Delhi District Court
Sandeep Khurana vs Ms South Eastern Capital India And Ors on 7 January, 2025
IN THE COURT OF DISTRICT JUDGE-02: NORTH ROHINI
COURTS COMPLEX: DELHI
CNR NO:.DLNT01-002468-2015
CS DJ 59229/16
IN THE MATTER OF:-
SANDEEP KHURANA,
S/O SH. R.P. KHURANA,
R/O HOUSE NO. 16/274,
UTTAM COLONY, JHAJJAR, ROAD,
BAHADURGARH, DISTRICT JHAJJAR,
HARYANA. .....PLAINTIFF
VERSUS
1. M/S SOUTH EASTERN CAPITAL INDIA
THROUGH ITS DIRECTOR/AUTH. SIGNATORY
OFFICE AT G-5/115, SECTOR-16, ROHINI,
DELHI-110085
2. SH. NARENDER KUMAR GOYAL(DIRECTOR)
S/O SH. RATTAN LAL GOYAL,
CS DJ 59229/16 SANDEEP KHURANA Vs.
MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 1 of 18
R/O G-5/115, SECTOR-16, ROHINI
3. M/S SOUTH EASTERN ROAD CARRIER(INDIA)
THROUGH ITS DIRECTOR/AUTH. SIGNATORY
OFFICE AT G-5/115, SECTOR-16, ROHINI,
DELHI-110085 ....... DEFENDANTS
Date of institution : 21.09.2015
Date on which judgment was reserved : 24.12.2024
Date of pronouncement of the judgment : 07.01.2025
Suit for recovery under order XXXVII of the Code of Civil Procedure,
19008 for Rs.3,60,000/-( Rupees Three Lakh Sixty Thousand only)
along with interest and costs.
JUDGEMENT
1. By way of the present suit the plaintiff is seeking recovery of Rs.3,60,000/- along with interest and costs.
PLAINTIFF'S CASE
2. It is case of plaintiff that recovery of Rs.3,60,000/- is due from the CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 2 of 18 defendants. Defendant no. 2 is director of defendant no. 1 and 3 companies.
3. It is the case of the plaintiff that defendant no. 2 was close friend of the plaintiff. Rs.3 lakhs were given as personal loan. An agreement dated 03.11.2014 between plaintiff on one hand and defendant no. 1 and 2 on the other hand was entered into. Plaintiff paid Rs.3 lakhs through receipt no. 215 dated 03.11.2014. It was undertaken by defendant on. 2 that he will return the loan amount by 02.05.2015.
4. It is further case of the plaintiff that defendant no. 2 had assured that interest will be paid on Rs.3 lakhs. Defendant no. 2 issued 7 cheques on behalf of defendant no. 3 company. One cheque out of these 7 cheques was for Rs.3 lakhs dated 02.05.2015. Rest of the 6 cheques were for Rs.15,000/- each on account of interest. It was agreed that the cheques will be returned to the defendant no. 2 on the dates mentioned therein and he will pay cash in lieu of return of cheques. Rs.15,000/-
were received against two original cheques each for the month of December 2014 and January 2015. Despite repeated visits rest of the cash amount against remaining cheques was not paid. In July 2015 plaintiff approached the defendant no. 2 for payment of Rs.3,60,000/-.
CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 3 of 18 Defendant flatly refused to pay. In due course of time the cheques became barred as per law of presentation. Legal notice dated 19.08.2015 was sent. The same was not complied with.
5. Case was originally filed under order 37 C.P.C. Vide order dated 21.02.2017 unconditional leave was granted to the defendants.
CASE OF THE DEFENDANTS
6. Written statement dated 20.03.2017 was filed by the defendants.
Preliminary objection was taken that no loan was taken. The rate of interest is not mentioned in the agreement. The agreement is dated 03.11.2014 but notary public attested it on 01.11.2014. Receipt dated 03.11.2014 was not placed on record. Alleged loan agreement is stated to be false and fabricated. A further plea is taken in para 8 of the preliminary objections that the cheques were misplaced and defendants are not liable. With these averments dismissal of suit is prayed for.
REPLICATION
7. No replication was filed.
ISSUES
8. Vide order dated 09.08.2017, following issues were framed :
CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 4 of 18
1. Whether the loan agreement is false and fabricated? OPD
2. Whether the plaintiff is entitled to a decree for recovery of suit amount as prayed for? OPP
3. Whether the plaintiff is entitled to interest on the suit amount, if yes, at what rate and for which period? OPP
4. Relief?
PLAINTIFF'S EVIDENCE.
SR Name of witness Documents tendered
No. of
witnes
s
1. PW 1 Sandeep His evidence by way of affidavit is Ex. PW
1/A.
Khurana
He relied up on the documents as under:
1.Original Agreement dated 01.11.2014 Ex.
PW 1/1
2. Five cheques in original bearing no.
234225 dt. 02.02.2015, 234226 dt.
02.03.2015, 234228 dt. 02.04.2015, 23429
dt. 02.05.2015 respectively Ex. PW 1/2 to
Ex. PW 1/5
CS DJ 59229/16 SANDEEP KHURANA Vs.
MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 5 of 18
3. Original cheque bearing no. 234230 dt.
02.05.2015 for Rs. 3 lakhs Ex. PW 1/6
4. Legal notice dt. 19.08.2015 Ex. PW 1/7
5. Original of postal receipts Ex. PW 1/8 to
Ex. PW 1/10
6. Delivery report Ex. PW 1/11
9. PE was closed on 29.07.2019.
DEFENDANTS' EVIDENCE
SR Name of witness Documents tendered
No. of
witnes
s
1. DW-1 Sh. Evidence by way of affidavit is Ex. DW1/A.
Narender Kumar
Goyal
2. DW2 Sh. He brought the income tax return
verification form pertaining to the
Deepak assessment year of 2013-2014, 2014-2015,
and 2015-2016 and all are in name of Sh.
Sandeep Khurana vide his PAN No.
ATTPK6082A is Ex. DW2/A, Ex. DW2/B
and Ex. DW2/C.
10. DE was closed on 31.05.2024.
ISSUE-WISE ARGUMENTS ADVANCED AND FINDINGS ARE AS UNDER:-
CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 6 of 18
11. Court has heard the rival submissions, perused the case record and after considering the rival submissions the following findings are returned:
12. Common submissions were raised on issue no 1 and 2. They are interconnected. These can be dealt with together for convenience.
Issue no. 1 is:
" Whether the loan agreement is false and fabricated? OPD"
Issue No. 2 is:
"Whether the plaintiff is entitled to a decree for recovery of suit amount as prayed for? OPP"
13. Counsel for the defendant contends that PW1 has admitted that copies of agreements dated 29.08.2014 and 15.10.2014 have not been placed on record. A suggestion was put that these are forged and fabricated. It is further argued that the stamp of notary on Ex.PW1/1 is of 01.11.2014 whereas date of loan agreement is 03.11.2014. This shows the same is forged.
14. Per contra Learned counsel for plaintiff has argued that the present CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 7 of 18 case is based upon Ex. PW 1/1 dated 01.11.2014 which is already on record. It is argued that in cross examination of DW1 Sh. Narender Kumar Goyal dated 19.07.2022 it has come that "I cannot tell whether signatures at point A on each page are mine or not." It is argued that no specific stand has been taken by DW1. It is further argued that regarding cheques Ex. PW 1/2 to Ex. PW 1/6 following admission has come. "At this stage, witness is shown the cheques Ex. PW 1/2 to Ex.
PW 1/6 and asked whether the signatures on the aforesaid cheques are of the witness or not? The witness states that "signatures, mere ho bhi sakte hain or nhi bhi ho sakte". "It is correct that the cheques in question belong to me but I never issued these cheques. It is correct that I have never given any complaint regarding misuse of the aforesaid cheques. Vol. I have given the information dated 09.03.2014 Mark PA. It is correct that I have never given any complaint regarding misuse of cheques of Axis Bank. Vol. I have given compliant about the cheques of Axis Bank. I can produce the same."
15. Regarding variance in date of stamp and date of agreement and no witness being mentioned in Ex.PW1/1 it is argued that defendant himself prepared the same. Plaintiff is not to be blamed for the same.
16. Counsel for the defendant further argued that PW1 Sh. Sandeep Khurana in his cross examination dated 24.09.2018 has admitted that CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 8 of 18 loan agreement was prepared in office of defendant.
17. Per contra counsel for the plaintiff contends that defendant himself had prepared Ex.PW1/1. Since loan was taken by the defendant, he himself took part in preparation documents and there is nothing unusual in agreement being prepared in office of the defendant.
18. Counsel for defendant has further argued that DW2 Sh. Deepak Tax Assistant was examined and exhibits DW2/A, DW2/B and DW2/C do not show that loan was given by the plaintiff. It is argued that money was of unaccounted nature therefore suit be dismissed. Learned counsel for defendants has also argued that the perusal of Ex. DW2/C which is income tax return acknowledgment for assessment year 2015-16 shows that income from business is Rs.3,39,550/- only and loan of Rs.3 lakhs allegedly given in year 2014 is improbable.
19. Per contra Learned counsel for plaintiff contends that in view of Article 35 of the Limitation Act limitation is 3 years from date of bill or the note on a bill of exchange/promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue.
FINDINGS ON ISSUE NO. 1 & Issue No. 2:
20. The submissions on behalf of defendant that PW1 has admitted that copies of agreements dated 29.08.2014 and 15.10.2014 have not been placed on record. Further submission on behalf of defendant that a suggestion was put that these are forged and fabricated. Further CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 9 of 18 submission on behalf of defendant that he stamp of notary on Ex.PW1/1 is of 01.11.2014 whereas date of loan agreement is 03.11.2014 which shows the same is forged are all without merit. These submissions deserve rejection. The present case is based upon Ex.PW1/1 dated 01.11.2014 which is already proved on record. In cross examination of DW1 Sh. Narender Kumar Goyal dated 19.07.2022 it has come that "I cannot tell whether signatures at point A on each page are mine or not." No specific stand has been taken by DW1. He is evasive in his cross examination. Regarding cheques Ex. PW 1/2 to Ex. PW 1/6 following admission has come.
"At this stage, witness is shown the cheques Ex. PW 1/2 to Ex. PW 1/6 and asked whether the signatures on the aforesaid cheques are of the witness or not? The witness states that:
"signatures, mere ho bhi sakte hain or nhi bhi ho sakte". It is correct that the cheques in question belong to me but I never issued these cheques. It is correct that I have never given any complaint regarding misuse of the aforesaid cheques. Vol. I have given the information dated 09.03.2014 Mark PA. It is correct that I have never given any complaint regarding misuse of cheques of Axis Bank. Vol. I have given compliant about the cheques of Axis Bank. I can produce the same."
No such complaint regarding alleged misuse of cheques in question has been proved by the defendant on record.
21. Regarding variance in date of stamp and date of agreement and no witness being mentioned in Ex.PW1/1, it has been explained by plaintiff PW-1 Sh. Sandeep Khurana in his cross examination dated 05.06.2018 that defendant himself prepared the same (i.e. loan agreement CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 10 of 18 Ex.PW1/1). Plaintiff is not to be blamed for any irregularity in the execution and preparation of the same.
22. The further submission on behalf of defendant that PW1 Sh.
Sandeep Khurana in his cross examination dated 24.09.2018 has admitted that loan agreement was prepared in office of defendant, so forgery is proved is without substance. Same is rejected. Defendant himself had prepared Ex.PW1/1. Since loan was taken by the defendant, he himself took part in preparation documents and there is nothing unusual in agreement being prepared in office of the defendant.
23. The further argument on behalf of defendant that DW2 Sh. Deepak Tax Assistant was examined and exhibits DW2/A, DW2/B and DW2/C do not show that loan was given by the plaintiff. It is argued that money was of unaccounted nature therefore suit be dismissed. Further argument that perusal of Ex. DW2/C which is income tax return acknowledgment for assessment year 2015-16 shows that income from business is Rs. 3,39,550/- only and loan of Rs.3 lakhs allegedly given in year 2014 is improbable is without substance. These submissions are rejected. In case titled as Sh. Shyam Sunder Vs. Sohan Lal decided by Hon'ble High Court of Delhi on 22.02.2018 in para 7 it has been held CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 11 of 18 that the non compliance of section 269 SS Income Tax Act will have consequences under Income Tax Act proceedings. Civil Court is not concerned with those proceedings. Further in view of Article 35 of the Limitation Act limitation is 3 years from date of bill or the note on a bill of exchange/promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue. There is a presumption attached to the cheques on record i.e. Ex.PW 1/2 to PW1/5 defendant has not been able to rebut the presumption in favour of plaintiff(Sections 118 and 139 of Negotiable instruments act,1881.
24. In case decided by Hon'be Supreme Court titled as Bishwanath Rai v. Sachhidanand Singh, (1972) 4 SCC 707 it was held that the burden lay on the party alleging forgery, to induce the Court to hold that document is forged. No cogent evidence has been lead by defendants to prove agreement Ex. PW 1/1 dated 01.11.2014 is forged. No FSL report or independent agencies/expert was proved by the defendant to show Ex. PW1/1 is forged.
25. Though there is an admission by PW-1 Sandeep Khurana that the did not have money lending license. In case titled as Dushyant Singh Dabas Vs. Dinesh Kumar decided by Hon'ble High Court of Delhi on 10.12.2014, it has been held that in absence of evidence by the defendant that plaintiff was carrying on money lending business the bar CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 12 of 18 of section 3 of Punjab Resignation of Money Lending Act 1938 cannot be pressed. Applying law laid down to present case it is held that in absence of evidence by defendant that plaintiff was carrying on money lending business, the admission of absence of money lending license does not dent the case of plaintiff.
APPRECIATION OF ORAL EVIDENCE
26. PW-1 Sandeep Khurana has clarified in his cross examination that loan agreement PW-1/1 was made and executed by defendant himself. Plaintiff only signed the same. Fabrication of loan agreement PW-1/1 was denied. Nothing has been elicited from plaintiff to discredit his testimony.
27. DW-1 Sh Narender Goyal did not specifically denied his signatures on loan agreement PW-1/1.He further did not specifically deny his signatures on cheques PW 1/2 to PW 1/6. His cross examination shows he is suppressing the truth and giving evasive replies. DW-1Sh Narender Goyal specifically admits no complaint regarding misuse of cheques was given. Thus defence of defendants is not reliable keeping in view totality of circumstances.
28. Non mentioning of notary number, wrong date of notary stamp may at best be an 'irregularity'. In totality of circumstances especially keeping in view the facts that:
A. presumption is attached to the cheques issued in favour of plaintiff, B. signatures on cheques are not denied (in cross examination of CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 13 of 18 DW1 Sh. Narender Kumar Goyal dated 19.07.2022) C. No complaint qua alleged misplacing of cheques was made the plaintiff has been able to prove his case on the touchstone of preponderance of probability.
29. Further plea taken by defendants in written submissions that leave to defend was granted, so forgery and defence was proved, is without merit. Same is rejected. At stage of consideration of leave to defend only the existence of triable Defence or otherwise is to be seen. The truth or otherwise of the defence is considered at the time of trial. For reasons in paras supra defence is not established in trial. In totality of circumstances, Issue no. 1 and 2 are decided against the defendant and in favour of plaintiff.
Issue no. 3 is:
" Whether the plaintiff is entitled to interest on the suit amount, if yes, at what rate and for which period? OPP"
30. Learned counsel for plaintiff has argued that though in the loan agreement no clause for interest was there but in legal notice Ex. PW 1/7 dated 19.08.2015 interest @ 5% per month which translate to 60% per annum was sought. Even 6 cheques of Rs.15000/- each in lieu of interest were given which shows defendant was liable to pay interest.
31. Per contra learned counsel for defendants has argued that in the loan agreement Ex.PW1/1 dated 03.11.2014 there was no clause of interest.
CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 14 of 18 FINDINGS ON ISSUE NO 3:
32. The submission on behalf of the plaintiff that though in the loan agreement no clause for interest was there but in legal notice Ex.PW1/7 dated 19.08.2015 interest @ 5% per month which translates to 60% per annum was sought. Even 6 cheques of Rs.15,000/- each in lieu of interest were given which shows defendant was liable to pay interest deserves to be accepted to the extent that defendant is liable to pay interest though not at the rate sought for by the plaintiff. This submission on behalf of defendant that in the loan agreement Ex.PW1/1 dated 03.11.2014 there was no clause of interest, so interest should be declined is without substance. This submission is rejected in view of provisions of Sec.3(1)(b) the Interest Act, 1978.
PRINCIPAL SUM ACTUALLY ADVANCED
33. On the strength of the findings returned in paras supra plaintiff has successfully proved that principal sum actually advanced is Rs.3,60,000/-.
PRE SUIT INTEREST
34. Interest for a period prior to the commencement of suit is claimable either under an agreement, or usage of trade or under a statutory provision or under the Interest Act, for a sum certain where notice is given. Interest is also awarded in some cases by Courts of equity. (Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji [LR 65 AI 66]) CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 15 of 18 INTEREST ACT
35. The relevant part of Sec.3(1)(b) of Interest Act, 1978 is as under:
Power of court to allow interest.--(1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say,--
(a) if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;
(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings: Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings, interest shall not be allowed under this section for the period after such repayment.
36. Interest may be allowed from the date when the debt is payable. And as per Sec.3(1)(b) of Interest Act, if proceedings do not relate to a debt payable by virtue of a written instrument at a certain time, then the Court may allow interest from the date mentioned in this regard in the written notice given by the person entitled.
37. It is held that there was no stipulation in the agreement between the parties regarding payment of interest. So, present case falls under Sec.3(1)(b) of Interest Act. The plaintiff could be awarded interest from the date in written notice of demand. Legal notice dated 19.08.2015 (Ex.PW1/7) was given on behalf of plaintiff seeking interest CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 16 of 18 @ 5% per month. Same is equivalent to 'written notice' as contemplated under Sec.3(1)(b) of Interest Act. It is held that the plaintiff is entitled to claim pre suit interest w.e.f.21.08.2015 (date of receipt of legal notice vide PW1/11). Though the plaintiff has claimed interest @5% per month, but this it is on the higher side. The ends of justice would be sufficiently met if plaintiff is granted interest (presuit) @12% per annum i.e. from 21.08.2015. till date of suit i.e. 19.09.2015.
PENDENT-LITE PERIOD PRINCIPAL SUM ADJUDGED
38. Principal sum adjudged will be the principal sum held payable by defendant to plaintiff i.e.3,60,000/- plus pre suit intertest as directed above (reliance is placed upon case titled as Central Bank Of India vs Ravindra And Ors decided by Hon'ble Apex Court on 18 October, 2001)
39. Keeping in view the provisions of Section 34 C.P.C. in considered opinion of the court pendentelite interest at the rate of 6% per annum on principal sum adjudged i.e. Rs.3,60,000/- plus pre suit interest as directed above will meet the ends of justice.
FUTURE INTEREST
40. Keeping in view the provisions of Section 34 C.P.C. in considered opinion of the court future interest till realization at the rate of 6% per annum on principal sum adjudged i.e. Rs.3,60,000/- plus pre suit interest as directed above will meet the ends of justice as the transaction between parties is not commercial(same was a friendly loan).
CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 17 of 18
41. In view of the above issue no. 3 is decided in favour of the plaintiff RELIEF:
42. The present suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs.3,60,000/- alongwith interest (pre-suit) @12% per annum i.e. from 21.08.2015. till date of suit i.e. 19.09.2015. Pending suit interest and future interest on the principal sum adjudged (sum lent i.e. Rs.3,60,000/- along with pre suit interest as awarded above) @6% per annum till realization is also awarded. Costs of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly by reader after payment of deficient court fees, if any.
43. Decree sheet be drawn accordingly.
44. File be consigned to record room only after due completion and necessary action, as per Rules. Digitally signed VIKRAM by VIKRAM BALI BALI Date: 2025.01.07 16:20:53 +0530 (Vikram Bali) District Judge-02, North Rohini Court Complex, Rohini Delhi/07.01.2025 CS DJ 59229/16 SANDEEP KHURANA Vs. MS SOUTH EASTERN CAPITAL INDIA AND ORS. Page no. 18 of 18