Delhi District Court
Ms. Geeta Kumari vs Sh. Chintu Taneja @ Ashu on 15 October, 2019
IN THE COURT OF SH. NITISH KUMAR SHARMA
CIVIL JUDGE01 (WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. 612986/16
Date of Institution : 09.08.2016
Date of reservation of judgment : 15.10.2019
Date of pronouncement of judgment : 15.10.2019
Ms. Geeta Kumari,
Daughter of Sh. Anshi Lal Khurana,
R/o T 105/A, Baljeet Nagar,
New Delhi 110 008
............Plaintiff
Vs.
Sh. Chintu Taneja @ Ashu,
T444 (First Floor), Baljeet Ngar,
New Delhi110008
..........Defendants
SUIT FOR RECOVERY OF RS. 1,00,000/
JUDGEMENT
1. In brief factual matrix of the present case as per the plaint are that, defendant no. 1 and brother of plaintiff were having friendly relations and in the first week of August, 2013, defendant No. 1 approached and requested the plaintiff for a friendly loan of Rs.1,00,000/ for a short period for treatment of his son and assured the plaintiff that defendant No.1 will return the same within 10 15 days. It is contended that considering the request of defendant, plaintiff arranged a sum of Rs.1,00,000/ and the same was given to defendant no. 1 in cash in good faith. It is stated that the brother in law of defendant no.
CS SCJ No. 612986/16 Geeta Kumari vs Chintu Taneja @ Ashu Page No. 1 /71, namely Mr. Jatin stood as a guarantor for the defendant No. 1.
2. It is contended that at the time of taking the said amount of Rs.1,00,000/ defendant No. 1, assured the plaintiff to return the same within 1015 days but after passing of the said period. It is stated that in case defendant No. 1 failed to pay the said amount then defendant No. 2, who stood as guarantor, will pay the said amount but both of them neglected to pay the said short term loan amount and only after great persuasions made by the plaintiff, defendant No. 1 issue an account payee cheque of Rs. 1 Lakh against the said loan amount in favour of plaintiff. It is averred that at the time of giving cheque, defendant No. 1 made request to the plaintiff to present the said cheque after one month and thereafter again after one month defendant No. 1 requested the plaintiff not to present the said cheque and in order to maintain a cordial relationship plaintiff did not present the said cheque for encashment. It is stated lastly the defendant asked the plaintiff not to present the cheque as he would make the entire payment in cash but plaintiff presented the said cheque the same was returned with the remarks outdated cheque as the validity period of three months for presenting the said cheque had expired. It is stated that despite repeated requests defendant did not return the loan amount and in with an intention to usurp the hard owned money of the plaintiff, defendant had left his premises without giving any information to anyone about his whereabouts. It is stated that only after great persuasion plaintiff got the address of defendant No. 1. It is stated that defendant No. 2 had also misbehaved with the plaintiff, when he demanded his money back. It is stated that lastly, when plaintiff contacted defendant No. 1 on 05.07.2016 and demanded the said amount but defendant No. 1 flatly refused to pay any amount. It is stated that leaving with no other other CS SCJ No. 612986/16 Geeta Kumari vs Chintu Taneja @ Ashu Page No. 2 /7 plaintiff sent a legal notice dated 26.07.2016 to the defendants thereby calling upon them to pay the above said amount along with interest. It is stated that both the defendants are jointly and severally liable to pay an Rs.1,00,000/ @ 18% per annum w.e.f. 18.08.2013 till actual realization of the same. Hence, the present suit.
3. By virtue of the present suit, plaintiff has prayed for :
a) A decree of Rs. 1,00,000/ along with interest @ 18 % per annum w.e.f. 18.08.2013,with costs, pendentelite and future interests @ 18 % per annum till its realization.
b) Any other or further relief which the court deems fit and appropriate in favour of the plaintiff and against the defendant.
4. Written statement of defendant was not taken on record as the same was filed at very belated stage and yet eve after allowing one opportunity to the defendant subject to cost, the defendant failed to comply with the order. Vide statement of Ld. counsel for plaintiff recorded on 09.08.2016, defendant no. 2 was deleted from the array of parties.
5. Perusal of the record shows that, vide order dated 31.10.2017, service was effected upon the defendant on 17.10.2017. On 13.03.2018 cost of Rs. 1500/ was imposed upon the defendant as a perrequisite condition for taking the W.S on record. However, despite opportunity being given for deposition of cost, the needful was not done and consequently, vide order dated 30.08.2018, the defence of the defendant was struck off and WS of the defendant was not taken on record and matter was listed for PE.
6. In order to prove her case, plaintiff got herself examined as PW 1 (Ms. Geeta Kumari) and tendered in evidence her duly sworn in affidavit which is exhibited as Ex.PW1/A. In her testimony the following documents CS SCJ No. 612986/16 Geeta Kumari vs Chintu Taneja @ Ashu Page No. 3 /7 were exhibited: Sr. Nature of documents Exhibited as No .
1 Original Cheque bearing No. 000226 dated Ex.PW1/1 18.08.2013 for an amount of Rs. 1,00,000/ drawn on Axis Bank.
2 Copy of complaint to the Women Ex.PW1/2(OSR)(4
Commission. pages)
3 Copy of the Voter ID Card of PW1 Ex.PW1/3 (OSR)
4 Legal notice dated 26.07.2016 sent to the Ex.PW1/4
defendant.
5 Returned envelop. Ex.PW1/5
6 Courier receipt. Ex.PW1/6
7 Legal notice dated 26.07.2016. (Ex.PW1/7 deexhibited as document already exhibited as Ex.PW1/4) Thereafter, vide order dated 10.12.2018, PE was closed and matter was fixed for final arguments.
7. I have heard the final arguments adduced by Ld. counsels for parties and have carefully perused the judicial record.
8. Since, defence of the defendant was struck off, the onus was upon the plaintiff to prove the prayer made by her by virtue of the present suit i.e. pertaining to recovery of sum of Rs. 1 Lakh @ 18 % per annum w.e.f. 18.08.2013, along with cost and pendente lite and furture interest @ 18 % per annum till the realization of the money.
CS SCJ No. 612986/16 Geeta Kumari vs Chintu Taneja @ Ashu Page No. 4 /79. The plaintiff in order to prove her case examined herself as the only witness and further placed on record the cheque pertaining to the tune of Rs. 1 Lakhs drawn on Axis Bank, Delhi issued by the plaintiff and the same is Ex.PW1/1. Further, it is averred by the plaintiff that the said cheque was given by defendant no. 1 to the plaintiff on account of the repayment of the loan which the plaintiff had advanced to defendant No. 1, but the said cheque was never honoured on one pretext or another, defendant kept buying time from the plaintiff and further requested the plaintiff not to present the said cheque and owing to this reason when the cheque was presented the same was dishonoured.
10. At the outset, it is imperative to note that the plaintiff was required to prove that she had advanced a loan to the defendant and the said loan has been defaulted.
11. PW1 in her crossexamination has stated that no written agreement was executed for the alleged loan, and had stated that the said loan was advanced on account of financial urgency. However, it is again a notable fact that no other witness has been examined on behalf of the plaintiff for proving that a loan was advanced by the plaintiff to the defendant. The plaintiff, is thus is relying only on the cheque Ex. PW 1/1 that was issued by the defendant.
12. As regards the advancing of loan, it has emerged from the cross examination of PW1 that the said amount was paid in cash out of the savings. It is a matter of record that no statement of account has been filed on behalf of the plaintiff to show the financial capacity of the plaintiff to advance loan. From the crossexamination of PW1, it has also emerged that during the relevant year, the plaintiff resided with her mother and that she had CS SCJ No. 612986/16 Geeta Kumari vs Chintu Taneja @ Ashu Page No. 5 /7 no source of income.
13. PW1 has further deposed that the factum of the loan being advanced has not been mentioned in the ITR. It has been contended by the Ld. counsel for plaintiff that nonmentioning of the loan amount does not show that the loan was not advanced. The said contention is supported by the Judgement titled as Lekh Raj Sharma vs Yashpal Gupta 221 (2015) DLT
285. Ld. counsel for defendant has relied on judgement titled as K. Subramani vs.K.Damodara Naidu 2015 (4) JCC (NI) 269 and contended that a presumption against the defendant stands rebutted as the loan is not reflected in ITR.
14. It is trite law that every case has to be seen in the light of the facts and circumstances of the each case. The Judgments relied upon by the parties pertains to Negotiable Instruments Act. In Lekhraj Sharma (supra), it is held that in friendly relation, nonmentioning of loan in the ITR does not show that loan was not advanced and something more is required to be proved by the accused to avoid the liability.
15. However, in a civil suit, it is trite law that case of the plaintiff has to stand on its own legs and he is required to prove all the essentials to claim the relief. In the instant case, it was incumbent upon the plaintiff to prove that a loan was advanced to the defendant and that the defendant has defaulted the same.
16. The plaintiff has heavily relied upon Ex. PW 1/1 which is a cheque that has been duly signed by the defendant. However a notable fact is that the plaintiff has mentioned in the plaint that the said cheque was given by the defendant at the time of taking of loan I.e in the first week of August whereas PW1 in her crossexamination stated that the said cheque was given CS SCJ No. 612986/16 Geeta Kumari vs Chintu Taneja @ Ashu Page No. 6 /7 on 13th or 15th August, 2013. Further the plaintiff has stated in her affidavit of evidence Ex.PW 1/A and in her plaint that she had sent a legal notice Ex. PW 1/ 4 to the defendant on 26.7.2016 and has also made a complaint Ex. PW 1/ 2 to the Women Commission and has stated in her cross examination as under :
" It is correct that no legal notice was given to the defendant to demand the loan amount of Rs. 1 Lakh back. It is correct that even no complaint to any authority was lodged against the defendant."
17. Thus, it can be culled out that no complaints were made and no legal notice was sent to the defendant for recovery of the said amount. The plaintiff stands contradicted to the stand taken by her in her plaint and in examination in chief. Necessarily, the said testimony has to be read with circumspection. Neither statement of account has been filed on record nor cheque returning memo has been filed. The plaintiff has, thus, failed on the balance of preponderance of probabilities to show that the loan was advanced and that the same was defaulted by defendant.
In view of the aforesaid observations, the suit of the plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed NITISH by NITISH KUMAR KUMAR SHARMA SHARMA Date: 2019.10.15 17:06:30 +0530 Pronounced in the open court (Nitish Kumar Sharma) today i.e on 15.10.2019 Civil Judge01(West)/Delhi CS SCJ No. 612986/16 Geeta Kumari vs Chintu Taneja @ Ashu Page No. 7 /7