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Shri Devi Lal Garg v/s Shri Hari Kumar Sharma & Another


Company & Directors' Information:- SHRI HARI CORPORATION LIMITED [Strike Off] CIN = U15422PN2012PLC142075

    RFA 543 of 2005

    Decided On, 18 February 2011

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE KAILASH GAMBHIR

    For the Petitioner: S.P. Jha, Advocate. For the Respondents: R1 & R2 - Ajay Kumar, Advocate.



Judgment Text

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 96 of the Civil Procedure Code, 1908 the appellant seeks to challenge the judgment and decree dated 07.04.2005 passed by the learned trial court, whereby the suit of the respondents was decreed for a sum of Rs.4 lacs along with interest @ 6% p.a. from 01.05.2003 till realization.

2. Brief facts of the case relevant for deciding the present appeal are that the appellant and respondent no. 3 had taken an amount of Rs. 4 lacs from the respondent no. 1,2, and 4 in lieu of the promise that they would arrange the services of the respondent no.1,2 and 4 in USA. However as the appellant and respondent no.3 failed to arrange their service in USA, the respondents sent a notice for returning the money paid to them by notice dated 1.4.03 to the appellant and respondent no.3, which was not replied to. Consequently, a suit for recovery was filed by the respondent no.1 and 2 which vide judgment and decree dated 7.4.05 was decreed for a sum of Rs. 4 lacs alongwith interest @6 p.a from 1.2.03 till realization, in favour of the respondent and against the appellant. Feeling aggrieved with the same, the appellant has preferred the present appeal. However, in the present appeal only the appellant and the respondent no.1 and 2 are contesting parties.

3. Assailing the said judgment and decree, counsel appearing for the appellant contended that the suit filed by the respondents was not legally maintainable and clearly hit by Section 23 of the Indian Contract Act. Contention of counsel for the appellant was that as per own showing of the respondents, an amount of Rs.4 lacs was paid by them to the appellant for arranging their employment in U.S.A. and such a transaction being illegal and contrary to the public policy is hit by Section 23 of the Indian Contract Act.

4. Counsel further submitted that the suit filed by the respondents was based on forged and fabricated documents which were got executed from the appellant in the Police Station, Mahipalpur under the threats extended by the respondent No.1 with the help of one ASI namely Anil Bhairwal. Counsel also submitted that the learned trial court failed to appreciate the fact that the transaction of providing employment to the respondents, who were working as Supervisors/Managers with M/s. Concorde Enterprises Pvt. Ltd., at the hands of the respondent No.1 who was a garbage collector, was highly improbable. Counsel also submitted that DW-2 Shri Jaidev Solanki in his evidence has clearly demolished both the documents i.e. Ex.P-1 and Ex.P-2, which documents form the sole basis on which the said monetary claim of the respondents rests. Counsel also submitted that the alleged receipt/promissory note was not properly cancelled as per the requirement of Section 12 of the Indian Stamp Act and, therefore, Ex.P-2 is inadmissible in the eyes of law and the same cannot be enforced. Counsel also submitted that the learned trial court has wrongly drawn adverse inference against the appellant for an insignificant delay of two months on the part of the appellant in lodging the complaint with the concerned police station against the highhandedness of the respondents and the said police official. Based on these submissions, counsel for the appellant pleaded for setting aside of the said judgment and decree passed by the learned trial court.

5. In support of his submissions, counsel for the appellant placed reliance on the judgment of this Court in Virender Singh Vs. Laxmi Narain & Anr 135 (2006) DLT 273 and on the decision of the Rajasthan High Court in N.Bhaironbux & Co. Vs. Kashi Ram AIR 1973 Raj 271 (V 60 C 73).

6. Refuting the aforesaid submissions of counsel for the appellant, counsel appearing for the respondents No.1 and 2 submitted that the plea of the agreement being hit by Section 23 of the Indian Contract Act was never taken by the appellant before the learned trial court and no issue in this regard was framed by the learned trial court and, therefore, the appellant cannot now raise this new plea at the stage of the appeal. Counsel for the respondents also submitted that the appellant cannot also resile from his own undertaking given by him in the shape of documentary evidence proved on record as Ex.P-1, Ex.P-2 and DW-1/P-2. Counsel further submitted that the said undertakings bear signatures of the parties and also duly witnessed by Shri Jaidev Solanki DW-2 and one Shri Jagmohan Singh. Counsel for the respondent also submitted that the legal notice dated 01.04.03 sent by the respondents was duly received by the appellant, but no reply thereto was sent by the appellant and, therefore, it is quite apparent that the appellant had admitted the contents of the said legal notice and the defence raised by the appellant in the written statement was nothing but a mere eye wash and an after-thought. Based on these submissions, counsel for the respondents supported the judgment and decree passed by the learned trial court.

7. I have heard learned counsel for the parties at a considerable length and gone through the records.

8. As per the case set up by the respondents, an amount of Rs.4 lacs was paid by them on their own behalf and on behalf of one Mr.Panna Lal (respondent No.4) to the appellant, who along with one Ashok Verma, respondent No.3 herein and defendant No.2 in the main suit, promised them an employment in U.S.A. The appellant in his written statement filed by him denied the receipt of the said payment and so far execution of documents Ex.P-1, P-2 and DW-1/P-2 are concerned, the stand taken by the appellant was that the same were executed by him under threat and exercise of force employed by these respondents when he was called to the police station. The appellant also took a stand that the help of one police official, namely, Anil Bhairwal was also taken by the respondents in putting him under pressure to execute the said documents. It would be therefore quite evident that it was not the case of the appellant that the said money was received by him along with one Mr.Ashok Verma, the same being towards illegal gratification. The appellant vehemently denied receiving the said amount of Rs. 4 lacs in his written statement. The plea of the money being received under a contract which is illegal and hit by section 23 of the contract Act could be taken in the event had the appellant admitted the fact of receiving the said amount from the respondents or had taken this as an alternative plea. However, no such plea was raised by the appellant at the stage of trial therefore, in the absence of any defence raised by the appellant in the written statement, no such issue was framed by the learned trial court; no evidence was led regarding the same and consequently there is no finding of the learned trial court on this aspect of the case. It is a settled legal position that the appellant cannot take a new plea at the stage of appeal when no such issue or plea was raised by him at the stage of trial and no evidence was led in that regard. The appellate court cannot don the mantle of being a fact finding body when the appellant takes a stand contrary to what has been taken by him at the stage of trial. In the face of the stand taken by the appellant in the written statement, the purpose of the said transaction was not under scanner and therefore the trial court did not frame any issue with regard to the purpose of the said transaction and therefore this court cannot also adjudicate on the said aspect at this belated stage. A contract may be against public policy either from the nature of the act to be performed or from the nature of the consideration. To promise an employment to any person abroad cannot be treated as an illegal act per se. It could be considered illegal only when it involves payment of any illegal money to any Govt. agency or for preparing any false document. The payment of any money for arranging employment in a foreign country cannot by itself give rise to a presumption that such money necessarily was meant towards illegal gratification or some illegal purpose as the same could also be for legal purposes such as payment to some authorized or licensed agencies or payment towards air fare or towards visa charges etc. Illustration (f) of Section 23 of the Indian Contract Act deals with a situation where someone promises to obtain an employment in the public service and for that purpose money is paid. In such a case, agreement could be void as the payment of such money is clearly illegal and void. Illustration

(f) of Section 23 of the Indian Contract Act would thus not be applicable in the facts of the present case.

9. It is a settled legal position that if any contract is found to be valid then the Courts must lean in favour of the contract, unless such a contact is clearly opposed to the public policy or is per se illegal. It is further a settled legal position that for alleging the agreement to be void on account of it being opposed to public policy it must be proved as to how such a contract is opposed to the public policy. In the facts of the present case, the plea of the advancement of money of 4 lacs by the respondents in favour of the appellant being opposed to public policy has been raised only at the appellate stage and in the absence of any specific plea raised by the appellants in their written statement as to how the said payment of Rs.4 lacs by itself can be treated as opposed to public policy, this Court in exercise of its appellate powers cannot entertain such a factual plea. The said plea of the appellant also seems to be an afterthought in the face of the respondents being able to successfully prove the receipt of the said money by the appellant and the inability of the appellant to disprove the same. Therefore, this court is of the considered view that the plea of the respondent being a mixed question of law and fact cannot be appreciated at this stage when no further plea was raised by the appellant in this regard before the trial court. The said two judgments relied upon by the counsel for the appellant relate to the contract being illegal and against public policy and thus the same will be of no help to the appellant in the facts of the present case in the face of the above discussion.

10. Coming to the next contention of counsel for the appellant that the appellant had executed the documents under threat and force, this Court does not find any illegality or perversity in the findings of the learned trial court on this aspect. As per own defence of the appellant, he was called to the police station on 02.02.2002 pursuant to the notice received by him under Section 160 Cr.P.C., when the documents Ex.P-1, P-2 and DW-1/P-2 were alleged to have been signed by the appellant and the respondents. If this stand of the appellant is taken as correct that he was called to the police station on 02.02.2002 pursuant to the said notice then no explanation has come forth from the side of the appellant that how could he sign the said documents on 02.08.2001 and 11.02.2002. Once the appellant failed to prove the fact that the said documents were signed by him under some threat, then these documents otherwise cannot be ignored which clearly prove the fact that the appellant had agreed to return back the said amount of Rs.4 lacs in terms of the undertaking given by him in Ex.P-1, P-2 and DW-1/P-2. No explanation has also come from the side of the appellant as to why immediate police complaint was not lodged by him if he was threatened by the respondents to execute the said documents in the police station that too with the help of one police official namely Anil Bhairwal. DW-2 Shri Jaidev Solanki in his cross-examination also admitted the fact that he had signed the document Ex.P-1 after he was told by the appellant Devi Lal that the matter was compromised by him with the respondent No.1. The said DW-2 also failed to disclose the name of the police official who was alleged to be present at the time of execution of the said documents. DW-1 i.e. the appellant herein had also duly admitted his signatures on Ex.P-1 and P-2. The appellant in fact has also admitted in his cross-examination that Ex.PW-2 was in his own handwriting. The appellant also admitted the fact in his cross-examination that he had gone to the police station on receipt of a written notice dated 1.2.2002 which was proved on record as Ex.DW-1/P-1. As per the written notice, Ex.DW-1/P-1 the appellant was directed to appear on 02.02.2002, while both the Exhibits Ex.P-1 and P-2 were signed by the appellant on 02.08.2001 and 11.02.2002 respectively. The appellant has also admitted in his cross-examination that he himself had put the date underneath the signatures at Ex.PW-2. The appellant has further admitted that Ex.DW-1/P-2 was also in his own handwriting and the same bears his signatures at Point ‘A’.

11. In the face of all these admissions on the part of the appellant, it is quite evident that the appellant had taken an amount of Rs.4 lacs from the respondents, otherwise the appellant would not have written the documents Ex.PW-2 and DW-1/P-2 in his own handwriting. In Ex.P-2, the appellant has clearly admitted the receipt of Rs.4 lacs by him which he undert

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ook to repay by instalment of Rs.1 lac on 01.03.2002 and the remaining amount in monthly instalments of Rs.25,000/-. Ex.P-2 is also sufficiently and properly stamped. The question whether payment of Rs.4 lacs was meant for the employment of the respondents in U.S.A or not, but one thing is certain that the said amount of Rs.4 lacs was received by the appellant which he had duly acknowledged in Ex.P-1 & P-2. The story put forth by the appellant that he was forced to sign Ex.P-1 and sign and write P-2 in the police station under some threat from the respondents and with the assistance of one police official is difficult to believe, as the appellant failed to bring on record any material to show that the said documents were executed by him in such circumstances. DW-2 Shri Jaidev Solanki although has deposed that the document Ex.P-2 was written in the police station, Mahipalpur, but his said statement does not inspire confidence. He has even gone to the extent of giving a new twist to the story by saying that he had signed Ex.P-1 at the instance of the appellant who told him that he had compromised the matter with the respondents. This was not even the case set up by the appellant in his written statement. 12. In the light of the above discussion, this Court does not find any illegality or perversity in the impugned judgment and decree passed by the learned trial court. 13. There is no merit in the present appeal and the same is hereby dismissed.
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