Delhi District Court
Shri R. K. Mehra vs Shri Sudhir Kumar Sahdev on 23 January, 2014
CS No.10/04
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-Central-9, TIS HAZARI COURTS, DELHI.
Civil Suit No.: 10/04
Unique Case ID No.02401C6114522004.
Shri R. K. Mehra
S/o. Late Shri J. R. Mehra
R/o. M-4/27 DLF Phase II
Gurgaon, Haryana .....Plaintiff
Versus
Shri Sudhir Kumar Sahdev
S/o. Late Krishan Kumar Sahdev
Kumar Holiday Home
R/o. 33 Lajpat Nagar, New Delhi. ...Defendant
Date of institution of the suit : 21.01.2004.
Reserved for judgment on : 13.01.2014.
Date of pronouncement of judgment : 23.01.2014.
SUIT FOR RECOVERY OF RS. 13,26,000/- (RUPEES THIRTEEN LACS
TWENTY SIX THOUSAND ONLY).
JUDGMENT
1. This is a suit for recovery of Rs.13,26,000/- filed by the plaintiff.
2. Brief facts of the case are :-
(a) Defendant had taken a loan of Rs.2,00,000/- from the plaintiff on 18.02.2002 and executed in favour of the plaintiff a promissory note and receipt on the same date for the said amount.
(b) Defendant at the same time had issued and delivered to the plaintiff a post dated cheque no.350327 dated 16.03.2003 drawn on Standard Chartered Grindlay Bank Ltd. G. K. Part I New Delhi for Rs.2 lac in favour of the plaintiff. The cheque was towards the repayment of the principal amount and discharge of its liability. Defendant further Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 1 CS No.10/04 agreed to pay interest on principal sum @3% per month which was incorporated in the promissory note.
(c) Defendant further took a loan of Rs.2 lac on 18.03.2002 and in consideration thereof, issued a promissory note and receipt dated 18.03.2002 for the said amount.
(d) Defendant at the same time had issued and delivered to the plaintiff a post dated cheque no. 350326 dated 15.03.2003 drawn on Standard Chartered Grindlay Bank Ltd. G. K. part I, New Delhi for Rs.2 lac in favour of the plaintiff. He further undertook to make the payment of interest @3% per month which was incorporated in the promissory note dated 18.02.2002 executed by the defendant in favour of the plaintiff.
(e) Defendant further took a loan of Rs.4 lac on 25.03.2002 and in consideration thereof defendant executed promissory note and receipt dated 25.03.2002 for the said amount. He also issued post dated cheque no.350330 dated 17.03.2003 drawn on Standrad Chartered Grindlay Bank Ltd. G. K. Part I, New Delhi and he further undertook to make the payment of interest @3 % per month which was incorporated in the promissory note dated 25.03.2002.
(f) The aforesaid loan was advanced by the plaintiff to the defendant because the defendant is known to Shri Rajeev Mehra, son of the plaintiff. Both of them were good friends.
(g) Defendant failed to pay the interest. The plaintiff had several times asked the defendant to pay the interest but the defendant had expressed his inability due to financial difficulty but was always assuring the plaintiff that he would make the payment as soon his financial difficulty is eased.
(h) The plaintiff deposited the post dated cheques no.350326 dated 15.03.2003, cheque no.350327 dated 16.03.2003 and cheque no. 350330 dated 17.03.2003 with his banker Standard Chartered Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 2 CS No.10/04 Grindlays Bank Punjabi Bagh, New Delhi for encashment. All the three cheques were received back by the plaintiff unpaid from the bank with the remarks "FUNDS INSUFFICIENT".
(i) Plaintiff thereafter served a statutory notice dated 22.03.2003 under Section 138 N. I. Act upon the defendant calling upon him to make the payment in respect of each dishonoured cheque. The defendant refused to receive the notice. Plaintiff filed three separate criminal complaints under Section 138/142 N. I. Act in the court of Ld. Metropolitan Magistrate, Delhi on 16.04.2003.
(j) Plaintiff served upon the defendant notice of demand dated 13.01.2004 for making payment. Despite the said notice the defendant has failed to make the payment to the plaintiff.
(k) Hence a sum of Rs.8 lac towards the principal amount and Rs. 5,26,000/- as interest upto 20.01.2004 is due from the defendant and payable by the defendant to the plaintiff.
3. Written statement filed by the defendant wherein it is stated that plaintiff filed the suit based upon forged, fabricated and false documents. Documents fabricated by the plaintiff in collusion with son Sh. Rajeev Mehra and daughter in law Mrs. Neetu Mehra. It is admitted that defendant and Sh. Rajeev Mehra were childhood friends and they lived together in the same vicinity/colony i.e. Defence Colony. Defendant and the son of plaintiff namely Sh. Rajeev Mehra had entered into an agreement to sell on 15.02.2001 and vide that agreement defendant had agreed to sell the full terrace rights above the second floor of his building situated on plot of land admeasuring 725 sq. yards bearing No.33, Ring Road, Lajpat Nagar- IV, New Delhi-110024 for total sale consideration of Rs.40,00,000/- to the son of the plaintiff namely Sh. Rajeev Mehra. Initially it was agreed that a sum of Rs.15,00,000/- would be paid to the defendant by the son of the plaintiff and the balance upon the registration of Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 3 CS No.10/04 sale deed. However later on the terms and conditions of the agreement were varied and according to the said variations of the terms, the son of the plaintiff further paid an amount of Rs.8 lac to the defendant. Therefore, the son of the plaintiff had paid a total amount of Rs.23 lacs to the defendant qua the agreement to sell dated 15.02.2001. The physical possession of the terrace was to be given to the son of the plaintiff by the defendant only after entire payment of the sale consideration would be made by the son of the plaintiff to the defendant in terms of the subsequent oral arrangement between them. The defendant had made repeated and numerous reminders to the son of the plaintiff for the balance payment in order to hand over the possession of terrace upon registration of sale deed However, the son of the plaintiff kept on delaying the matter on one pretext or other. In December 2001, son of the plaintiff Sh. Rajeev Mehra along with his brother in law Sh. Gurinder Singh came to the office of the defendant and told the defendant that Sh. Rajeev Mehra was no longer interested in the said deal and asked the defendant to return his money. The defendant agreed for cancellation of agreement to sell dated 15.02.2001 and to return the amount received from him but he was not having Rs.23 lacs handy with him and therefore, requested for some time to arrange the funds. Thereafter, in the month of January 2002, defendant paid a sum of Rs.15 lacs in different phases in presence of his Assistant Manager, Mr. Prem Chand to the son of the plaintiff. Defendant requested the son of the plaintiff to issue a receipt for the payment of Rs.15 lacs which he had received from the defendant. However, the son of the plaintiff told the defendant that he will issue a receipt only after full and final payment is made and further asked the defendant to give security for the balance payment of Rs.8 lacs. The defendant had issued three cheques bearing no.350326, 350327 and 350330 of Rs.
Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 4 CS No.10/042 lac, Rs.2 lac and Rs.4 lac respectively, all drawn on Standard Chartered Grindlays Bank, GK-I, Delhi and promissory notes and handed over to them to the son of the plaintiff. The defendant did so in good faith since there was no ground or instances to doubt the integrity and credibility. It is submitted that the cheques and promissory notes were given as a measure of security by the defendant to Sh. Rajeev Mehra and not to the plaintiff. The defendant after arranging payment of Rs.8 lacs asked the son of the plaintiff to return the cheques, promissory notes and the original agreement to sell as well as the blank signed papers and stamp papers etc. and to collect the payment of Rs.8 lacs. However, the son of the plaintiff outrightly refused to return the original cheques, promissory notes and the original agreement to sell as well as the blank signed papers and stamp papers etc. Defendant also lodged a complaint with Defence Colony Police Station on 19.02.2002. As a counter blast to the said complaint, the son of the plaintiff lodged a false and frivolous complaint against the defendant which was registered as FIR No.329/2003 under Section 406/420/380/506 IPC at PS Lajpat Nagar. The police after investigation filed a final report in this case. Defendant was constrained to make complaint to the Commissioner of Police on 07.08.2003. The son of the plaintiff also lodged a false and frivolous complaint case before the SDM and same was also decided in favour of the defendant. The son of the plaintiff also filed a suit for specific performance against the defendant bearing CS(OS) 76/2004 before the Hon'ble High Court of Delhi and the same is pending for trial. Plaintiff has also filed three separate complaints under Section 138 N.I. Act before Ld. Metropolitan Magistrate, Delhi. It is denied that defendant had ever sought from plaintiff any loan and never had any dealing with the plaintiff. Rest of the contents of the plaint are denied.
Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 5 CS No.10/044. Plaintiff filed replication to the written statement wherein the contents of the written statement are denied and averments made in the plaint are reiterated and affirmed.
5. By order dated 28.08.2012 this court framed following issues:
1. "Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC ? OPD.
2. Whether the plaintiff is entitled for decree of the suit amount ? OPP.
3. Whether the plaintiff is entitled for pendentelite and future interest on decree amount ? If so, at what rate ? OPP.
4. Relief."
6. To prove its case plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He further relied upon documents Ex.PW1/1 to Ex.PW1/18. Ex.PW1/16 to Ex.PW1/18 were marked as X-1 to X-3 being photocopy. Plaintiff further examined Ms. Neetu Mehra, his daughter in law as PW-2 who tendered her evidence by way of affidavit Ex.PW2/A. PW-1 and PW-2 were cross examined at length by ld.counsel for the defendant and thereafter, by order dated 10.10.2013 P.E. was closed. Defendant examined himself as DW-1 who tendered his evidence by way of affidavit Ex.DW1/A. He further relied upon document Ex.DW1/1, Ex.DW1/2, Ex.DW1/3(OSR), Ex.DW1/4(OSR), Ex.DW1/5(OSR) and Ex.DW1/6. DW-1 was cross examined at length by ld. counsel for the plaintiff. Thereafter, by order dated 10.10.2013, D.E. was closed.
7. I have gone through the entire records of the case including pleadings of the parties, evidence led by parties and documents proved by the parties during evidence. I have also heard Sh. Ashok Diwan and Sh. Samir Dewan, ld. counsels for the plaintiff and Sh. Harpreet Singh, ld. counsel for the defendant. I have also gone Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 6 CS No.10/04 through written submissions filed on behalf of the parties. My issue- wise findings are :-
8. Issues no. 1 and 2.
Issue No. 1 : Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC ? OPD.
Issue No. 2 : Whether the plaintiff is entitled for decree of the suit amount ? OPP.
Onus to prove issue no. 1 is upon the defendant whereas onus to prove issue no. 2 is upon the plaintiff. Contents of Ex. PW1/A are similar to the averments made in the plaint. PW1 further relied upon documents i.e. statement of account from 01/04/2008 to 31/03/2012 as Ex. PW1/1; another statement of account for the same period as Ex. PW1/2 to Ex. PW1/4; original promissory notes are Ex. PW1/5, Ex. Ex. PW1/7 and Ex. PW1/9; copy of cheque dated 16/03/2003 as Ex. PW1/6, certified copy of cheque dated 17/03/2003 as Ex. PW1/10 and bank memo as Ex. PW1/11. Admissibility of documents Ex PW1/1 to Ex. PW1/4 was objected during examination. During cross- examination, it is stated by PW1 that he knew the defendant for the last 8 to 10 years as he was the friend of his son Mr. Rajiv Mehra. He has further stated that he has no business relation or any other relation with the defendant at any point of time. PW1 further stated that there was a transaction of agreement to sell whereby the defendant was agreed to sell the second floor of his house and the same is Ex. PW1/D1. He has further stated that he was filing income tax return for 25 to 30 years and the said loan transaction was not reflected in any income tax return. A suggestion was given that since there was no loan transaction between the parties that is why PW1 did not reflect the said loan transaction in his income tax return and it was stated by PW1 that he has not shown this transaction either at the time i.e. in 2002 or otherwise. He has further stated that there was another litigation in respect of Ex. PW1/D1 is pending in the Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 7 CS No.10/04 Hon'ble High Court of Delhi which is the suit for specific performance. He did not remember the exact date when the defendant approached him for loan but it was about 10 to 15 days prior to the loan transaction. He has further stated that the defendant used to call and asked for the loan to him through his son. He has further stated that there was no written agreement between him and the defendant in respect of loan, the talks were oral and terms were settled. The loan which was advanced, receipt thereof was made and pro-note was made. Post dated cheques were issued. A suggestion was given that the defendant never approached to PW1 or his son for loan at any point of time and he had never any talks of loan. The suggestion is denied. A suggestion was given that Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were never issued and executed by the defendant in his favour and he denied the suggestion. Documents again perused. The contents of these documents states that these were executed in favour of the plaintiff i.e. PW1 by the defendant. He has stated that when the cash money was given to the defendant, he asked him to fill up the form and he asked his son Sh. Rajiv who was present there to fill up the form. However, his friend filled up the form and then the defendant signed in his presence and in front of witnesses. He has further stated that second time, the defendant brought pre-filled form from his house when PW1 paid money, the defendant signed pro- note and receipt in his presence and of the witnesses. It is further stated by PW1 that defendant repeated the same and he brought the pre-filled form and after receipt of the money, he signed the receipt and pro-note in presence of the witnesses. PW1 further stated that he could not check his income tax record and get the income tax return for the said years because they were very old record and he did not have them. He has further stated that he had FDRs in 5 and 6 branches and in end of the year, he got certificate from each bank Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 8 CS No.10/04 regarding details of total money accrued as interest in that particular account and details of tax deducted at source and after deducting the tax the rest money was deposited in the bank account that he had. He has further stated that he collected all the certificates from all the banks and attached in his income tax return along with photocopies of the pass book and his ITR was accepted by the ITO. A suggestion was given that he intentionally not producing the income tax return as referred by him and the suggestion was denied. Later on, he has stated that he was not maintaining his books of account as he has already told that he was not required to maintain any statutory books of accounts. He has further stated that he did not remember what was the cash in hand as per his ITR for the relevant financial year. He has further stated that he had some money lying with him which he had not shown in his old ITR's prior to even 1999 and this is the money he gave to Sudhir in February, March 2002 and this was nothing to do with cash in hand. Here this court relies upon Abhey Dewan & Ors. Vs. Manoj Sethi & Ors. 202 (2013) Delhi Law Times 392, where in para no. 12 it was held by Hon'ble High Court :
"The principle of public policy is, ex dolo malo non -oritur action i.e. no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the litigant's own stating or otherwise, the cause of action appears to arise ex turpi causa or in transgression of a positive law of the country, the Court will refuse to render its assistance to such a litigant. The Supreme Court in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander AIR 1968 SC 1165 held that in a case in which a litigant must rely upon his own illegality, the Court may refuse him assistance. Similarly in Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar AIR 1965 SC 1364 also it was held that if the litigant seeks the assistance of the Court to effectuate an illegal transaction, the Court will refuse to assist him. In Sita Ram Vs. Radha Bai AIR 1968 SC 534 it was held that the principle that the Courtswill refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto potior est conditio defend entis. Similarly in Kedar Nath Motani Vs. Prahlad Rai AIR 1960 SC 213 it was held that where a party rests its case upon an illegality, then public policy demands that it should not be Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 9 CS No.10/04 allowed to take advantage of the position. Mention in this context may also be made of S.P. Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1 holding that the Courts of law are meant for imparting justice between the parties; that a person whose case is based on falsehood has no right to approach the court and can be summarily thrown out at any stage of litigation. It was also noted that the process of the court is being abused - property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. I am also tempted to refer to Ram Sewak Vs. Ram Charan AIR 1982 Allahabad
177. It was a case of concealment of profits; the parties had been keeping double set of accounts for evading payment of income tax and sales tax. The Lower court reported the matter to the Taxation Authority. The High Court held that the Courts should have refused to entertain the suit on the ground of public policy, as it involved directing the recovery of an amount found to be due to either party as a share of the profits which had been deliberately concealed by the parties from the books of account in order to evade the payment of taxes. It was held that no Court can countenance a deliberate evasion of tax laws of the country and to lend the aid of the court for recovering an amount which had been deliberately kept concealed by the parties in order to evade payment of taxes due thereon. It was further held that if the courts were to do so , it would amount to aiding and abetting evasion of the laws by the court itself. It was further held that since the object of the parties was found to be that the profits will be earned in such a way or retained in such a manner as to evade the payment of taxes which was forbidden by law and which defeats the provision of the tax laws, therefore the object of the agreement was forbidden by law and is opposed to public policy. The agreement between the parties to earn concealed profits being void, it was held that the court could not enforce the agreement by directing an inquiry into that amount or the destination of the concealed profits in order to enforce the recovery of the share therein of one party from another. Reference may also be made to the Full Bench decision in Ghulam Ahmed v. Mohd. Iqbal AIR 1970 J&K 165 where a partnership which entailed transfer of truck and its route permit to the partnership business, in contravention of the provisions of the Motor Vehicle Act was held to be void in entirety.
In a earlier judgment in Mahesh Kumar Wadhwa Vs. Bimal Luthra 2009 (107) DRJ 271 passed by the Hon'ble High Court it was held by the Hon'ble Delhi High Court :
"D. There is also no explanation as to why such
large sums of monies were transacted in cash.
E. The plaintiff has not filed a single document to
show the availability of cash in such large volume Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 10 CS No.10/04 with him on the dates alleged.
F. A party who transacts in such casual manner, does so at his own peril. The purport of Order 37 is to provide benefit of summary procedure to plaintiffs who take care to have their transactions properly documented in accordance with law. The summary procedure is intended to encourage due recording / documentation in the course of trade / commerce. A person who while lending / advancing money makes as proper valid bill of exchange hundi, promissory note or a contract was intended to be bestowed advantage of quicker recovery of money without protracted trial. A party to avail of such significant benefit ought to take care in the making and execution of the document and lend money by cheque only, so as to eliminate defences of denial. The abridgement of procedure of trial for adjudication of factual disputes in Order 37 is an exception and cannot be extended to cases where the document itself is suspect or leaves scope for denial of receipt of money. The banking sector has developed immensely in the country over the years, with all having access to the banks. In these modern times transactions in large sums of monies, in cash and through non banking channels will always remain open to challenge and cannot claim preference in procedure for adjudication. To hold otherwise would be to give encouragement to such transactions, which otherwise need to be curbed. With the introduction of Section 138 in the Negotiable Instruments Act, judicial notice can be taken of the fact that normally post dated cheques in refund of monies lent/advanced are taken. Even if the plaintiff was lending money in cash, the plaintiff in the normal course would have been expected to take cheques for refund. All these circumstances, in the present case lead me to the conclusion aforesaid. Nothing said here should however be understood as laying down that Order 37 CPC would not be applicable wherever transaction is in cash. If the cash is explained and supported by other documents, action would lie. However, in this case notwithstanding specific plea in leave to defend application that the plaintiff had no means and had not disclosed the said monies in his income tax returns, the plaintiff has in his reply evaded answering the said pleas and also not filed any document to controvert the same. There cannot be two stands permitted to any party, one for purposes of taxation and other for litigation."
9. Thus, the present case filed by the plaintiff regarding the money which was unaccounted money as admission made by PW1 himself. It is the case of PW1 that such an unaccounted money was lying with him. A suggestion was given that PW1 was never involved in any business and never had any financial capacity to give loan of any Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 11 CS No.10/04 amount to any one at any point of time and the suggestion was denied by PW1. He has further stated that the loan amount which was given to the defendant in the year 2002 was not reflected in his ITR and also the loan was given in the year 2000. A suggestion was given that Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were in the handwriting of the same person and the said exhibits were made on the same day and the suggestion was denied. He has further stated that handwriting on the first pro-note was made on the day the loan was given. He has further stated that in respect of two other pro-note he knew what has to be written and had prepared them at home and again said he brought it pre-filled from home. Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 are again perused. Careful perusal of these documents shows that these three documents were filled up by the same person, were signed by the persons on the same day by the same personal pens used by different persons at the time of execution of these documents. A civil case has to be decided in accordance with the preponderance of the probabilities. It is highly improbable that all the persons would have used same personal pens on different dates. First document was executed on 18/02/2002, another document was executed on 18/03/2002 and last document was executed on 25/03/2002. It is not possible that for all such dates the same personal pen would have been used by each person. Definitely, when a document was written by a person then after a month it is not supposed that the said person would have written the document by the same pen in the same flow of handwriting. Similarly, this document cannot be signed by all the persons with the similar flow on different dates. This court is of the considered opinion that this is not possible in all probabilities. This document has been signed by the defendant by one Sh. Rajiv Mehra and one Smt. Neetu Mehra. Admittedly, this document was not filled up either by the Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 12 CS No.10/04 plaintiff or by the defendant. It is the case of the plaintiff that Ex. PW1/5 was filled up by friend of the defendant. Careful perusal of the document shows that Ex. PW1/7 and Ex. PW1/9 were filled up by the same person who had filled the document Ex. PW1/5. Therefore, there were four persons involved in execution of these documents. However, it is not stated by PW1 that the same friend accompanying the defendant at the time of signing of Ex. PW1/7 and at the time of Ex. PW1/9. This court cannot believe upon the similar circumstances would have been occurred at the time of writing of Ex. PW1/7 and Ex. PW1/9. Definitely as a human tendency, there must be some change of flow either in handwriting or by use of pen may be not of the defendant or friend of the defendant but definitely by the witnesses. It could have been possible only when all these documents filled and signed by concerned persons at the same time. Moreover, this court further observed another probability. If the friend of the defendant had filled up Ex. PW1/5 then why that friend was not made a witness towards the execution of Ex. PW1/5. This circumstance has not been explained by the plaintiff.
10. During further cross-examination, a question put on behalf of the defendant that the name of the son of PW1 in all his bank account is shown as Rajiv Kumar Mehra and it was answered by PW1 that he was not aware about it but he has stated that full name of his son is Sh. Rajiv Mehra. A suggestion was given that the short name of his son is R. K. Mehra and the suggestion was denied. A further question is put to PW1 that in all his bank account, his name is mentioned as Rajender Kumar Mehra and not as R. K. Mehra, as shown in Ex. PW1/1 to Ex. PW1/4 on which PW1 answered that all his cheques go in the banks in both name i.e. Rajender Kumar Mehra as well as R. K. Mehra. He has further stated that he signed in all banks his full name Rajender Kumar Mehra and not R. K. Mehra. He Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 13 CS No.10/04 has further stated that his name in all his bank accounts is Rajender Kumar Mehra only and on his cheque books also his full name is printed. A further suggestion was given that defendant refunded all the money received by him through his son under the cancelled agreement to sell Ex. PW1/D1 and the suggestion was denied.
11. PW2 is daughter in law of the plaintiff and wife of Sh. Rajiv Mehra. Contents of Ex. PW2/A are similar to the evidence of PW1. During cross-examination when a question put on behalf of the defendant that whether PW2 could tell the dates as mentioned in affidavit for the transfer of loan then she stated that she did not remember. Here this court observes that affidavit was attested on 16/09/2013 whereas the cross-examination of PW2 was recorded on 04/10/2013. This court observes that it is very strange that PW2 could remember the dates of transaction took place in the year 2002 when she sworn in affidavit on 16/09/2013 i.e. after about 11 years but after about 20 days when her statement was recored then she did not remember those dates. In such circumstances, this court has to draw inference that those dates which have been mentioned in affidavit for transaction must have been either copied from somewhere or the affidavit was tutored or copied but nothing as stated by PW2 in her statement. Upon question put to PW2, she replied that Ex. PW1/5 is in the handwriting of the friend of defendant who had come with him and the said friend had written the said document but she further replied that Ex. PW1/7 was brought duly filled up by the defendant. She has further stated that Ex. PW1/9 was filled up by her and the amount from portion X to X and portion Mark C to C was written by the defendant and the said document was also signed by the defendant. Here this court observes that PW1 stated in his evidence that Ex. PW1/9 was brought by the defendant as pre-filled form and when the plaintiff paid the amount, the defendant signed the receipt and pro-note whereas Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 14 CS No.10/04 the statement of PW2 contradicts PW1 and this court observes that it is a material contradiction. This court has already observed that upon bare look of the document, the handwriting on Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 are of the same person which must have been written at the same time. Therefore, the statements of PW1 and PW2 cannot be believed upon for this reason also. A suggestion was put that Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were prepared on the same day and the suggestion was denied. A further suggestion was given that Ex. PW1/6, Ex. PW1/8 and Ex. PW1/10 which are certified copies of cheques, were given to husband of PW2 as security against cancellation of agreement to sell and the suggestion was denied. A suggestion was further given that Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were not signed by PW2 as a witness in presence of defendant and the suggestion was denied. A further suggestion was denied that Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were filled to cheat the defendant. A further suggestion was given Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were not signed by her husband as a witness in presence of the defendant and the suggestion was denied. The contents of Ex. PW1/DA are similar to the averments made in the written statement. It is admitted by DW1 that Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were bearing signatures at points A and B. However, it is denied that no consideration was received for these documents. A suggestion was given on behalf of the plaintiff that the loan was taken by DW1 for the renovation of the guest house. However, plaint is again perused and nothing as such stated by the plaintiff in his plaint. Even in the replication filed by the plaintiff, nothing has been stated as such. First time such an allegation made during cross- examination of DW1. A suggestion was given that the loan transaction and agreement to sell transaction are independent and separate transactions and the suggestion was denied by DW1. He Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 15 CS No.10/04 has further stated that he had only one transaction with Sh. Rajiv Mehra, of agreement to sell and the present case is in connivance of father and son who have forged the documents with Ms. Neetu Mehra with sole purpose to extort money. He has further stated that Ex. PW1/5 and Ex. PW1/7 were blank at the time of signature and those were signed at the instance of Sh. Rajiv Mehra as they were given as security to him. He further denied the suggestion that the pro-note and receipts were issued by him after receipt of cash from him against pro-note-cum- receipt.
12. In view of the evidence discussed herein above, this court is of the considered opinion that the plaintiff is not able to prove that Ex. PW1/5, Ex. PW1/7 and Ex. PW1/9 were executed on different dates but perusal of these documents shows that these documents were filled up by the same person and every person signed or filled these documents simultaneously i.e. when a person signed a document then he signed simultaneously all the three documents may be other person signed on different day but simultaneously all the three documents were signed by the said person in one go. Perusal of documents also shows that four persons signed these documents at different times but whenever a person signs one document then he signed other two documents also at the same time as perusal of document shows that flow of ink on the documents by same pen and it is not possible that the same pen would have been available to a person at different times when those documents were signed. This court is of the considered opinion that it is also possible that one person may have the same pen for three dates but it is not possible that all four persons would have as such. Moreover, it is PW2 herself who contradicted the testimony of PW1 when she had stated that Ex. PW1/9 was filled up by her. Moreover, this court also discussed and considered that it is own case of PW1 that the said amount was Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 16 CS No.10/04 neither accounted and was with him but this court is not going to believe upon his testimony in view of the law discussed herein above as well as it is highly improbable that such a huge amount would have been lying in cash with PW1. Therefore, issues no. 1 and 2 both are answered against the plaintiff.
13. Issue No. 3.
Whether the plaintiff is entitled for pendentelite and future interest on decree amount ? If so, at what rate ? OPP. Since this court has already decided issue no. 2 against the plaintiff, therefore, there is no question of interest payable to the plaintiff.
14. Issue no. 4.
Relief.
In view of the observations made herein above, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today on 23.01.2014.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 23.01.2014 Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 17 CS No.10/04 CS No.10/04 23.01.2014 (At 4:10 pm) Present: Sh. Suresh Shah, proxy counsel for the plaintiff.
None for the defendant.
Vide my separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of costs. Decree Sheet be prepared accordingly. File be consigned to Record Room.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 23.01.2014 Sh. R. K. Mehra Vs. Sh. Sudhir Kumar Sahdev 18