Delhi District Court
Sanjay Mukim vs Raj Kumar Chaudhary on 7 November, 2013
In the Court of Pawan Kumar Matto : Additional District Judge : East
District : Karkardooma Courts : Delhi.
S no. 233/12
IN THE MATTER OF :
Sanjay Mukim .....Plaintiff
v/s
Raj Kumar Chaudhary .......Defendant
ORDER
1. This order of mine will dispose of an application filed by the defendant for grant of leave to defend.
2. Brief facts of the case are that the plaintiff has filed the present suit u/o 37 of CPC, for recovery of Rs. 12,16,000/ against the defendant, on the averments that the plaintiff is a law abiding and peace loving citizen and is permanently residing at House no. D109, IIIrd Floor, Vivek Vihar, PhaseI, Delhi 110 095 and the defendant is his friend and the defendant is having very good and cordial relations with the plaintiff and further stated that in the month of December,2009, the defendant had approached to the plaintiff at his Vivek Vihar residence and asked for financial help of Rs. 10 lakhs, as the defendant wanted to invest the money in his movie ''Wah Rasgulla'' and he is the producer and he was making the movie in the name of his firm ''Kissan Films'' in Mumbai and he assured that he will return the friendly loan within 6 months.
3. It is further stated that the plaintiff has given the friendly loan of Rs. 8 lakhs S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 1of 12 to the defendant on 11.12.2009, at Vivek Vihar, vide cheque bearing no. 009060 dated 11.12.2012 drawn on HDFC Bank, Ashoka Niketan, Delhi, in the name of the defendant i.e. Raj Kumar, which was credited in his account on 14.12.2009 and the defendant had also executed a promissory note dated 11.12.2009 of a sum of Rs. 8 lakhs and the defendant had assured to the plaintiff that if the defendant failed to pay the loan amount to the plaintiff, the plaintiff can file the suit on the basis of the promissory note. It is further stated that the defendant has also agreed to pay the interest @ 24% per annum and the defendant has also paid interest of Rs. 16000/ per month upto 31.8.2010.
4. It is further stated that the defendant stopped paying the interest and finally refused to pay any amount to the plaintiff and the plaintiff sent a legal notice dated 15.11.2012 through his counsel through registered AD and demanded the amount of promissory note dated 11.12.2009, but the defendant had failed to make the payment to the plaintiff and the plaintiff had filed a suit and prayed for passing a decree of Rs. 12,16,000/ in favour of the plaintiff and against the defendant and also prayed for passing a decree of the pendentlite interest in favour of the plaintiff and against the defendant.
5. The summon of the suit were issued to the defendant. On the service of the same, the defendant has filed his appearance through his counsel. Thereafter, the plaintiff has filed the application for issuance of summons for judgment and the same were ordered to be issued to the defendant and on the service thereof the defendant has filed the application for leave to defend, on the averments that the suit is not maintainable and no cause of S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 2of 12 action arose in favour of the plaintiff and against the defendant to file the present suit and the suit of the plaintiff is liable to be rejected in accordance with the provisions of order 7 rule 11 of CPC.
6. It is further stated that the plaintiff has filed the present suit on the basis of false, forged, frivolous, fabricated and baseless documents prepared by the plaintiff and there are triable issues, which requires evidence for the proper adjudication of the case and further stated that the present suit has been filed by the plaintiff only to harass the defendant. It is further stated that no deal was done within the jurisdiction of this court and all the deals were finalized at the house of the defendant at New Usman Pur, Delhi , Chandni Chowk and in the office of Shri Lakhvinder Singh, advocate, at A16/17, Vikram Nagar, Firozshah Kotla, New Delhi and the plaintiff had handed over the cheques to the defendant in the office of the defendant at Chandni Chowk, Delhi, so, this court has no territorial jurisdiction and further stated that the suit is not maintainable under order 37 of CPC, hence the suit of the plaintiff is liable to be dismissed.
7. It is further stated that the defendant has not received any legal notice dated 15.11.2012, whereby the plaintiff is alleged to have demanded the amount of promissory note dated 11.12.2009 and further stated that the plaintiff has filed the present suit to pressurize the defendant to sell out his property/office at lower price, whereas no amount is pending against the said loan and the defendant has already made the full and final payment of the said loan amount.
8. It is further stated that the suit filed by the plaintiff is not maintainable u/o 37 S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 3of 12 of CPC, as the same is based on the false, forged and fabricated documents and stated that there are several issues which can be decided only after grant of the leave to defend. It is further stated that the plaintiff has no licence to do the business of money lending and the plaintiff is giving the loan to other persons.
9. It is further stated that the defendant was facing some financial crises in his business and he contacted to the plaintiff, who was known to the defendant since last several years and he requested him to give a loan of Rs. 8 lakhs for a period of 67 months to which, the plaintiff had agreed and the plaintiff had given Rs. 8 lakhs to the defendant and some documents were prepared between the defendant and the plaintiff i/e. Loan agreement,mortage deed, one post dated cheque (issued by the defendant in favour of the plaintiff) and the plaintiff had obtained the signatures of the defendant on some plain and blank papers and on some revenue stamped papers and the defendant had also executed a possession letter in favour of the plaintiff regarding the first floor, E68,(consisting of two shops with loft), 1486/19, Ground floor, ward no. II, B K Gateway Moti Cinema, Chandni Chowk, Delhi and all the said documents were prepared in the presence of witnesses Shri Kadar Khan, S P Bhardwaj and Sikandar Lamba and all the original deeds are in the possession of the plaintiff and the duplicate copies thereof are in the possession of the defendant.
10.It is further stated that after handing over the possession of the said property, post dated cheque,possession letter, some blank papers on 9.12.2009 as per loan agreement/mortgage deed, by the defendant to the S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 4of 12 plaintiff, the plaintiff had issued a cheque bearing no. 009060 of Rs. 8 lakhs on 11.12.2009 and the same was encashed on 14.12.2009.
11. It is further stated that on 31.8.2010, the defendant had made full and final payment of loan amount of Rs. 8 lakhs to the plaintiff alongwith the interest and the plaintiff had returned the cheque to the defendant, but the plaintiff had not returned other original documents, i.e. Loan agreement, mortgage deed, possession letter, blank signed papers and revenue stamped signed papers. The defendant had approached to the plaintiff and requested him to return the said original documents, but the plaintiff did not return the same and the plaintiff had misused the signatures of the defendant on the revenue stamped and other blank papers.
12.It is further stated that the plaintiff is also in illegal possession of the property of the defendant bearing no. B3233, Vikram Nagar, Firozshah Kotla, New Delhi. It is further stated that the suit of the plaintiff is not maintainable and prayed for grant of unconditional leave to defend.
13.The plaintiff has filed the reply to the said application and denied that the suit of the plaintiff is not maintainable u/o 37 of CPC or that all the talks regarding the loan had taken place at the residence and office of the defendant at Chandni Chowk. The plaintiff has stated that on one hand, the defendant has stated that he contacted to the plaintiff for the loan amount and on the other hand the defendant has stated that the plaintiff had visited to the house and office of the defendant. It is also denied that any loan agreement, mortgage deed or post dated cheque were executed. It is stated that the plaintiff had given the loan of Rs. 8 lakhs to the defendant by S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 5of 12 cheque against execution of promissory note and receipt and further stated that the transaction or documents of possession, agreement to sell, receipts, affidavit etc., of the office premises bearing no. E6B, 1486/19 Ward no. II, B K Gateway Moti Cinema, Chandni Chowk, Delhi has no concern with the present suit or execution of the promissory note. The plaintiff has denied that any document for the loan transaction was prepared by Shri Lakhwinder Singh, advocate or that the said loan was given in the presence of Shri Kadar Khan and Sikandar Lamba witnesses or that there exists any loan agreement or mortgage deed, as alleged by the defendant or that the defendant had issued any post dated cheque or blank singed papers for the said transaction or that the defendant has made full and final payment of the loan amount of Rs. 8 lakhs to the plaintiff alongwith the interest or that the defendant had made any request to the plaintiff for issuing the receipt regarding the full and final payment of the loan amount or that the defendant had approached to the plaintiff and asked him to return the original documents including signed and revenue stamped papers. The plaintiff has stated that no such document as alleged by the defendant is lying with the plaintiff and further stated that if the plaintiff has not returned the said documents to the defendant, then why the defendant has not filed any police complaint or civil suit against the plaintiff. The plaintiff has also denied that he had ever cheated to the defendant or that he had misused the documents, as alleged by the defendant or that witnesses S P Bhardwaj and Kalpana Devi Mukim were not present at the time of execution of promissory note or that he had filed the present suit to S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 6of 12 grab the property of the defendant i.e. First floor, E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110
006. The plaintiff has denied that the suit is baseless, false and frivolous or that the plaintiff is in illegal possession of the property bearing no. B 3233 Vikram Nagar, Feroz Shah Kotla, New Delhi and after denying the other averments mentioned in the leave to defend, prayed for the decreetal of the suit.
14.I have heard the ld. counsel for the plaintiff perused the record.
15.The ld.counsel for the defendant has submitted that the defendant is known to the plaintiff and he was under the financial crises , so he had taken a loan of Rs. 8 lakhs from the plaintiff and the plaintiff has obtained the signatures of the defendant on some blank papers and some blank papers with revenue stamped and Loan agreement, mortgage deed and one post dated cheque and possession letter issued by the defendant were also given to the plaintiff and the plaintiff has also taken possession of the First floor, E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 and the documents were prepared in the office of Shri Lakhwinder Singh . He has also submitted that the plaintiff is an advocate. He is indulged in the business of money lending without having any licence and he is in a habit of grabbing the properties of the innocent persons. He has also grabbed an other property of the defendant bearing no. B 3233 Vikram Nagar, Feroz Shah Kotla, New Delhi. He has also submitted that since the plaintiff has obtained the documents, as he has obtained the signatures on the blank papers. He has also S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 7of 12 submitted that the documents regarding to the property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 are still lying with the plaintiff and the triable issues are involved in the present matter and stated that the defendant should not be deprived from leading the evidence, so, he has prayed for unconditional leave to the defend. He has also submitted that the defendant had also handed over the document of the shop bearing no. First floor, E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 to the plaintiff at the time of taking of the loan and it was agreed between the parties that at the time of lending the loan amount , the plaintiff will hand over the possession of the same property to the defendant at the time of returning of the amount of the loan. He has also submitted that on the payment of Rs. 10 lakhs by the defendant, the plaintiff had handed over the possession of the property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006. He has also submitted that all the documents were prepared in the office of Shri Lakhvinder Singh, advocate At A16/17 Vikram Nagar, Firoz Shah Kotla New Delhi in the presence of the witnesses Shri Kadar Khan, S P Bhardwaj and Sikander Lamba. He has also submitted that since the defendant is known to the plaintiff and he has returned the amount of Rs. 10 lakhs(Rs. 8 lakhs being amount of the loan and Rs. 2 lakhs interest thereon) and on the payment of the same amount by the defendant, the plaintiff did not returned the documents of the said premises bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 8of 12 006 to the defendant, as he had stated that after giving Rs. 2 lakhs, he will be at liberty to get those documents from him. But, the plaintiff has misused the forged, fabricated documents and filed the present suit and prayed for grant of unconditional grant of leave to defend .
16.The plaintiff who is an advocate has submitted that the suit of the plaintiff is based on the promissory note of Rs. 8 lakhs executed by the defendant in favour of the plaintiff. He has also submitted that since the defendant has not denied his signatures on the promissory note of Rs. 8 lakhs and he has also submitted that the defendant has also failed to bring on record any proof of payment of Rs 10 lakhs to the plaintiff. He has also submitted that the property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 stands in the name of the son of the defendant and also submitted that the story is concocted by the defendant and also submitted that the defendant has not denied the receiving the amount of Rs 8 lakhs from the plaintiff and he has failed to repay the said amount, so the plaintiff is entitled to recover the suit amount of Rs. 12,16,000/ from the defendant and prayed for dismissal of the application for leave to defend and for dereetal of the suit.
17.I have given thoughtful considerations to the submissions made by Ld. counsel for the plaintiff and perused the record.
18.Perusal of the record shows that the plaintiff has filed the suit for recovery of Rs. 12,16,000/ against the defendant. The suit of the plaintiff is based on the promissory note dated 11.12.2009 of Rs. 8 lakhs. No doubt, that the defendant has not categorically denied his signatures on the promissory S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 9of 12 note, but the defendant has taken the plea that the plaintiff has obtained the signatures on some blank papers, blank revenue stamped papers and subsequently, they have been forged and the promissory note is result of such forgery he has also taken the plea that the defendant has also given the possession of the property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 and he had also handed over the documents of the said property to the plaintiff and he had paid Rs. 10 lakhs to the plaintiff and took back the possession of the said property. It is worthwhile to mention here that at the time of arguments on the leave to defend the defendant was also present in the court and he had told to the court that he had paid Rs. 10 lakhs to the plaintiff and he has also stated that on receiving the amount of Rs. 10 lakhs from him, the plaintiff had handed over the possession of the property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006. The plaintiff has denied the same. But, when the defendant had stated in the court that the original documents of the property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 are still lying with the plaintiff and on raising of the demand for return of the said documents by the defendant, the plaintiff had asked to the defendant that he may get the same documents on the payment of another amount of Rs. 2 lakhs and on hearing such words of the defendant, the plaintiff started smiling in the court and his smile in the court also creates clouds of suspicion, as the defendant has taken the plea that the suit of the plaintiff is based on the S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 10of 12 forged and fabricated documents and the plaintiff is also alleged to have grabbed away an other property bearing no. 32/33, Vikram Nagar, Firozshah Kotla, New Delhi of the defendant and the defendant has taken the plea that the transaction took place in the presence of the witnesses namely Shri Kadar Khan, S P Bhardwaj and Sikandar Lamba and the documents were prepared in the office of Shri Lakhwinder Singh advocate. No doubt that the defendant has failed to bring on record any documentary proof that he has ever paid Rs. 10 lakhs to the plaintiff, but as he has taken the plea that the suit of the plaintiff is based on false,forged and fabricated documents and he has also taken the plea that the original papers of his property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 are still lying with the plaintiff, who is an advocate. Admittedly the plaintiff is not having any money lending licence, but he has claimed that he was having friendly terms with the defendant. But, the defendant has taken the plea that he is indulged in the business of money lending without having any licence thereof and this may be proved by leading evidence whether the plaintiff is indulged in the business of the money lending or he has given the friendly loan to the defendant. The defendant has also alleged that the plaintiff has also grabbed away an other property of the defendant bearing no. 32/33, Vikram Nagar, Firozshah Kotla, New Delhi and the plaintiff is not returning the documents of the property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 and in the considered opinion of this court, if the defendant succeeds in proving S.no: 233/12 Sanjay Mukim vs Raj Kumar Chaudhary 11of 12 that the documents of his property bearing no. E6B 1486/19 Ground Floor, Ward no. II, B K Gateway, Moti Cinema, Chandni Chowk, Delhi 110 006 are still lying with the plaintiff, then he may succeed in getting the documents and since the defendant has claimed that he has paid Rs. 10 lakhs to the plaintiff and the suit of the plaintiff is based on the forged and fabricated documents and such contention may be proved by way of evidence and since the defence set up by the defendant has given rise to the triable issues, so, this court is also of the firmed view that the defendant is entitled for grant of unconditional leave to defend.
19.Accordingly, the application filed by the defendant for grant of leave to defend stands allowed and unconditional leave to defend is granted to the defendant.
Announced in the open Court on :07.11.2013 (Pawan Kumar Matto) Additional District Judge03 (East), Karkardooma Court, Delhi .
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