Full Text
HIGH COURT OF DELHI
Date of Decision: 19th September, 2014
KISHOR KUMAR ..... Plaintiff
Through: Mr.Sanjeev Narula and Mr.Ajay Kalra, Advocates
Through
JUDGMENT
1. Present suit has been filed by the plaintiff for recovery of Rs.35,83,704 alongwith pendent lite and future interest @ 24% p.a. Summons in the suit were issued to the defendant on 02.02.2007, 29.03.2007 and 11.05.2007. Counsel for the defendant entered appearance on 17.08.2007. Defendant filed his written statement on 03.12.2007 and plaintiff filed replication on 22.01.2008. Pleadings in the matter were completed on 31.03.2008 and issues were framed on 06.05.2008. Plaintiff filed an application under Order 8 Rule 16 CPC for recording evidence of father of the parties, Sh.Viresh Ram and the same was allowed. Crossexamination of Sh.Viresh Ram(PW[1]) was concluded on 23.08.2008. Mr.Kishor Kumar (PW[2]) tendered his examination-in-chief vide Ex.PW1/A on 20.01.2009. Cross-examination of PW[2], Mr.Kishor Kumar was concluded on 06.05.2010. Another witness Smt.Sheela Kumari (PW[3]), being sister of the parties tendered her examination-in-chief vide Ex.PW3/A and was cross-examined on 09.11.2010. 2014:DHC:4869
2. Summoned witnesses, Mr. N.K.Gaur (PW[4]) and Mr.P.K. Gupta (PW[5]) were examined and discharged on 09.03.2011. Another summoned witness, Mohd. Imraan (PW[6]) was examined and discharged on 24.08.2011. On 15.07.2013, counsel for defendant submitted that he was not receiving any instructions from the defendant and he intended to issue notice to defendant for withdrawing his vakalatnama. Wife of plaintiff Ms.Sarita Lall (PW[7]), also tendered her examination-in-chief on evidence on 03.05.2014. None appeared for the defendant on 19.12.2013, 27.03.2014, 03.05.2014, 28.05.2014 and on 15.09.2014, consequently defendant was proceeded ex parte vide order dated 15.09.2014.
3. Plaintiff, Sh.Kishor Kumar (PW[2]), has filed his affidavit by way of evidence and the same has been exhibited as Ex.PW2/A. He has deposed in his affidavit that he is an Engineer by profession and is presently employed at Commonwealth Bank of Australia as Network Engineer. He shifted to Australia in the year 1991 and for the past many years he has been employed and living in Australia. Further, PW[2] has filed the present suit through Sh.Amitabh Prasad s/o late Sh.B.S. Prasad, r/o D-3/3060, Vasant Kunj, New Delhi and has executed a General Power of Attorney dated 30.10.2006. The General Power of Attorney dated 30.10.2006 bears the signature of PW[2] at point ‘A’. The vakalatnama and the present suit has been signed and verified by the Power of Attorney, Shri Amitabh Prasad. He has also deposed that he can identify the signature of Shri Amitabh Prasad as he has seen him signing and writing and has received letters from him, which bears his signature. True copy of the General Power of Attorney dated 30.10.2006 has been exhibited as Ex. PW2/1.
4. PW[2] has also deposed that the defendant is his brother and son of Shri Viresh Ram and Smt. Urmila Devi. The parents of the parties are old and are living in India at Chatra, Jharkhand. The father of the parties, Shri Viresh Ram is a retired Gram Panchayat Supervisor and lives on Jharkhand government pension. He is suffering from heart and kidney disease and is living with help of a pacemaker. The mother of the parties, Smt. Urmila Devi, is a housewife. She lost her left hand completely in an accident and is disabled since the year 1985. The three younger sisters of the parties namely Sheela Kumari, Mridula Kumari and Manjula Kumari are all married and are living with their husbands at Patna (Bihar), Hazaribag (Jharkhand) and Ranchi (Jharkhand) respectively. Further, PW[2] regularly sent monies to his parents for their maintenance and household requirements. The sisters of the parties took personal care of the parents in the absence of any active care from defendant or his family members.
5. PW[2] has further deposed that the defendant is B.Sc. graduate from Ranchi University and holds a Post Graduate Diploma in Information Technology. The wife of the defendant has never actively looked for employment except on few occasions. He has also deposed that the defendant has never contributed financially for the parents and does not send any money to the parents and is grossly neglecting them and has refused to maintain them. In fact, the defendant and his wife are harassing the parents and the Defendant has exerted undue pressure on the parents and coerced the father to give him the pension received by the father of the parties.
6. PW[2] has next deposed that during his visit to India on 25.06.1995, the defendant approached him and advised and requested him to lend sizeable amount of money, so that the defendant would safely invest the same in immovable properties in India, as the appreciation of properties at that time was quite phenomenal. The defendant assured and promised PW[2] that on sale of the immovable property (ies) purchased with the money lent by PW[2] to him, he would repay the monies lent alongwith handsome returns. It was thus agreed that on appreciation in the real estate market or in case of need of PW[2], the defendant would sell the property, with the consent of PW[2] and return the loan amount and would also give 75% of the profits/returns from the sale of the properties to PW[2]. He has also deposed that he agreed to the said proposal after consulting his parents and sisters, who also advised him that such an arrangement of lending money to the defendant for buying immovable properties would work out smoothly and that the defendant would keep his promise. Accordingly PW[2] and the defendant entered into the agreement in above terms on 28.06.1995 at Chatra in the presence of their parents and sisters Smt. Sheela Kumari, Smt. Mridula Kumari and Smt. Manjula Kumari, who witnessed the same.
7. Further, apart from returning the principal amount along with the 75% of the profits/appreciation earned on disposing of the immovable property(ies), the defendant also assured PW[2] that till such time the immovable property(ies) are sold, they would fetch handsome rentals without any hassles and that the 75% of the rentals earned from property(ies) bought by the defendant by utilizing the moneys loaned by PW[2] to him, would be paid to PW[2]. Having been lured and carried away by the assurances made by the defendant, PW[2], blindly and without the slightest suspicion of the things, sent the following monies to the defendant/his agents as per defendant’s instructions vide electronic money transfer:- The original telegraphic transfer receipts dated 27.12.1996, 23.04.1997, 22.10.1997, 24.02.1998, 06.04.1999, 27.07.1999, 02.11.1999, 11.07.2000, 14.07.2000 and 31.10.2000 have been exhibited as Ex.PW2/2 to Ex.PW2/11, respectively.
┌───────────────────────────────────────────────────────────────────────────────────────────┐ │
┌─────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Description of Date of Estimated Remarks │ │ No. the property Purchase/ Date Value of the │ │ of Execution of property │ │ the Sale Deed / │ │ Date of │ │ allotment │ └─────────────────────────────────────────────────────────────────────────────────────┘
the Account the Bank (Rs.)
│ │ No. Defendant No. │ ├───────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. 27.12.1996 01SBP 75 28100 ANZ, GK-I, 1,00,000/- │ │ c/o N. A. Sheshadri New Delhi │ │ 2. 23.04.1997 - - do - 2,09,404/- │ │ 3. 22.10.1997 A/c 01 SMP 3536900 - do - 2,24,000/- │ │ C/o Manoj Kumar │ │ 4. 24.02.1998 A/c 01 SMP 3536900 25,614/- │ │ C/o Manoj Kumar │ │ 5. - do - - - do - 2,20,000/- │ │ 6. 06.07.1998 - do - - do - 95,000/- │ │ 7. 06.04.1999 - do - - do - 9,000/- │ │ 8. 27.07.1999 - do - - do 1,60,000/- │ │ 9. 02.11.1999 - do - - do - 54,686/- │ │ 10. 11.07.2000 - do - - do - 1,00,000/- │ │ 11. 14.07.2000 - do - - do - 60,000/- │ │ 12. 31.10.2000 - do - - do - 2,06,000/- │ │ 13. 24.07.2003 - do - - do - 20,000/- │ │ Total 14,83,704/- │ │ The original telegraphic transfer receipts dated 27.12.1996, 23.04.1997, │ │ 22.10.1997, 24.02.1998, 06.04.1999, 27.07.1999, 02.11.1999, 11.07.2000, │ │ 14.07.2000 and 31.10.2000 have been exhibited as Ex.PW2/2 to │ │ Ex.PW2/11, respectively. │ │ CS(OS) 67/2007 Page 5 of 16 │ │ 2014:DHC:4869 │ │ 8. PW2 has also deposed that apart from the aforesaid amount of │ │ Rs.14,83,704/- sent by him through electronic money transfer to the │ │ defendant/his agents as loan, PW1 has also, during all visits to India over │ │ the last 17 years, given monies amounting to Rs. 1,50,000/- as loan, to the │ │ defendant. This amount was / is also treated as loan by the defendant. │ │ 9. PW2 has further deposed that the defendant invested the aforesaid │ │ amounts lent by PW2 in purchase of an immovable property at Dwarka │ │ i.e. Flat No. 68, Sector 12, Pocket 3, Dwarka, New Delhi 110 075 on hire │ │ purchase basis at a total cost of Rs. 12 Lakhs. The defendant intimated to │ │ PW2 over phone, sometime in the year 1996 that initially payment │ │ required was Rs.8,80,000/- and further payment would be required at the │ │ time of delivery of the possession. The copy of the letter dated 20.02.1997 │ │ issued by the Delhi Development Authority has been exhibited as │ │ Ex.PW2/12. The copy of the Challan No.098160 issued by the Delhi │ │ Development Authority in favour of the defendant has been exhibited as │ │ Ex.PW2/13. │ └───────────────────────────────────────────────────────────────────────────────────────────�
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23. Further, the telegraphic transfer of money to the defendant was also made by PW[7] on behalf of her husband. The telegraphic receipt dated 06.07.1998 with respect to transfer of INR 95,000/- bears the signatures of PW[7] and the same has been exhibited as Ex.PW7/15. The telegraphic transfer was also done by her husband on 06.04.1999 in favour of the defendant for INR 9,000/-. The same bears the signatures of her husband and has been exhibited as Ex.PW7/16.
24. PW[7] has also deposed that her husband also made payment in the name of his father Sh.Viresh Ram vide Lodgment document Registered post dated 19.11.1991 (alongwith bank receipt with respect to the Bank Draft of INR 19,909/-); Lodgment document dated 06.05.1992 (alongwith bank receipt with respect to the Bank Draft of INR 10,000/-); Lodgment document dated 16.08.1993 (alongwith bank receipt with respect to the Bank Draft of INR 1,0405/-); Lodgment document dated 23.03.1994 (alongwith bank receipt with respect to the Bank Draft of INR 1,09,520/-); Lodgment document dated 24.10.1994 (alongwith bank receipt with respect to the Bank Draft of INR 22,674/-); Lodgment document dated 08.02.1995 (alongwith bank receipt with respect to the Bank Draft of INR 57,000/-); Lodgment document dated 08.05.1995 with respect to the Bank Draft of INR 34,213/-; Lodgment document dated 06.11.1995 with respect to the Bank Draft of INR 12,629.50/-; Lodgment document dated 17.06.1996 (alongwith bank receipt with respect to the Bank Draft of INR 11,700/-); Lodgment document dated 12.07.1996 (alongwith bank receipt with respect to the Bank Draft of INR 27,830/-. All the aforesaid documents bear signatures of her husband i.e. plaintiff. The documents have exhibited as Ex.PW7/17 to Ex.PW7/26, respectively. It has also been deposed that the husband of PW[7] also sent a demand draft in favour of his father Sh.Viresh Ram vide Original customer advice dated 01.02.2000 (alongwith copy of Bank Draft of INR 26,800/- dated 01.02.2000). The said customer advice has been exhibited as Ex.PW7/27, Payment was also made vide demand draft No. 878461185 for INR 95,000/-, drawn on Westpac Banking Corporation. The copy of the customer advice alongwith demand draft has been marked as Mark-A. Further payment was also made by Sh. Kishor Kumar to Smt. Urmila Devi (mother of defendant) vide draft No. 878463157 dated 24.08.2001 for INR 71,331/-. The original customer advice dated 24.08.2001 has been exhibited as Ex.PW7/28.
25. PW[7] has further deposed that the defendant has written letters to PW[7] and her husband. It has also been deposed that she is well conversant with the handwriting of the defendant and can identify his handwriting and signatures. The letter dated 01.08.1992 is in the handwriting of the defendant and bears his signatures and the same has been exhibited as Ex.PW7/29. Likewise letter dated 04.08.1993 is also written by the defendant and the same has been exhibited as Ex.PW7/30. An e-mail dated 21.04.1997 was sent by the defendant from his registered email id. to the plaintiff. Copy of the e-mail has been exhibited as Ex.PW7/31. Original undated two letters in the handwriting of the defendant sent to the husband of PW[7] (alongwith envelops), have been exhibited as Ex.PW7/32 to Ex.PW7/35, respectively. It has also been deposed that the defendant’s wife Smt.Anjana Kumari also sent a letter 13.11.1998 to PW[7] and her husband. The said letter has been written and signed by Smt.Anjana Kumari. PW[7] can identify her handwriting and signatures, as she has seen her signing and writing. The said letter alongwith the greetings have been exhibited as Ex.PW7/36 (Colly). The envelope enclosing the aforesaid letter has been exhibited as Ex.PW7/37.
26. PW[7] has next deposed that the original letters/aerograms dated 14.04.1998 (alongwith envelope), 26.10.1998 (alongwith envelope), 02.03.1999 (alongwith envelope), 27.09.1999, 18.11.1999, 10.12.1999, 19.12.1999 (alongwith envelope), 31.12.1999 (alongwith envelope), 01.02.2000, 24.08.2000, 04.10.2000, 24.04.2000 (alongwith envelope), 07.11.2000 (alongwith envelope), original undated letter (on the letterhead of Marketscope) written by the defendant to the husband of PW[7]; letters dated 15.05.2001 (alongwith envelope), 24.09.2001 (alongwith envelope) and 12.08.2002 (alongwith envelope) sent by the defendant to the husband of PW7/PW[7], are in his handwriting and signed by him. The aforesaid letters and envelopes have been exhibited as Ex.PW7/38 to Ex.PW/64, respectively. The office copy of the letter dated 18.12.2000 sent by Sh.Kishor Kumar to Standard & Chartered Grindlays Bank, New Delhi bears the signatures of the husband of PW[7] and the same has been exhibited as Ex.PW7/65.
27. In the present case the cause of action arose on 21.06.2006 when the property in question was disposed off by the defendant and since the property in question is situated in Dwarka, New Delhi, this court has territorial jurisdiction to try the present suit.
28. I have heard counsel for the plaintiff and carefully perused the affidavits by way of evidence and the documents filed therewith. The evidence of plaintiff has gone unchallenged and un-rebutted.
28. On the basis of the documents placed on record, the plaintiff has been able to prove that at the request of the defendant, the plaintiff lent Rs.14,83,704/- to the defendant for purchasing the property i.e. Flat no.68, Sector 12, Pocket 3, Dwarka, New Delhi. The said property was purchased by the defendant on hire purchase basis at a total cost of Rs.12 Lacs. The plaintiff has also been able to establish that the defendant agreed to repay the loan amount to the plaintiff with 75% on the profits/returns after the sale of the said property. Plaintiff has further been able to establish that the defendant has sold the said property for Rs.40.00 lakhs, without the consent of the plaintiff and without repaying the loan amount together with the share of the profits as agreed between the parties, and purchased two properties, one in Jamshedpur and other at Kundli. Plaintiff has also been able to establish that the defendant misappropriated the funds of the plaintiff for his own benefit, which in turn has caused loss to the plaintiff.
29. Having regard to the facts that the loan amount given by the plaintiff to the defendant was Rs.14,83,704/-; the property at Dwarka was purchased by the defendant for Rs.12 lacs, which property was sold by the defendant for Rs.40 lacs without the consent of the plaintiff. The defendant has failed to repay the loan amount together with profit as promised by the defendant, and instead the defendant purchased two more properties; and also the fact that the total profit earned by the defendant on the sale of the Dwarka flat is Rs.28 lacs, out of which the share of plaintiff is Rs.21 lacs (i.e. 75%), present suit is allowed. Defendant is liable to pay Rs.35,83,704/- to the plaintiff.
30. In view of the above, plaintiff has been able to establish the case for grant of decree as prayer for in the plaint. Therefore the present suit is decreed in favor of the plaintiff and against the defendant. Further, the defendant shall pay Rs.35,83,704 to the plaintiff alongwith pendent lite and future interest @ 10% p.a. from the date of filing of the suit till realization.
31. Decree sheet be drawn up accordingly.
JUDGE SEPTEMBER 19, 2014 ssn