Delhi District Court
Mrs. Sudha Adya vs Smt. Jyoti Sharma on 30 August, 2011
Suit No.443/2009 Smt. Sudha Adya 1 Smt. Jyoti Sharma
IN THE COURT OF Ms. AMBIKA SINGH
CJ : CENTRAL03 : ROOM No. 346 : THC : DELHI.
Suit No. 443/2009
In the matter of :
Mrs. Sudha Adya, W/o Major P.P. Adya,
R/o H. No. 2316, Laxmi Narain Street, PaharGanj,
New Delhi110055. ..........................Plaintiff
Vs.
Smt. Jyoti Sharma, W/o Shri Sanjay Sharma,
R/o H. No. 2726, Top Floor, Gali No. 7, Chuna Mandi,
PaharGanj, New Delhi110055. ............................Defendant
Suit for recovery of Rs.94,500/
Date of Institution : 21.08.2009.
Date of Decision : 30.08.2011.
Suit No.443/2009 Smt. Sudha Adya 2 Smt. Jyoti Sharma
J U D G M E N T
1. Vide this Judgment, I shall disposeof the suit for recovery of Rs.94,500/ filed by the plaintiff against the defendant.
2. Briefly stated it is the case of plaintiff that defendant is the real niece of plaintiff. After her marriage, the defendant was living in a slum area and wanted to get out from it. In the year, 2006 she showed dire need and requested the plaintiff to grant a loan of Rs.1,80,000/. Keeping in view the close relationship, the plaintiff granted the defendant a loan of Rs.1,80,000/ on different occasions in the year 2006 and defendant executed promissory note in this regard in favour of plaintiff.
3. It is alleged that inspite of lapse of sufficient time, the defendant did not refund the loan amount nor she paid the interest thereon as offered by her. Infact, she had taken undue advantage of close relationship between plaintiff and defendant. In the month of MarchApril & July, 2009 the plaintiff requested the defendant to repay Suit No.443/2009 Smt. Sudha Adya 3 Smt. Jyoti Sharma the loan amount but behaviour and conduct of the defendant was not up to the mark. It was apparent that she has no intention to refund the loan amount. In these circumstances, the plaintiff has no other alternative except to issue a legal notice dated 25.07.2009 to the defendant through her counsel which was duly served upon the defendant, however, neither the defendant bothered to reply the legal notice nor has refunded the loan amount. She avoided the repayment of loan amount on one pretext or the other, hence, the plaintiff has filed the present suit for recovery of Rs.94,500/ on the basis of pronote dated 14.09.2006 for Rs.10,000/ and pronote dated 15.09.2006 for Rs.60,000/ alongwith pendentelite and future interest @ 12% per annum from the date of filing of the suit till realization of the decreetal amount. Since, the defendant has failed to repay the amount of Rs.70,000/, she is also liable to pay the interest @ 12% per annum on the said amount with effect from 14/15.09.2006 till 15.08.2009, total amounting to Rs.94,500/.
4. The cause of action to file the present suit firstly arose in Suit No.443/2009 Smt. Sudha Adya 4 Smt. Jyoti Sharma the year 2006 when defendant approached the plaintiff and showed her dire need of Rs.1,80,000/. It again arose on different occasions when plaintiff gave the loan amount to the defendant and defendant failed to repay the same. It further arose when legal demand notice was sent to defendant through counsel of the plaintiff. The cause of action is still continuing as defendant has not paid even a single penny to the plaintiff.
5. The parties to the suit reside and work for gain at Delhi. The entire loan transaction had taken place in Delhi. Hence, cause of action to file the present suit has accrued at Delhi, therefore, this Court has the territorial jurisdiction to entertain and try the present suit. The plaintiff has served the legal demand notice dated 25.07.2009 upon defendant and has filed the present suit on 21.08.2009, hence, the suit is within limitation.
6. The defendant has filed her written statement in which she has controverted the allegations levelled against her and has stated that the suit of the plaintiff is not maintainable and is liable to be dismissed Suit No.443/2009 Smt. Sudha Adya 5 Smt. Jyoti Sharma under Order 7 Rule 11 CPC as no cause of action has ever accrued in favour of against the defendant. It is submitted that the plaintiff has not come to the Court with clean hands and has deliberately suppressed the material facts & information from this Court. The plaintiff has based her suit on promissory notes which were executed in the year 2006 for security purpose. However, the loan was interest free and it was repaid by the defendant in full and final settlement but due to malafide intention the plaintiff did not return the said promissory notes to the defendant and now she is bent upon to misuse them by filing the present suit.
7. It is averred that the suit of the plaintiff has not been properly valued for the purpose of Court fees, hence, the same is liable to be dismissed. The suit of the plaintiff is false, frivolous & vexatious and is liable to be dismissed with costs under Section 35A CPC.
8. The plaintiff has filed replication in which she has controverted the contentions of the defendant and has reiterated the Suit No.443/2009 Smt. Sudha Adya 6 Smt. Jyoti Sharma stand in the plaint.
9. On 12.05.2010, following issues were framed : (1) Whether the plaintiff has suppressed vital and material facts from this Court ? OPD (2) Whether the plaintiff advanced a loan amounting to Rs. 1,80,000/ to the defendant during the year 2006 ? OPP (3) Whether the plaintiff is entitled to interest @ 12% per annum ? OPP (4) Whether the plaintiff is entitled to the relief claimed for ? OPP (5) Relief.
10. The plaintiff has examined three witnesses in support of her case. Smt. Sudha Adya appeared as PW1 and tendered her evidence by way of an affidavit EX. PW1/A. She has also relied upon certain documents in support of the plaint. EX. PW1/1 is the promissory note dated Suit No.443/2009 Smt. Sudha Adya 7 Smt. Jyoti Sharma 15.09.2006. EX. PW1/2 is the promissory note dated 14.09.2006. EX. PW1/3 is the promissory note dated 13.09.2006. EX. PW1/4 is the promissory note dated 05.05.2006. EX. PW1/5 is the promissory note dated 05.05.2006. EX. PW1/6 is the copy of legal notice dated 25.07.2009. EX. PW1/7 is the original postal receipt. EX. PW1/8 is the UPC receipt.
11. Retired Major P.P. Adya, husband of plaintiff/PW1 appeared as PW2 and tendered his evidence by way of an affidavit EX. PW2/A. He also relied upon the documents already exhibited as EX. PW1/1 to EX. PW1/5 in the evidence of plaintiff.
12. PW3 is Mrs. Saroj Sarin. She is sister of plaintiff/PW1. PW3 tendered her evience by way of an affidavit EX. PW3/A. She also relied upon the documents already exhibited as EX. PW1/1 to EX. PW1/5 in the evidence of plaintiff.
13. The defendant has also examined three witnesses in support of her defence. Smt. Jyoti Sharma appeared as DW1 and tendered her evidence by way of an affidavit which is exhibited as EX. DW1/1. She deposed on oath that on 11.03.2008, her husband Shri Sanjay Sharma Suit No.443/2009 Smt. Sudha Adya 8 Smt. Jyoti Sharma has handed over Rs.70,000/after its withdrawal from the bank and handed over it to the present plaintiff who visited their home at about 6 p.m.
14. DW2 is Shri Sanjay Sharma, husband of defendant/DW1. He tendered his evidence by way of an affidavit EX. DW2/1 in support of the defence of defendant. He deposed on oath that on 11.03.2008, he had withdrawn Rs.75,000/ from his bank and handed over to her wife, the defendant for full and final payment to the present plaintiff which was Rs.70,000/ and the same amount was handed over to plaintiff in his presence at 6 p.m.
15. DW3 is Shri Himanshu Suri, S/o Shri V.K. Suri. He is brother of defendant. DW3 tendered his evidence by way of an affidavit which is exhibited as EX. DW3/A. He deposed in his evidence that he used to live at his sister's house at PaharGanj. He further deposed that on 11.03.2008, he had accompanied Shri Sanjay Sharma, his brotherinlaw and withdrew a sum of Rs.75,000/ from Suit No.443/2009 Smt. Sudha Adya 9 Smt. Jyoti Sharma Oriental Bank of Commerce, PaharGanj, New Delhi.
16. Final arguments were addressed on 18.08.2011.
17. I have heard the arguments and perused the record carefully.
18. My issue wise findings are as follows : For the sake of convenience, the issues No. 2, 3 & 4 are decided before issue No. 1.
ISSUE No. 2.
(2) Whether the plaintiff advanced a loan amounting to Rs.1,80,000/ to the defendant during the year 2006 ? OPP The onus to prove this issue was on the plaintiff. It has been deposed by plaintiff/PW1 that defendant is the real niece of the plaintiff. The defendant visited the plaintiff/PW1 in the year 2006 and showed her dire need of Rs.1,80,000/. Keeping in view the close relationship between plaintiff and defendant as well as her dire need, the plaintiff advanced a loan of Rs.1,80,000/ to the defendant on different Suit No.443/2009 Smt. Sudha Adya 10 Smt. Jyoti Sharma occasions in the year 2006. The defendant executed necessary documents in this regard i.e. original pronotes dated 13.09.2006 of Rs. 60,000/, 14.09.2006 of Rs.10,000/, dated 15.09.2006 of Rs.60,000/, 05.05.2006 of Rs.40,000/ and 05.05.2006 of Rs.10,000/ are EX. PW1/1 to EX. PW1/5. Inspite of lapse of sufficient time, the defendant has not refunded the loan amount. The plaintiff/PW1 again approached the defendant in the first week of July, 2009 for refund of the loan amount but the defendant did not repay the same. The plaintiff/PW1 served a legal notice dated 25.07.2009 ( EX. P1/6 ) upon defendant, however, the notice was not replied nor has the defendant refunded the loan amount. The loan transaction was in respect of five pronotes but the limitation period for filing the suit in respect of two pronotes has expired and because of overwriting and cuttings on pronote dated 13.09.2006, the plaintiff is not claiming the amount involved therein and now the suit of the plaintiff is solely based on the pronotes dated 14.09.2006 for Rs.10,000/ and pronote dated 15.09.2006 of Rs. Suit No.443/2009 Smt. Sudha Adya 11 Smt. Jyoti Sharma 60,000/.
On the other hand, it is deposed by defendant/DW1 in her evidence by way of affidavit that on 11.03.2008 her husband Shri Sanjay Sharma had handed over Rs.70,000/ to her after its withdrawal from the bank and she handed over the amount to the plaintiff. The payment was last due towards her to be paid to the plaintiff and after above stated payment, no due remains to be paid to the plaintiff by the defendant. It is further alleged by plaintiff/PW1 that promissory note which has been filed by the plaintiff ( EX. PW1/1 to EX. PW1/5 ) have been forged by the plaintiff.
The plaintiff has admitted that the loan transactions which took place on different occasions in the year 2006 and it is submitted by the defendant in the written statement that the said amount of Rs. 70,000/ was to be paid in full and final settlement.
To prove her case, the plaintiff has placed on record all the five promissory notes. She has also served the legal notice which is EX. Suit No.443/2009 Smt. Sudha Adya 12 Smt. Jyoti Sharma P1/6. The defendant has admitted that the notice was served upon her but she did not reply to the same.
The defendant has not denied that there were no loan transactions between plaintiff and defendant in the year 2006. The defendant has specifically submitted in her written statement that the plaintiff has based the present suit on the loan transactions which took place on different occasions in the year 2006 for which promissory notes were given to the plaintiff for security purpose only. The said loan was repaid in full and final settlement but the plaintiff because of malafide intention, greed and design did not return the said promissory notes. Hence, it is clear that the defendant has admitted that there were loan transactions in the year 2006. In her cross examination, the defendant/DW1 has admitted that she had executed five pronotes, out of five pronotes, one was of Rs.60,000/ and another was of Rs.40,000/ and the amount on the other pronotes, she did not remember. She further deposed that she remember about only two pronotes of Rs.60,000/ but Suit No.443/2009 Smt. Sudha Adya 13 Smt. Jyoti Sharma she does not remember the dates of other pronotes. DW2 Shri Sanjay Sharma, husband of the defendant also deposed in his crossexamination that his wife executed many pronotes, out of which two were for the refund of loan amount and remaining were procured by the plaintiff as a security for repayment of the loan amount. Hence, the DW2 has not denied the execution of pronotes.
In the light of testimonies of DW1 & DW2, it is clear that they both have admitted in their crossexamination that DW1/defendant has executed the pronotes. The defendant/DW1 has specifically admitted in the crossexamination that she had executed five pronotes. Though, it has been deposed that the pronotes were given for security purpose only, however, the defendant has failed to bring on record the evidence to prove that the same were given for security purpose only and the loan amount was not advanced as per those pronotes.
After carefully scrutinizing the testimonies of all the witnesses, the Court is of the opinion that the plaintiff has advanced a Suit No.443/2009 Smt. Sudha Adya 14 Smt. Jyoti Sharma sum of Rs.1,80,000./ to the defendant during the year 2006 as the defendant has admitted that there were loan transactions between plaintiff and defendant and she has executed five pronotes. Further, nothing has been brought on record to show that the said pronotes were executed for security purpose only.
Hence, in the light of above discussion, it is clear that the loan of Rs.1,80,000/ as mentioned in the promissory notescumreceipts ( EX. PW1/1 to EX. PW1/5 ) was advanced in the year 2006. The issue No. 2 stands decided in favour of plaintiff and against the defendant.
ISSUES No. 3 & 4.
(3) Whether the plaintiff is entitled to interest @ 12% per annum ? OPP & (4) Whether the plaintiff is entitled to the relief claimed ? OPP. The issues No. 3 & 4 requires common discussion, Suit No.443/2009 Smt. Sudha Adya 15 Smt. Jyoti Sharma hence, they are taken up together.
The onus to prove these issues was on the plaintiff. The plaintiff has filed the present suit for recovery of an amount of Rs. 94,500/. It has been deposed by plaintiff/PW1 that defendant is the real niece of the plaintiff. The defendant visited the plaintiff/PW1 in the year 2006 and showed her dire need of Rs.1,80,000/. Keeping in view the close relationship between plaintiff and defendant as well as her dire need, the plaintiff advanced a loan of Rs.1,80,000/ to the defendant on different occasions in the year 2006. The defendant executed necessary documents in this regard i.e. original pronotes dated 13.09.2006 of Rs.60,000/, 14.09.2006 of Rs.10,000/, dated 15.09.2006 of Rs.60,000/, 05.05.2006 of Rs.40,000/ and 05.05.2006 of Rs.10,000/ are EX. PW1/1 to EX. PW1/5. Inspite of lapse of sufficient time, the defendant has not refunded the loan amount. The plaintiff/PW1 again approached the defendant in the first week of July, 2009 for refund of the loan amount but the defendant did not repay the same. The Suit No.443/2009 Smt. Sudha Adya 16 Smt. Jyoti Sharma plaintiff/PW1 served a legal notice dated 25.07.2009 ( EX. P1/6 ) upon defendant, however, the notice was not replied nor has the defendant refunded the loan amount. The loan transaction was in respect of five pronotes but the limitation period for filing the suit in respect of two pronotes has expired and because of overwriting and cuttings on pronote dated 13.09.2006, the plaintiff is not claiming the amount involved therein and now the suit of the plaintiff is solely based on the pronotes dated 14.09.2006 for Rs.10,000/ and pronote dated 15.09.2006 of Rs. 60,000/.
On the other hand, it is deposed by defendant/DW1 in her evidence by way of affidavit that on 11.03.2008 my husband Shri Sanjay Sharma had handed over Rs.70,000/ to her after its withdrawal from the bank and she handed over the amount to the present plaintiff.
The plaintiff has filed the present suit for recovery of Rs. 94,500/ out of which Rs.60,000/ is the amount as per promissory note cumreceipt dated 14/15.09.2006 which are exhibited as EX. PW1/1 & Suit No.443/2009 Smt. Sudha Adya 17 Smt. Jyoti Sharma EX. PW1/2 respectively and Rs.24,500/ is towards interest calculated @ 12% from the dates mentioned on the pronotes till 15.08.2009.
The plaintiff has deposed in her crossexamination that nothing has been repaid to her out of Rs.1,80,000/. The defence taken by the defendant is that she has repaid the loan amount of Rs.70,000/ to the plaintiff and the plaintiff has misused the promissory notescum receipts. It is admitted by the defendant that there is no documentary proof regarding the repayment of loan amount. It is deposed by defendant/DW1 that she has not taken any receipt from the plaintiff when she made the payment of Rs.70,000/. DW2 Shri Sanjay Sharma, husband of the defendant/DW1 also admitted that no receipt for repayment of the loan amount was taken by his wife and himself or his brotherinlaw who were present at the time of repayment of the loan amount to the plaintiff. DW3 Shri Himanshu Suri, brother of the defendant also admitted in the crossexamination that no receipt was received from the plaintiff as the relations between the parties at tha Suit No.443/2009 Smt. Sudha Adya 18 Smt. Jyoti Sharma time were very cordial.
It is deposed by defendant/DW1 in her evidence that on 11.03.2008, her husband handed over Rs.70,000/ after its withdrawal from the bank. Shri Sanjay Sharma appeared as DW2 also deposed in his crossexamination that he is having a bank account in Allahabad Bank, PaharGanj, Delhi. However, DW3 deposed that his brotherin law is having an account at Oriental Bank of Commerce at PaharGanj and as per his knowledge Shri Sanjay Sharma is not having any account in any other bank. On 11.03.2008 he accompanied his brotherinlaw Shri Sanjay Sharma and withdrew a sum of Rs.70,000/ from Oriental Bank of Commerce, Pahar Ganj, New Delhi. There is a clear discrepancy in the deposition of DW2 & DW3. DW2 deposed that he has withdrawn the sum of Rs.75,000/ from Allahabad Bank, Pahar Ganj, New Delhi and on the other hand, DW3 deposed in his cross examination that DW2 Shri Sanjay Sharma has withdrawn the amount from Oriental Bank of Commerce, Pahar Ganj, New Delhi. Suit No.443/2009 Smt. Sudha Adya 19 Smt. Jyoti Sharma The defendant has submitted that the promissory notes ( EX. PW1/1 to EX. PW1/5 ) are being misused by the plaintiff. However, the defendant has not made any complaint regarding the same to any authority or police. It is admitted by DW1/defendant that it is correct that since the date of receiving the legal notice, she has not either given any legal notice to the plaintiff on account of misuser of five pronotes in her occupation nor she has lodged any police report nor filed any criminal/civil suit against the plaintiff in this regard i.e. on account of forgery and misuser of pronotes in her occupation.
Hence, in light of the testimonies of the witnesses, it is crystal clear that the defendant has failed to prove that she has repaid the loan amount. The defendant/DW1, DW2 & DW3 admitted that there is no documentary proof of repayment of loan. It is highly improbable that the parties who executed the promissory notescumreceipt regarding the advancing of the loan amount but the same parties did not reduce the repayment of the same in writing. Further, the defendant has Suit No.443/2009 Smt. Sudha Adya 20 Smt. Jyoti Sharma failed to show that the promissory notes were given for security purpose only. No complaint regarding the misuser of same has been made admittedly by the defendant nor any civil suit regarding the same has been filed. Moreover, there is clean discrepancy in the testimonies of DW2 & DW3 regarding the withdrawal of amount of Rs.75,000/ for repayment, the confidence of the Court is also not arisen that Shri Sanjay Sharma, DW2 withdrawn the amount for repayment. Hence, in the light of the testimonies of the witnesses, it is crystal clear that the defendant has failed to prove that she has repaid the loan amount. On the other hand, the plaintiff has deposed emphatically on oath that nothing has been repaid out of Rs.1,80,000/ and that amount of Rs. 70,000/ as per EX. PW1/1 & EX. PW1/2 has not been repaid to her.
In the light of above discussion, the Court is of the opinion that the amount of Rs.70,000/ is still due and outstanding against the defendant. The plaintiff is also entitled to interest over the amount. The plaintiff has claimed interest @ 12 % per annum. The defendant has not Suit No.443/2009 Smt. Sudha Adya 21 Smt. Jyoti Sharma crossexamined the plaintiff's witnesses on the rate of interest. Hence, the plaintiff is entitled to interest @ 12% per annum from the date of execution of the pronotes till 15.08.2009.
The issue No. 3 & 4 are, therefore, decided in favour of plaintiff and against the defendant.
ISSUE No. 1.
(1) Whether the plaintiff has suppressed vital and material facts from this Court ? OPD The onus to prove this issue was on the defendant. The defendant has submitted that plaintiff has suppressed vital and material facts from the Court. In the light of decision on issue No. 2, the Court has already held that there were loan transactions between the parties in the year 2006 and an amount of Rs.1,80,000/ was advanced as per promissory notescumreceipt ( EX. PW1/1 to EX. PW1/5 ). Further, in the light of decision on issues No. 2 & 3, the Court has already held that the defendants have failed to repay the loan amount. Hence, the Suit No.443/2009 Smt. Sudha Adya 22 Smt. Jyoti Sharma defendant has failed to show that vital and material facts were suppressed by the plaintiff. The defendant has failed to discharge the onus on this issue. The issue No. 1 stands decided against the defenant and in favour of plaintiff.
RELIEF In view of the above discussion, the suit stands decreed in favour of plaintiff and against the defendant for a sum of Rs.94,500/. The plaintiff has also prayed for pendentelite and future interest @ 12% per annum. The Court is of the opinion that interest of justice would be met if pendentelite and future interest @ 12% is granted to the plaintiff, therefore, pendentelite and future interest @ 12% per annum is granted to the plaintiff. The suit is decreed accordingly.
15. Decree sheet be prepared and file consigned to Record Room after necessary compliance.
Announced in the open Court ( AMBIKA SINGH ) on 30th day of August, 2011. Civil Judge : Central03 : THC : Delhi.