Delhi District Court
Suman Goel vs . Kalka Prasad Aggarwal on 5 October, 2020
IN THE COURT OF MS. VANDANA JAIN,
LD. ADDITIONAL DISTRICT JUDGE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
RCA No.20211/16
Suman Goel Vs. Kalka Prasad Aggarwal
(HEARING THROUGH CISCO WEBEX)
In the matter of :
Ms. Suman Goel
Wife of Sh. B.P. Goel
GF21, PocketI, Ramprasth Green,
Sector7, Vaishali
Distt. Ghaziabad, U.P.
...............Appellant
Versus
Sh. Kalka Prasad Aggarwal (HUF)
Through Sh. Kalka Prasad Aggarwal
R/o B7, Friends Colony,
New Delhi.
.............Respondent
Date of institution: 02.01.2016
Date of Reserving: 25.09.2020
Date of pronouncement of order : 05.10.2020
Order on Appeal
1. This is an appeal filed by appellant/defendant (hereinafter referred to as appellant) against the impugned judgment and decree dated 17.11.2015 against the plaintiff/respondent (hereinafter referred to as respondent).
2. The brief facts as averred in the plaint filed by the respondent Suman Goel Vs. Kalka Prasad Aggarwal Page No. 1 of 22 before Ld Trial Court are that appellant approached the respondent to advance her a friendly loan of Rs. 2,00,000/ and against the repayment of the said loan, appellant issued a cheque bearing no. 276306 dated 27.01.1996 for Rs. 2,00,000/ drawn at Bank of India, Janpath. The aforesaid cheque was presented for encashment but the said cheque was dishonoured with remarks "exceeds arrangement".
3. Thereafter, on receipt of the advice of the dishonour of the cheque, respondent served a notice dated 22.07.1996 by registered post as well as UPC upon appellant for paying the outstanding amount but appellant failed to make the payment. Thereafter, civil suit was filed before Ld Trial Court seeking recovery of amount of Rs. 2,00,000/ alongwith interest which was decreed vide impugned order dated 17.11.2015. Hence, this appeal.
4. Written statement was filed by appellant stating that appellant and her husband are members of Vaish Cooperative New Bank Ltd, Darya Ganj, eversince 1987 and respondent is purportedly HUF which is represented by Sh Kalka Prasad Aggarwal and dealings which the appellant had with respondent were through the said Sh. Kalka Prasad Aggarwal who is also member of the said bank. Sh. Kalka Prasad Suman Goel Vs. Kalka Prasad Aggarwal Page No. 2 of 22 Aggarwal being an advocate was legal advisor of the appellant's fatherin law and after his demise the respondent enjoyed a position of active confidence in appellant's family. Due to acquaintance with the respondent, appellant's husband learnt that the respondent provides financial assistance from his individual resources.
5. It is further stated that husband of the appellant approached the respondent who agreed to provide financial assistance of Rs. 2,00,000/ and accordingly the said sum was advanced to the husband of the appellant by the respondent on 28.04.1994. The said amount was advanced by respondent at 15% interest with quarterly rests. Simultaneously appellant's husband issued cheque for Rs. 7500/ towards advance installment for the period upto 28.07.1994 i.e. for three months which was the condition imposed by the respondent for the loan. It is further stated that to secure the abovesaid loan, respondent demanded share scrips alongwith signed transfer deeds as security from appellant's husband. He delivered share scrips of various companies alongwith signed transfer deeds in trust, which were purchased by the appellant and her husband and were yet to be transferred in their names by the respective companies. At the time of delivery of the aforesaid share scrips, their total market value was much higher than the loan advanced. Suman Goel Vs. Kalka Prasad Aggarwal Page No. 3 of 22
6. It is further stated that delivery of the share scrips was without any right, title, interest or charge of the respondent, who while accepting the same assured to return the same to appellant and her husband at the time of repayment of loan. It is further stated that on 28.04.1994, respondent further dictated the appellant's husband to write a letter that it was a friendly loan carrying interest @ 15% per annum.
7. Due to their pressuring needs, her husband succumbed to the pressure exerted by the respondent. The aforesaid letter of friendly loan was extracted from the appellant's husband by the respondent to escape from the consequences of unauthorized and unlicensed loaning business. It is further stated that aforesaid loan amount alongwith interest was repaid but respondent did not return the share scrips on one pretext or the other.
8. On 24.11.1994, respondent again advanced loan of Rs 2,00,000/ in the name of the appellant and retained the share scrips alongwith signed transfer deeds which were already in his custody. At the time of advancing this loan to appellant, respondent also obtained one cheque of Rs 2,00,000/ drawn on Vaish Coop. New Bank Ltd, Daryaganj, Delhi and the terms and conditions of this loan also remained the same i.e. Suman Goel Vs. Kalka Prasad Aggarwal Page No. 4 of 22 interest @ 15% per annum. The aforesaid cheque dated 24.11.1994 was taken to ensure return of the loan advanced by the respondent to appellant. It is further stated that appellant and her husband issued three more cheques for Rs. 7500/ each towards advance interest which were duly encashed by the respondent on 25.11.1994, 26.02.1995 and 03.06.1995 for the interest upto the period ending 24.08.1995.
9. In or about August 1995, respondent got renewed the transfer deeds by getting fresh transfer deeds signed by the appellant and her husband in respect of the shares which were in his possession. It is further stated that appellant and her husband did not apprehend any mischief at the hands of the respondent as he had not misused the previously signed transfer deeds. It is further stated that after signing of the fresh transfer deeds, the appellant's husband fell ill and approached the respondent for return of part of the stock of the share scrips but respondent did not co operate and did not hand over any share scrip.
10. Since the appellant and her husband were in need of funds, respondent was told not to put the advance cheque of Rs. 2,00,000/ dated 24.05.1995 in bank without informing them. However, respondent took undue advantage of the same and presented the aforesaid cheque for Suman Goel Vs. Kalka Prasad Aggarwal Page No. 5 of 22 encashment and on account of dishonour of aforesaid cheque, respondent issued notice dated 02.12.1955 to appellant u/s 138 NI Act.
11. On receipt of the aforesaid notice, appellant and her husband met with respondent for his unwarranted step whereupon the respondent told them to ignore it saying that it was mistakenly done and offered further loan is wanted by the appellant and her husband.
12. It is further stated that since the appellant and her husband were in need of funds on account of illness of appellant's husband, they requested for Rs. 50,000/ which was given by the respondent vide cheque dated 07.01.1996 which was credited in the account of appellant's husband on 09.01.1996. In order to secure this fresh loan amount, appellant and her husband as a bonafide gesture further delivered the share scrips worth more than Rs. 50,000/ alongwith transfer deeds duly signed in addition to an advance cheque of Rs. 50,000/ towards the repayment of the fresh loan amount. Cheque dated 24.05.1995 for Rs. 2,00,000/ was dishonoured on 23.11.1995. A Notice u/s 138 NI Act was issued by respondent. Thereafter, a fresh cheque number 276306 dated 27.01.1996 for Rs. 2,00,000/ drawn on Bank of India was issued by appellant. Suman Goel Vs. Kalka Prasad Aggarwal Page No. 6 of 22
13. It is further sated that appellant and her husband came to know that in October 1995, respondent had, without the knowledge of the appellant and her husband, sold/got transferred some share scrips out of the total stock of share scrips kept in trust with him. When the accounts were demanded from respondent, he did not disclose the amount of sale proceeds received by him and since the respondent failed to submit account for illegal sales/transfers made by him of their share scrips, appellant and her husband asked the respondent not to put in the cheque dated 27.01.1996 of Rs. 2,00,000/ for encashment until he clears up the account and returns the shares scrips of the appellant and her husband but respondent presented the aforesaid cheque for encashment and got dishonoured by the bank on or about 22.07.1996 whereupon respondent issued notice dated 22.07.1996 u/s 138 NI Act to the appellant and her husband. It is further stated that appellant and her husband issued notice cumreply to the respondent on 08.08.1996 bringing out the foregoing facts therein which was duly served upon respondent which remained unanswered.
14. Respondent was not entitled to receive any amount from the appellant and her husband but on the contrary he was liable to refund the amount which he collected as sale proceeds by selling/transferring the Suman Goel Vs. Kalka Prasad Aggarwal Page No. 7 of 22 share scrips lying with him.
15. Replication to written statement of appellant was filed by respondent wherein averments made in the written statements were denied.
16. After completion of pleadings, following issues were framed on 31.05.2012.
1. Whether the suit filed by plaintiff is not maintainable as per Section 174 of Indian Contract Act ? OPD
2. Whether the suit filed by the plaintiff is bad due to nonjoinder of necessary parties, if yes, what are its effects? OPP
3. Whether the plaintiff is entitled for recovery alongwith interest as prayed for ? OPP.
4. Relief.
17. Thereafter matter was listed for evidence of both the parties. Appellant examined herself as DW1 and her husband as DW2. Respondent examined his Sanjay Aggarwal as PW1 . Thereafter, suit was decreed by impugned order dated 17.11.2015 by Ld. Trial Court. Suman Goel Vs. Kalka Prasad Aggarwal Page No. 8 of 22
18. Ld counsel for appellant has argued that Ld Trial Court had took the pleadings from the written statement so filed by appellant on pick and choose basis and the entire pleadings were never considered while arriving at a finding.
19. It is further argued that Ld Trial Court in para 2 of its judgment had projected three loan transactions but it had missed the fact that cheque dated 24.05.1995 for Rs. 2,00,000/ was issued to continue security of loan and not for encashment and similarly the same was replaced with cheque dated 27.01.1996, so the original transaction was the loan granted in the year 1994 and such limitation for enforcing the said loan so granted in the year 1994 had to be computed w.e.f. year 1994 and not from the date of cheque dated 27.01.1996 as the said cheque was given merely for continuation of security and not under any acknowledgment of debt.
20. It is further argued stated that Ld Trial Court had not satisfied itself about the limitation of the claim as is envisaged u/s 3 of the Limitation Act, 1963. It is further argued that even if the issue of limitation was not raised by the appellant nor any issue in this regard had been framed by the Ld Trial Court but still the Ld Trial Court was duty bound to dismiss Suman Goel Vs. Kalka Prasad Aggarwal Page No. 9 of 22 the suit on the limitation. In this regard, he has relied upon "Hardesh Ores Pvt Ltd Vs. Hede and Company MANU/SC/7671/2007 and Tek Chand Madan Vs. Shyam Kamal Agencies MANU/DE/0102/1976" .
21. It is argued that Ld. Trial court had given inconsistent finding as in the case u/s 138 NI Act, no liability under the cheque was found by Ld. MM. It is further argued that appellant had filed a separate suit in respect of share scripts against respondent and had filed petition u/s 24 CPC before Ld District Judge for transferring/clubbing of both the suits and summons were issued upon respondent in which date of hearing was fixed as 04.12.2015 and in the intervening period without waiting for transfer the case, Ld Civil Judge had decreed the case against the appellant vide its order dated 17.11.2015.
22. It is further argued that respondent is carrying on money lending business which is barred under the Punjab Money Lender's Registration Act.
23. It is further argued that Ld Trial Court had failed to consider that the material witness Mr Kalka Prasad Aggarwal was never produced before court who is alleged to be the Karta of the respondent and against Suman Goel Vs. Kalka Prasad Aggarwal Page No. 10 of 22 whom specific assertions were made by the appellant.
24. It is further argued that case of the appellants falls within the ambit of Section 174 of Indian Contract Act.
25. It is further argued that impugned order is liable to be set aside.
26. On the other hand, Ld counsel for respondent/plaintiff has argued that there is no infirmity in the judgment passed by Ld Trial Court. It is further argued that no such pleading of suit being barred by time was ever raised by the appellant in her written statement or during the course of arguments before Ld Trial Court.
27. He has argued that the factum of advancing loan by respondent and not paying it back by appellant are admitted. He has argued that no evidence was led by appellant regarding the share scripts and therefore, the appellant failed to prove the only defence taken by her, in the suit.
28. Ld counsel has further argued that suit is within the period of limitation as the loan was given in November,1994 and cheque was Suman Goel Vs. Kalka Prasad Aggarwal Page No. 11 of 22 issued by appellant in January, 1996. The suit having been filed within 3 years from the date of issuance of cheque is within the period of limitation. In this regard, he has relied upon Ashok Kumar Vs. Kartar Singh (RSA No. 172/2017 decided on 11.07.2017) and Rajesh Kumari Vs Prem Chand Jain 1997(42) DRJ 280.
29. Ld counsel has further argued that judgment of criminal court has no bearing on the judgment to be passed by civil court. He has relied upon "Vishnu Dutt Sharma Vs Daya Sapra in CA no. 3238/2009, DOD 05.05.2009 passed by Supreme Court of India".
30. He argued that the grounds taken in appeal are false and frivolous and appeal is liable to be dismissed.
31. I have heard the arguments through CISCO Webex and have perused the record carefully.
32. Written submissions were filed by appellant as well as respondent. Additional written submissions were also filed by respondent.
33. The perusal of the plaint and written statement filed before Ld. Suman Goel Vs. Kalka Prasad Aggarwal Page No. 12 of 22 Trial Court reveals that appellant has not disputed the receiving of loan from the respondent for an amount of Rs. 2 lacs. In the written statement, the appellant has given a background stating that in the year 1994, the husband of appellant had approached respondent for providing financial assistance of Rs. 2 lacs which was advanced by the respondent on 28.04.1994 @ 15% interest with quarterly rests. It is stated that this amount was repaid by the appellant and then again the appellant was in need of money and therefore, the respondent again advanced a loan of Rs. 2 lacs on 24.11.1994. It is pertinent to mention here that this loan is the subject matter of the present case. The defence of the appellant before the Ld. Trial Court was that at the time of advancing the loan for the first time, the respondent had demanded share scrips alongwith signed transfer deed as a security from the appellant's husband which were given to him but they were never returned.
34. It is stated that during the advancing the loan which is the subject matter of the present case, these share scrips were retained alongwith the signed transfer deeds. In para no. 6.11 of the preliminary objections in the written statement, it is stated that terms and conditions of this loan also remained same i.e. interest @ 15% p.a. thereafter, it was stated that the interest till 24.08.1995 has been duly paid. Two cheques were given Suman Goel Vs. Kalka Prasad Aggarwal Page No. 13 of 22 which were not presented and thereafter, finally a cheque dated 27.01.1996 was given which was dishonoured on presentation and a notice dated 22.07.1996 was issued under section 138 Negotiable Instruments Act, 1881 by the respondent upon the appellant.
35. It has also been stated that in January 1996, a loan of Rs. 50,000/ was again advanced by the respondent to the appellant and certain more share scrips were taken in lieu of the same. It has been stated by the appellant before the Ld. Trial Court that these share scrips were never returned and the respondent herein sold /transferred majority of the share scrips in the name of his close relatives and family members without any notice of the appellant or her husband for which a separate suit was filed by the appellant herein against the respondent. From these pleadings of the appellant, it can be summarized as well as inferred that the receiving of the loan of Rs. 2 lacs on 24.11.1994 (subject matter of the present suit) is not disputed. The interest @ 15% p.a. was agreed, has also been not disputed. A cheques towards discharge of the liability were given one after the other and the last cheque dated 27.01.1996 for Rs. 2 lacs was given. Same was dishonored on presentation. It is also not disputed. Here, the appellant had taken a stand that these cheques were issued to continue as security of loan and not for encashment. It is Suman Goel Vs. Kalka Prasad Aggarwal Page No. 14 of 22 difficult to comprehend that in case share scrips with signed transfer deeds were already pledged with the respondent for the value more than the amount of loan, what was the need of giving cheque for security at the first instance and then issuing one after the other. This version of appellant completely belies logic. A prudent man would not hand over his multiple valuable securities one after the other for taking a loan. Had the circumstances so demanded, everything ought to have been reduced into writing by the appellant in order to secure her interest. But nothing of such sort was done. The pleas taken by appellant are merely bald assertions. It can not at all be accepted that this cheque of 27.01.1996 was issued only to continue as security of loan.
36. It is nowhere stated that this amount of Rs. 2 lacs were ever repaid by the appellant to the respondent.
37. As far as advancing of Rs.50,000/ is concerned, the respondent had denied the same and probably that is the reason why the last cheque dated 27.01.1996 was for Rs. 2 lacs and not for Rs. 2.5 lacs.
38. It is a matter of record that except for stating that appellant has filed a separate suit with respect to the share scrips and signed transfer Suman Goel Vs. Kalka Prasad Aggarwal Page No. 15 of 22 deeds, no evidence has been led by the appellant in order to prove this defence before Ld. Trial Court. It has not been proved that share scrips alongwith signed transfer deeds were pledged with the respondent at the time of advancing of the loan for the first time by the respondent.
39. It is also worthwhile to note here that not even a single details of share scrips had been furnished either in the written statement or in the affidavit of evidence of the appellant on her husband before the Ld. Trial Court and no question were put to the respondent's witness during his cross examination in order to elicit from the witness that such share scrips were pledged with the respondent. Therefore, undoubtedly, it can be said, this defence of the appellant remained unproved before the Ld. Trial Court. Having said so, nothing remains in the pleading to be proved on behalf of respondent, as everything else have been admitted by the appellant herein in the written statement filed before Ld. Trial Court.
40. Now lets come to the arguments addressed by the Ld. Counsel for appellant in the present appeal.
41. First argument is that of limitation. It is pertinent to mention here that the ground of limitation was never taken up before the Ld. Trial Suman Goel Vs. Kalka Prasad Aggarwal Page No. 16 of 22 Court, however, this was argued and therefore, the same is being taken up it being legal ground. It is the duty of the court to return a finding on limitation irrespective of the fact whether it was taken as a defence in the written statement or not. The respondent had not given any date of advancing the loan whereas the appellant in the written statement has stated that the said loan was advanced on 24.11.1994, which is not disputed by respondent.
42. Ld counsel for appellant has argued that period of limitation is to be computed for the date of extending the loan as per the Article 19 of the Schedule to the Limitation Act 1963 and he has relied upon Hardesh Ores Pvt Ltd Vs. Hede and Company MANU/SC/7671/2007 and Tek Chand Madan Vs. Shyam Kamal Agencies MANU/DE/0102/1976" .
43. As far as the judgment of Tek Chand (supra) is concerned, there is no dispute to the ratio of the said judment wherein it has been observed that court is bound to dismiss an application barred by limitation, even if the parties have not taken objection of that account.
44. As far as Hardesh (supra) is concerned. This judgment is not applicable to the fact as that was a suit for specific performance whereas Suman Goel Vs. Kalka Prasad Aggarwal Page No. 17 of 22 the present suit is for recovery of money and different Articles of the Schedule to the Limitation Act are applicable and therefore it can not extend any help to the appellant herein.
45. The facts of the case clearly show that the loan was advanced on 24.11.1994 for which a cheque dated 27.01.1996 was issued. The said cheque having being issued within three years from the date of grant of loan tantamounts to an acknowledgment under section 18 of the Limitation Act, 1963. The suit having being filed within 3 years from 27.01.1996 is definitely within the period of limitation. The judgment relied upon by Ld. Counsel for respondent with respect of the limitation i.e. Ashok Kumar and Rajesh Kumari (supra) are squarely applicable to the case in hand.
46. In view of the discussions made above, the contentions of the Ld counsel for appellant that suit was filed after expiry of period of limitation is not a valid argument and is liable to be turned down.
47. Next argument of the Ld counsel for the appellant was that Sh. Kalka Prasad did not appear in the witness box and power of attorney holder can not depose on behalf of plaintiff. In this regard, it is stated that Suman Goel Vs. Kalka Prasad Aggarwal Page No. 18 of 22 suit has been filed by the Kalka Prasad (HUF). Moreover, in the suit, Sh. Sanjay Aggarwal has disposed on behalf of plaintiff as PW1. He had filed an affidavit of evidence wherein he had clearly mentioned that he is the son of Kalka Prasad Aggarwal (Karta of Kalka Prasad (HUF) and is one of the coparcners in the said HUF. He also stated that he is conversant with the facts of the present case and deposing on his personal knowledge. It is pertinent to mention here that no cross examination was conducted by the appellant's counsel on this aspect and not even a single question was asked. The plea taken by the Ld counsel for appellant is completely frivolous, in view of the fact that the deponent is a son of Kalka Prasad and one of the coparcners of the respondent (HUF).
48. Next argument of the Ld counsel for appellant is that the respondent herein had filed criminal case under section 138 NI Act which resulted in the acquittal of the appellant herein, however, Ld Trial Court failed to consider the said judgment. In this regard, Ld counsel for respondent had relied upon the judgment of Hon'ble Supreme Court titled " "Vishnu Dutt Sharma Vs Daya Sapra in CA no. 3238/2009, DOD 05.05.2009 passed by Supreme Court of India" wherein it has been observed that "there can not be any doubt or dispute that a creditor can Suman Goel Vs. Kalka Prasad Aggarwal Page No. 19 of 22 maintain a civil and criminal proceeding at the same time. Both the proceeding , thus, can run parallely. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis a vis a a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit preponderance of probability would serve the purpose for obtaining a decree".
49. It was further observed that "if judgment of a civil court is not binding on a criminal court, it is incomprehensible that a judgment of a criminal court will be binding on a civil court. We have notice hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in Section 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue or is relevant in some other provisions of the Act, no other provisions of the Evidence Act or for that matter any other statute had been brought to out notice".
50. In the aforesaid judgment, the respondent was acquitted in the case Suman Goel Vs. Kalka Prasad Aggarwal Page No. 20 of 22 under section 138 Act NI Act by the Ld. MM and thereafter, had filed an application under Order 7 Rule 11 CPC taking a plea of resjudicata in a civil suit filed by the appellant. In the aforesaid case, Ld. MM under section 138 Act has observed that no loan was taken by the respondent. Even despite having these findings on record in a criminal case, the Hon'ble Supreme Court held that these finding did not have any bearing on a civil case and both the cases can run parallely. In the present case , the careful reading of the order passed by the Ld. MM under section 138 NI Act, reveals that the acquittal was pronounced due to the probable defence taken by appellant herein that some share scrips were pledged with the respondent herein. No definite findings were arrived at and Ld MM took note of the pendency of this suit as well as other suit filed by the appellant against the respondent with respect to the share scrips. Therefore, this argument of Ld. Counsel for appellant does not hold any merit.
51. The last argument of Ld counsel for appellant is that at the time of final argument, Ld counsel for appellant had requested the Ld Trial Court that he had moved an application under section 24 CPC for consolidation of the suits before the Ld. District and Session Judge and therefore, he be given time but no time was granted. As far as this argument is concerned, Suman Goel Vs. Kalka Prasad Aggarwal Page No. 21 of 22 perusal of the file shows that suit was filed by the respondent herein in the year 1999 which was decided in the year 2015. The matter was adjourned thrice for final arguments. On the third date of hearing, Ld counsel appeared and requested for an adjournment which the Ld. Trial Court refused vide its speaking order dated 09.11.2015. I do not find any infirmity in this order passed by Ld. Trial Court as during the entire tenure of 16 years, no such efforts was made by the appellant herein to get both the suits consolidated. Apparently, it was only an attempt to delay the adjudication of the suit in hand and this argument does not hold any merit.
52. There is no infirmity in the order passed by Ld. Trial Court. Hence, present appeal is dismissed. Impugned order is upheld.
53. Decree sheet be prepared accordingly. Appeal file be consigned to Record Room. TCR alongwith copy of the order be sent back to concerned Digitally signed by VANDANA court. JAIN VANDANA Date:
Announced through CISCO Webex JAIN 2020.10.05
15:53:45
on 05.10.2020 +0530
(VANDANA JAIN)
ADDITIONAL DISTRICT JUDGE07/
SOUTH EAST DISTRICT/SAKET COURTS/
NEW DELHI
Suman Goel Vs. Kalka Prasad Aggarwal Page No. 22 of 22