Delhi District Court
Smt. Samita Chaudhary vs Smt. Uma Devi on 1 April, 2011
In the court of Sh. Devender Kumar CCJ/ARC (N/E),
Karkardooma Courts Delhi.
UNIQUE I.D. NO. 02402C0054302001
CIVIL SUIT NO. M - 10/09 (Old No. 117/2001)
IN THE MATTER OF :
SMT. SAMITA CHAUDHARY
D/O SH. SATISH CHAUDHARY
R/O 737, CHURCH MISSION ROAD,
FATEHPUR, DELHI
PLAINTIFF
Versus
SMT. UMA DEVI
W/O SH. VIJAY PAL SINGH
C/O SH. HARISH YADAV,
H. NO. 469, A BLOCK,
NEW ASHOK NAGAR,
NEW DELHI 110 096
ALSO AT :
SMT. UMA DEVI
W/O SH. VJAY PAL SINGH YADAV,
R/O V. & P.O. GAZIPUR,
DISTT. MEERUT, U. P.
DEFENDANT
Date of Institution of the Suit : 23.04.01
Arguments Heard : 01.04.11
Date of Judgment : 01.04.11
Suit No. 10/09 Page No. 1/13
SUIT FOR RECOVERY OF A SUM OF RS. 1,95,000/ U/O XXXVII
OF THE CPC
JUDGMENT :
1. Vide this judgment, I shall dispose off a suit for recovery of a sum of Rs. 1,95,000/ U/o 37 CPC filed by the plaintiff against the defendant. The brief facts of the case are as under :
2. Plaintiff has alleged that the defendant is the aunt of the plaintiff and they are closely related to each other. It is further alleged that at the time of marriage of the daughter of the defendant, defendant availed the loan of Rs. 1 lac from the plaintiff to be repaid with interest @ 2% per month and some documents like promissory note and a receipt dated 27.02.96 were also executed in this regard. It is further alleged that the said document was witnessed by Sh. R. S. Yadav who is the brother in law of the defendant and was residing with the defendant at that point of time. It is further alleged that instead of paying the entire loan amount along with interest, defendant sent a letter dated 12.10.98 thereby expressing her inability to return the entire the amount and sent a sum of Rs. 25,000/ as part payment towards the interest on the loan amount which was duly received by the plaintiff. It is further alleged that after paying the aforesaid amount, defendant has not paid any amount to the plaintiff despite receipt of legal notice dated Suit No. 10/09 Page No. 2/13 27.03.00 , hence present suit. By the way of present suit, plaintiff has prayed that a decree for the sum of Rs. 1,95,000/ be passed in favour of the plaintiff against the defendant along with the cost and pendetelite & future interest @ 24% per annum from the date of filing of the suit upto till realization.
3. Defendant was served and filed WS thereby alleging that the plaintiff has no cause of action to file this suit and the suit is liable to be dismissed. It is further alleged that the suit is barred by the provision of the Limitation Act, 1963 and is liable to be rejected. It is further alleged that the promissory note dated 27.02.96 was neither executed nor signed by the defendant as defendant has never taken any loan from the plaintiff and even the promissory note is also not bearing the handwriting of the defendant. It is further alleged that Sh. R. S Yadav who is the witness in the promissory note seems to have taken the loan from the plaintiff and plaintiff should file the suit for recovery against him and present suit is liable to be rejected against the defendant. It is further alleged that the father of the plaintiff along with Sh. R.S. Yadav got some blank papers signed from the defendant and those documents have been fabricated as Promissory Note, Receipt and Agreement to sell for the sale of the share of the defendant in her ancestral property. It is further alleged that when defendant came to know about this fact, defendant cancelled the POA of Sh. R.S. Yadav and withdrew herself Suit No. 10/09 Page No. 3/13 from his clutches. It is further alleged that after receipt of the legal notice dated 27.03.2000, defendant has sent a reply to the plaintiff in which she has clearly stated that she had not taken any loan from the plaintiff and is not liable to pay any amount to the plaintiff. It is further alleged that the suit of the plaintiff is based upon the false and fabricated documents, hence the same is liable to be dismissed with cost.
4. Plaintiff has filed replication to the WS of the defendant and denied all the allegations of the defendant and reaffirmed her pleadings.
5. As per the pleadings of the both parties, following issues have been framed by this court vide order dated 09.10.01.
ISSUES :
1. Whether the suit is filed within time ? OPP
2. Whether the plaintiff is entitled to recover any amount from the defendant? If so, how much ? OPP
3. Whether the plaintiff is entitled to any interest ? If so, at what rate ? OPP
4. Relief
6. To prove the case, plaintiff has examined herself as PW1, Sh. R. S. Yadav as PW2 and closed PE. To prove the case, the defendant has also examined herself as DW1, Sh. Hitesh Gupta as DW2, Sh. Raj Kumar as DW3 and closed DE.
Suit No. 10/09 Page No. 4/13
I have heard the arguments and perused the record, my issue wise findings are as under :
7. ISSUE NO. 1:
The onus to prove this issue was fixed upon the plaintiff. To discharge the onus, the plaintiff has examined two witnesses and defendant has also examined three witnesses. The point of limitation is mixed question of law and facts. The limitation for filing the suit for recovery is three years as per the Limitation Act. To prove the limitation, PW1 has deposed that she paid the amount of Rs. 1 lac as loan in cash to the defendant on 27.02.96 in the presence of witness and during the period of limitation, the defendant acknowledged the amount by the way of her acknowledgment and promised to pay the aforesaid amount with interest. It is further deposed that the defendant also executed the receipt cum promissory note which is Ex. PW1/A in her presence, but the defendant failed to pay back the whole amount and sent a letter mark A thereby expressing her inability to return the entire amount and to pay the sum of Rs. 25,000/ in cash through the person who acted as carrier to deliver the letter. PW2 Sh. R. S. Yadav has identified the signature of the defendant on the letter mark A. During the cross examination, PW1 has specifically deposed that letter dated 12.10.98 was written by defendant and same was handed over to her mother, but not in her presence and it was denied that Suit No. 10/09 Page No. 5/13 the letter was never handed over to her mother. It is further deposed that she can identify the signature of the defendant on Ex. PW1/1 as she has signed in her presence. It is further deposed that she cannot tell as to whether letter dated 12.10.98 was written by the defendant or not, though it bears her signature. PW2 has also deposed that he arranged the marriage of the daughter of the defendant and contributed the amount. It is further deposed that the document Ex. PW2/D1 was got printed by him and the ceremony of the marriage was performed by the defendant as well as him and the photographs Ex. PW1/X1 are the photographs of engagement ceremony. It is further deposed that the request of the loan amount was not made in his presence, but amount of Rs. 1 lac was given in his presence. It is further deposed that the promissory note at point B is bearing the signature of the defendant. It is admitted that she was the attorney on behalf of Smt. Uma for some time, but he cannot identify the handwriting on the document mark A , but can only identify the signature. DW1 has also deposed that he received the legal notice thereby demanding the amount of promissory note, but she did not reply the notice. It is admitted that cheating case is pending against his sons namely Sh. Harish Kumar and Raj Kumar. It is further deposed that he attended the marriage of her daughter, but cannot tell how much amount was spent on the marriage of her daughter as the said marriage was got solemnized by Sh. R. S. Yadav and her husband Suit No. 10/09 Page No. 6/13 spent Rs. 4000/ to 5000/ in the marriage of her daughter. It is further deposed that she had not filed any complaint to the police or to any complaint case regarding forged promissory note by her signature. DW2 has deposed that he had written the letter Mark A in the month of Feb. 2000 at the instance of one Ms. Poonam Chaudhary on the blank paper which was bearing the signature and even he put the date on the letter. It is further deposed that Ms. Poonam Chaudhary was known to him for the last six months because he had gone to the court to see her. It is further deposed that he met Ms. Poonam Chaudhary once or twice prior to writing of this letter and her father accompanied her at the time of writing the letter and two and three persons were also present. It is further deposed that his father knew Ms. Poonam Chaudhary because he did work in her court for 3035 years prior to registration of the case of cheating against him. On the other hand, DW3 has deposed that at the time of filing the suit, his relations with the plaintiff were good, but after some time, the plaintiff stopped his salary due to he refused to work and his relations became strain. It is further deposed that his son went to the house of Ms. Poonam Chaudhary at East of Kailash once or twice, but at the time of writing of the letter mark A, he was not present with him and his son informed him about the writing of the letter in the year 2001 after one year. It is further deposed that in the year 2001, he was checking some documents at his house, when his son Suit No. 10/09 Page No. 7/13 identified the letter mark A which was written by him. It is further deposed that the criminal case was got registered by the mother of the plaintiff in the month of June 2002 against him.
After going through the testimonies of the witnesses of both parties, it is clear that the plaintiff has advanced the loan of Rs. 1 lac to the defendant for the marriage purpose of the daughter of the defendant and this fact has been duly proved by PW2 thereby proving the document Ex. PW2/D1 and photographs Ex. PW1/X1. The promissory note Ex. PW1/1 is bearing the signature of the defendant and even the plaintiff had sent a legal notice to the defendant at the time of its enforcement, but the defendant preferred neither to file any complaint nor any case against the plaintiff. Rather, legal notice was also not replied which compel this court to draw an adverse infrance that the defendant was well aware about the loan amount and he was supposed to pay the amount, but instead of paying the loan amount, she has made a false story.
Besides it, the testimony of DW2 and DW3 is altogether contradictory to each other. DW2 has deposed that he wrote the letter mark A at the instance of one Ms. Poonam Chaudhary at her residence, in the presence of threefour persons and in the presence of his father, but the DW3 who is the father of the DW2 has specifically denied that he was accompanied with the DW2 at the time of writing of this letter. The Suit No. 10/09 Page No. 8/13 deposition of DW3 specifically shows that the entire testimony of DW3 s based on hearsay. Rather, some facts mentioned in the testimony of DW3 are beyond the explanation as he came to know about the letter 'mark A', when he was searching a file and his son pointed out, but the letter was already on record, then how it is possible if the letter was obtained by Ms. Poonam Chaudhary through DW3, then it must be kept by her and there is no question to come in the notice of DW3 about the execution of such letter. It is admitted case of DW2 and DW3 that the criminal case was registered against the DW3 at the instance of mother of the plaintiff against the theft of promissory note and this fact clearly indicate that an old known person became hostile towards the previous employer who has terminated his services. As such, the testimony of DW2 and DW3 are suffering with malice and the same cannot be made the basis to discard the acknowledgment of loan amount. The defendant has repeatedly changed her version with regard to the documents. On the other hand, she got the leave to defend on the basis that the loan documents are forged and fabricated. On the other hand, during trial she has introduced a new story which is against the previous story. As such, the defence taken by the defendant is of no use. Even otherwise if the documents were got signed by the plaintiff in blank, then he was supposed to initiate the action when she came to know about the misuse of this document, but she preferred not to do anything and Suit No. 10/09 Page No. 9/13 kept mum. As such, the defence of the defendant is vague. As per the requirement of section 18 of Limitation Act, the acknowledgment should be made within the period of limitation and the letter dated 12.10.08 which is mark A was written by defendant to the plaintiff thereby acknowledging the loan as well as part payment and the same was done within the period of limitation. After the said acknowledgment, a fresh period of acknowledgment shall start to run and the suit has been filed during that period. As such, the plaintiff has proved that the suit is within limitation and issue is decided in favour of the plaintiff and against the defendant.
8. ISSUES NO. 2 & 3:
The onus to prove these issues was fixed upon the plaintiff. I have already given my finding on issue no. 1 that the plaintiff advanced the loan of Rs. 1 lac to the defendant against a pronote Ex. PW1/1 which is bearing the signature of the defendant. The pro note is a negotiable instrument and the presumption of 118 (a) and 139 of NI Act is in favour of the plaintiff that the same was executed against a consideration. The presumption was to be rebutted by the defendant, but the defendant has not rebutted the presumption and has frequently changed his defence. DW1 has specifically deposed that she received the notice for demanding the amount of pro note, but she did not reply and the copy of the notice Ex. DW1/B is also admitted by her. It is further admitted that one cheating case is pending against her Suit No. 10/09 Page No. 10/13 sons regarding the theft of promissory note of Rs. 4 lacs prior to the marriage of her daughter and spent amount in the marriage was Rs. 4,000/ to Rs. 5,000/. It is further admitted that he has not filed any complaint with the police regarding the forgery of signature on the promissory note. DW2 and 3 have deposed against each other and many material contradictions have arisen in the testimonies of both the witnesses, which I have already pointed out while giving the finding on issue no. 1. Ex. PW1/1 was executed against the loan amount which was advanced to the defendant and the defendant has failed to prove on record that the promissory note was got signed by plaintiff from the defendant under any pressure or misrepresentation and the same has been executed on the blank paper. Rather, signing on the blank paper has no defence at all. Further, the conduct of the defendant clearly suggest that the defendant did not bother to take any action against the plaintiff despite knowing all the facts about the promissory note as well as mark A. Document Mark A was also written by her and the story of DW2 and 3 is beyond imagination. A person of such a caliber of a Judge would do such a petty thing that she would use a minor children to forge the document for such a petty amount and even in the presence of four five persons. The story of the DW2 was not supported by the story of DW3 as the version of DW3 is entire based on hearsay. As such, the defendant borrowed the amount and executed the document Ex. Suit No. 10/09 Page No. 11/13 PW1/1 and acknowledged the amount by the way of Mark A. PW2 was the witnesses of the loan amount and execution of promissory note which bears the signature of the defendant at point B. PW2 used to be the attorney of the defendant and was a person of confidence of the defendant who even brought up the daughter of the defendant and also got solemnized the marriage of the daughter of the defendant. PW2 has specifically proved the signature of defendant at point C on mark A and the amount has not been repaid by her. As such, the plaintiff has proved that the plaintiff advanced the sum of Rs. 1Lac for the marriage of the daughter of the defendant against the promissory note Ex. PW1/1, but the defendant has failed to make the payment. As such, the plaintiff has discharged the onus to prove this issue and issue is decided in favour of plaintiff and against the defendant.
So far the rate of interest is concerned, promissory note Ex. PW1/1 s bearing the rate of interest @ of 2% per month which amounts to 24 % per annum. Though it is a contractual interest and the conduct of the defendant clearly suggest that she deliberately deprives the plaintiff from the elegitimate amount thereby contesting the suit on the grounds which were never in existence. The defendant has made every attempt just to delay this case and to deprive the plaintiff from her amount. As such, the conduct of the defendant also make her liable to pay the interest. The promissory note Suit No. 10/09 Page No. 12/13 Ex. PW1/1 has been proved by the plaintiff and PW2. The plaintiff is definitely entitled for the interest over the loan amount. As such, the plaintiff has discharged the onus to prove these issues and issues are decided in favour of the plaintiff and against the defendant.
9. RELIEF :
The plaintiff has proved that she is entitled for the decree of suit amount, accordingly I hereby pass a decree of suit amount along with the pendetelite and future interest at the rate of 12% per annum on the principle amount of Rs. 1 lac along with the cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Devender Kumar) CCK/ARC/MM 01.04.11 Suit No. 10/09 Page No. 13/13 M10/09 (Old No. 117/2001) 01.04.11 Pr. : Counsels for both parties Arguments heard.
Vide separate judgment, suit of the plaintiff has been decreed. Decree sheet be prepared accordingly. File be consigned to record room.
(Devender Kumar)
CCK/ARC/MM
01.04.11
Suit No. 10/09 Page No. 14/13
M. No. 10/09
01.04.11
Pr. : Counsels for both parties
Vide separate judgment, suit of the plaintiff has been decreed. Arguments on application U/s 340 Cr.PC heard. The entire application of the defendant is based that the plaintiff has led false evidence on record and the testimonies of the DW2 and DW3 suggest that the plaintiff has misused judicial process. It is further revealed that the defendant has alleged that the plaintiff has forged certain documents including Ex. PW1/1 and Mark A, due to she has committed offence U/s 193 and 195 of IPC R/w section 340 Cr.PC. I have already given my findings in the judgment itself that these documents are not forged and fabricated as it could not be proved on record. The testimonies of DW2 and DW3 have been also discussed which shows malice on the part of the witnesses who were already facing trial at the instance of the mother of the plaintiff which gives that a motive to implicate the plaintiff and her sister in this case. To make the complaint U/s 195 R/w 340 Cr.PC, this court has to come to the conclusion that a person has led false evidence and has committed the offence of perjury, only then, a complaint U/s 340 CrPC may be made. Further, if it seems to the court that it is expedient in the interest of justice to prosecute the person who has committed the offence of perjury, Suit No. 10/09 Page No. 15/13 then complaint may be made, but in the present case, nothing has come on record to prove that the plaintiff has committed the offence for perjury and has also led any false evidence, hence application of the defendant is not maintainable and dismissed. File be consigned to record room.
(Devender Kumar) CCJ/ARC/MM/Delhi 01.04.11 Suit No. 10/09 Page No. 16/13