Beena Devi vs Dharamveer
2018 Latest Caselaw 6586 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        RFA No. 895/2018

%                                                 31st October, 2018

BEENA DEVI                                             ..... Appellant

                          Through:       Mr.      Aloke       Kumar
                                         Bhattacharya,    Ms.     S.
                                         Mukherjee and Mr. Harjinder
                                         Singh, Advocates (Mobile
                                         No. 8447271675).

                          versus

DHARAMVEER                                           ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 45609/2018 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

C.M. Appl. Nos. 45610/2018 (for delay in filing) and 45611/2018 (for delay in re-filing)

2. For the reasons stated in the applications the delays of 691

days in filing the appeal and 62 days in re-filing the appeal stand

condoned, subject to just exceptions.

C.Ms. stand disposed of.

RFA 895/2018 and C.M. Appl. No. 45608/2018 (for stay)

3. 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

30.05.2016 by which the trial court has decreed the suit for

recovery of Rs. 8,00,000/- along with interest at 12% per annum.

The principal amount of Rs. 8,00,000/- was the amount paid by the

respondent/plaintiff to the appellant/defendant under agreements for

purchasing two flats of the appellant/defendant, but since these flats

were sold to third persons, hence the suit was filed for recovery of

the amount paid as evidenced by the two Receipts dated

14.06.2014.

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

the subject suit pleading that the appellant/defendant agreed to sell

two built up flats in her property to be constructed on a land ad

measuring 37½ sq. yards, being the upper ground floor and first

floor without roof rights, in property No. 3-C, Khasra no. 24/10,

Village Khureji-Khas in the Abadi of Rani Garden, Shastri Nagar,

Delhi-110031. The consideration of each flat was Rs. 4,00,000/-

and to evidence the payment of the total amount of Rs. 8,00,000/-

two Receipts dated 14.06.2014 of Rs. 4,00,000/- each were

executed by the appellant/defendant. The respondent/plaintiff

pleaded that despite repeated demands to the appellant/defendant to

deliver possession of the flats and register the Sale Deed, the

appellant/plaintiff failed to do so, and that in the month of June,

2015, respondent/plaintiff came to know that the subject flats were

already sold by the appellant/defendant to other person who was in

possession of the said flats, and hence the subject suit was filed for

recovery of the amount of Rs. 8,00,000/- paid, after serving Legal

Notice dated 29.06.2015.

5. Appellant/Defendant contested the suit by filing

written statement. It was pleaded that the Receipts dated

14.06.2014 were forged and fabricated documents and that the same

were neither executed by the appellant/defendant nor she had put

her signatures or thumb impressions on the receipts. The

appellant/defendant pleaded that in fact the respondent/plaintiff

along with two other persons namely Sh. Rajkumar and Sh. S.K.

Shamim entered into a Collaboration Agreement on 20.03.2013 for

constructing the property of the appellant/defendant, and at that

time the respondent/plaintiff along with Sh. Rajkumar and Sh. S.K.

Shamim had taken signatures and thumb impressions of the

appellant/defendant on some blank papers stating that they were

required for exemption from house tax and for making applications

to Municipal Corporation of Delhi for getting plan sanctioned, and

therefore the appellant/defendant had put her signatures and thumb

impressions on the blank papers, besides also giving her photograph

to the three persons as asked for by them. The three builders,

including the respondent/plaintiff, failed to perform their part of the

contract and used poor quality material and cement for construction

of the building and also delayed the completion of the work

resulting in the appellant/defendant having spent Rs. 1,50,000/- to

complete the work which was left incomplete and another amount

of Rs. 1,50,000/- was claimed towards the rental amount. The

builders are also alleged to have taken excess space of

approximately Rs. 90,000/-, and therefore a sum of Rs. 3,90,000/-

was claimed to be due to the appellant/defendant from the three

builders including the respondent/plaintiff. The notice given by the

respondent/plaintiff was repudiated by the Reply dated 13.07.2015

sent by the appellant/defendant. The suit was prayed to be

dismissed.

6. After the pleadings were complete, trial court framed

issues and parties led evidence, and these aspects are recorded in

paras 4 to 6 of the impugned judgment which read as under:-

"4. On the pleadings of the parties, following issues were struck:-

(1) Whether the receipt dated 14.06.2014 filed by the plaintiff is forged and fabricated as alleged by the defendant? OPD.

(2) Whether the present suit is not maintainable due to non joinder of necessary and proper parties, i.e. Shri Raj Kumar and Shri S.K. Shamim, who are the partners of the plaintiff? OPD (3) Whether the suit is barred by Section 41(h) of Specific Relief Act? OPD (4) Whether the suit filed by the plaintiff is not maintainable? OPD.

(5) Whether the plaintiff is entitled for recovery of Rs.8,00,000/-? OPP.

(6) Whether the plaintiff is entitled to interest, if so at what rate? OPP.

            (7)    Relief.



            PLAINTIFF'S WITNESSES

            PW1                        Shri       Dharamveer,   (the
                                       plaintiff)
            PW2                        Shri Kriti Nagar, Munshi of a
                                       document writer who got the
                                       receipts prepared and is a
                                       witness to the same

5. PW1 Shri Dharamver proved his affidavit as Ex.PW-/A

DOCUMENTS RELIED UPON BY THE PLAINTIFF

Ex.PW-1/1 and Ex.PW1/2 Two receipts dated 14.06.2014 in respect of the consideration money (the

same were already exhibited as Ex.P1 and P2 at the time of admission-denial of document) Ex.PW1/3, /Ex.DW1/P2 Legal Notice dated 29.06.2015 Ex.PW1/4 Postal receipt

DEFENDANT'S WITNESSES

DW1 Smt. Beena Devi, the defendant

DW2 Shri Pradeep Kumar Sharma, Ahlmad from the court of Sh.

V.K.Goel, Ld. ADJ-01(E), KKD Courts, Delhi

6. DW1 Smt. Beena Devi has proved her affidavit as Ex.DW1/A.

6.1. DW2 is Sh. Pradeep Kumar Sharma, Ahlmad from the court of Sh.V.K. Goel, Ld ADJ-01(E), KKD Courts, Delhi, who has proved the summoned record pertaining to case file bearing No.1838/16/14, titled "Raj Kumar & Anr. Vs Veena @ Beena Devi" i.e. photocopy of written statement dated 20.11.2014 along with affidavit as Ex.DW2/1, photocopy of reply dated 13.10.2014 to the notice dated 26.09.2014 as Ex.DW2/2 and photocopies of postal receipts as Ex.DW2/3 (colly).

            DOCUMENTS RELIED UPON BY THE DEFENDANT

            Ex.DW1/1                   Reply dated 13.07.2015 to the
                                       legal notice dated 29.06.2015
            Ex.DW1/2                   Postal receipt
            Mark X (colly six pages)   Copy       of      collaboration
            Ex.DW1/P1                  agreement

7. The trial court has held that the respondent/plaintiff

has proved his case on balance of probabilities because the two

Receipts dated 14.06.2014 evidencing receipt of Rs. 4,00,000/- plus

Rs. 4,00,000/- (total Rs. 8,00,000/-) were proved as Ex.PW1/1 and

Ex.PW1/2. Trial court has held that it is not believable that these

two receipts do not bear the signatures and thumb impressions of

the appellant/defendant. I have gone through the two receipts, and

it is noticed that besides the two receipts bearing the signatures and

thumb impressions of the appellant/defendant, one receipt contains

the photograph of the appellant/defendant and the

appellant's/defendant's thumb impression exists across the

photograph. Signatures of a person can be forged but surely thumb

impressions cannot be forged, and it was always open for the

appellant/defendant, in case the two receipts did not bear the thumb

impressions of the appellant/defendant, to file her thumb

impressions in the Court and also if so required handwriting

expert‟s report qua the thumb impressions, to prove that the thumb

impressions on the two receipts are not her's, but the

appellant/defendant did not do the same.

8. Trial court has also rightly held that the receipts bear

signatures of two witnesses and that one witness is one Sh. Raju,

and who is none else than the son of the appellant/defendant.

Besides Sh. Raju signing as the first witness on the two receipts, the

receipts also bear the thumb impression of Sh. Raju the son of the

appellant/defendant, and the aforesaid reasoning with respect to the

thumb impression of the appellant/defendant will apply mutatis

mutandis so far as the thumb impression of Sh. Raju, the son of the

appellant/defendant, is concerned.

9. In my opinion, therefore, the trial court has rightly

relied upon the receipts to show that the appellant/defendant had

received a total amount of Rs. 8,00,000/- from the

respondent/plaintiff towards two flats being the upper ground floor

and first floor without roof rights in the subject property of the

appellant/defendant.

10. Another important aspect which is to be noted is that

though the appellant/defendant claimed that the Collaboration

Agreement dated 20.03.2013 was entered into by her with the

respondent/plaintiff as also two other persons Sh. Rajkumar and Sh.

S.K. Shamim, however admittedly the Collaboration Agreement

does not bear the signatures of the respondent/plaintiff nor the

Collaboration Agreement is entered into by the appellant/defendant

as a party to the same with the respondent/plaintiff/Sh. Dharamveer.

The Collaboration Agreement as per its very first page and

paragraph shows that the same was entered into only as between the

appellant/defendant and the two other persons Sh. S.K. Shamim and

Sh. Rajkumar. The trial court has therefore rightly disbelieved the

case of the appellant/defendant that it was the respondent/plaintiff

who also was a party to the Collaboration Agreement with her.

11. In fact the trial court has rightly noted in paragraph

12.9 of the impugned judgment that in an earlier litigation in the

pleading of the appellant/defendant there was not even a whisper

with respect to Sh. Rajkumar and Sh. S.K. Shamin in connivance

with the plaintiff in getting some blank documents signed. This

paragraph of the impugned judgment reads as under:-

"12.9 The written statement dated 20.11.2014 Ex.DW2/1 filed by the defendant in the case file bearing No.1838/16/14 titled „Rajkumar & Anr. Vs Veena @ Beena Devi‟. Reply dated 13.10.2014 Ex.DW2/2 to the notice dated 26.09.2014 and photocopies of postal receipts of the case pending before the court of Sh.V.K.Goel, Ld. ADJ, KKD, Delhi, have been brought on record by DW2 Shri Pradeep Kumar Sharma, Ahlmad, in the court of Shri V.K.Goeal, Ld. ADJ-1, KKD, Delhi. The written statement is dated 20.11.2014 while the documents Ex.PW1/1 and Ex.PW1/2 are dated 14.06.2014. However, there is not even an iota of allegation that Sh. Raj Kumar and Shri S.K.Shamim in connivance with the plaintiff herein got some blank documents signed. There is no whisper regarding the plaintiff herein. Though in the notice dated 13.10.2014, issued to the Advocate

of Shri Raj Kumar and Shri S.K.Shamim, it is alleged that the above stated two persons along with their partner Shri Dharambir Tangri violated the agreed terms and conditions of collaboration agreement. There is no allegation of any connivance or collusion against the plaintiff and the above stated two persons."

12. Learned counsel for the appellant/defendant argued

that the trial court has itself observed in paragraph 12.14 of the

impugned judgment that there were loose ends and lacunas in the

case of the respondent/plaintiff, and which as per the

appellant/defendant are that as to how receipts could only have been

executed after total money was paid in 6-7 installments or that

possession was not received in spite of complete payment, in my

opinion, no doubt such facts may create a case in favour of the

appellant/defendant, however, the earlier/aforesaid discussion

shows that the trial court on applying the principle of

preponderance of probabilities has rightly held that the

respondent/plaintiff has proved the payment by him for a sum of

Rs. 8,00,000/- to the appellant/defendant. Also, once the receipts

bear not only the signatures but also thumb impressions of the

appellant/defendant, with one thumb impression appearing across

the photograph of the appellant/defendant, then merely because

there may be some aspects in favour of the appellant/defendant as

argued before this Court and before the trial court, would not mean

that the respondent/plaintiff was not entitled to succeed.

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

the appeal and the same is hereby dismissed.

OCTOBER 31, 2018                           VALMIKI J. MEHTA, J
AK