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Himachal Pradesh High Court · body

2009 DIGILAW 1021 (HP)

NAND LAL v. MOHAR SINGH

2009-11-10

SANJAY KAROL

body2009
JUDGMENT Sanjay Karol, J.-The defendant has assailed the judgment and decree dated 24.8.2004 passed by the Additional District Judge, Fast Track Court, Kullu, H.P. in Civil Suit No.5/2003 titled as Mohar Singh vs. Nand Lal, decreeing the suit for a sum of Rs.2,01,600/-. 2. The present appeal has been filed under Section 96 of the Code of Civil Procedure read with HIMACHAL PRADESH HIGH COURT (Appellate Side) Rules, 1997. 3. Shri Nand Lal, appellant herein, is referred to as ‘defendant’ and Shri Mohar Singh, respondent herein, is referred to as ‘plaintiff’. 4. It is the plaintiff’s pleaded case that he is a resident of village Hirani, P.O. Larankelo, Phati Nathan, Kothi Nagar, Tehsil & Distt. Kullu, H.P. and has large family including two daughters who are married at village Manali, where defendant who is closely related to his son-in-law, also resides. As a result of same, the plaintiff has cordial relations with the defendant and has been visiting his house. Plaintiff is not in good terms with his wife, due to her quarrelsome nature, and under her influence even his son has adopted an aggressive and quarrelsome attitude and behaviour towards him. Both his wife and son have thrown out his daughter-in-law from the house and judicial proceedings initiated by her are pending in Court. Considering the unhealthy atmosphere at home, after retirement and in his old age plaintiff intended to stay at Manali and set up his business. The matter was discussed with the defendant, who not only assured to arrange for a suitable land but also contacted various persons of the locality for the same. In the last week of November, 2000, plaintiff was informed by the defendant that deal/negotiation for the proposed land is likely to be finalized very shortly for which earnest money of approximately Rs.2 lacs be kept ready. On 30.9.2000, defendant approached the plaintiff at his village at Hirani, and informed him that some Property Dealer at Kullu had assured to get the deal settled for which purpose the defendant advised the plaintiff to accompany him to Kullu along with the amount of Rs.2 lacs for executing the agreement for sale. Acting upon such representation the plaintiff accompanied the defendant to Kullu along with a sum of Rs.2 lacs. Acting upon such representation the plaintiff accompanied the defendant to Kullu along with a sum of Rs.2 lacs. However, upon reaching Kullu it was so learnt that the Property Dealer was not available as he had gone out of station in connection with some urgent work and was likely to come back after 2-3 days, hence, the deal could not be settled. In the background of unhealthy atmosphere at his house and considering the cordial relations between the parties, in good faith, plaintiff desired to keep the amount of Rs.2 lacs with the defendant as ‘Imanat’ (entrustment) with the understanding that on the return of the Property Dealer and finalization of the deal, the said amount would be returned to him. As such, money was entrusted by the plaintiff to the defendant who also executed “Imanatnama” (deed of entrustment) subsequently. Since the defendant dilly-dallied the issue of finalization of the sale, at his own level plaintiff managed to buy property at Manali and in the first week of December, 2002 asked the defendant to return the money. Plaintiff also got a registered legal notice dated 27.12.2002 served upon the defendant without any response. In January, 2003, defendant totally refused to return the amount, hence the suit. On the principal amount, a sum of Rs.1600/- as interest @12% per annum is also claimed. 5. The stand taken by the defendant in the written statement is purely that of denial. The defendant has denied that he is close to the plaintiff’s son-in-law or that the plaintiff used to visit his house at Manali. At no point of time plaintiff ever discussed any matter regarding his family or business with him nor any assurance to manage the land was given to the plaintiff. On 30.9.2000 he never visited the plaintiff at his village at Hiran or asked him to visit Kullu with the assurance that the deal for property would be settled. In fact he never visited Kullu on that day. In the absence of any entrustment of the money by the plaintiff, there was no occasion for him to have executed the document or handed over the same to the plaintiff, who being a Govt. employee had no reason to entrust money to him. In fact he never visited Kullu on that day. In the absence of any entrustment of the money by the plaintiff, there was no occasion for him to have executed the document or handed over the same to the plaintiff, who being a Govt. employee had no reason to entrust money to him. In effect, it is averred that the Imanatnama procured by the plaintiff is a result of fraud, is fictitious and obtained by the plaintiff in a fraudulent manner in connivance with the witnesses. Notice dated 27.12.2002 was duly replied on 1.1.2003 which fact has been suppressed by the plaintiff from the Court. 6. In replication, the plaintiff has reiterated the stand taken in the plaint but has specifically not denied the receipt of the reply to the notice. 7. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled for recovery of Rs.2,01,600/- on the basis of entrustment deed dated 30.9.2000, with interest at the rate of 12% per annum from 27.12.02 to 16.1.03, as alleged? OPP 2. Whether the suit is not maintainable, as alleged? OPD 3. Relief. 8. The plaintiff examined three witnesses, namely, Shri Chuhru Ram (PW-1), Shri Mohar Singh (PW-2) and Shri Udai Chand (PW-3). In rebuttal, the defendant Nand Lal has examined himself as DW-1. The parties have placed on record the deed of entrustment/Imanatnama (Ext.PW-1/A), copy of legal notice dated 27.12.2002 (Ext.PW-2/A), acknowledgement thereof (Ext.PW-2/B) and reply to the legal notice (Ext.DA). 9. Appreciating the material on record, the Court found the plaintiff to have proved the entrustment of a sum of Rs.2 lacs to the defendant who also executed document Ext.PW1/A. As such, the plaintiff’s suit for a sum of 2,01,600/- was decreed along with interest pendente lite and future @ 6% per annum. Issue No. 2 was decided in the negative for want of any evidence on record. 10. Mr. Bhupender Gupta, learned senior counsel, while assailing the impugned judgment and decree has invited my attention to the contradictions in the statements of the plaintiff’s witnesses. It is urged that the trial Court decided the matter in a purely mechanical manner without correctly appreciating the material on record and more particularly the statements of the plaintiff’s witnesses who contradicted each other. Findings being erroneous and illegal interference of this Court is warranted. 11. It is urged that the trial Court decided the matter in a purely mechanical manner without correctly appreciating the material on record and more particularly the statements of the plaintiff’s witnesses who contradicted each other. Findings being erroneous and illegal interference of this Court is warranted. 11. The defendant has been unnecessarily dragged into a bogus litigation. 12. Mr. Sanjeev Kuthiala, learned counsel for the plaintiff has supported the judgment for the reasons set out therein. 13. Having heard the learned counsel for the parties and also perused the record, I am of the view that the evidence led by the plaintiff is totally at variance with the case set up in the plaint. In his statement, the plaintiff (PW-2) has nowhere mentioned about his strained relations with his wife or son. He has stated that “I have a big family and my son is married. My wife and my daughter-in-law are not on good terms with each other due to which the atmosphere at home is not good. My daughter-in-law has got a case U/S 498 registered against our family. Due to this I thought that I must buy some land at Manali. So that I can live there and do some business after the retirement” whereas in the plaint it is pleaded “that the wife of the plaintiff is very quarrel some lady and for the last ¾ years she is not good terms with the plaintiff and the son of the plaintiff is also under the grip of the wife of the plaintiff, who is also very aggressive person and has been quarreling with the plaintiff at the instance of his mother even the daughter-in-law of the plaintiff has also been turned out by the son of the plaintiff at the instance of his mother and the daughter-in-law has been constrained to knock the doors of the competent court which litigation is still pending in the court. “That the plaintiff having got fed up with the unhealthy family atmosphere intended to get settled at Manali in order to run his business during his old age after the retirement from the service, and with this intention the plaintiff discussed the matter with the defendant who assured to get managed the suitable land for this purpose and has been contacting the persons of the locality in this regard.” 14. Further, plaintiff’s pleaded case is that on 30.9.2000 the defendant approached him at his village Hirani and advised him to come with him to Kullu along with Rs.2 lacs in order to settle the deal. However, in the statement he has given an entirely different version by deposing that on 29.9.2000 he had stayed at his son’s house at Manali and has carried a sum of Rs.2 lacs and from there he along with S/Shri Udai Chand, Nand Lal and Bhushan had left for Kullu. 15. Judicial notice can be taken of the fact that to go to Kullu one would not be required to necessary pass through Manali as plaintiff’s village Hirani (in Naggar) would fall somewhere in between Manali and Kullu. 16. Further, the plaint is conspicuously silent about the entrustment of the money in the presence of the witnesses. In fact, when, how and before whom the money was entrusted and Deed of entrustment executed has not been disclosed in the plaint. Even the name of the Property Dealer whom the plaintiff and the defendant were supposed to meet at Kullu has not been disclosed. 17. Importantly even the legal notice dated 27.12.2002 (Ext.PW-2/A), is conspicuously silent about the background in which the money was entrusted to the defendant. A cryptic notice in totality reads as under:- “1. That my client has hand over to you a sum of Rs.2,00,000/- (Two Lakhs only) in cash as entrust money and you have received the above said amount on dated 30.9.2000 and on the same day you have executed Entrustment Deed at Dhalpur Kullu, and agreed upon that when my client needed and demands and you will pay the above said amount to my client without delay. That my client has requested you to pay back the above said amount, but you have pretex once and other. Therefore, you are requested to pay back the above said amount of Rs.2,00,000/- in favour of my client with (sic) 10 days from the receipt of notice alongwith interest at the rate 12% per annum, failing which my client shall be constrained to initiate the civil or criminal proceeding against you in the court of competent jurisdiction at our costs and expenses which please note.” 18. The defendant in the written statement has denied the receipt of the money or execution of the entrustment. The defendant in the written statement has denied the receipt of the money or execution of the entrustment. In his statement (DW-1) he clarified that he had no relation with the plaintiff whose house is at a distance of 24-25 kms. from his house. The plaintiff never visited his house or discussed domestic and business matters nor any assurance for buying any land was given to him. Both the plaintiff and the defendant are government servants. He never visited Kullu or executed Deed Ext.PW-1/A, which does not bear his signatures. Reply (Ext. DA) to the legal notice, stands proved by him. The veracity of his deposition is un-shattered. 19. The onus to prove the entrustment and execution of deed Ext.PW-1/A is on the plaintiff. 20. As per the plaintiff’s version, on 30.9.2000 he came to Kullu in the vehicle of Shri Udai Chand (PW-3) along with the defendant Shri Nand Lal and Shri Bhushan. Since the deal could not be materialized, he entrusted Rs.2 lacs to the defendant in the presence of S/Shri Udai Chand, Bhushan and Shri Chuhru Ram, the Document Writer who scribed the deed of entrustment Ext.PW-1/A. However, Shri Chuhru Ram (PW-1) denied the handing over of the amount to the defendant in his presence. No doubt, Shri Chuhru Ram (PW-1) and Shri Udai Chand (PW-3) have deposed that signatures on Ext.PW-1/A were appended by the defendant in their presence but however their statements cannot be taken to be gospel truth as they not only hail from the plaintiff’s village but are closely known to them. PW-1 knows the plaintiff from childhood. 21. The statements of these interested witnesses can also not be relied upon for the reasons that they have contradicted each other. PW-1 & PW-2 have contradicted themselves about the handing over of the payment in the presence of each other. PW-2 & PW-3 have contradicted about the place of meeting of the other witnesses, their time of reaching Kullu and the name of the owner of the vehicle in which they travelled from Manali to Kullu. The Court below has held these contradictions to be minor and not material. However, considering the case in totality the contradictions become material as it renders the case set up by the plaintiff to be doubtful, false, untrue and the witnesses unreliable and untrustworthy. 22. The Court below has held these contradictions to be minor and not material. However, considering the case in totality the contradictions become material as it renders the case set up by the plaintiff to be doubtful, false, untrue and the witnesses unreliable and untrustworthy. 22. According to the plaintiff, all had left Manali together in the vehicle belonging to Shri Udai Chand, whereas according to Shri Udai Chand the vehicle belonged to his friend and on way to Kullu Shri Bhushan had met them at Patlikuhal where he was asked by the plaintiff to accompany them to Kullu. 23. It is the plaintiff’s pleaded case that on 30.9.2000 the defendant had visited his house at Hirani from where they went to Kullu, whereas according to PW-3 the parties had met at the Bus Stand at Manali from where they all left for Kullu. 24. Further, the arrangement of a sum of Rs. 2 lacs has not been conclusively established by the plaintiff. No doubt, in his statement plaintiff has mentioned that he had received Rs. one lac from Shri Tek Chand Negi as consideration for the orchard which he had given on contract and borrowed Rs.50,000/-from his daughter Bimla Devi and collected Rs.50,000/- of his own but, however none has come forward to corroborate his statement. Except for his solitary statement there is no documentary or oral statement to substantiate or corroborate the same. Considering the “unhealthy atmosphere at home” and relations between the plaintiff and his family members strained, it is quite unlikely plaintiff would have kept a sum of Rs.50,000/- at his house. It is not his case he withdrew the amount from the bank or borrowed the same. If a sum of Rs.50,000/- could have been kept at home then Rs.2 lacs is also not a substantial sum which could not have been kept at home. The plaintiff is a Government employee and has admitted that he had a bank account in the name of his wife as also in his own name. He could have deposited the amount in the bank. It is not the plaintiff’s case that the Bank was closed. One cannot loose sight of the fact that document Ext.PW-1/A is stated to have been executed before noon and it does not take more than one hour to drive back from Kullu to Manali. He could have deposited the amount in the bank. It is not the plaintiff’s case that the Bank was closed. One cannot loose sight of the fact that document Ext.PW-1/A is stated to have been executed before noon and it does not take more than one hour to drive back from Kullu to Manali. The plaintiff could have come back to Manali and returned the money to his daughter or kept the entire sum with her or his son-in-law. Plaintiff did have good relation with them. 25. Perusal of Ext.PW-1/A makes the plaintiff’s story further doubtful. It is a single page document hand written on both the sides. The revenue stamps (four stamps) have been affixed on the front page and not on the reverse at the place where the defendant allegedly appended his signatures acknowledging the receipt of Rs.2 lacs. Curiously the revenue stamp has been affixed in the middle of front page. Further, according to PW-3 the scribe was already having the document whereas according to PW-2 the paper was purchased from a lady in Kullu. Even this document does not narrate the events as set out in the plaint. Necessity for execution of the document particularly when the relations between the parties were cordial and the plaintiff had absolute faith in the defendant has not been explained. Importantly, the plaintiff has not examined his son-inlaw to prove the cordial relationship between the parties. It is not the plaintiff’s case that PW-3 and Shri Bhushan had accompanied them to witness the execution of the agreement to sell. Then presence of persons who are ordinarily not residents of Kullu becomes doubtful. The plaintiff is stated to have implicit faith in and cordial relations with the defendant, therefore, what was the need to have executed the document and that too before the scribe. Simple receipt would have served the plaintiff’s purpose. According to PW-2, the parties reached Kullu at about 10.30 a.m. and the execution of the document had not taken more than half an hour, whereas according to PW-3 the parties and the witnesses had met at Manali at about 10-11 in the morning and had reached Kullu at about 12.30 p.m. All this renders the plaintiff’s version of execution of the document by the defendant to be doubtful. 26. 26. Mere production of the document by itself would not prove the execution thereof, more so for the reason that the execution or signatures thereupon stand denied by the defendant. 27. In my view, the contradictions go to the root of the matter and the same cannot be attributed due to the failure of the memory of the witnesses as held by the Court below. One cannot loose sight of the fact that both the parties are government servants and are not illiterate. In this background, there was no need for the parties to go to the scribe to write a document. Plaintiff had two married daughters living at Manali, therefore, there was no occasion for him to have asked the defendant to look for a property for him at Manali. It is not the plaintiff’s case that he does not have good relations with his daughter or son-in-law. It is also not the plaintiff’s case that the defendant is dealing in the business of properties or has friends and acquaintance in the said business. True picture could have been elicited by Shri Bhushan, the second witness to the document who has not been examined by the plaintiff for the reasons best known to him. 28. It is also not the plaintiff’s case that the defendant had borrowed money from him or had business dealings in the past. Importantly, what transpired between the year 2000 and 2002 has also not been explained by the plaintiff. After all plaintiff had bought land and must have paid money for the same. Why action was taken at a belated stage has not been explained. 29. In the absence of any proof of entrustment of payment by the plaintiff to the defendant or execution of the document Ext.PW-1/A by the defendant, it cannot be said that the plaintiff is entitled to the suit amount as claimed. The case set up appears to be false. 30. The Court below has seriously erred in appreciating the evidence and the material on record. It has erred in holding that the defendant had failed to prove that the execution of the document was as a result of fraud or that since the attesting witnesses were not hostile towards the defendant, hence their version would be truthful. 31. 30. The Court below has seriously erred in appreciating the evidence and the material on record. It has erred in holding that the defendant had failed to prove that the execution of the document was as a result of fraud or that since the attesting witnesses were not hostile towards the defendant, hence their version would be truthful. 31. For the aforesaid reasons, the present appeal is allowed and the judgment and decree dated 24.8.2004 passed by the Additional District Judge, Fast Track Court, Kullu, H.P. in Civil Suit No.5/2003 titled as Mohar Singh vs. Nand Lal, is set aside and the plaintiff’s suit is dismissed.