Delhi District Court
Narbada Aggarwal vs Vijayant Talwar on 31 August, 2023
IN THE COURT OF MS. DIVYA MALHOTRA: ADMINISTRATIVE
CIVIL JUDGE/ADDITIONAL RENT CONTROLLER
NORTH WEST: ROHINI COURTS : DELHI.
CS SCJ 426/2017
CNR No. DLNW030009002017
Narbada Aggarwal
W/o Rajpal
R/o C-4/147, Sector-5,
Rohini, Delhi-110085. ...................Plaintiff
Versus
Vijayant Talwar
S/o Kiran Kant Talwar
H. No. 119, Pocket-13,
Sector-20, Rohini,
Delhi-110085. ...............Defendant
SUIT FOR RECOVERY
Date of Institution : 20.04.2017
Date of Decision : 31.08.2023
Final Order : Dismissed
JUDGMENT
This is a suit for recovery of money which was initially filed under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 ( or "CPC").
BRIEF FACTS
1. Plaintiff is engaged in the business of sale of ladies garments and bed sheets from her residence. Defendant had visiting terms with her, CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 1 of 8 being her customer. On 28.02.2016, he requested the plaintiff for a loan of Rs. 2,95,000/- assuring repayment within six months. On such assurance, plaintiff advanced cash of Rs. 1,95,000/- on 01.03.2016 and of Rs. 1,00,000/- on the next day i.e. 02.03.2016. In lieu of the same, plaintiff executed two promissory notes dated 01.03.2016 and 02.03.2016 Ex. PW1/B (colly) respectively. Simultaneously, he also executed a written acknowledgment of his liability Ex. PW1/C, which the plaintiff has referred to as "loan agreement" in her plaint.
1.1 After the expiry of the loan period, plaintiff contacted the defendant seeking return of her money but the defendant showed his unwillingness to repay the amount. Plaintiff also got to know that he had taken a similar loan of Rs. 1,00,000/- from her son Vijay as well. These events led to filing of a police complaint dated 19.09.2016 Ex. PW1/D by her. As despite several requests and despite issuance of legal notice dated Ex. PW1/E, the defendant failed to discharge his liability, the present suit for recovery of Rs. 2,95,000/- alongwith interest @ 18% per annum has been filed.
2. Leave to defend the case was granted to the defendant vide order dated 05.01.2019. In his written statement, the defendant has denied the contents of the plaint in toto and has interalia pleaded that the suit is based on forged and fabricated promissory notes; that the defendant never took any loan from the plaintiff; that the plaintiff has filed the present suit to harass the defendant due to personal issues between their families; that the amount and dates mentioned in the promissory note and receipt are different; that the promissory note mentions receipt of amount through CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 2 of 8 cheque while the receipt mentions cash; that the date of second promissory note and receipt is also different and that the signatures of the defendant have been forged on the promissory notes.
ISSUES
3. Upon completion of pleadings, following issues were framed vide order dated 10.04.2019:-
(i) Whether the plaintiff is entitled to recovery of a sum of Rs. 2,95,000/-, as prayed for? (OPP).
(ii) Whether the plaintiff is entitled to interest, if so, at what rate and for what period? (OPP)
(iii) Relief.
TRIAL
4. In evidence, plaintiff examined herself as PW-1 vide affidavit Ex. PW1/A wherein she re-iterated the contents of the plaint and relied upon the following documents:-
(i) Two promissory notes Ex. PW1/B (colly);
(ii) Receipt Ex. PW1/C;
(iii)Police complaint against defendant Ex. PW1/D;
(iv) Legal demand notice Ex. PW1/E and
(v) Reply of demand notice Ex. PW1/F. The witness was duly cross-examined.CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 3 of 8
4.1 No other witness was examined thereafter and PE stood closed vide order dated 27.08.2022.
5. No defence evidence has been led by the defendant.
Heard. Perused.
FINDINGS Issue no (i) : Whether the plaintiff is entitled to recovery of a sum of Rs. 2,95,000/-, as prayed for? (OPP).
Issue no (ii) : Whether the plaintiff is entitled to interest, if so, at what rate and for what period? (OPP)
6. Both the issues are taken up together. The onus to prove these issues was upon the plaintiff.
Plaintiff claims that having friendly relations with the defendant, she advanced him a loan of Rs. 2,95,000/- in two installments against which promissory notes were executed. These two promissory notes Ex. PW1/B (colly) form the basis of present suit. Per contra, defendant has taken a specific plea that the signatures present on these instruments do not belong to him and that they have been forged and fabricated.
Needless to say that once the the execution of Ex. PW1/B has been denied by the defendant, the onus was upon plaintiff to establish the same in order for the Court to draw the presumption under Section 118(a) of Negotiable Instruments Act regarding passing of consideration therein.
CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 4 of 86.1 In order to prove her case, plaintiff led her oral testimony, wherein she reiterated her stand taken in the plaint. She, however, led no independent documentary evidence to show that Ex. PW1/B (colly) were indeed executed by the defendant or bore his signatures. To the naked eye, such signatures are also evidently different from the ones available on written statement filed by the defendant. Although, the Court is mindful of the fact that such signatures being subsequent to Ex. PW1/B, the possibility of the executant disguising the same cannot be ruled out. In the present scenario, therefore, the proper course for the plaintiff would have been to get the admitted signatures of defendant, perhaps on some previous record such as banks statements etc., compared with the disputed ones i.e. the promissory note Ex. PW1/B(colly). No efforts, however, were made in this direction nor any independent witness examined in whose presence the purported transaction took place.
6.2 Even the promissory note Ex. PW1/B (colly) in itself is marred with certain contradictions and anamolies. There are two parts each of this two page instrument- the "promissory note" and the "receipt". In the first instrument under the promissory note head, the amount of loan is mentioned as "Rs. 2,95,000/-" and is stated to have been received by "cheque" whereas under the receipt head, the amount received by defendant is shown as "Rs. 1,95,000/-" that too by way of "cash". There is no explanation as to the discrepancies found on the same page of the same instrument with respect to the amount & the mode of transfer. Further, if the first instrument is taken to be correct, the total amount of the two promissory notes adds up to Rs. 3,95,000/-, instead of the suit amount which is Rs. 2,95,000/- (as the second instrument has been executed for a CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 5 of 8 sum of Rs. 1,00,000/-) .
6.3 Interestingly, the leave to defend of the defendant was allowed on similar ground that there was a glaring anamoly in the amounts mentioned in the promissory note which prima facie disputes its authenticity. Plaintiff had ample opportunity to explain these discrepancies at the time of trial. Despite so, she offered no explanation regarding the same and simply reiterated the version of her plaint. The explanation is quintessential because the promissory note is the very basis nay heart and soul of the present suit and if the such document itself is found to be not credible, the whole foundation of the suit crumbles.
6.4 Coupled with these facts is the testimony of PW1 which also fails to inspire confidence. During her cross-examination, she seems to remember none of the pertinent facts regarding the alleged loan transaction. For ready reference, the relevant portions of the cross- examination of PW1 are reproduced herein below :-
"I do not remember when defendant came to ask/request for the amount. Again said, defendant came in March, 2016 for demanding money. I do not remember how much amount defendant requested from me. I do not remember how much money I used to earn monthly in the year 2015, 2016 and 2017."
"He had only issued and signed the promissory note for the above said amount."
"I do not remember whether the defendant had issued any loan agreement to me."
"I do not remember when and where I demanded my money back CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 6 of 8 from the defendant. I do not remember when I contacted to my Ld. Counsel for sending the legal notice."
From her above testimony, it is clear that the witness/plaintiff hardly has any memory of her transaction. Despite relying upon a written acknowledgment Ex. PW1/C, purported to have been executed by the defendant, she has no re-collection of the same. The questions regarding her financial capacity have also gone unanswered. It is also surprising that the promissory note as well as the receipt/counter foil, both have been retained by the plaintiff. The receipt should have ideally been handed over to the recipient.
6.5 More confusion arises when one goes through the contents of the police complaint Ex. PW1/D relied upon by the plaintiff and compares it with her plaint. In such complaint, plaintiff alleges that at the time of loan "defendant had shown him a cheque of Rs. 5,00,000/-". Such facts are totally missing from the plaint. Further, in the complaint the reason for the advancement of loan is stated to be for medical necessatity which is quite different from what has been mentioned in the promissory note Ex. PW1/B wherein it is stated to be for defendant's "home/ makaan".
6.6 Although defendant has led no evidence, it is trite that plaintiff's case has to stand on its own legs irrespective of any loopholes in the case of the defence. Section 102, Evidence Act provides that the burden of proof always lie upon that person who would fail if no evidence were given at all by either side. In the present case, when the defence of forgery is taken by the defendant in a suit based on promissory note, the CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 7 of 8 burden of proof will always lie upon the plaintiff to establish that the same has been executed by the defendant. Here, the plaintiff is neither able to prove defendant's signatures on the impugned promissory notes nor the contradictions in the promissory note itself. Her testimony also fails to inspire confidence and the number of discrepancies arising therein and her failure to recollect important aspects of the transaction rather raise serious doubt over her version. The story of the plaintiff does not add up. The suit is bound to fail.
A civil case is based on preponderance of probabilities and here the scales of balance are tilted more in favor of the defendant than the plaintiff.
Both the issues are accordingly decided against the plaintiff.
CONCLUSION
7. In the ultimate analysis of the case and for the reasons assigned herein above, the suit of the plaintiff stands dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed by DIVYA DIVYA MALHOTRA
Announced in open Court today. MALHOTRA Date: 2023.08.31
17:06:05 +0530
(Divya Malhotra)
ACJ/ARC/North-West
Rohini Courts/ Delhi
31.08.2023.
CS No. 426/2017 Narbada Aggarwal V/s Vijyant Talwar Page 8 of 8