Harbant Singh Mohal vs Bharat Khurana & Ors
2018 Latest Caselaw 3484 Del

$~18
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Date of decision: 01st June, 2018
+      RFA 796/2016, CM APPL. 37588/2016 & CM APPL. 37589/2016
       HARBANT SINGH MOHAL                   ..... Appellant
                   Through: Mr. Atul Kumar and Mr. Abhimanyu
                            Sharma, Advocates (M-9560960020)
                   versus

       BHARAT KHURANA & ORS                    ..... Respondents
                    Through: Mr. Rizwan, Advocate for SHO, Hari
                              Nagar. (M-9643349576)
                              SI Amit Sehrawat, PS, Hari Nagar
                              (M-9873864697)
                              Mr. Divya Kumar Kaushik, Advocate
                              for R-2 & 3 (M-9910832091) along
                              with Respondent No.2 & 3 in person.
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. The present appeal arises out of the impugned judgment and order dated 4th November, 2015 by which the Plaintiff's suit has been decreed for a sum of Rs.14,200/- along with the interest. The appeal has been filed by the Plaintiff challenging the said judgment.

2. The case of the Plaintiff, in brief, is that one of the Plaintiff's friend introduced him to Mr. Bharat Khurana, his brother in law, Mr. Mohit Bakshi and his wife, Mrs. Mini Khurana who were running the business under the name and style of Paramount Home & Infrastructure, 3, Lower Ground Floor, Bougan Village Marg, DLF, Phase-II, Gurgaon (Haryana). He met with them and they persuaded him to invest Rs.7,00,000/- and promised

good returns. They also convinced the Plaintiff that the money would be invested in some good project which will give him good returns. Accordingly, the Plaintiff handed over cheque No.173134 dated 2nd May, 2006 drawn on UTI Bank, Vikas Puri for a sum of Rs.7,00,000/-. The said cheque was collected by Mr. Mohit Bakshi. It was in favour of Paramount Home & Infrastructure. The cheque was duly encahsed. However, despite repeated reminders, there was no response as to what investment was made with the money. In order to convince the Plaintiff to part with the sum of Rs.7,00,000/-, four cheques had been issued as security for the said amount. Since no response was coming forth, one cheque of Rs.2,00,000/- bearing No.285663 was presented by the Plaintiff in the Bank and thereafter another cheque of Rs.2,00,000/- was also handed over. The first cheque was dishonoured and the second one was encashed.

3. On 17th June, 2007, the three Defendants again called the Plaintiff to their office in Gurgaon and persuaded him to invest in the purchase of an apartment in Opera Garden (OID) Residential Complex in Zirak Pur (Punjab) owned by Chandigarh Colonizer Pvt. Ltd. (CCPL). They assured him that they would give him Rs.1850/- per sq. ft. instead of companies' current market price of Rs.2350/- per sq. ft. and accordingly asked him to invest Rs.2,00,000/- in the same. The Plaintiff accordingly paid the sum of Rs. 2,00,000/-

4. On 21st July, 2008, the Plaintiff received a letter for demand of payment from CCPL Group asking him to make further payment. He then referred them to Mr. Bharat Khurana. On 18th August, 2008, the Plaintiff was informed by CCPL that they do not have any dealers and the company would not be responsible for any delay in payments. It was only then that

the Plaintiff realised that the three Defendants had defrauded him. They had taken a total sum of Rs.7,00,000/- and had not deposited any money with the said CCPL Group. Thereafter, the Plaintiff filed a criminal complaint being FIR No.210 of 2010 under Section 420/406/34 IPC, Police Station, Hari Nagar. Mr. Bharat Khurana applied for anticipatory bail and at that time, the Defendant made a payment of Rs.75,000/- to the Plaintiff.

5. The subject suit was thereafter filed by the Plaintiff seeking recovery of Rs.7,00,000/- along with interest at 12%.

6. A common written statement was filed by all three Defendants and was accompanied by the affidavits of all three Defendants. The only defence in the said written statement is contained in paragraphs 2 to 4 which reads as under: -

"2-4. That paras no.2 to 4 of the plaint is denied being wrong and incorrect intotality. As a matter of fact the plaintiff came to the office of the defendant no.1 alongwith one Mr. Dhariwal and Mr. T.P.Singh and said that he want to invest money in properties and want to make money and gave a cheque of Rs.7,00,000/- for doing business. As the market turned bad, the plaintiff asked to return the amount. During settlement talks the plaintiff inorder to get his amount back/adjusted agreed to purchase a flat of the defendant no.1 who booked the same with the coloniser M/s Chandigarh Colonisers Pvt. Ltd by paying a sum of Rs.1.5 lacs vide cheque no.418279 dt. 20/5/2006 vide receipt no. 1333 dt. 8/6/2006 at the price of Rs.1,840/- per sqr feet. The plaintiff agreed to purchase the flat at Rs.2,075/- per sqr feet. Thus a sum of Rs.5,35,800/- of profit was to be adjusted besides Rs.1.5 lacs which the defendant no.1 paid as booking amount. The

defendant no.1 got transferred the said flat in the name of the plaintiff from the colonizers. After adjusting the amount of profit and initial amount of booking i.e. Rs.5,35,800/- and Rs.1.5 lacs, the defendant no.1 has to pay Rs. 14,200/- only to the plaintiff. After sometime of the purchase of the flat by the plaintiff, the market crashed badly because of recession and the plaintiff started pressurizing the defendant no.1 to return his amount as he don't want to purchase the flat and on refusal got the alleged FIR registered against defendants with a view to exert pressure on the defendant no.1.

The defendants no.2 and 3 has nothing to do with the paramount homes as the same is the proprietorship concern of Shri Bharat Khurana, who is having the bank account in the name of the above said proprietorship firm."

Thus, the defendants claimed that out of the Rs.7 lakhs received, they had paid Rs. 1.5 lakhs to M/s. Chandigarh Colonisers Pvt. Ltd. (CCPL) and Rs. 5,35,800/- was their profit. Only 14,200/- was liable to be refunded to the Plaintiff, as per their Written Statement.

7. Thereafter, issues were framed in the matter.

"1. Whether the present suit is bad for mis-joinder of parties? OPD

2. Whether the plaintiff is entitled to a decree for the suit amount, as prayed for? OPP

3. Whether the plaintiff is entitled to any interest, if yes, at what rate and for what period? OPP

4. Relief"

8. The Plaintiff filed his affidavit, however, he for some reason, was not tendered for cross-examination. PW-2, Mr. Shanker Shambhu, Ahalmad of

the Court where the criminal case was pending appeared as a witness. The following documents were exhibited by PW-2.

 Ex. PW2/1- final charge sheet report  Ex. PW2/2- FIR no. 210/10  Ex. PW2/3- Complaint filed in the court of Ld. MM, Tis Hazari  Ex. PW2/4- Seizure memo dated 23.06.10  Ex. PW2/5- Cheque return memo dated 29.11.06  Ex. PW2/6- Allotment of flat in "Opera Garden" dated 13.02.08  Ex. PW2/7- Letter dated 12.07.08 dispatch of payment receipt  Ex.PW2/8- Letter of cancellation of provisional allotment dated 18.10.08  Ex. PW2/9- Seizure memo dated 14.08.2011

9. Mr. Bharat Khurana appeared as DW-1. In his cross-examination, he admitted that he had not filed any agreement or document by which he had deposited a sum of Rs.5,35,800/- as profit. He claim that he is the owner of the property i.e. Opera Garden (OID) Residential Complex in Zirak Pur (Punjab). The cross-examination is set out hereinbelow: -

"It is wrong to suggest that the plaintiff Harhant Singh Mohal has agreed to purchase the flat @ Rs. 1840 per sq. feet instead of Rs. 2,075/- per sq. feet. I have not filed any document/agreement regarding payment of Rs.5,35,800/- as profit. It is wrong to suggest that I have not filed any document/agreement because no such agreement was there. It is wrong to suggest that an amount of Rs. 5,35,800/- has been given by the plaintiff to me for onward payment to the colonizer. It is further wrong to suggest that I am the agent of

colonizer. Vol. I am the owner of the property in question. It is incorrect to suggest that the defendant no. 2 Sh. Mohit Khurrana and defendant 3 Ms. Mini Khurrana are active partners of my firm M/S Paramount Home and infrastructure. It is correct that a FIR no. 210/10 PS Hari Nagar was registered against me and ors. Vol. The said FIR is false and fabricated and the matter is still pending. It is incorrect to suggest that the said FIR was registered as I have cheated the plaintiff. It is wrong to suggest that I am in collusion with others have misappropriate the money of the plaintiff. It is wrong to suggest that at the time of anticipatory bail, I assured to pay the remaining balance amount besides Rs. 75,000/-. It is wrong to suggest that 1 am deposing falsely."

10. The Trial Court, on the ground that the Plaintiff was not offered for cross-examination held that the affidavit of the Plaintiff is liable to be rejected. The Trial Court then proceeded on the basis that only Rs.14,200/- has been admitted as due from the Defendant and decreed the suit on that basis.

11. A perusal of the documents on record shows that almost all the documents are admitted and have been accepted between the parties. The Exhibits which were placed on record including; the FIR, the allotment letter, the payment made, the letters of CCPL have all been admitted. In the Written Statement, DW-1 admitted to having received Rs.7 lakhs payment from the Defendant. He admitted that he had adjusted a sum of Rs. 5,35,800/- as profit. This adjustment as profit was obviously without any basis or any evidence. The written statement itself admitted the receipt of Rs.7,00,000/- and there was no document of proof that any profit could have

been adjusted from the same or that the Plaintiff was put to the notice of the said adjustment of profit. Thus, the pleadings and documentary evidence was sufficient for the Trial Court to decide the matter. Before this Court, Mr. Bharat Khurana did not appear in the matter. Only his wife, Mrs. Mini Khurana and brother in law, Mr. Mohit Bakshi have appeared in the matter.

12. On 13th February, 2018, notice was issued to SHO, Police Station, Hari Nagar to submit the status report as to the whereabouts of Mr. Bharat Khurana.

13. The matter was again listed yesterday i.e. 31st May, 2018 when it was revealed by Mr. Amit Sehrawat, Sub Inspector, Police Station, Hari Nagar, that according to his investigation, Mr. Bharat Khurana had got three passport made in various names; Mr. Khurana Bharat, Mr. Gaushal Bharat and Mr. Khurana Bharat, being B5006799, Z2854241 and P3546462. While the first two passports are cancelled, using the last passport Mr. Bharat Khurana has left India on 20th September, 2016. The addresses appearing in the passports were also not verified. It was found that one of the addresses in Rohini where he was living, the property was owned on rent. The status report which has been filed yesterday also shows that the office of Paramount Home & Infrastructure is no longer occupied by the Defendants. Even the address of the person who gave surety Mr. Mandeep Singh, in the criminal case, was verified but it could not be found. The CDRs of the mobile phone used by Mr Bharat Khurana was checked and it was found that the said numbers were allotted to someone else. Thereafter, it was also reported that on 13th May, 2018, the Bureau of Immigration, Ministry of Home Affairs, Government of India has opened a Look Out Circular (LOC) against Mr. Bharat Khurana. These facts have come to notice when the SHO

was directed to trace the whereabouts of Mr. Bharat Khurana. Counsel for the Plaintiff submits that the criminal case has also not reached any conclusion and continues to remain pending. Only NBWs have been issued in the criminal complaint case.

14. Today, Mrs. Mini Khurana and Mr. Mohit Bakshi are present in Court and their statements have been recorded. Counsel for the Appellant has pointed out that even Mrs. Mini Khurana has been making wrong statements before the Metropolitan Magistrate. Even as on 9th January 2017, she has submitted that Mr. Bharat Khurana is suffering from Chikungunya. It is now now evident that Mr. Bharat Khurana had left the country on 20th September, 2016 itself. The order sheets placed on record in the criminal proceedings arising out of F.I.R. No. 209/2010 P.S. Hari Nagar also show that on 14th July, 2016 Mr. Bharat Khurana was present in the Court. However, thereafter he had stooped appearing. As per the order dated 9th January 2017, non-bailable warrants have been issued against Mr. Bharat Khurana and his surety but the exact status of the said proceedings is not clear. Police Station, Hari Nagar has also placed on record the CDRs of Mobile Number of Mrs. Mini Khurana i.e. 9654380297 which is in the name of Mr. Mohit Bakshi but was used by Mrs. Mini Khurana, wherein several calls have been made to the USA. In today's statement, Mrs. Mini Khurana has confirmed that Mr. Mohit Bakshi owns WZ-9-A/2, Gali No.7, New Mahavir Nagar, Tilak Nagar, New Delhi-110018.

15. Counsel for the Respondent submits that Rs.2,00,000/- was paid as per paragraph 3 and Rs.1,50,000/- was paid to Chandigarh Colonizer Pvt. Ltd. by Mr. Bharat Khurana. As far as payment of Rs. 2,00,000/- is concerned, the total payment made by the Plaintiff is Rs. 7 lakhs initially

and Rs. 2 lakhs thereafter. Thus, the 2 lakhs amount for which the cheque was encashed has already been given credit. The recovery is only in respect of Rs. 7 lakhs. In so far as payment of Rs. 1.5 lakhs to M/s. Chandigarh Colonizer Pvt. Ltd. is concerned, the clear stand of the said CCPL is that Mr. Bharat Khurana was not their agent. Thus the amount paid to CCPL cannot be taken into consideration.

16. Counsel for the Respondent submits that Paramount Home & Infrastructure was a proprietary concern and neither of the other two Defendants has any concern with the same. It is seen from the evidence that all the three were actively conducting business with each other. Mrs. Mini Khurana and Mr. Mohit Bakshi were involved in transactions with the Plaintiff which was carried out through Mr. Bharat Khurana and hence they would be jointly and severally liable.

17. The Defendants in this case are not impleaded as Directors or Partners of the said Paramount Home & Infrastructure entity but as three individuals who were all involved in the transactions, accepted the amount and were actively in collusion with each other. The evidence on record and the status reports filed by the SHO while trying to trace Mr. Bharat Khurana show that all the three persons, i.e., Mr. Khurana, his wife and his brother in law, were in collusion with each other and have defrauded the Plaintiff. It is also clear that the Defendants who were present before the Court are not being candid and truthful as to the whereabouts of Mr. Bharat Khurana. The Trial Court has erred for granting a decree only in respect of the amount admitted in the Written Statement. The payment of Rs.7,00,000/- being not disputed, is no justification to hold back the said amount. The Plaintiff is entitled to a decree as prayed for.

18. Accordingly, the appeal is allowed. The suit is decreed for a sum of Rs.7,00,000/- along with interest @ 12 per cent per annum from the date of the suit till the date of payment. The payment shall be made by the Defendants jointly/severally within a period of eight weeks, failing which the decree would be executable.

19. In order to safeguard the interest of the Plaintiff, an Order of Attachment is passed against WZ-9-A/2, Gali No.7, New Mahavir Nagar, Tilak Nagar, New Delhi-110018 which shall be subject to the orders of the Trial Court in the Execution proceedings which may be filed to execute the present decree. The said order is being passed in the extraordinary circumstances of the present case, where one of the Defendants, has already fled the country and the two other defendants express complete ignorance of his whereabouts, though from the records it is clear that they were active participants in the business. A common written statement was filed by them. Mrs. Khurana was appearing and making statements on behalf of her husband even in the criminal case. She is currently living in the Mahavir Nagar property with her parents, where her brother Mr. Mohit Bakshi is also living with his family. She is using the telephone number of her brother. There is a serious apprehension that the Plaintiff may not be able to recover his dues and the decree may itself be frustrated. Moreover, the Ld. Counsel for the Plaintiff has informed the Court that there were two other cases which were pending, one of which has been settled by the Defendants by making payment. Thus, the Defendants appear to be owing money to several other parties. Under these circumstances, the property which appears to be the only asset of the family deserves to be attached.

20. A copy of this judgment be sent to the Court of Shri Deepak Kumar,

Metropolitan Magistrate, Room No.356, Tis Hazari Courts, New Delhi along with copies of the LOC and the status report filed dated 31 st May, 2018 as also the CDRs record which have been placed before this Court.

21. The appeal is allowed. Miscellaneous applications also stand disposed of.

PRATHIBA M. SINGH JUDGE JUNE 01, 2018 Rekha