filed the subject suit for recovery of Rs.15 lacs along with

interest.

5. The appellant/defendant contested the suit by pleading

that respondent/plaintiff gave a loan of Rs.4.50 lacs to the

appellant/defendant in the presence of Sh. Yameen and Sh. Arshad

Ali. It was pleaded that Sh. Yameen and Sh. Arshad Ali were in fact

the owners of the property in question and since the

appellant/defendant did not have the requisite amount for purchase of

the property hence the appellant/defendant took a loan of Rs.4.50 lacs

from the respondent/plaintiff. The appellant/defendant pleads that he

got a loan of Rs.10 lacs from Kangra Cooperative Bank on 1.8.2011

and thereafter purchased this subject property from Sh. Yameen on

5.8.2011 for consideration of Rs.14.50 lacs. It was pleaded that Sh.

Yameen had purchased the subject property from Sh. Ajay Kumar for

an amount of Rs.13.70 lacs and therefore how could the

respondent/plaintiff be sold the subject property by the

appellant/defendant only for Rs.12 lacs. The appellant/defendant

claimed to be an illiterate person and that he never executed the

agreement to sell, GPA etc in favour of the respondent/plaintiff on

3.10.2012. Appellant/defendant pleaded that he had returned Rs.3.75

lacs to the respondent/plaintiff and further an amount of Rs.2.25 lacs

was returned in the presence of Sh. Yameen and Sh. Arshad Ali. In

fact Sh. Yameen had contributed a sum of Rs.40,000/- out of an

amount of Rs.2.25 lacs. The appellant/defendant further pleaded that

he got a loan of Rs.2 lacs in February, 2014 from Delhi Nagrik

Sehkari Bank and thereafter returned a sum of Rs.1.50 lacs to the

respondent/plaintiff in the presence of Sh. Manoj son of Sh. Jasbir.

Accordingly, the suit was prayed to be dismissed.

6. After pleadings were complete, the trial court framed the

issues and parties led evidence and which aspects are recorded in

paras 6 to 9 of the impugned judgment, and which paras read under:-

"6. After completion of the pleadings, following issues were framed vide order dated 31/03/2016:-

(i) Whether plaintiff is entitle to recover Rs.16,12,500/- as prayed for? (OPP)

(ii) Whether plaintiff is entitle for interest, if so, at what rate and for what period ? (OPP)

(iii) What reliefs."

7. In support of his case, plaintiff examined two witnesses i.e. he himself as PW-1 and his father Sh. Mahender Singh as PW-2. 7A. PW-1 led his evidence on affidavit Ex.PW1/A. He generally deposed on the same lines of his plaint. PW-1 relied upon agreement to sell dated 09/04/2012 as Ex.PW1/1, receipt dated 03/10/2012 as Ex.PW1/2, GPA dated 03/10/2012 as Ex.PW1/3, agreement to sell dated 03/10/2012 as Ex.PW1/4, Will dated 03/10/2012 as Ex.PW1/5, copy of legal notice dated 27/12/2012 as Ex.PW1/6, postal receipt as Ex.PW1/7, copy of defendant's affidavit dated 03/10/2012 as Mark A. 7B. PW-2 also deposed on affidavit Ex.PW2/A. He deposed on the same line of PW-1.

8. After examination of plaintiff's witnesses, defendant also examined two witnesses i.e he himself as DW-1, Sh. Manoj as DW-2. 8A. DW-1 led his evidence on affidavit Ex.DW1/1, DW-1 relied and proved site plan of suit property as Ex.DW1/1, request for grant of secured loan as Ex.DW1/2, passbook of Delhi Nagrik Sehkari Bank Ltd. as Ex.DW1/3 and Ex.DW1/4, documents executed by Mohd. Yameen in his favour qua suit property on 05/08/2011 i.e GPA as Ex.DW1/5, agreement

to sell as Ex.DW1/6, receipt as Ex.DW1/7, possession letter as Ex.DW1/8, Will as Ex.DW1/9, affidavit as Ex.DW1/10, documents executed by Sh. Ajay Kumar in favour of Mohd. Yameen qua suit property on 18/05/2011 i.e GPA as Ex.DW1/11, agreement to sell as Ex.DW1/12, receipt as Ex.DW1/13, possession letter as Ex.DW1/14, Will as Ex.DW1/15 and affidavit as Ex.DW1/16.

9. DW-2 also deposed on affidavit Ex.DW2/A that Sh. Dharmender has taken a loan of Rs.2,00,000/- from Delhi Nagrik Sehkari Bank in February 2014 and he has given Rs.1,50,000/- in his presence to Sh. Amit, who has not issued any receipt."

7. Trial court in my opinion has rightly found that the

respondent/plaintiff proved the agreement to sell dated 9.4.2012 as

Ex.PW1/1 and which shows payment of earnest money of Rs.5.15 lacs

by the respondent/plaintiff to the appellant/defendant. Trial court has

rightly disbelieved the case of the appellant/defendant that the

agreement to sell Ex.PW1/1 was a document which was obtained

allegedly in blank and containing the signatures of the

appellant/defendant. Trial court has also rightly observed that the

agreement to sell Ex.PW1/1 bears not only the signatures of the

appellant/defendant but also the thumb impressions of the

appellant/defendant and that the appellant/defendant had never made

any police complaint that the respondent/plaintiff took his signatures

on blank papers. Another reason for the trial court to hold the

agreement to sell Ex.PW1/1 to be proved was that the attesting witness

of this agreement to sell Sh. Mahender Singh appeared as PW-2 and

confirmed the execution of the agreement to sell by the

appellant/defendant putting his signatures and thumb impression on

the agreement to sell Ex.PW1/1.

8. I therefore hold that the trial court was justified in

holding that the agreement to sell Ex.PW1/1 was executed by the

appellant/defendant and which showed receipt of Rs.5.15 lacs by the

appellant/defendant with the further fact that additional payment made

was shown by an endorsement on the back of the first page of the

agreement to sell and thus in total a sum of Rs.5.97 lacs stood paid by

the respondent/plaintiff to the appellant/defendant as per the first

agreement to sell dated 9.4.2012. Trial court has in my opinion also

rightly held that the respondent/plaintiff has succeeded in proving the

documents dated 3.10.2012 being the GPA Ex.PW1/3, agreement to

sell Ex.PW1/4 and Will Ex.PW1/5 and which documents duly record

the factum of increasing of the prices of the subject property from

Rs.12 lacs to Rs.15 lacs and also the factum with respect to the

balance consideration of Rs.9.03 lacs being received by the

appellant/defendant at the time of execution of documents dated

3.10.2012.

9. Before the trial court, the appellant/defendant contended

that respondent/plaintiff had no amount to pay Rs.15 lacs in cash to

the appellant/defendant as the respondent/plaintiff admitted in his

cross-examination that he is only earning Rs.200 to Rs.400/- per day

from his hardware shop, however as per the case of the

appellant/defendant he himself admitted that he took a loan of Rs.4.50

lacs from the respondent/plaintiff, and therefore, trial court has rightly

held that once respondent/plaintiff could give a loan of Rs.4.5 lacs to

the appellant/defendant then it cannot be held that the

respondent/plaintiff had no means to pay the consideration of Rs.15

lacs and which was received by appellant/defendant partly under the

first agreement to sell Ex.PW1/1 dated 9.4.2012 of Rs.5.97 lacs and

the balance payment of Rs.9.03 lacs when the second set of documents

were executed on 3.10.2012 by the appellant/defendant in favour of

the respondent/plaintiff. Trial court has also in my opinion further

rightly held that the subject documents did not require registration

because registration is required when benefit of an agreement to sell is

sought to be taken under Section 53A of the Transfer of Property Act,

1882 containing the doctrine of part performance, whereas the subject

agreements to sell Ex.PW1/1 and Ex.PW1/4 were being asserted by

the respondent/plaintiff only for recovery of the amounts paid there

under and not for seeking rights in the immovable property.

10. I cannot agree with the arguments urged on behalf

of the appellant/defendant that the respondent/plaintiff is habitual of

creating false transactions and one such false transaction was with one

Ms. Razia who had filed the police complaint dated 1.8.2016. I also

do not agree with the argument urged on behalf of the

appellant/defendant that because of certain contradictions in the

statements of the respondent/plaintiff and his witnesses the suit should

be dismissed inasmuch as a civil case is decided on balance of

probabilities after considering the entire evidence of both the parties

and seeing the result thereof. Since in the present case,

respondent/plaintiff has proved his case by means of documents any

minor contradictions in the cross-examination will not have the effect

of courts discarding the agreement to sell Ex.PW1/1 dated 9.4.2012

and the subsequent set of documents dated 3.10.2012 proved as

Ex.PW1/2 to Ex.PW1/5, and these documents clearly show receipt of

total amount of Rs.15 lacs by the appellant/defendant from the

respondent/plaintiff.

11. Learned counsel for the appellant/defendant then urged

that the respondent/plaintiff failed to prove his financial capacity of

having paid a sum of Rs.15 lacs to the appellant/defendant, however,

as already stated above, and so rightly held by the trial court, that the

financial capacity of the respondent/plaintiff cannot be doubted as the

appellant/defendant's own case was that he had taken a loan of

Rs.4.50 lacs in cash from the respondent/plaintiff. This argument of

the appellant/defendant is also therefore rejected.

12. In view of the above, I do not find any merit in the

appeal. Dismissed.

DECEMBER 04, 2017                           VALMIKI J. MEHTA, J
Ne/ib