Raj Kumar Goyal vs Veena Sharma
2018 Latest Caselaw 7253 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 993/2018

%                                                  10th December, 2018

RAJ KUMAR GOYAL                                          ..... Appellant
                          Through:        Mr. Sachin Aggarwal and Ms.
                                         Varsha Chaudhary, Advocates.
                                         (9811071022)
                          versus

VEENA SHARMA                                            ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 51698/2018 (Exemption)

For the reasons stated in the application, exemption allowed

subject to just exceptions.

CM stands disposed of.

CM No. 51699/2018 (delay in re-filing)

For the reasons stated in the application, delay in re-filing is

condoned, subject to just exceptions.

CM stands disposed of.

RFA No. 993/2018 & CM No.51697/2018 (Stay)

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

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

impugning the Judgment of the trial court dated 10.07.2018 by which

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

recovery of Rs. 5,00,000/- alongwith interest at 10% per annum

simple. The suit has been decreed in favour of the

respondent/plaintiff/seller for the balance of the price which was

payable by the appellant/defendant/buyer qua the subject property

bearing no. 1035, Dr. Mukherjee Nagar, Delhi-110009 which was sold

by the respondent/plaintiff to the appellant/defendant. The amount

towards the part of the sale consideration of Rs. 5,00,000/- was

secured by cheques, and it is for the amount of cheques that the

subject suit was filed.

2. The facts of the case are that the respondent/plaintiff was

the owner of the subject property. By a Sale Deed dated 28.12.2006

the subject property was sold by the respondent/plaintiff to the

appellant/defendant. The respondent/plaintiff pleads that on the date

of the Sale Deed itself i.e. on 28.12.2006, the appellant/defendant

executed an undertaking and gave two cheques of Rs. 2,50,000/- each

for the balance sale consideration. These two cheques of Rs.

2,50,000/- each totaling to Rs. 5,00,000/- were in October 2007

replaced by the appellant/defendant with another cheque of Rs.

5,00,000/- being Cheque No. 065856 drawn on Axis Bank Limited,

Shalimar Bagh, New Delhi. At that time of giving of the subsequent

cheque of Rs. 5,00,000/-, the appellant/defendant had taken back the

cheques of Rs. 2,50,000/- each alongwith the undertaking but the

respondent/plaintiff kept photocopies of the same. In the cheque of

Rs. 5,00,000/- the date was inadvertently written as 10.01.2007 instead

of 10.01.2008 and in fact this date of 10.01.2008 is clearly mentioned

in the undertaking. Though the respondent/plaintiff approached the

appellant/defendant for correction in the cheque, the

appellant/defendant avoided to do so. Hence, the respondent/plaintiff

prayed a for decree of a sum of Rs. 5,00,000/- alongwith interest.

3. On receipt of summons of the suit, the

appellant/defendant contested the suit and pleaded that he had made

payment of the entire sale consideration under the Sale Deed dated

28.12.2006, and this aspect is duly mentioned in the Sale Deed dated

28.12.2006. The appellant/defendant pleaded that the respondent/

plaintiff wanted certain documents and cheques for the purpose of the

Income Tax Department and therefore, the appellant/defendant gave

some blank white papers signed by him alongwith the two cheques of

Rs. 2,50,000/- to the respondent/plaintiff on the assurance that the

same will not be misused. The appellant/defendant pleads that he had

requested the respondent/plaintiff to return the cheques on many

occasions, but the respondent/plaintiff failed to do so. In the month of

October 2007, once again when the appellant/defendant approached

the respondent/plaintiff for handing over the two earlier cheques of

Rs. 2,50,000/-, the respondent/plaintiff requested for one back-dated

cheque of Rs. 5,00,000/- to show to the Income Tax Department due

to some difficulties. The appellant/defendant therefore gave the

cheque of Rs. 5,00,000/-, and on the basis of this cheque, the subject

suit was filed. The appellant/defendant also pleaded that he had filed

a civil suit for injunction for the demolition of the unauthorized

construction against the previous owner of the subject property

namely, Sh. Khushal Chand Arora, and on account of Sh. Khushal

Chand Arora, the respondent/plaintiff had bad intention, and thus the

signatures of the appellant/defendant were taken on blank sheets and

also the three cheques.

4. The following issues were framed in the suit:-

"1. Whether the suit of the plaintiff is liable to be rejected U/o 7 Rule 11 CPC for being without any cause of action? OPD

2. Whether the plaintiff is entitled to a decree of suit amount? OPP

3. If the plaintiff is entitled to any amount, whether he is entitled to any interest? If yes, at what rate and for what period? OPP

4. Relief."

5. In order to prove her case, the respondent/plaintiff

examined herself as PW-1, and she also examined Sh. N.D. Chawla as

PW-2, the witness to both the Undertakings dated 28.12.2006 and

21.10.2007. The appellant/defendant only examined himself as DW-

1.

6. The trial court has decreed the suit by disbelieving the

case of the appellant/defendant that there is no reason why blank

signed sheets would have been given by the appellant/defendant to the

respondent/plaintiff, as also three cheques, and that too not on one

occasion but on two occasions. The trial court has held that the

signatures of the appellant/defendant exist on both the undertakings

dated 28.12.2006 and 21.10.2007, and the trial court has observed that

for this purpose, it has examined the signatures of the

appellant/defendant on two undertakings with the admitted signatures

of the appellant/defendant appearing in the suit record. The trial court

has held that possibly the real reason of the disputes is that under the

Sale Deed what was sold was 160 sq. yds. but the

appellant's/defendant's case was that the area of the plot handed over

was only 148 sq. yds. I may note that there is no dispute that all the

three cheques are of the bank of the appellant/defendant and are also

signed by the appellant/defendant, with the fact that

appellant/defendant does admit that he did sign the alleged blank

signed sheets.

7. The trial court has also disbelieved the case of the

appellant/defendant that since the Sale Deed mentions the receipt of

the full sale consideration; therefore, the cheques could not be for the

payment of the balance sale consideration. The trial court has also

held that as per Section 139 of the Negotiable Instruments Act, 1881, a

cheque is presumed to be given in discharge of a debt or liability.

8. Ld. counsel for the appellant/defendant once again argued

before this Court that once in the Sale Deed it is written that the entire

sale consideration is paid, therefore, it cannot be believed that the

cheques were given in part payment of the sale consideration. This

Court, however, cannot accept this argument for various reasons.

Firstly, the trial court has rightly observed that the signatures on the

Undertaking dated 28.12.2006 are similar to the signatures of the

appellant/defendant as per the admitted signatures of the

appellant/defendant appearing on the trial court record and this

undertaking for handing over of the two cheques of Rs. 2,50,000/-

each totaling to Rs. 5,00,000/- is of the same date as the Sale Deed

executed by respondent/plaintiff in favour of the appellant/defendant.

Also, it is very difficult to believe that just because the parties had

relationship of a seller and a purchaser, the appellant/defendant who is

a purchaser would have given blank sheets as also total of three

cheques, that too on two occasions separated by many months merely

because the respondent/plaintiff/seller asked the appellant/defendant/

buyer for help for income tax purposes and for dealing with the

Income Tax Department. This argument of the appellant/defendant is

therefore rejected.

9. Ld. counsel for the appellant/defendant then argued that

the witness who appeared as PW-2, namely Sh. N.D. Chawla has

admitted in his cross-examination on 18.03.2014 that he was not

present at the time of execution of the two Undertakings dated

28.12.2006 and 21.10.2007, and therefore since the signatures of Sh.

N.D. Chawla were taken subsequently on the undertakings, the two

undertakings are to be discarded. In my opinion, however, this cross-

examination of Sh. N.D. Chawla cannot help the appellant/defendant

because there is no illegality if the signatures of a witness appear

subsequently on a document, and provided the executant has admitted

to the attesting witness that the executant has already signed the

document, and thereafter the attesting witness signs. No suggestion

has been put to PW-2, Sh. N.D. Chawla, that when he signed as an

attesting witness to the document, this witness did not take

confirmation from the appellant/defendant that the appellant/defendant

had not signed as an executant to the two undertakings. I, therefore,

reject this argument urged on behalf of the appellant/defendant.

10. Ld. counsel for the appellant/defendant finally argued

that in the Sale Deed it is written that the possession of the suit

property has already been handed over to the appellant/defendant

whereas in the Undertaking dated 28.12.2006 it is written that the

vacant possession shall be received on 28.04.2007 and this shows that

there is clear contradictions in the undertaking and the Sale Deed.

However, in my opinion, even if this Court takes the fact that there is

clearly a contradiction, since civil cases are decided on the balance of

probabilities and in the present case when we consider the

preponderance of probabilities, it is difficult to believe that the

appellant/defendant would give a third person such as the

respondent/plaintiff, who is only a seller of the property, various blank

signed sheets as also a total of three cheques on two occasions. On

this contradiction itself, therefore, this Court would not like to

disbelieve the case of the respondent/plaintiff and reasoning given by

the trial court in the impugned judgment for decreeing of the suit.

11. Ld. counsel for the appellant/defendant had argued that

the trial court has granted a high rate of interest, however it is seen

that the trial court has only awarded interest at 10% per annum simple,

and this rate in the opinion of this Court is not completely

unreasonable that this Court should interfere.

12. In view of the aforesaid discussion, there is no merit in

the appeal. Dismissed.

DECEMBER 10, 2018/ib                        VALMIKI J. MEHTA, J