Delhi District Court
Jaiwant Gill vs Ms. Sudesh Sayal on 19 August, 2017
IN THE COURT OF DR. SAURABH KULSHRESHTHA:
ADDITIONAL DISTRICT JUDGE -11, CENTRAL,
TIS HAZARI COURTS, DELHI
Civil Suit No: 2032/2017
Jaiwant Gill
S/o Late Shri Balraj Gill
R/o - 378, Nilgiri Apartments,
Alakhnanda,
New Delhi - 110019. ..... Plaintif
Versus
1. Ms. Sudesh Sayal
(since deceased through LRs)
(A) Shri Abhishek Syal
S/o Late Shri Maharaj Krishan Syal
(B) Shri Arjun Syal
S/o Late Shri Maharaj Krishan Syal
Both residents of :
D-192-A, Mohan Garden,
Uttam Nagar, New Delhi ......Defendant
Suit For Recovery of an amount of Rs. 5,41,430/-
and Counter Claim for Recovery of
an amount of Rs. 3,13,119/-
Date of institution of the Suit : 03.07.2006
Date on which judgment
was reserved : 27.07.2017
Date of decision : 19.08.2017
Decision : Suit Partly decreed.
Counter Claim
Dismissed.
Jaiwant Gill v. Sudesh Sayal
Civil Suit No. 2032/2017 Page No. 1 of 38
JUDGMENT
1. This common judgment shall dispose of the suit filed by the plaintif as well as the counter claim filed by the defendant. This is a suit for recovery of an amount of Rs. 5,41,430/- (Rupees Five Lacs Forty One Thousand Four Hundred Thirty Only). The version of the plaintif is that on the request of the defendant, the plaintif had extended a friendly loan of an amount of Rs. 2,88,000/- to the defendant. The loan amount was paid through cheque which got encashed by the defendant on 13.06.2003. The defendant also executed a promissory note for an amount of Rs. 2,88,000/- which was repayable along with interest @ 4 % per month (48% per annum).
2. It is further the case of the plaintif that the defendant repaid an amount of Rs. 1,50,000/- vide cheque dated 18.06.2004 out of which an amount of Rs. 1,38,240/- was adjusted towards interest and an amount of Rs. 11,760/- was adjusted towards the principal loan amount. Therefore the balance principal loan amount of Rs. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 2 of 38 2,76,240/- was due, outstanding and payable by the defendant as on 18.06.2004. The plaintif has further averred that the defendant is liable to pay interest @ 48% per annum on the outstanding loan amount till May 2006, amounting to Rs. 2,65,190/-.
3. It is further the case of the plaintif that the outstanding loan amount with interest was not paid by the defendant despite repeated requests and reminders and despite service of legal notices dated 03.06.2006 and 13.06.2006, though the defendant sent a false reply to the legal notice dated 03.06.2006. The plaintif has therefore prayed for a decree of an amount of Rs. 5,41,430/- along with pendente lite and future interest @ 48 % per annum.
4. The defendant filed her Written Statement and refuted the claim of the plaintif. The defendant has pleaded that the plaintif is a friend of the defendant's husband Sh. Maharaj Krishan Syal and the plaintif had advanced a friendly loan of an amount of Rs. 2,88,000/- to Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 3 of 38 the defendant with an understanding that due to close friendly relations between the parties the defendant shall pay interest @ 4% per annum only to the plaintif. The defendant has however averred that no promissory note or receipt or any other document was executed by the defendant at the time of grant of the loan and the alleged promissory note cum receipt is a forged and fabricated document. The defendant further specifically denied that the loan was repayable with interest @ 48% per annum.
5. The defendant further pleaded at the time of taking the said loan, the defendant's husband had given seven cheques - two cheques of Rs. 1,50,000/- each and five cheques of Rs. 12,000/- each to the plaintif as collateral security. The defendant has further pleaded that out of these cheques the plaintif had encashed two cheques of Rs. 1,50,000/- and Rs. 12,000/- and the plaintif had further received payment in cash against four other cheques of Rs. 12,000/- each which were returned by him to the defendant after receipt of the payment in cash.
Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 4 of 38
6. The defendant has further pleaded that she has already paid excess amount to the plaintif in cash as per the following details : Rs. 9,000/- in June, 2004; Rs. 7,500/- in August - September, 2004; Rs. 25,000/- on 17.09.2004; Rs. 6,000/- on 17.10.2004; Rs. 60,000/- on 26.10.2004; Rs. 6,000/- on 06.12.2004; Rs. 6,000/- on 31.12.2004; Rs. 6,000/- on 08.03.2005; Rs. 12,000/- on 20.05.2005; Rs. 1,12,000/- on 29.05.2005; Rs. 12,000/- on 17.04.2005; Rs. 12,000/- on 17.05.2005 and Rs. 10,000/- on 06.07.2005 amounting to a total of Rs. 2,71,500/- apart from an amount Rs. 1,50,000/- through cheque no. 70172 dated 18.06.2004 and Rs. 12,000/- through self cheque no. 141355 dated 17.07.2003. Thus the plaintif contended that she has paid an amount of Rs. 4,45,500/- to the defendant.
7. The defendant has further pleaded that another cheque no. 70170 for an amount of Rs. 1,50,000/- was given to the plaintif by the defendant's husband, issued from the defendant's account, which was dishonoured on Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 5 of 38 presentation. The defendant has further pleaded that she had made cash payment of an amount of Rs. 1,50,000/- to the plaintif in lieu of the said dishonoured cheque no. 70170. The plaintif has contended that therefore the plaintif has received an amount of Rs. 1,50,000/- apart from the above said amount of Rs. 4,45,500/- from the defendant and her husband.
8. The defendant has further pleaded that in the notice dated 03.06.2006 issued on behalf of the plaintif, the plaintif had admitted that he had received an amount of Rs. 2,20,000/- from the defendant till 18.06.2004 out of which an amount of Rs. 12,000/- was paid towards interest for a period of one year and one week and an amount of Rs. 2,08,000/- was paid towards part payment of the principal amount. Thus the plaintif had admitted that after 18.06.2004 the defendant was only liable to pay an amount of Rs. 80,000/- to the plaintif alongwith further interest.
9. The defendant has further pleaded that she had Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 6 of 38 duly replied the said legal notice dated 03.06.2006 and had asserted that that the entire loan had been repaid. Thereafter the plaintif vide legal notice dated 13.06.2006 had concocted a false story that the only payment which was received was by way of cheque for an amount of Rs. 1,50,000/- out of which an amount of Rs. 1,38,240/- had been adjusted towards the interest and the remaining amount of Rs. 11,760/- had been adjusted towards the principal loan amount and had further demanded an amount of Rs. 2,76,240/- towards the balance principal amount and Rs. 2,65,190/- towards the interest with efect from 18.06.2004. The defendant averred that the said legal notice dated 13.06.2006 was however not received by the defendant.
10. The defendant has further pleaded that she was liable to pay the principal loan amount of Rs. 2,88,000/- along with interest @ 4% per annum from 13.06.2003 to 06.07.2005 amounting to a total of Rs. 3,12,960. However, the defendant has paid an amount of Rs. 4,45,500/- in total Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 7 of 38 to the plaintif and in this way the plaintif has recovered an excess amount of Rs. 1,32,540/- from the defendant. The defendant has therefore claimed that she is entitled to recover the excess amount of Rs. 1,32,540/- alongwith interest @ 4% per annum from 06.07.2005 to 06.05.2008 amounting to Rs. 14,579/-. The defendant has further pleaded that she is also entitled to recover the amount of Rs. 1,50,000/- paid by her in cash to the plaintif in lieu of the dishonoured cheque no. 70170 along with interest thereupon @ 4% per annum from August 2005 to May 2008 amounting to Rs. 16,000/-.
11. The defendant has therefore made a Counter claim and prayed for recovery of an amount of Rs.3,13,199/- (Rs. Three lacs thirteen thousand one hundred and ninety nine only) along with pendente lite and future interest thereupon @ 4 % per annum.
12. Plaintif filed Reply to the Counter Claim and denied the averments made by the defendant and Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 8 of 38 simultaneously reiterated and reafirmed the contents of the plaint. The plaintif denied the receipt of alleged cash payments. The plaintif denied that the defendant had made excess payment of Rs. 1,32,540/- to the plaintif. The plaintif further denied that the defendant had paid an amount of Rs. 1,50,000/- in cash to the plaintif in lieu of the dishonoured cheque no. 70170. The plaintif denied that the defendant is entitled to recover an amount of Rs.3,13,199/- along with interest from the plaintif. The plaintif prayed for dismissal of the Counter Claim.
13. On the basis of the pleadings of the parties, the following issues were framed vide order dated 15.07.2009:
(1) Whether the suit is maintainable in the present form ? OPD (2) Whether the suit is without any cause of action ?
OPD (3) Whether the plaintif is entitled to a decree for the suit amount? OPP Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 9 of 38 (4) Whether the plaintif is entitled to any interest, if so, at what rate and for what period ? OPP (5) Whether the defendant is entitled to counter claim / decree for Rs. 3,13,119/- as claimed ? OPD (6) Whether the defendant is entitled to any interest on the amount claimed, if so, at what rate and for what period ? OPD (7) Relief.
14. In order to prove his case the plaintif examined himself as PW-1 and deposed on the lines of the plaint. PW 1 exhibited / marked the following documents - the report of the handwriting expert as Ex. PW 1/1, the promissory note cum receipt as Ex. PW1/2; legal notice dated 13.06.2006 and 03.06.2006 as Ex. PW1/3 and Ex. PW1/4 respectively; reply to the legal notice dated 03.06.2006 as Ex. PW1/5; Copy of ration card of plaintif is as Mark A; postal receipts as Ex. PW1/7 and Ex. PW1/8; AD card and returned envelope as Ex. PW1/9 and Ex. PW1/10. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 10 of 38
15. The defendant examined herself as DW 1. However before the recording of her testimony could be completed the defendant expired. The sons of the defendant namely Shri Abhishek Syal and Shri Arun Syal were substituted as her LRs vide order dated 05.08.2015.
16. Therafter Sh. Abhishek Syal was examined as DW1 on behalf of the defendant and he deposed on the lines of the written statement. DW 1 exhibited / marked the following documents - original payment receipts purportedly issued by the plaintif which are Ex. DW1/D-7 to Ex. DW1/D-15; statement of account of the defendant which is Mark A (colly); cheques returned by the plaintif - cheque no. 141358 dated 17.10.2003, cheque bearing no. 141357 dated 17.09.2003, cheque bearing no. 141359 dated 17.11.2003 and cheque bearing no. 141356 dated 17.08.2003 which are Ex. DW1/D-3 to Ex. DW1/D-6, torn cheque dated 17.12.2004 as Ex. DW1/D-2; copy of complaint dated 28.06.2006 made by the defendant against the plaintif as Ex. DW1/B; reply to the legal notice dated Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 11 of 38 03.06.2006 as Ex. DW1/C.
17. The defendant further examined Sh. Yoginder Verma, oficial of Corporation Bank, Karol Bagh, Delhi as DW2. He produced the statement of account of Smt. Sudesh Syal from 01.01.2003 to 31.07.2005 which is Ex. DW2/1(colly) in which the status of cheque bearing no. 141355 of Rs. 12,000/- encashed on 17.07.2003 is shown at point A and another cheque No. 70170 returned as unpaid on 09.06.2005 for the reasons 'insuficient funds' is shown at point B and the letter dated 21.09.2016 in this regard is Ex. DW2/2.
18. The defendant further examined Sh. Deepak Jain, handwriting expert as DW-2 (DW2A) who has proved his report Ex. DW2/A and deposed that the questioned signatures on the payment receipts tally with the admitted signatures of the plaintif and the questioned signatures on the promissory note do not tally with the admitted signatures of the defendant. The certified copies of the Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 12 of 38 documents provided to him are Ex. DW2/B (colly).
19. I have heard the Ld. Counsel for the parties and have given due consideration to their rival contentions and carefully perused the record. My issue-wise findings are as under:
Issues nos. 1, 2 and 3 (1) Whether the suit is maintainable in the present form ? OPD (2) Whether the suit is without any cause of action ? OPD (3) Whether the plaintiff is entitled to a decree for suit amount? OPP
20. PW1 has deposed that on the request of the defendant he had extended a friendly loan of an amount of Rs. 2,88,000/- to the defendant which was to be repaid along with interest @4% per month (48% per annum) and the defendant had executed promissory note-cum-receipt in this respect which is Ex. PW1/2. PW 1 further deposed that Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 13 of 38 the amount was paid by way of cheque which was got encashed by the defendant on 13.06.2003.
21. The defendant has admitted the factum of grant of loan of an amount of Rs.2,88,000/-, however, the defendant has disputed the execution of the promissory note-cum-receipt Ex. PW1/2 by her. The defendant had categorically asserted in her written statement that she had not executed the promissory note-cum-receipt Ex.PW1/2 and the same is a forged and fabricated document. The defendant had disputed her signatures on the promissory note-cum-receipt Ex. PW1/2. DW 1 has also deposed in this respect. The defendant has in fact examined handwriting expert as DW 2 (DW2A) to corroborate her contention that the said promissory note- cum-receipt Ex. PW1/2 does not bear her signatures.
22. In the judgment titled as Devender Bhati vs Chander Kanta, 2015 SCC OnLine Del 14224 the Hon'ble High Court of Delhi observed:
Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 14 of 38 "......In Harish Mansukhani (supra), the Division Bench noticed that the plaintif has to prove his case and had to stand on his own legs. Similarly, in Ganpatlal (supra), the Madhya Pradesh High Court took note of the elementary rule of civil litigation in this country that the plaintif must stand or fall on the strength of his own case...."
23. Since the defendant has disputed the execution of the promissory note-cum-receipt Ex. PW1/2 it was incumbent upon the plaintif to have led cogent and viable evidence to prove that the same was executed by the defendant. There are no witnesses to the promissory note- cum-receipt Ex. PW1/2 and the column for attesting witnesses thereupon is blank. The plaintif should have at least examined a handwriting expert as a witness on his behalf to corroborate his version that the promissory note- cum-receipt Ex. PW1/2 bears the signatures of the defendant. The plaintif has himself exhibited the report of the handwriting expert as Ex. PW 1/1, however the handwriting expert has not been examined as a witness. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 15 of 38 The plaintif was not competent to prove the report of the handwriting expert as he is neither an expert nor he is the author of the said report. Thus the report has not been duly proved and adverse inference ought to be drawn against the plaintif for non examination of the expert as a witness.
24. I have also perused the said promissory note- cum-receipt Ex. PW1/2 and I am of the prima facie opinion that the signatures appearing on the said promissory note- cum-receipt Ex. PW1/2 do not appear to be exactly similar to the admitted signatures of the defendant available on the written statement and the afidavit filed along with the written statement. Be that as it may the onus to prove the said promissory note-cum-receipt Ex. PW1/2 was upon the plaintif and the plaintif has failed to prove that the same was executed by the defendant since there is no cogent and viable evidence on record apart from the bald testimony of the plaintif.
25. Nonetheless the defendant has admitted that she Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 16 of 38 had in fact taken a friendly loan of an amount of Rs. 2,88,000/- from the plaintif. The contention of the defendant, however is, that interest was payable @ 4% per annum whereas the contention of the plaintif is that interest was payable @4% per month (48% per annum).
26. Since the plaintif has failed to prove the execution of the promissory note Ex. PW 1/2 there is no other document to establish the contention of the plaintif that interest was payable @4% per month (48% per annum). Further interest @ 4% per month (48% per annum) is exorbitant and unreasonable and it is opposed to common sense that any person would agree to take a friendly loan at an interest rate of 48% per annum. PW1 has stated in his cross examination that he knew the husband of the plaintif for 40 years. The loan in question was a friendly loan. The plaintif is not a registered money lender. In these facts and circumstances the version of the defendant appears to be more probable that the loan was repayable with interest @ 4% per annum. Therefore the Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 17 of 38 defendant was only liable to repay the loan amount of Rs. 2,88,000/- along with interest @ 4% per annum w.e.f. 13.06.2003.
27. PW1 has deposed that the defendant had only made a payment of Rs. 1,50,000/- vide cheque dated 18.06.2004, out of which an amount of Rs. 1,38,240/- was appropriated towards interest and an amount of Rs.11,760/- was appropriated towards the principal loan amount and hence balance principal amount of Rs. 2,76,240/- was due, outstanding and payable by the defendant as on 18.06.2004.
28. On the other hand DW1 has deposed that the defendant's husband had given seven cheques - two cheques of Rs. 1,50,000/- each and five cheques of Rs. 12,000/- each to the plaintif and out of these cheques the plaintif had already encashed two cheques of Rs. 1,50,000/- and Rs. 12,000/- and the plaintif had further received payment in cash against four other cheques of Rs. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 18 of 38 12,000/- each which were returned by him to the defendant after receipt of cash payment. DW 1 further deposed that the defendant had paid an amount of Rs. 4,45,500/- to the plaintif as detailed in the written statement. DW 1 further deposed that additionally in lieu of the dishonoured cheque no. 70170 cash amount of Rs.1,50,000/- had also been paid by the defendant to the plaintif and the said torn cheque is Ex. DW1/D2. The original payment receipts purportedly issued by the plaintif are Ex. DW1/D-7 to Ex. DW1/D-15 and the four cheques of Rs. 12,000/- returned by the plaintif against which cash payments were made are Ex. DW1/D-3 to Ex. DW1/D-6
29. The defendants have placed on record various handwritten receipts purported to have been issued by the plaintif which are Ex.PW1/D-7 to Ex.PW1/D-15. The defendant has contended that from June, 2004 onwards various payments had been made by the defendant to the plaintif vide these receipts Ex.PW1/D-7 to Ex.PW1/D-15 and these receipts purportedly bear the signatures of the Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 19 of 38 plaintif.
30. The plaintif has denied his signatures on the said receipts. Handwriting Expert was examined by the defendant as DW2 and he has opined that the signatures appearing on the receipts Ex. PW1/D-7 to Ex. PW1/D-15 have been written by the plaintif only.
31. In the judgment titled as S.P.S. Rathore v. CBI reported as (2017) 5 SCC 817 the Hon'ble Suprme Court has observed:
"........We are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally suficient for recording a definite finding about the writing being of a certain person or not. A court is competent to compare the disputed writing of a person with others which are Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 20 of 38 admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on the basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held by this Court in a catena of cases that the sole evidence of a handwriting expert is not normally suficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence...."
32. Let us analyze the report of the handwriting Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 21 of 38 expert in light of this legal position and the other material available on record. It is seen that these receipts Ex. PW1/D-7 to Ex. PW1/D-15 have been executed on small/ torn pieces of papers. Revenue stamp(s) have been afixed on these receipts but it appears that the revenue stamps have been afixed afterwards as the purported signatures of the plaintif do appear over the revenue stamps. From a bare perusal of these receipts it becomes clear that diferent portions of these receipts have been written in diferent inks / by diferent pens and by diferent persons. All these factors have not been explained by the defendant.
33. Further the defendant has not got the entire handwritten portions on the said receipts examined by the handwriting expert. It has no where been stated that the entire handwritten text appearing on the said receipts is in the handwriting of the defendant nor this fact has been proved by getting the handwriting analyzed by the handwriting expert. Adverse inference ought to be drawn against the defendant that she has not got the entire Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 22 of 38 handwritten text appearing on Ex. PW1/D-7 to Ex. PW1/D- 15 compared with the admitted handwriting of the defendant.
34. It is further seen that only initials have been made on the receipts Ex. PW1/D-7 to Ex. PW1/D-13 and Ex. PW1/D-15. On the other hand the admitted signatures of the plaintif appearing on the plaint, etc. are his purported full signatures. Therefore it is not safe to rely upon the report of the handwriting expert given after comparison of the full signatures with purported/ disputed initials. Moreover the handwriting expert has neither examined the originals nor he has taken any photographs of the disputed signatures and the admitted signatures from the original documents in the judicial file and has merely made the comparison/ analysis on the basis of photocopies of documents. Hence it is not safe to rely upon the report of the handwriting expert.
35. There is no other cogent and viable evidence Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 23 of 38 available on record to prove the alleged cash payments of Rs. 2,71,500/-. Why huge amounts were paid in cash has not been explained by the defendant and even the source of funds has not been established. In the reply Ex. DW1/C (Ex.PW1/5) issued on behalf of the defendant to the legal notice dated 03.06.2006 also no details have been given by the defendant with respect to the alleged cash payments purportedly made against the said receipts. The receipts Ex. PW1/D-7 to Ex.PW1/D-15 have not been satisfactorily proved by the defendant and therefore it cannot be said that the amounts reflected in the said receipts were received by the plaintif.
36. The defendant has also failed to prove that cash payments had been made against cheques Ex. PW1/D-3 to Ex.PW1/D-6. The defendant has contended that the said cheques had been handed over to the plaintif at the time of grant of the loan and they were returned by the plaintif back to the defendant when cash payments of Rs. 48,000/- had been made to the plaintif against the said cheques. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 24 of 38
37. However, there is no written document with respect to handing over of the said cheques Ex. PW1/D-3 to Ex. PW1/D-6 to the plaintif. The cheques Ex. PW1/D-3 to Ex. PW1/D-6 were never presented for encashment by the plaintif. Once it has not been established that these cheques were given to the plaintif, the question of their return does not arise. Further there is no receipt or other cogent and viable evidence to show that cash amount of Rs. 48,000/- against the said four cheques had been paid to the plaintif. Hence the defendant has failed to establish that cash payments of Rs. 48,000/- had been made by the defendant to the plaintif against the said cheques.
38. Accordingly, the defendant has failed to establish that she had made excess payment of Rs. 1,32,540/- to the plaintif.
39. Be that as it may it is seen that legal notice dated 03.06.2006 was issued on behalf of the plaintif to Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 25 of 38 the defendant. The said legal notice is Ex. PW1/3. The issuance of the said legal notice has been admitted by the plaintif. The said legal notice was also duly received by the defendant and was replied vide reply Ex. DW1/C (Ex.PW1/5).
40. In the legal notice Ex.PW1/3 issued on behalf of the plaintif it has been categorically stated that as on 18.06.2004 the defendant had made a payment of an amount of Rs. 2,20,000/- to the plaintif out of which an amount of Rs.12,000/- was paid towards interest for the period of one year and one week and an amount of Rs. 2,08,000/- was paid towards part payment of the principal amount. Thus this is a clear admission on the part of the plaintif that payment of an amount of Rs. 2,20,000/- had been received by him till 18.06.2004.
41. In the judgment tiled as United India Insurance Co. Ltd. v. Samir Chandra Chaudhary reported as (2005) 5 SCC 784 the Hon'ble Supreme Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 26 of 38 Court held:
".........Admission is the best piece of evidence against the persons making admission. As was observed by this Court in Avadh Kishore Das v. Ram Gopal [(1979) 4 SCC 790 : AIR 1979 SC 861] in the backdrop of Section 31 of the Indian Evidence Act, 1872 (in short "the Evidence Act") it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are an eficacious proof of the facts admitted. As observed by Phipson in his Law of Evidence (1963 Edn., para 678) as the weight of an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its credibility. The efect of admission is that it shifts the onus on to the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 27 of 38 presumption is rebutted, the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon, and though not conclusive is decisive of matter, unless successfully withdrawn or proved erroneous. (See Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi [(1960) 1 SCR 773 : AIR 1960 SC 100] .) Contemporaneous documents clearly show that the complainant right from the beginning had accepted the position that the branch had got knocked of the tree because of storm. If he wanted to explain the admission, the onus was on him to adduce material to show the contrary. Such material has to be of clinching nature so as to outweigh the admission...."
42. Thereafter another legal notice dated 13.06.2006, Ex.PW1/4 was allegedly issued by the plaintif. The receipt of this legal notice dated 13.06.2006 has not been admitted by the defendant. In the said legal notice dated 13.06.2006 it was stated on behalf of the plaintif that the facts stated in the legal notice dated 03.06.2006 Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 28 of 38 were incorrect and the correct facts are that the loan was repayable with interest at the rate of 4% per month. It was further stated that only an amount of Rs. 1,50,000/- had been paid out of which Rs. 1,38,240/- was adjusted towards the interest and the balance amount of Rs. 11,760/- was adjusted towards the principal and therefore principal amount of Rs.2,76,240/- was due, outstanding and payable by the defendant.
43. The same story was reiterated by the plaintif in the plaint and in his evidence afidavit. However, neither in the plaint nor in the evidence afidavit the plaintif has explained as to how and under what circumstances he had made incorrect statements (which are otherwise very specific and clear) in the legal notice dated 03.06.2006. The plaintif has therefore miserably failed to explain the admissions made in the legal notice dated 03.06.2006. His bald averment that the statements in the the legal notice dated 03.06.2006 were incorrect would not sufice. Accordingly, the said admissions made in the legal notice Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 29 of 38 dated 03.06.2006 can be taken into account and used against the plaintif.
44. The fact that an amount of Rs.12,000/- was paid and appropriated towards interest for the period of one year and one week also leads to the conclusion that the interest was payable @ 4% per annum, which further corroborates the version of the defendant and demolishes the case of the plaintif on the point of interest and the renders the execution of promissory note Ex. PW 1/2 as doubtful.
45. Accordingly, I am of the opinion that it has not been established that the statements made in the legal notice dated 03.06.2006 were incorrect or were made on account of a bonafide error. Therefore the subsequent notice dated 13.06.2003 does not enable the plaintif to wriggle out of the admissions made in the legal notice dated 03.06.2006.
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46. In view of the admissions made by the plaintif in the legal notice dated 03.06.2006, which have not been rebutted or explained, and on the basis of the other material on record I am of the opinion that it stands established by preponderance of probabilities that the defendant had made a payment of an amount of Rs. 2,20,000/- by 18.06.2004, out of which an amount of Rs. 12,000/- was paid and appropriated towards interest and an amount of Rs. 2,08,000/- was paid and appropriated towards the principal loan amount. Therefore, the balance principal loan amount of Rs. 80,000/- was only due, outstanding and payable by the defendant as on 18.06.2004.
47. The plaintif is therefore entitled to recover only an amount of Rs. 80.000/- from the defendant as balance principal loan amount.
48. These issues are decided in favour of the plaintif and the against the defendant in the aforesaid terms. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 31 of 38 Issue no. 4 (4) Whether the plaintiff is entitled to any interest, if so, at what rate and for what period ? OPP
49. The plaintif has failed to prove the promissory note Ex. PW 1/2, which contained the stipulation with respect to payment of interest @ 4% per month. The loan in question was a friendly loan. DW 1 has deposed that the rate of interest was 4% per annum. The admissions in the legal notice dated 03.06.2003 made by the plaintif are in sync with the version of the defendant that interest was payable @ 4% per annum. In view of the foregoing discussion the defendant has established by preponderance of probabilities that the rate at which interest was payable was 4% per annum.
50. In these facts and circumstances the plaintif is entitled to pre suit interest @ 4% per annum. Thus the plaintif is entitled for a decree of Rs. 80,000/- along with Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 32 of 38 pre suit interest @ 4% per annum thereupon with efect from 18.06.2004 till the date of institution of the suit and the amount of Rs. 80,000/- along with the amount of pre suit interest shall form the principal sum adjudged.
51. Keeping in mind the facts and circumstances of the case, I am of the opinion that the ends of justice would be met if pendente lite interest @ 4% per annum and future interest @ 6 % per annum on the principal sum adjudged is awarded to the plaintif.
52. This issue is decided in favour of the plaintif and the against the defendant in the aforesaid terms. Issue no. 5 and 6 (5) Whether the defendant is entitled to counter claim / decree for Rs. 3,13,119/- as claimed ? OPD (6) Whether the defendant is entitled to any interest on the amount claimed, if so, at what rate and for what period ? OPD Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 33 of 38
53. I have already held that the defendant has failed to prove the alleged payments made by the defendant vide receipts Ex. PW1/D-7 to Ex.PW1/D-15. The receipts have not been satisfactorily proved by the defendant. The defendant has also failed to prove that the cash payments had been made against cheques Ex. PW1/D-3 to Ex.PW1/D-
6. Accordingly, the defendant has failed to establish that she had made excess payment of Rs. 1,32,540/- to the plaintif.
54. In so far as the payment of cash amount of Rs. 1,50,000/- against the dishonoured cheque no. 70170 is concerned, again there is no receipt or other cogent and viable evidence to show that cash payment had been made to the plaintif qua this cheque. The source of cash amount of Rs. 1,50,000/- has not been disclosed.
55. The said cheque was admittedly handed over by the husband of the defendant to the plaintif. There is no Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 34 of 38 evidence from the side of the defendant with respect to the transaction between the plaintif and the husband of the defendant. The husband of the defendant has not been examined as a witness, therefore what was the transaction between the plaintif and the husband of the defendant has not been proved. DW1 who has been examined on behalf of the defendant has stated that he was only told about the facts of the case by his deceased mother and he was not aware about the transaction between the plaintif and the defendant and he was not present at the time of the loan transaction. On the other hand PW 1 has deposed that the cheque issued by the husband of the defendant was in respect of a separate transaction.
56. Further the returned/ torn cheque has been exhibited as Ex. DW 1/D2. The name of the payee is not clear and the number of the cheque is not clear on the said torn cheque Ex. DW 1/D2. The said torn cheque has not been put to DW 2, the witness from the bank. Accordingly it cannot be said with certainty that the said torn cheque Ex. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 35 of 38 DW 1/D2 is the same cheque bearing number 70170 being referred to by the defendant.
57. The defendant has therefore failed to establish that dishonoured cheque no. 70170 was issued in respect of the current transaction with the defendant and further cash payment of Rs. 1,50,000/- had been made against the said dishonoured cheque.
58. The result is that the defendant has failed to establish that she is entitled to recover an amount of Rs. 3,13,199/- from the plaintif. Since the defendant is not entitled to recover any amount from the plaintif therefore she is not entitled to any interest. The counter claim of the defendant is therefore liable to be dismissed.
59. These issues are therefore decided in favour of the plaintif and the against the defendant. Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 36 of 38 RELEIF
60. Accordingly the suit of the plaintif is decreed in favour of the plaintif and against the defendant for an amount of Rs. 80,000/- (Rupees Eighty Thousand only) along with pre suit interest @ 4% per annum thereupon with efect from 18.06.2004 till the date of institution of the suit and the amount of Rs. 80,000/- along with the amount of pre suit interest shall form the principal sum adjudged. The plaintif is further awarded pendente lite interest @ 4 % per annum on the principal sum adjudged from the date of institution of the suit till the date of decree and future interest @ 6 % per annum on the principal sum adjudged from the date of decree till realization.
61. The suit is decreed in the aforesaid terms in favour of the plaintif and against the defendant. The Legal Representatives of the deceased defendant shall, however, be liable only to the extent of the properties/ assets inherited by them from the deceased defendant which have fallen into their hands. Costs of the suit are also awarded in Jaiwant Gill v. Sudesh Sayal Civil Suit No. 2032/2017 Page No. 37 of 38 favour of plaintif and against the defendant. The Counter Claim filed by the defendant is dismissed. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in the open (Dr. Saurabh Kulshreshtha) Court on 19.08.2017 Additional District Judge-11 Central District Tis Hazari Courts, Delhi.
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