Vikram Kumar vs Rakesh Saraf
2017 Latest Caselaw 6702 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.979/2017

%                                               24th November, 2017

VIKRAM KUMAR                                            ..... Appellant
                          Through:       Mr. T.P.S. Kang, Adv.
                          versus

RAKESH SARAF                                           ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.42588/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.979/2017 and C.M. No.42589/2017 (stay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure (CPC) is filed by the defendant in the suit

impugning the judgment of the trial court dated 24.8.2017 by which

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

a sum of Rs. 7,16,000/- along with interest at 12% per annum. Suit

was filed for recovery of Rs. 19,77,000/- with interest.

3. At the outset it may be noted that appellant/defendant did

file the written statement, did not cross examine the witnesses of the

respondent/plaintiff and also did not lead evidence. In fact the

appellant/defendant was given repeated opportunities to file the

written statement, but not only those opportunities were not utilized,

even opportunities granted by allowing two petitions by this Court

were not utilized, and no written statement was filed by the

appellant/defendant.

4. The subject suit was filed by the respondent/plaintiff for

recovery of Rs. 19,77,000/- along with interest pleading that the

appellant/defendant approached the respondent/plaintiff with an

investment proposal with respect to the property bearing no. F-2,

Kailash Colony, New Delhi. Respondent/plaintiff was persuaded by

the appellant/defendant to invest Rs. 40 lakhs in the said property. An

agreement to sell dated 8.3.2007 was entered into between the parties

recording this fact. The profit on sale of the property was to be divided

in the ratio of 40:60 to the respondent/plaintiff and

appellant/defendant respectively. It is further pleaded in the plaint that

appellant/defendant however did not pay any money to the

respondent/plaintiff. In the month of January 2009 when the

respondent/plaintiff again approached the appellant/defendant for his

monies then the appellant/defendant told the respondent/plaintiff that

either the respondent/plaintiff must forget about his monies or he

should stand as a guarantor for the appellant/defendant so that the

appellant/defendant would raise loan from the market and pay back

the amount to the respondent/plaintiff. The respondent/plaintiff having

no other option entered into a Memorandum of Understanding (MoU)

dated 9.1.2009/Ex.PW1/1 under which the respondent/plaintiff

received Rs. 47 lakhs from the appellant/defendant by virtue of raising

money on a chit from a Chit Fund Committee and the

appellant/defendant had to pay remaining installments of the chits at

Rs.2,15,000/- per month from 10.1.2009 till 10.4.2010 totaling to

Rs.34,40,000/-. Respondent/plaintiff was agreed to be paid

Rs.7,16,000/- by the appellant/defendant as backlog of the

installments. Since the balance amount of Rs. 19,77,000/- became due

and payable to the respondent/plaintiff on account of

appellant/defendant not paying the installments, hence the subject suit

was filed for recovery of this amount along with interest.

5. As already stated above, there is no evidence on record of

the appellant/defendant who did not file written statement, and who

did not even cross-examine the witnesses of the respondent/plaintiff.

6. Respondent/plaintiff proved his case and exhibited

documents which has been recorded in para 4 of the impugned

judgment, and this para 4 of the impugned judgment read as under:-

"4. In order to prove his case, the plaintiff examined himself as PW-1 and his affidavit for evidence Ex.PW-1/A. The plaintiff relied upon following documents:

      "(i) Copy of Memorandum of Understanding                     Ex.PW-1/1
            dated 09.01.2009 (OSR)
       (ii) Receipts issued by Nanak Chits & Finance               Ex.PW-1/2
             Company, (six pages)                                     (colly.)
      (iii) Copy of statement of account                          Ex.PW-1/3
      (iv) Copy of Agreement to Sell/ Collaboration                Mark A
             Agreement dated 09.10.2006
      (v) Copy of Agreement to Sell dated 08.03.2007              Mark B
      (vi) Copy of complaint dated 23.08.2011                     Mark C"

7. Trial court, in my opinion, has rightly held that

documents which were proved by the respondent/plaintiff, and more

particularly the MoU which showed that a sum of Rs. 7,16,000/- was

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

however has dismissed the suit for the balance amount noting that the

respondent/plaintiff failed to prove that there was an agreement in

terms of Ex. PW1/1 that if the appellant/defendant failed to make the

remaining 16 installments of the chits then when the

respondent/plaintiff made payment on his behalf then this amount

would be recovered from the appellant/defendant. Therefore, trial

court decreed the suit only for a sum of Rs. 7,16,000/- along with

interest being the liability acknowledged by the appellant/defendant

towards respondent/plaintiff in terms of the MoU/Ex.PW1/1. The

relevant paras of the judgment of the trial court are paras 11 to 13 and

these paras read as under:-

"11. Now to come on the merit of the case. PW-1, Sh. Rakesh Saraf has supported his case. The deposition of PW-1 and the documents relied upon by the plaintiff have gone unrebutted and unchallenged. From Agreement to Sell Mark B, it is established that an Agreement to Sell was entered into between plaintiff and defendant and the plaintiff had paid Rs. 40 lacs to the defendant in respect of 2nd and 3rd Floor rear portion of property no. F-2 Kailash Colony, New Delhi. The defendant failed to put his defence on record, therefore, he failed to challenge Mark B. The fact of execution of Agreement to Sell Mark B entered into plaintiff and defendant can also be ascertained from Memorandum of Understanding dated 09.01.2009 Ex.PW-1/1. It is clearly stated in Ex.PW-1/1 that the original Agreement to Sell entered between plaintiff and defendant for the second floor / third floor duplex at F-2, Kailash Colony, New Delhi was handed over to the defendant by the plaintiff. Thus the plaintiff proved that the original of Mark B is in power and possession of the defendant and thereby fulfilled the criteria to prove secondary evidence as laid down under section 65 of the Indian Evidence Act. From Memorandum of Understanding Ex.PW- 1/1, it is further established that the plaintiff has not only gave Rs. 40 lacs at the time of execution of Mark B but also that the plaintiff had paid the installments of chit on behalf of the defendant. It was further agreed between the plaintiff and defendant as per terms of Ex.PW-1/1 that the defendant had to pay backlog of chit committee to the plaintiff amounting to Rs. 10.66 lacs out of which the defendant had paid Rs. 3.5 lacs only and balance of Rs. 7.16 lacs was to be paid by the defendant to the plaintiff alongwith an interest @ Rs. 1.25 per month from 10.01.2009 onwards.

Thus, the liability of the defendant to pay Rs. 7,16,000/- to the plaintiff is established from the Memorandum of Understanding Ex.PW-1/1.

12. Now the question arises, whether the plaintiff is entitled for the money which he claimed that he had paid for 16 balance installments of chit on behalf of the defendant being guarantor of the defendant. Though, the plaintiff has filed original of 16 chit receipts Ex.PW-1/2 (colly.) on record. But it is not established that the plaintiff is entitled to recover the payment of said chits from the defendant. It was nowhere agreed as per the terms of Ex.PW-1/1 that in case the defendant failed to make the payment of remaining 16 installments of the chit, the plaintiff would make the payment on his behalf and later on recover the said amount from the defendant. The statement of account Ex.PW-1/3 has not been proved as no certificate under section 65 (B) of Indian Evidence Act was filed on behalf of the plaintiff. Just filing statement of account in the form of computer printout is not sufficient to prove statement of account in the absence of certificate under section 65 (B) of Indian Evidence Act. The statement of account Ex.PW-1/3 neither bears the signature of the plaintiff nor of the defendant. Thus, the plaintiff failed to prove that he is entitled for Rs. 12.16 lacs i.e. balance of Rs. 34.40 lacs which he claimed that he had paid as 16 balance installment of the chit on behalf of the defendant.

13. In view of the above discussions, I am of the considered view that the plaintiff has succeeded to partly prove his case that the defendant is liable to pay Rs. 7,16,000/- to him under Memorandum of Understanding Ex.PW-1/1. The interest @ 1.25% per month agreed between the parties as per Ex.PW-1/1 but the plaintiff has claimed interest @ 12% per annum in the instant suit. The interest @ 12 % per annum is less than the interest @ 1.25% per month, therefore, pendentlite and future interest @ 12% per annum on Rs. 7,16,000/- is awarded to the plaintiff. The Memorandum of Understanding Ex.PW-1/1 was executed on 09.01.2009 and the instant suit was filed on 07.01.2012. Thus, the suit was filed within the period of limitation of three years. Hence, a decree for a sum of Rs. 7,16,000/- alongwith pendentlite and future interest @ 12% per annum till recovery of the decretal amount is passed in favour of the plaintiff and against the defendant." (underlining added)

8. I completely agree with the aforesaid reasoning and

conclusion of the trial court because the MoU/Ex.PW1/1, stood

proved and which showed the liability of the appellant/defendant to

the respondent/plaintiff for a sum of Rs. 7,16,000/.

9. Counsel for the appellant/defendant argues that MoU/Ex.

PW1/1, is not proved however this Court fails to understand this

argument because admittedly there is no cross-examination of the

respondent/plaintiff who proved Ex. PW1/1. Once there is no cross-

examination, then it does not lie in the mouth of the

appellant/defendant to canvass the fact that the MoU dated 9.1.2009,

Ex. PW1/1 was not validly proved.

10. There is no merit in the appeal. Dismissed.

NOVEMBER 24, 2017                             VALMIKI J. MEHTA, J
Ne/godara