Delhi District Court
) Sh. Harish Chand Rastogi vs ) Sh. Roshan Bhai Jewellers on 19 March, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
RCA - 07/2015
Unique I. D. No. 02401C0089222015
1) Sh. Harish Chand Rastogi, Karta HUF,
M/s Harish Chand Rasatogi,
C/o Barh Wali Kothi, Nai Sarak,
Delhi110006.
2) M/s Harish Chand Rastogi (HUF),
C/o Barh Wali Kothi, Nai Sarak,
Delhi110006.
Through its GPA Holder :
Sh. Roop Kishore Rastogi,
......Appellants
Versus
1) Sh. Roshan Bhai Jewellers,
Through its proprietor,
Sh. Rajeev Malhotra,
C159, Central Market, Lajpat NagarII,
New Delhi.
RCA07/2015
Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 1 of 14
2) Sh. Rajeev Malhotra,
Proprietor M/s Roshan Bhai Jewellers,
C159, Central Market, Lajpat NagarII,
New Delhi.
.......Respondents
Date of institution of appeal : 16.02.2015
Date of reserving the judgment : 12.02.2016
Date of pronouncement of judgment : 19.03.2016
JUDGMENT
1. The present appeal is directed against the impugned judgment and decree of Ld. Civil Judge09 (Central), Tis Hazari Courts, Delhi, dated 04.12.2014, thereby dismissing the suit of appellants/plaintiffs for recovery of Rs. 2,44,200/ bearing Suit No. 480/2014, titled "Sh. Harish Chand Rastogi, Karta HUF & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr."
2. Feeling aggrieved with the judgment of the trial court, present appeal was preferred by the appellant/plaintiff on the grounds that
(i) impugned judgment was perverse, erroneous and had been passed without application of mind; (ii) Trial Court committed grave error in RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 2 of 14 selectively relying upon the statement of ledger account Ex DW1/1 (colly) and the statement of bank account Ex DW1/2. Had the Trial Court perused the documents and evidences in their correct perspective, it would have definitely come to the conclusion that the principal amount of Rs. 1 Lakh received by the respondents from the appellants on 01.05.2007 was still due and outstanding; (iii) statement of account relied upon by the respondents for the year 200405 i.e. Ex DW1/1 to 201011 clearly showed that the respondents have been taking deposits from the appellants even prior to 2007 and the respondents/defendants have admitted in the statement that there was a credit opening balance of Rs. 1 Lakh of the appellants on 20.04.2004 but Trial Court had not considered the said admitted facts of respondents/defendants; (iv) Trial Court failed to appreciate that the respondents/defendants had been paying interest on the principal amount upto 31.03.2009 and the principal amount of Rs. 1 Lakh received by the respondents/defendants from appellants/plaintiffs on 01.05.2007 remained unpaid and the respondents/defendants in acknowledgment of their liability continued to pay interest to the appellants/plaintiffs upto 31.03.2009 and thereafter illegally stopped making payment of interest after 31.03.2009; (v) Trial Court in a RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 3 of 14 mechanical manner had nonsuited the appellants/plaintiffs on the ground that the appellants/plaintiffs had not filed any copy of ledger or statement of accounts maintained by the appellants/plaintiffs in support of their contention that the defendants had not paid any interest or principal amount subsequent to 31.03.2009. Trial Court ought to have afforded an opportunity to the appellants/plaintiffs to file their statement of account;
(vi) the approach of Trial Court in appreciating the statement of ledger account Ex DW1/1 (colly) filed by the respondents was completely erroneous and misplaced; (vii) Trial Court ought to have given a careful consideration to the said statement of ledger account Ex DW1/1 (colly) in it's correct perspective rather than blindly adopting the manner in which the respondents' treated the said accounts; (viii) Trial Court failed to consider that the respondents/defendants were liable to repay the principal amount of Rs. 1 Lakh received from the appellants/plaintiffs on 01.05.2007 (credit on 06.05.2007) as well of Rs. 1 Lakh received on 28.07.2006 alongwith interest @ 2% per month for the period after 31.03.2009 and the allegation of the respondents that they had made excess payment to the appellants/plaintiffs was false, baseless, vague and without any merit; (ix) the findings of Trial Court that the principal RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 4 of 14 amount of Rs. 1 Lakh stood repaid by the respondents/ defendants to the appellants/plaintiffs on 07.05.2007 was erroneous and perverse; (x) the dismissal of the counterclaim of the respondents/defendants by the Trial Court was evident of the fact that the false statement of account Ex DW1/1 (colly) showing excess payment having been made by the respondents/defendants, did not inspire confidence with the Trial Court. It was therefore incumbent upon the Trial Court to decree the suit of the appellants/plaintiffs for the reliefs claimed therein; and (xi) the findings of the Trial Court were contrary to the pleadings and evidence on record and ignoring relevant and material piece of evidence and relying upon conjectures and surmises. Appellants/plaintiffs prayed for allowing the appeal and setting aside of the impugned judgment and decree, thereby seeking decree of the suit filed by appellants/plaintiffs.
3. I have heard arguments addressed by Sh. Sonal Sinha, Ld. counsel for appellants; Sh. Varun Goswami, Ld. counsel for respondents, perused the record of this appeal, written arguments and precedents relied upon by both the parties and the entire record of the trial court received on requisition and have given my thoughts to the rival RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 5 of 14 contentions put forth. Ld. counsel for appellant argued in terms of averments of appeal seeking setting aside of impugned decree and judgment. Ld. Counsel for respondents argued in terms of averments of his pleadings before the Trial Court seeking dismissal of appeal.
4. Ld. Counsel for appellants/plaintiffs relied upon :
1)Kampa Wati Devi Vs. Basant Rai & Anr., [4 (1967) DLT 395];
2)Ramesh Thadani Vs. Mohit Garera, 213 SCC Online Del 3622 : (2013) 130 AIC 936.
5. Ld. Counsel for respondents/defendants relied upon:
1)Anjum Nath Vs. British Airways = 226 (2016) DLT 306;
2)Gopal Krishanji Katkar Vs. Mohd. Hazid Latif & Ors. = 1968 (3) SCR 862;
3)Rameshwar Dass Vs. Hakim Javed & Ors. = 187 (2002) DLT 73; and
4)Balbir Singh Vs. Raj Krishan, CRR No. 2594/2014 (O&M) decided on 03.03.2015 by High Court of Punjab & Haryana.
RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 6 of 14
6. Appellants/plaintiffs had filed the suit for recovery of Rs. 2,44,200/ on the premise that respondents/defendants had received
(i) sum of Rs. 1 Lakh from appellants/plaintiffs vide cheque no. 370118, dated 28.07.2006; and (ii) sum of Rs. 1 Lakh from appellants/plaintiffs vide cheque no. 257984, dated 01.05.2007; both at monthly rate of interest of 2%, whereas for cheque dated 28.07.2006 the respondents/defendants executed a receipt while taking the amount from appellants/plaintiffs. Respondents/defendants were paying interest on said principal amount up to 31.03.2009 and thereafter neither respondents/defendants paid interest nor paid principal amount.
7. Impugned judgment reflects defence of respondents/ defendants in written statement interalia that not only appellants/plaintiffs had received their entire amount but were rather liable to pay the respondents/defendants a sum of Rs. 62,255/. It is also the case of respondents/defendants that frivolous litigation was thrusted upon respondents/defendants to harass respondent/defendant no2, who declined to sell his Lajpat Nagar shop to appellant/plaintiff. RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 7 of 14
8. Onus of Issue no2 with respect to entitlement of appellants/plaintiffs for recovery of the suit sum was on the appellants/plaintiffs. It was the case of the appellants/plaintiffs that the respondents/defendants had paid the interest to appellants/plaintiffs up to 31.03.2009.
9. In the course of crossexamination, PW1 elicited that the ledger was regularly maintained by them in respect of dealings mentioned in the plaint but no such ledger was filed in the Court. PW1 further elicited that he had never received any acknowledgment from respondents/ defendants with respect to any account/statement of account of respondents/defendants for any account/statement having sent to respondents/defendants. PW1 further elicited that such account/ statement used to be sent by way of speed post. Appellants/plaintiffs neither filed any receipt of speed post of sending such statement of account to respondents/defendants nor proved the same in the plaintiff evidence. Also in the course of crossexamination, PW1 elicited that the amount repaid by respondents/defendants to him was repaid once in cash and the rest by way of cheques but he could not recollect the amount paid RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 8 of 14 by respondents/defendants in cash. PW1 hastened to add that no acknowledgment was either taken or given for the amount received by him from respondents/defendants in cash in good faith and the entries were made in the accounts maintained by them.
10. It is the case of the defendants as mentioned in the pleadings and in the crossexamination of PW1 that all the repayments including the interest and the principal were made to the plaintiff. PW1 also candidly admitted in crossexamination that no acknowledgment was taken from defendants after reconcilement of the books of account at the end of each financial year. It is evident from bank statement Ex DW1/2 of account no. 5477000100010801 that on 07.05.2007, Rs. 1 Lakh was debited in the bank account aforesaid of respondent/defendant for cheque no. 728677, drawn in favour of appellants/plaintiffs. Accordingly, said sum of Rs. 1 Lakh was given by the respondents/defendants to appellants/plaintiffs vide aforesaid cheque of date 07.05.2007. It corroborates the defence of respondents/defendants in material particulars for part payment of such loan received to the extent of Rs. 1 Lakh by respondents/defendants to appellants/plaintiffs. RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 9 of 14
11. No statement of account was placed on record by appellants/plaintiffs in support of their claim for outstanding balance payable claimed sum from respondents/defendants.
12. Order VII Rule 17 of The Code of Civil Procedure, 1908 (in short CPC) interalia provides that where the document on which the plaintiff sues is an entry in a shop book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. Such original entry is to be marked after comparing with the filed copy and such book is to be returned to the plaintiff. Order VII Rule 14 of CPC embodies the duty of the plaintiff to enter the relied upon documents in his possession or power in support of his claim in a list and produce them when the plaint is presented by him. Where any such document is not in possession or power of the plaintiff, plaintiff is to state in whose possession or power such document is. Oblivious to the duties in Rules 14 and 17 of Order VII of CPC, neither appellants/plaintiffs placed on record copies of statement of account of respondents/ defendants in their books of account alongwith the plaint with the list of RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 10 of 14 documents nor produced the original books of accounts on the first date of hearing before the Trial Court for getting it so compared and marked. Instead, in the grounds of appeal the appellants/plaintiffs are crying hoarse alleging the statement of accounts maintained by respondents/ defendants to be incorrect without producing the statement of account of respondents/defendants maintained in the books of appellants/plaintiffs. Having themselves not observed the duty cast upon them as above said, the appellants/plaintiffs cannot find fault with the Trial Court for not calling upon them to file their statements of accounts containing the ledger account of respondents/defendants in the books of appellants/plaintiffs. Onus of Issue no2 with respect to entitlement of appellants/plaintiffs for recovery of claimed sum from respondents/defendants was upon the appellants/plaintiffs. It was the appellants/plaintiffs, who withheld the account books, the statements of respondents/defendants in the ledgers of appellants/plaintiffs for relevant financial years, which was in power and possession of the appellants/plaintiffs, which could be produced by the appellants/plaintiffs but instead was not produced either alongwith the suit nor later with the permission of the Trial Court nor proved in evidence; so necessary RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 11 of 14 inference is drawn in accordance with the illustration (g) of Section 114 of Indian Evidence Act, 1872 that had such best evidence been produced, it would have been unfavourable to appellants/plaintiffs, who withheld it.
13. Entire pleadings of appellants/plaintiffs in the plaint nowhere finds mention that sum of Rs. 2 Lakh was advanced by appellants/plaintiffs to respondents/defendants as relative or friend or acquaintances. PW1 in the course of crossexamination before Trial Court elicited that appellants/plaintiffs were dealing with the respondents/defendants since past several years. PW1 further elicited that respondent/defendant no2 was not a friend of PW1 but a friend of his son. DW1 in the course of crossexamination elicited that he used to take loans from appellants/plaintiffs since the year 1998. Appellant no1/plaintiff no1 is the Karta of appellant no2/plaintiff no2 HUF with which the respondents/defendants are neither stated to be acquaintances, relatives or friend as per the averments of the plaint.
14. In terms of Section 3 of The Punjab Registration of Money Lender's Act, 1938 as adopted in NCT of Delhi, the suit of money lender RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 12 of 14 is barred unless money lender is registered and holding a valid license in prescribed form. Reliance placed upon - (1) Shop named Kaloji Talusappa Ganga Vathi Vs. Khyanagouda & Ors., AIR 1970 SC 1420; (2) Daljit Kumar & Anr. Vs. Popal Dass, AIR 1981 Punjab & Haryana 211; (3) Gyanananda Sen Vs. Ranjit Kumar Das & Anr., AIR 2003 Orissa 166; (4) Jaswanti Devi & Ors. Vs. Sunil Mehra, AIR 2004 Himachal Pradesh 15; (5) Niranjan Singh Vs. Mohinder Singh, RSA No. 2551 of 1987 (O&M), High Court of Punjab & Haryana at Chandigarh, decided on 03.03.2010; and (6) Smt. Fula Devi Vs. Mangtu Maharaj & Ors., AIR 1969 Patna 294 (V 56 C 75) Full Bench. In this fact of the matter, the reliance of appellants/plaintiffs/counsel on precedents viz., Kampa Wati Devi Vs. Basant Rai (supra); and Ramesh Thadani Vs. Mohit Garera (supra) is misplaced, since these precedents embody facts and circumstances entirely different and distinguishable to the facts and circumstances of the case in hand. In the case of Balbir Singh Vs. Raj Krishan (supra), the High Court of Punjab and Haryana interalia held that nonmaintainability of a suit by a money lender for recovery of loan for not holding a valid license is a legal issue and can be RCA07/2015 Sh. Harish Chand Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 13 of 14 raised at any stage including that of appeal. The evidence borne out of record elicited above is clear pointer of appellants/plaintiffs engaged in money lending business and such transactions interalia with respondents/defendants for past several years. Accordingly, since appellants/plaintiffs, who were not having license of money lender nor were registered money lender, so were not entitled to lend any money and such a suit by money lender was accordingly barred in terms of Section 3 of The Punjab Registration of Money Lender's Act, 1938. Grounds of appeal lack merits and substance. Appeal is dismissed. No order as to costs.
15. File of this appeal be consigned to record room and the requisitioned file of trial court be sent back against receipt. Copy of this judgment be also sent to the trial court.
Announced in open Court (GURVINDER PAL SINGH) on 19th Day of March, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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