Full Text
Date of Decision: 25th November, 2019 CS(OS) No.477/2016
TAJINDER SINGH GUJRAL ..... Plaintiff
Through: Mr. Alok Kumar with Mr. Amit Kumar Singh, Mr. Sachin Kumar &
Mr. Aakash D. Dubey, Advs.
Through: Mr. Rajesh Harnal & Mr. Himanshu Dubey, Advs.
JUDGMENT
1. The plaintiff instituted this suit for specific performance of an Agreement dated 1st October, 2014 whereunder the defendant agreed to sell property no. B-10/342, Sunder Vihar, New Delhi – 110 087 to the plaintiff for a total sale consideration of Rs.6,50,00,000/-, out of which a sum of Rs.3,90,00,000/- was pleaded to have been already paid by the plaintiff to the defendant. In the alternative recovery of amount of Rs.3,90,00,000/pleaded to have been paid by the plaintiff to the defendant along with interest was sought.
2. The suit came up first before this Court on 21st September, 2016 and thereafter on 30th September, 2016 when summons thereof were ordered to be issued and vide ex parte ad interim order, the defendant restrained from selling, alienating, parting or creating any third party possession of the property. 2019:DHC:6332
3. Though the defendant contested the suit by filing a written statement, but stopped appearing and vide order dated 30th October, 2018 was proceeded against ex parte and the plaintiff relegated to ex parte evidence.
4. The counsel for the defendant appeared on 12th February, 2019, before the plaintiff had led any ex parte evidence and stated that the defendant, on receiving the balance sale consideration was agreeable to perform his part of the Agreement to Sell. It was however stated that the defendant had received part consideration of Rs.3.10 crores only. Per contra, the counsel for the plaintiff contended that Rs.3.90 crores had been paid. Finding the differential amount of Rs.80 lacs to have been claimed to have been paid in cash, the plaintiff was directed to appear before this Court on 15th February, 2019 along with proof of holding the cash claimed to have been paid in pursuance to the Agreement to Sell and reflection thereof in the books of accounts and / or returns filed by the plaintiff with the authorities concerned.
5. On 15th February, 2019, statement on oath of the plaintiff as under was recorded: “Statement of Mr. Tajinder Singh S/o Sh.Joginder Singh aged 45 years R/o 75-76, Bharat Nagar, Delhi-52 on SA Q: How were you possessed of Rs.40,00,000/- in cash on 27th February, 2015 which you claim to have paid to the defendant on the same date? Ans: I withdrew Rs.26,00,000/- from my bank account and the balance amount was held by me as cash in hand. Q: How were you possessed of Rs.40,00,000/- in cash on 2nd April, 2015 which you claim to have paid to the defendant on the said date? Ans: The entire amount was held by me as cash in hand. I have regular transactions with my bank and I was from time to time withdrawing monies from the bank for the purpose of making payment to the defendant. Q: From which bank account the amounts were withdrawn? Ans: The entire aforesaid cash paid on 27th February, 2015 and 2nd April, 2015 was withdrawn from my three bank accounts with IDBI bank, Pitam Pura, New Delhi. All the said bank accounts are in my name. Q: Are you an income tax assessee/were an income tax assessee in the year 2014-15? Ans: Yes. Q: Have you shown the amounts which you claim to have held on the two dates aforesaid as cash in hand, in your income tax returns of the relevant year? Ans: No. My books would not show so much cash in hand. Q: If you have not shown the amounts aforesaid as cash in hand in your books of accounts, then what is the explanation in your books and in your income tax return of the relevant year with respect to the said amounts? Ans: I have a construction company and the amounts withdrawn from the bank are shown as towards labour payment and supplier payment. Q: Does it mean that the entire amount of Rs.80,00,000/- which you claim to have paid to the defendant in cash has been explained by you in your books as having been withdrawn and/or used for the purpose of making payment to the labour and suppliers of your construction company? Ans: I do not have my books of accounts just now.”
6. The counsel for the plaintiff, on 15th February, 2019 sought adjournment to explore the possibility of settlement. On 26th February, 2019, it was proposed that on the plaintiff paying to the defendant the admitted balance sale consideration of Rs.2.60 crores and depositing the disputed sum of Rs.80 lacs in this Court, the defendant executes sale deed in favour of plaintiff, with the parties going to trial only on the limited aspect of payment of Rs.80 lacs claimed by the plaintiff and denied by the defendant.
7. In pursuance to some other orders, the plaintiff deposited Rs.3.40 crores in this Courtandintheorderdated23rd April,2019 it was recorded as under: “2. The counsel for the plaintiff and the counsel for the defendant state that they will, on or before 20th May, 2019 mutually finalise the draft of the Sale Deed to be executed and have the Sale Deed executed and registered by the General Power of Attorney holder and son Ajeet Singh Chawla of the defendant Gurcharan Singh Chawla.
3. They further state that out of the amount of Rs.3,40,00,000/deposited by the plaintiff in this Court a sum of Rs.2,73,50,000/- be released in favour of the defendant by drawing up a cheque in the name of the defendant and delivery thereof to the counsel for the defendant on the condition that the counsel for the defendant shall not part with the cheque to the defendant and not allow encashment thereof till after execution and registration of the Sale Deed.
4. It is further stated that out of the aforesaid sum of Rs.3,40,00,000/- a sum of Rs.6,50,000/- be released by cheque in the name of the plaintiff for the plaintiff to deposit the said amount with the Income Tax Authorities towards Tax Deducted at Source on sale consideration and the plaintiff present in the Court undertakes to this Court to, within one week of execution and registration of the Sale Deed, handover to the counsel for the defendant the original challan of deposit of the said tax to the credit of the defendant.
5. The counsels/parties are ordered to be bound by their aforesaid statements.
6. The counsels further state that as far as the balance amount is concerned, the parties be relegated to trial with respect thereto.
7. On the remaining controversy the following issues are framed:-
(i) Whether the plaintiff out of the total sale consideration of Rs.6,50,00,000/- paid to the defendant, a sum of Rs.40,00,000/- in cash on 27th another sum of Rs.40,00,000/- in cash on 2nd April, 2015? OPP
(ii) Relief.
8. It is clarified that if issue is decided in favour of the plaintiff, the plaintiff shall be entitled to refund of the remaining amount of Rs.80,00,000/- lying deposited in this Court together with interest accrued thereon including from the date of deposit till the release of the amounts as ordered today and conversely the said amount shall be released in favour of the defendant.
9. No other issue arises or is pressed.
10. The parties to file their list of witnesses within 15 days.
11. The plaintiff to file affidavits by way of examination-in-chief of all his witnesses within four weeks.
12. Option given of having evidence recorded on commission has been declined.
13. List before the Joint Registrar on 24th May, 2019 for scheduling the dates of trial.
14. Considering the limited controversy left, the Joint Registrar to conclude the recording of evidence on or before 30th September,
2019.
15. List before the Court on 23rd October, 2019.”
8. Recording of evidence has been completed and the counsels have been heard.
9. The counsel for the plaintiff has contended that the plaintiff, (i) has proved withdrawal of Rs.10 lacs from his bank account on 21st February, 2015; (ii) has proved withdrawal of Rs.26 lacs from his bank account on 27th February, 2015; (iii) deposed that the plaintiff was holding Rs.[4] lacs in hand; (iv) has proved as Ex.PW1/4 the photocopy of the receipt dated 1st October, 2014 admittedly executed by the defendant with respect to receipt of Rs.10 lacs in cash and Rs.90 lacs vide cheque and at bottom whereof between point „X‟ and „X-I” the following endorsement exists: in proof of payment of Rs.40 lacs in cash out of the disputed amount of Rs.80 lacs; (v) has proved withdrawal of cash of Rs.50 lacs from his account on 22nd October, 2014 and out of which Rs.40 lacs was paid in cash to the defendant on 2nd April, 2015; and, (vi) has proved as Ex.PW1/5 photocopy of an endorsement as under: on the cover of an envelope showing acknowledgement by the defendant of receipt of Rs.3.90 crores including the disputed amount of Rs.80 lacs by 2nd April, 2015. It is thus argued that the plaintiff has proved being possessed of cash of Rs.80 lacs and payment thereof to the defendant.
10. On being asked as to how the deposition aforesaid of the plaintiff which is in contradiction of the statement made on 15th February, 2019, of the said amount of Rs.80 lacs having been shown in the books of accounts as well as income tax returns towards „Labour Payment and Supplier Payment”, the counsel for the plaintiff states that notwithstanding the said statement, this Court, in view of Ex.PW1/4 and Ex.PW1/5, framed issues aforesaid and relegated the parties to trial.
11. On being asked as to how the aforesaid documents have been dealt with in cross-examination, the counsel for the plaintiff has argued that, (i) the defendant in cross-examination of the plaintiff on 14th August, 2019, suggested that Ex.PW1/5 is not related to a transaction between the plaintiff and the defendant but it has not been explained as to why the signatures of the defendant appear thereon; (ii) the defendant had moved an application for referring the disputed documents to Central Forensic Science Laboratory (CFSL) but the said application was dismissed in default; (iii) thereafter the plaintiff in his evidence stated that the plaintiff was willing to have the documents referred to CFSL and to abide by the report of the CFSL and when the said proposal was made to the daughter of the defendant, she refused to make any comment thereon; (iv) the defendant did not even appear in the witness box and only the daughter of the defendant appeared; (v) though a stand was taken that the defendant is suffering from dementia but only a medical certificate to that effect has been filed by the daughter of the defendant when she appeared in crossexamination and the doctor issuing the said certificate has not been examined; and, (vi) the plaintiff also proposed to the daughter of the defendant that a Medical Board be constituted to examine the defendant but the daughter of the defendant avoided the same also. On enquiry about the whereabouts of the defendant, it is not in dispute that the defendant is in Canada since December, 2017.
12. Per contra, the counsel for the defendant has argued, (a) that the plaintiff in his cross-examination recorded on 14th August, 2019, with respect to Ex.PW1/4 aforesaid, admitted that the writing “received cash 40 lacs only (Forty Lakh)” is not in the hand of the defendant and volunteered that the said words were written by Ms. Kannu Bedi, daughter of the defendant and which was never the case of the plaintiff earlier; (b) that it is for this reason that the defendant had to examine his daughter who appeared and in cross-examination of 6th November, 2019 denied the handwriting to be hers or the signatures or the thumb impression thereon to be of her father; (c) that the plaintiff, at the time of institution of the suit, did not plead that the original of Ex.PW1/4 had been lost; (d) that though the plaintiff filed IA No.11676/2016 seeking exemption from filing original and undertaking to file the originals as and when the same are available but therein also did not plead the loss, though the loss now set up is of prior thereto, on 9th July, 2016; that the plaintiff in this context has proved an Information Report as Ex.PW3/1, in which it is stated that the plaintiff “had lost his Bayana paper of Rs.3,90,00,000/- of property Plot No.B1-/342, Sunder Vihar, Delhi executed between Sh. Gurcharan Singh Chawla son of Sh. Hira Singh Chawla resident of 2C/40, New Rohtak Road, Karol Bagh while shifting house from 88, Bharat Nagar to 75-76, Bharat Nagar, Delhi on 9th July, 2016. He tried his best to trace out the Bayana paper but could not succeed. Hence my missing report of Bayana paper may please be lodged”, but in the Memorandum of Parties dated 30th August, 2016 with the plaint, the residence of the plaintiff is disclosed as 88, Bharat Nagar, Delhi-110052, falsifying the Information Report which itself is dated 11th August, 2016 i.e. prior to the date of institution of the suit; (e) that Ex.PW1/4 has not been proved to be secondary evidence also; there is no evidence as to when the said photocopy was made; (f) that there is no evidence that at the time of loss, the endorsement at point „X‟ to „X-1‟ of Ex.PW1/4 existed; (g) that in the statement recorded on 15th February, 2019 before this Court, the plaintiff claimed the cash amount of Rs.80 lacs to have been withdrawn from his three bank accounts with IDBI Bank, Pitampura, New Delhi; however what has now transpired is that with the said bank, the plaintiff has three personal accounts and one account of Gujral Buildtech Pvt. Ltd. and the case set up now is of the cash amount having been withdrawn from the account of Gujral Buildtech Pvt. Ltd. and not from the three personal accounts of the plaintiff; on 15th February, 2019, it was not claimed to have been withdrawn from the account of Gujral Buildtech Pvt. Ltd.; (h) that in the affidavit by way of examinationin-chief, the plaintiff claimed to have paid total sum of Rs.[1] crore in cash to the defendant in April, 2015 and out of which Rs.50 lacs was stated to have been paid by bearer cheque (and which is not disputed by the defendant) and the balance Rs.50 lacs in cash which was deposed to have been withdrawn from IDBI Bank, Pitampura from account of Gujral Buildtech Pvt. Ltd. by two cheques of Rs.25 lacs each; (i) however in contradiction thereto, now the case is that out of Rs.50 lacs, only Rs.40 lacs was paid in cash on 2nd April, 2015 and which was withdrawn on 22nd October, 2014 by two cheques of Rs.25 lacs each; (j) that as per the said case of the plaintiff, the disputed amount should be Rs.90 lacs i.e. Rs.50 lacs claimed to have been paid on 2nd April, 2015 and Rs.40 lacs claimed to have been paid on 22nd February, 2015, when the pleaded case is of dispute of Rs.80 lacs; (k) that the statement in the affidavit by way of examination-in-chief, of the amount of Rs.50 lacs having been paid by bearer cheque on 2nd April, 2015, is also falsified by the witness from the Bank examined by the plaintiff as PW[4], who has deposed that there were no transaction in the account of Gujral Buildtech Pvt. Ltd. after 18th March, 2015; (l) that the plaintiff, in the cross-examination recorded on 14th August, 2019, admitted that he had not placed any statement of personal bank account or company‟s books of account or copy thereof or the statement of account of Gujral Buildtech Pvt. Ltd.; the same if produced, would have falsified the stand of being possessed of cash; (m) that the plaintiff in cross-examination of 14th August, 2019 admitted that in the account of Gujral Buildtech Pvt. Ltd. also as on 18th March, 2015, only a sum of Rs.4,484/- was lying as balance and on 6th April, 2015, Rs.2,000/- was deposited in the said account making the balance to Rs.6,484/- and that the plaintiff withdrew Rs.6,419/- to be paid to LIC and the remaining balance as on 8th April, 2015 was Rs.160/-; it is only subsequently that the statements of account were produced as Ex.PW4/1 to PW4/3 and PW5/1 by the witnesses from the banks examined as PW-4 & PW-5; (n) that the defendant has produced Ex.DW1/1 being the possession letter dated 27th February, 2015 and which has been admitted by the plaintiff; had any payment been made on 27th February, 2015, it would have been recorded thereon; and, (o) that Ex.PW1/5 does not even contain the name of the plaintiff and the plaintiff in his cross-examination has stated the names thereof to be of himself and his brothers Harjeet and Jaswinder and Sadhu, being the son of the defendant.
13. The counsel for the plaintiff, in rejoinder has reiterated his argument with respect to offer qua CFSL and has contended that the plaintiff, after making initial payment, discovered that the defendant was not even in possession of the property and did not have the title deed to the property and had to pay Rs.1,64,00,000/- to Dawars to claim possession in RFA No.73/2012 and that is why the cash of Rs.50 lacs withdrawn on 22nd October, 2014 was not paid.
14. The counsel for the defendant replies that it is the case of the defendant that the plaintiff was in the know of all the facts from the beginning.
15. I may record that the counsel for the plaintiff, at the beginning of hearing handed over a note on the final arguments but upon being informed that if he wanted to give written arguments, no opportunity for verbal arguments will be given and only the written arguments shall be dealt with, (as it is often found that written arguments also handed over contain submissions which are not even verbally urged) the counsel opted for verbal arguments and made the arguments aforesaid.
16. I have gone through the record and find the plaintiff to have failed to discharge the onus of the only issue struck in the suit, of proof of payment of cash amount of Rs.40,00,000/- on 27th February, 2015 and another cash amount of Rs.40,00,000/- on 2nd April, 2015, by the plaintiff to the defendant. My reasons for holding so are as under:-
I. No merit is found in the contention of the counsel for the plaintiff, of this Court, notwithstanding the statement on 15th February, 2019 of the plaintiff, having framed an issue and relegated the parties to evidence, the aforesaid reason is now not available to the Court. It cannot be lost sight of that the statement on 15th February, 2019 was in exercise of powers under Section 10 of the Code of Civil Procedure, 1908 (CPC) and in exercise of inherent powers. The plaintiff in the said statement only answered the questions posed to him. The plaintiff, in law, was entitled to give his own version/statement, and for which opportunity was given. The plaintiff however in his own evidence has failed to explain, though was entitled to opportunity therefore. There is another aspect. This is but the Court of first instance and for the sake of complete disposal, to avoid multiplication of litigation on account of an Appellate Court feeling the need for evidence, it was deemed expedient to give an opportunity therefor. The plaintiff however in evidence also has failed.
17. The sole issue framed is thus decided against the plaintiff and in favour of the defendant.
18. Resultantly the plaintiff is held to have paid Rs.3,10,00,000/- to the defendant, entitling the defendant to the entire balance amount deposited in this Court.
19. In terms of order dated 6th March, 2019, the amounts lying deposited in this Court together with interest accrued thereon be released in favour of the defendant.
20. The suit is accordingly disposed of with costs to the defendant and against the plaintiff, assessed at Rs.1.[5] lacs.
21. Decree sheet be drawn up.