Delhi District Court
Satya Dev Prasad vs Santosh on 31 October, 2023
DLSE010102142016
Presented on : 24-12-2016
Registered on : 26-12-2016
Decided on : 31-10-2023
Duration : 6 years, 10 months, 7 days
Date of Institution : 06.01.2017
Date reserved for judgment : 31.10.2023
Date of announcement of judgment : 31.10.2023
Decision : Dismissed
IN THE COURT OF SHRI MUNISH MARKAN
ADDITIONAL DISTRICT JUDGE (ADJ02) SOUTH EAST,
DISTRICT COURTS, SAKET, NEW DELHI
CS DJ 12004/16
SATYA DEV PRASAD
S/o Sh.Bilar Shah
R/o K-113, Jaitpur Extn.,
Near Urpan Public School,
Badarpur, New Delhi .... Plaintiff
VERSUS
1. Smt. Santosh
Wd/O Late Sh.Rajbir
2. Sh.Anil Kumar (son)
3. Sh.Yogesh (Son)
4. Sh.Satyaveer (Son)
5. Sh.Rohit Kumar (Son)
6. Sh.Ankur Kumar (Son)
7. Sh.Mahakesh (Son)
8. Sh.Saurabh (Son)
9. Ms.Shivani Rani (Daughter)
All R/o Village - Benipur,
P.O. Gazipur, District Buland Shahar, UP ... Defendants
CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Ors 1/13
JUDGMENT
1. The plaintiff has filed the suit for recovery of Rs. 3,60,528/- on the ground of having given the loan amount of about Rs. 3 Lakh to the Sh. Rajbir, the late husband of defendant no. 1 and father of defendant no. 2 to 9. Late Rajbir is stated to have issued a cheque for Rs. 3,21,900/- dated 06.06.2016 and also issued a promissory note dated 20.02.2016. The defendants alleged the forgery of the signatures of Late Sh. Rajbir on the said promissory note and the cheque and claimed no liability.
2. The case of the plaintiff is that on 20.02.2016, Sh. Rajbir approached the plaintiff at his residence and requested for a loan of Rs. 3 Lakhs. Sh. Rajbir told the plaintiff that he is employed at Airport Authority of India, Safdurjung Airport as SR attendent and produced his identity card, pay slip etc. and promised to repay the borrowed amount with interest. The said Sh. Rajbir was accompanied by one Sh. Ram Rattan who assured that Rajbir is a good person and will definitely refund the borrowed amount. Sh. Ram Rattan was good friend of plaintiff and was employed in the same office with Sh. Rajbir. Therefore, the plaintiff agreed to grant loan to the Rajbir and asked him to come in the evening.
3. Plaintiff further stated that in the evening at about 05:00 pm, Rajbir alongwith Ram Rattan again came and made request. Rajbir delivered the photocopies of his ID Card and Pay slip and driving license etc. and duly executed a pro-note in the presence of witnesses Sh. Ram Ratan and Suresh who also signed as witnesses. Plaintiff gave Rs. 2.85 Lakhs to Sh. Rajbir in the CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Anr. 2/13 presence of the witnesses.
4. Plaintiff further stated that on 06.06.2016, Rajbir made request to pay Rs. 14,100/- to his HDFC Bank Account which was to be paid by the Rajbir but he was unable to pay. Rajbir told that he had applied for loan from his office which he will get in one month and promised to pay the entire loan as early as possible. Rajbir also issued and delivered a cheque bearing no. 517622 dated 06.06.2016 for Rs. 3,21,900/- for the discharge of the said liability. Rajbir requested not to present the said cheque before one month. In July 2016, the plaintiff came to the office/ residence of Rajbir and came to know that Rajbir had expired. The defendants who were the wife and son of Rajbir promised to clear the dues after getting funds from the office of Rajbir. Plaintiff demanded the same time and again but to no avail and eventually issued a legal notice dated 14.12.2016 and filed the present suit.
WRITTEN STATEENT
5. All the defendants filed the joint written statement and took the plea that the suit has been filed on forged and fabricated documents. The plaintiff has not come to the Court with clean hands. However, the plaintiff knew the deceased Rajbir since long back as was clear from the passbook of the account of Rajbir which shows several payments made by Rajbir to the plaintiff since 2011. Defendants denied that any loan was taken by Rajbir and claimed that pro-note and cheque were forged. Sh. Rajbir changed his signatures from English to Hindi in his Vijaya Bank account since 2015.
CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Ors 3/13
6. Defendants further stated that on 06.06.2016, Rajbir was seriously ill and bed ridden at home and on 07.06.2016, he suffered brain stroke and was admitted in Kailash Hospital, Noida where he died on 18.06.2016 and therefore, there was no question of the plaintiff meeting Rajbir on 06.06.2016. The cheque might have stolen by the plaintiff with the help of Ram Rattan, a co-employee of Rajbir, at the time when the Rajbir was ill. The plaintiff concealed that Rajbir was known to him very well and he was aware about his illness and death and also about the legal heirs of Rajbir. The plaintiff himself borrowed loan amount from Rajbir on various occasions. The defendants prayed for the dismissal of the suit.
7. From the pleadings of the parties, following issues were framed.
ISSUES:
1. Whether the suit of the plaintiff is not maintainable as the same has been filed on the basis of forged and fabricated documents? OPD
2. Whether the suit of the plaintiff is barred by Order 7 Rule 11 CPC as no cause of action ever arose in favour of the plaintiff and against the defendants? OPD
3. Whether the plaintiff has not approached the court with clean hands and suppressed the material facts from the court? OPD
4. Whether the plaintiff is entitled for decree for a sum of Rs.3,60,528/ in favour of the plaintiff and against the CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Anr. 4/13 defendants jointly and severally? OPP
5. Whether the plaintiff is entitled for interest on the decreetal amount, if any, then at what rate? OPP
6. Relief.
8. During plaintiff evidence, plaintiff examined himself as PW1, tendered his affidavit as Ex. PW1/A and relied upon following documents.
S. No. Documents Exhibit
1. Original promissory note dt. 20.02.2016 Ex PW1/1.
2. Cash deposit receipt in HDFC Bank Ex PW1/2.
3. Original cheque bearing No.517622 dt. Ex PW1/3 06.06.2010 drawn on Vijaya Bank, Bara Khamba Road, New Delhi
4. Legal Notice dated 14.12.2016 Ex PW1/4
5. Postal Receipt dated 15.12.2016 Ex PW1/5
6. Postal Receipt dated 15.12.2016 Ex PW1/6
7. Original postal receipt dated 15.12.2016 Ex PW1/7
9. During defendant evidence, DW1 Sh.Yogesh Singh S/o Late Sh.Rajbir tendered his affidavit as Ex. DW1/A and relied upon three documents i.e. Copy of passbook as Ex.PW1/1 (though it should be mentioned as Ex.DW1/1), Medical document of deceased Sh.Rajbir as Ex.PW1/2 (though it should be mentioned as Ex.DW1/2) and Copy of record of the account of deceased Sh.Rajbir as Mark A (colly).
10. DW2 Sh.Uday Pratap Singh, the Branch Manager CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Ors 5/13 of Bank of Baroda produced statement of account held by Late Sh.Rajbir as Ex.DW2/B, his Specimen Signature Card as Ex.DW2/C and Account Opening Form as Ex.DW2/D and ID Proof as Ex.DW2/E.
11. DW3 Sh.M. M. S. Chauhan, Assistant General Manager (HR) from office of Airport Authority of India, Safdarjung Airport, New Delhi placed on record the leave record of Late Sh.Rajbir for the month of June 2016 as Ex.DW3/1 and Daily Attendance Register dated 06.06.2016 as Ex.DW3/2.
12. DW4 Sh.Yogesh S/o Sh.Ram Nath Singh, a neighbour of the defendant tendered his affidavit as Ex.DW4/A.
13. I have heard Ld. Counsel for the parties and have gone through the record carefully. Issuewise findings of the court are as under:
ISSUE No.2 Whether the suit of the plaintiff is barred by Order 7 Rule 11 CPC as no cause of action ever arose in favour of the plaintiff and against the defendants? OPD
14. Onus to prove this issue was upon the defendant. For the purpose of cause of action, the averments made in the plaint are required to be looked into. The plaintiff has filed the suit for recovery of the loan granted to Late Sh.Rajbir the late husband of defendant no.1 and father of defendant no.2 to 9, on the basis of the Pronote and cheque Therefore, from the averments made in CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Anr. 6/13 the plaint coupled with the documents relied upon by the plaintiff, it cannot be said that there was no cause of action in favour of the plaintiff and against the defendants. However, to what extent, the plaintiff has been able to prove his case shall be dealt with while dealing with issue no.4. This issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE No.3.
Whether the plaintiff has not approached the court with clean hands and suppressed the material facts from the court? OPD
15. In the plaint, the plaintiff has stated that on 20.02.2016, Sh.Rajbir came to the residence of the plaintiff along with Ram Rattan and made request for loan of Rs.3 Lakhs for personal needs. The said Sh.Rajbir told that he is employed at Airport Authority of India, Safdarjung Airport as SR Attendant and produced is Identity Card, Pay slips etc. Sh.Ram Rattan a co friend of plaintiff who was employed in the same office assured that Sh.Rajbir will refund the borrowed amount definitely and therefore, the plaintiff agreed to grant the loan to Sh.Rajbir. Same day, in the evening, Sh.Rajbir delivered the photocopy of his Identity Card, Pay slips and Driving License etc and executed the Pronote.
16. Ld. Counsel for defendant had argued that PW1 during his cross examination done on 12.02.2021 stated that he knew Sh.Rajbir for the last 10 years and the PW1 also stated that CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Ors 7/13 he knew the said fact that Sh.Rajbir was working in Airport Authority of India even prior to 20.06.2016. 17. Ld. Counsel for defendant had argued that the plaintiff has taken the stand in his pleadings as if he met Sh.Rajbir for the first time on 20.02.2016 and he was accompanied with his cofriend Sh.Ram Rattan who assured that Sh.Rajbir shall refund the borrowed amount definitely. He further argued that during his cross examination, PW1 admitted that he received the payment through cheque from Late Sh.Rajbir on various occasions since 2011. It is argued that the plaintiff had wrongly represented in his pleadings that he met Sh.Rajbir for the first time on 20.02.2016 who produced his Identity Card and Driving License etc for the first time and it was a material concealment of facts.
18. I find merit in the contentions of Ld. Counsel for defendant in this regard. From the plaint as well as in his affidavit Ex.PW1/A, the plaintiff has portrayed as if he met Sh.Rajbir for the first time on 20.02.2016 and believed the assurance of his good friend Sh.Ram Rattan. The cross examination of PW1 clearly reflects that the plaintiff/ PW1 admitted that he knew Sh.Rajbir since 2011 i.e. about 5 years prior to transaction in question. Sh.Rajbir is no more. The case has been filed against his LRs in respect of the loan amount alleged to have been taken by Sh.Rajbir. Sh.Rajbir died on 18.06.2016 i.e. soon after the said alleged transaction of handing over of the cheque dated 06.06.2016. The circumstances of the CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Anr. 8/13 case reflect that meeting Sh.Rajbir for the first time or he was known to Sh.Rajbir for the last 5 years and used to have financial transactions is material fact and has a direct impact on the outcome of the matter as shall be dealt with while deciding issue no.4.
19. Plaintiff portraying himself in the pleadings that he met Sh.Rajbir for the first time on 20.02.2016 is a factually incorrect statement and in the given facts and circumstances, it is held that plaintiff has suppressed this material facts from the court. So far as the other aspects of case are concerned, these are being dealt with while deciding issue no.4 and therefore, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE no. 1 Whether the suit of the plaintiff is not maintainable as the same has been filed on the basis of forged and fabricated documents? OPD ISSUE No.4 Whether the plaintiff is entitled for decree for a sum of Rs.3,60,528/ in favour of the plaintiff and against the defendants jointly and severally? OPP
20. As per the plaintiff, a sum of Rs.2,85,000/ was given by the plaintiff to Sh.Rajbir the husband of defendant no.1 on 20.02.2016 and again on 06.06.2016, Sh.Rajbir made request to pay Rs.14,100/ to his HDFC account which the plaintiff is CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Ors 9/13 stated to have paid. Further, as per the plaintiff, Sh.Rajbir issued and delivered one cheque bearing No.517622 dated 06.06.2016 for Rs.3,21,900/ for the discharge of his liability and asked the plaintiff not to present the cheque for one month.
21. On the other hand, the defendant took the plea that no such amount was taken by late Sh.Rajbir. The plaintiff forged the signatures of Sh.Rajbir on the pronote Ex.PW1/1 and the cheque Ex.PW1/3. Further, it is argued that the signatures of Sh.Rajbir on the Pronote Ex.PW1/1 and Cheque Ex.PW1/3 are in English whereas Sh.Rajbir changed his signature from English to Hindi as reflected from the Bank record filed by the official of Vijaya Bank. Further, the stand of the defendant is that Sh.Rajbir was unwell and was admitted on 07.06.2016 in Kailash Hospital and Heart Institute, Sector 27, Noida and was discharged on 09.06.2016 and died on 18.06.2016 and there was no occasion for Sh.Rajbir to visit the plaintiff on 06.06.2016. It was also argued that plaintiff did not come to his office on 06.06.2016 and said fact is proved by the Attendance Register record of the office of the defendant by DW3.
22. Perused the two signatures done over the Revenue Receipts on Pronote Ex.PW1/1 as well as on the Cheque Ex.PW1/3. On comparison, these signatures are strikingly different from the one appearing on the Specimen signature Card Ex.DW2/C and Account Opening Form Ex.DW2/D. It reflects that there is no resemblance between these two signatures. The CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Anr. 10/13 specimen signatures of Sh.Rajbir on the Account Opening Form Ex.DW2/D are entirely different from the one on the Pronote and the Cheque Ex.PW1/1 and Ex.PW1/3.
23. Further, Ex.DW3/1 is the Attendance Register Record of Sh.Rajbir for the month of June 2016 which shows at Sl. No.11 that Rajbir did not appear from 05.06.2016 to 18.06.2016 and did not give any leave and died on 18.06.2016. Ex.DW3/2 is the Daily Attendance Register for 06.06.2016 which reflects at sl. no.10 Sh.Rajbir is "absent".
24. Further, copy of the Discharge Summary of Sh.Rajbir from Kailash Hospital shows that date of admission is 07.06.2016 and case summary is that patient presented with the compaints of pain abdomen for 23 days, vomiting for 2 3days and giddiness for 23 days. It shows that on 06.06.2016, Sh.Rajbir was suffering from abdomen pain, vomiting and giddiness and did not attend the office but even in such extreme pain when he had to be admitted to hospital, he went to plaintiff to deliver him the cheque on 06.06.2016 and at the same time asked him not to present it. This seems to be highly improbable in the given facts and circumstances. Further, the statement of Bank account of Vijaya Bank as reflected from the Passbook Ex.PW1/1(Ex DW1/1) reflects that certain payments were made by Sh.Rajbir to the plaintiff Sh.Satyadev way back on 16.05.2011 as Rs.4400/, Rs.11,000/ on 29.07.2011, Rs.11,000/ on 30.08.2011, Rs.1,52,500/ on 03.08.2013, Rs.6860/ on CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Ors 11/13 31.10.2013. All these payments have not been disclosed by the plaintiff. Rather the plaintiff represented that he met Sh.Rajbir for the first time on 20.02.2016. There was no reason for the plaintiff to withheld/hide the past relations between the plaintiff and Sh.Rajbir and the silence in this regard by the plaintiff simply shows that plaintiff has not approached the court with clean hands and withheld the material facts.
25. The contention of the defendant that it is Sh.Rajbir who used to give loan amount to the plaintiff cannot be altogether ruled out as there are bank entries to the effect that the amount was debited from the account of Rajbir and credited to the account of plaintiff on various occasions.
26. Be that as it may. The Pronote and the Cheque which are the basis of the case of the plaintiff do not inspire confidence as the signatures thereon do not tally with the specimen signatures of Sh.Rajbir.
27. Further, the plaintiff has not examined the two witnesses to the Pronote Ex.PW1/1 i.e. Sh.Ram Rattan and Sh.Suresh Kumar for the reasons best known to the plaintiff. Ram rattan is a friend of the plaintiff and once the defence of the defendant was disclosed, the plaintiff ought to have examined these witnesses in the given facts and circumstances of the case. It is also worthwhile to note that handwriting on the Pronote are also appear to be different handwriting. The contention of the defendant that plaintiff, in collusion with Ram Rattan, who were CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Anr. 12/13 the co employee of Late Sh. Rajbir had stolen the cheque from the office of Ram Rattan during his illness can't be altogether negated. Therefore, considering the totality of the facts and circumstances of the case, in my considered opinion, on the preponderance of probability, the plaintiff has failed to prove that Sh.Rajbir had taken the loan of about Rs.3 Lakhs from the plaintiff.Therefore, bot these issues are decided against the plaintiff and in favour of the defendants.
ISSUE No.5 Whether the plaintiff is entitled for interest on the decreetal amount, if any, then at what rate? OPP
28. In view of the findings of issue no.4, this issue is decided against the plaintiff and in favour of the defendants.
RELIEF:
29. In view of the above, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared.
File be consigned to Record Room.
Announced in the open court on 31.10.2023.
(Munish Markan)
Additional District Judge02 (SE),
pk District Courts, Saket, New Delhi
CS DJ 12004/16 Satya Dev Prasad Vs. Smt. Santosh & Ors 13/13