Delhi District Court
Smt. Meenakshi Gupta vs Smt. Komal on 4 June, 2012
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS: DELHI
Suit No.355/08
Unique Case Identification No.: 02402C0413172008
IN THE MATTER OF :
SMT. MEENAKSHI GUPTA,
W/o Shri Mohit Gupta,
R/o 1850, Kucha Khayali Ram,
Sita Ram Bazaar,
Delhi 110006 ......Plaintiff
Versus
1. SMT. KOMAL
W/o Shri Harish Chander Dua,
Sole Prop. of M/s. J. N. Traders,
2. HARISH CHANDER DUA,
S/o Shri Jagan Nath Dua,
Both R/o B6/4, Lal Quarter,
Krishna Nagar, Delhi 110051 ......Defendants
i) Date of Institution of Suit : 04.06.2008
ii) Date when reserved for Order : 25.05.2012
iii) Date of Order : 04.06.2012
iv) Final Order : SUIT DECREED.
Anand Swaroop Aggarwal
Date: 04/06/2012 SCJCumRC:East, Delhi
Suit No.355/08 Page 1/20
SUIT FOR RECOVERY OF RS.65,360.00 (RUPEES SIXTY
FIVE THOUSAND THREE HUNDRED SIXTY ONLY).
J U D G M E N T
1. PRAYER: Plaintiff has prayed for a decree for recovery of Rs.65,360.00 (Rupees Sixty Five Thousand Three Hundred Sixty Only), together with costs of suit and pendentelite and future interest @ 1.75 per month till the recovery of the amount.
2. CASE OF PLAINTIFF : In brief case of plaintiff is that defendant no.1, who is wife of defendant no.2, is running business in the name and style of M/s. J. N. Traders. As per plaintiff in the month of March 2005 defendant no.2, being business friend of father of the plaintiff, requested father of plaintiff to give/advance a sum of Rs.1,70,000.00 to the defendants for a period of three months as they were in dire need of money for their business. Accordingly, father of plaintiff Mr. Madan Mohan Gupta got the amount paid from his daughters named as 1. Smt. Renu Gupta, 2. Smt. Pankaj Gupta, 3. Ms. Nutan Gupta and the plaintiff, Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 2/20 out of which a sum of Rs.40,000.00 (Rupees Forty Thousand Only) was paid/advanced/contributed by plaintiff to the defendants out of her personal savings on 14.3.2005 and rest of the amount was paid by the other three daughters of Shri Madan Mohan Gupta. As alleged, defendants also agreed to pay interest at the rate of 1.75% per month on the said amount individually to all the contributors and defendant no.1 in repayment of the aforesaid loan amount issued cheque bearing No.722870 dated 14.6.2005 for Rs.40,000.00 drawn on Punjab and Sindh Bank, Krishna Nagar, Delhi, in favour of plaintiff. Plaintiff allegedly believing the assurance of defendants and also keeping in view the cordial relations between father of the plaintiff and defendant no.2 (i.e. the husband of the defendant no.1) did not present the said cheque for realisation of the amount, on the request of the defendants not to present the cheque on due date as the defendants promised that they will pay the amount in cash and receive the cheque back. As alleged, plaintiff believing the representation to be true demanded the amount and interest thereon several times through her father but every time the defendants with malafide intentions avoided the payment on one pretext or the other. The validity period of cheque Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 3/20 also expired on 13.12.2005 and so there was no point of presenting the same for encashment. As per plaintiff, despite repeated requests and demands made by plaintiff through her father/General Attorney, defendants have failed to clear the dues of plaintiff till date and hence they are liable to pay a total sum of Rs.65,360.00 (Rupees Sixty Five Thousand Three Hundred Sixty Only) [i.e. the principal and interest thereon at the rate of 1.75% per month calculated from 14.6.2005 to 4.6.2008]. The defendants also did not pay the amount taken by them from the other sisters of plaintiff and they have also filed the recovery suits against the defendants pending in the Court of Shri Vishal Gogne Civil Judge, Delhi, titled as Smt. Renu Gupta Vs. Komal and in the court of Shri Sudhanshu Kaushik, Civil Judge, Karkardooma, Delhi, titled as Smt. Pankaj Gupta Vs. Komal. Thus this suit.
3. WRITTEN STATEMENT OF DEFENDANTS :
Defendants have filed common written statement of defence and stand/defence of defendants is that plaintiff has not approached the Court with clean hands and has suppressed material facts from this Court. As per defendants, defendant has made the payment to plaintiff through her father in the presence of witnesses. However, Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 4/20 upon demand of cheque issued in favour of plaintiff, her father assured that he will return the same since at the time of payment the cheque was not with him and as per his version cheque was with his daughter/plaintiff. As alleged, father of plaintiff further assured that he will return the cheque after getting it from his daughter/plaintiff who is married in Uttar Pradesh. Further, as alleged, father of plaintiff did not return the cheque on the pretext that the same was not traceable and after the validity of the cheque father of plaintiff said that now the said cheque is of no value and assured that the cheques shall not be misused by him in any manner.
As an additional submission, case of defendants is that defendant no.2 and father of plaintiff were having good cordial and business relation, and father of plaintiff was working as a broker of sugar in the wholesale market. As alleged, defendants being the wholesaler in sugar used to purchase sugar through Mr. Madan Mohan Gupta since last 15 days and, due to this, both were having good relations. As alleged, Mr. Madan Mohan Gupta used to book sugar bags for defendant upon requesting him telephonically and he (Mr. Madan Mohan Gupta) used to inform the price of sugar at that Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 5/20 time in the market. As per defendants, they used to place orders to him believing him blindly due to the cordial relations. As alleged, Mr. Madan Mohan Gupta used to tell the defendant Rs.1020 more per bag then the market price, and due to this, the defendant was compelled to pay Rs.10002000 more on every consignment of 100 bags of sugar. Further defendants have alleged that when it came to the knowledge of defendants, they objected to the same and made complaint to the agent of the mill who after verifying the facts struck down the name of Mr. Madan Mohan Gupta from his brokers and stopped the payment of commission to Mr. Madan Mohan Gupta. As per defendants, Mr. Madan Mohan Gupta contacted the defendant and felt sorry and assured that he will not repeat the said act again and demanded amount of his commission from defendant which was stopped by the agent of the mill. When, as alleged, defendants refused to pay the said amount of commission, plaintiff in the counter blast has filed this suit.
ON MERRITS, case of defendants is that defendant received Rs.40,000/ from plaintiff and issued a cheque for repayment of the same. Further, defendant allegedly repaid the said loan to plaintiff Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 6/20 through her father who did not return the cheque on the pretext that it was with plaintiff who was living in U.P. as she was married there. As per defendants, defendant never agreed to pay any interest to plaintiff and defendants has paid Rs.40,000/ to plaintiff and, due to this reason, plaintiff never presented the cheque for encashment for about nine months since March 2005 to Dec. 2005. At last defendants have prayed for dismissal of suit with costs.
4. REPLICATION : Plaintiff has filed replication to the WS of defendant wherein defence/stand taken by defendant has been denied and, also, averments made in plaint have been reaffirmed.
5. ISSUES: On 24/02/2009, ld. predecessor this Court framed the following issues :
1. Whether the suit has not been signed and verified by competent person ? OPD
2. Whether the defendants had repaid the principal amount of Rs.40,000/ to the father of the plaintiff ? OPD
3. Whether the plaintiff is entitled to recovery of the Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 7/20 principal amount of Rs.40,000/ ? OPP
4. Whether the plaintiff is entitled to interest on the principal amount ? If yes, at what rate and for which period ? OPP
5. Whether the plaintiff has not valued the suit properly for the purpose of court fee and jurisdiction ? OPD
6. Relief ?
6. EVIDENCE : To substantiate her case on Judicial file plaintiff has examined PW1 Mr. Mandan Mohan Gupta and PW2 MR. Pankaj Garg. PE was closed on 13/4/2011 on the statement of Mr. Madan Mohan Gupta, Defendant no.2 has appeared in the witness box as DW1 Mr. Harish Dua and DW2 is Mr. Jai Prakash. DE was closed on 19/4/2012 on the statement of Mr. Rakesh Satija Adv. for defendants.
7. ARGUMENTS : I have heard Sh. Satish Kr. Adv. for plaintiff and Sh. Jitender Kumar Adv. for defendant and have gone through material available on Judicial file very carefully. Ld. counsel for defendants has relied upon case laws reported as (i) Vijay Singh & Ors. Vs. Manali Malik & Ors. 160 (2009) DLT 259 and (ii) Janki Vashdeo Bhajwani & Anr.
Anand Swaroop Aggarwal
Date: 04/06/2012 SCJCumRC:East, Delhi
Suit No.355/08 Page 8/20
Vs. Indusind Bank Ltd. & Ors. AIR 2005 SC 439. Case laws have been perused with utmost regards.
8. MY ISSUEWISE FINDINGS ARE AS UNDER : ISSUE No.1 Whether the suit has not been signed and verified by competent person ? OPD Suit has been signed and verified by plaintiff herself. Plaintiff of a suit is obviously competent to sign and verify the plaint/ suit. This issue is accordingly decided against the defendant. ISSUE No.2 Whether the defendants had repaid the principal amount of Rs. 40,000/ to the father of the plaintiff ? OPD ISSUE No.3 Whether the plaintiff is entitled to recovery of the principal amount of Rs.40,000/ ? OPP I shall be dealing with these issues under a common discussion in as much as issues are interconnected because decision of Court on one issue will have direct bearing on the decision of Court on another issue. Undisputedly defendants received Rs.40,000/ from plaintiff and cheque Ex. PW1/2 has been issued by defendant no.1 as Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 9/20 proprietor of M/s. J. N. Traders. The case law Vijay Singh & Ors. Vs. Manali Malik & Ors. (supra) has no application in this in as much as in said case law it has been held as under :
"17. I, therefore, reach a conclusion that the cheques on the basis of which the present suit has been filed, since not presented for payment in the lifetime of the drawer, ceased to be a cheque on the demise of the drawer in as much as they ceased to be the order of a person entitled to make an order to the bank to pay the money thereupon and thus the suit under Order 37 of the CPC would not be maintainable on the same."
But in this case drawer of cheque Ex. PW1/2 namely defendant no.1 Smt. Kamal is still alive and merely because cheque in question was not presented by plaintiff for encashment during its validity period does not at all bar the filing of ordinary money recovery suit for the money due from defendant(s) under such a cheque which was not presented for its encashment duly its validity period. In any case there is admission on the part of defendant(s) regarding receipt of Rs. 40,000/ from plaintiff but the stand of defendant(s) is that the said sum has been repaid by them to plaintiff through father of plaintiff. Thus much importance cannot be attached to the fact that cheque in Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 10/20 question was not presented by plaintiff for its encashment during its validity. What is to be seen/determined is as to whether defendants have repaid the loan amount of Rs.40,000/ to plaintiff through her father as alleged the defendants in their common written statement of defence.
In the case in hand nonappearance of plaintiff as a witness in support of her case is not of much consequence in as much as plaintiff has examined PW1 Mr. Madan Mohan Gupta. In this case, PW1 Mr. Madan Mohan Gupta was instrumental in the loan transaction between plaintiff and defendants. As the facts suggest, loan transaction was initiated/completed through PW1 Madan Mohan Gupta and defendant no.2 also allegedly repaid the loan amount to PW1 Mr. Madan Mohan Gupta. In this case PW1 Mr. Madan Mohan Gupta has appeared a witness on the basis of his first hand knowledge about the facts of this case and not on the basis of facts as told to him by the plaintiff as an attorney of plaintiff. Thus case law Janki Vashdeo Bhojwani and anr. Vs. Indusind Bank Ltd. (Supra.) does not help the defendants in any manner in the facts and circumstances of this case. Also nonappearance of plaintiff in the witness box has not Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 11/20 caused any prejudice to defendants in their defense as all the questions put by them in the crossexamination of PW1 Mr. Madan Mohan Gupta have been duly replied by the witness PW1 Mr. Madan Mohan Gupta. Also admittedly defendant no.2 and father of plaintiff were having good cordial and business relationship and it is not the case of defendants that they independently of father of plaintiff had business or other relations with the plaintiff himself. Thus, in the totality of facts and circumstances of this case, it can be said that defendant(s)/defendant no.1 got loan from plaintiff through father of plaintiff at the request of defendant no.2. Thus it is concluded that nonappearance of plaintiff as a witness in this case is inconsequential and PW1 Mr. Madan Mohan Gupta has made depositions on the basis of his first hand knowledge about the facts of this case.
In their written statement of defense, defendants have alleged that defendant has made payment to plaintiff through her father in the presence of witnesses. These averments made in WS, are vague in much as total amount allegedly paid to father of plaintiff has not been mentioned, the date/month/year when the payment was made has not been mentioned, names of witnesses in whose presence alleged Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 12/20 payment was made has not been mentioned and place of payment has also not been mentioned in the WS. In this regard DW1 Mr. Harish Dua in his crossexamination has deposed as under : ".....The written statement filed by me bears my signatures at point A and B. I had signed the same after going through the contents of the same. The contents were explained to me by my counsel. I have mentioned in my written statement that when money was returned Mr. Rajan and Jai Prakash were present. It is wrong to suggest that name of Mr. Rajan and Jai Prakash are not mentioned in the written statement. It is wrong to suggest that I have not mentioned regarding the month and year of returning the money to Madan Mohan Gupta again said the same is not mentioned in the written statement. The money was returned by me to Sh. Madan Mohan Gupta in the month of November 2005. The same was returned at my shop at Naya Bas, Delhi. At that time I alongwith my son Rajan and Jai Prakash were present. The same was at about 2:00 to 3:00 PM in the Noon. I had returned a sum of Rs.1,70,000/ to Sh. Madan Mohan Gupta. No document in writing was executed regarding the receipt of the payment. Till date I have not issued any legal notice or letter in writing asking the plaintiff or Madan Mohan Gupta to return the cheques......"
Anand Swaroop Aggarwal
Date: 04/06/2012 SCJCumRC:East, Delhi
Suit No.355/08 Page 13/20
As an ordinary prudent person if defendant really paid Rs. 1,70,000/ to father plaintiff who did not return the cheques taken by him at the time of giving said amount as loan to defendants, defendant no.2 must have at least taken a written receipt from father of plaintiff acknowledging the receipt of Rs.1,70,000/ from defendant no.2. But it was not so done by defendants. Amount of Rs. 1,70,000/ as deposed by DW1 Mr. Harish Dua is beyond pleadings.
As per depositions of DW1 Mr. Harish Dua amount of Rs. 1,70,000/ was allegedly paid by him to father of plaintiff in November 2005. But PW1 Mr. Madan Mohan Gupta in his cross examination has been made to depose that ".......It is incorrect that the amount given to defendant no.2 by my daughter Nutan Gupta on 14/3/2005 was returned by defendant in October 2005.......".
Further as per DW1 Mr. Harish Dua alleged payment of Rs. 1,70,000/ was made by defendant no.2 to father of plaintiff at about 2:00 to 3:00 PM in the Noon but as per DW2 Mr. Jai Prakash payment was made at about 6:00 PM in the evening. Also as regards DW2 MR. Jai Prakash, DW1 Mr. Harish Dua has deposed that, "....... I do not remember in which year he was employed with us. He Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 14/20 worked with us in 2006. He is right now doing the property work and also doing my part time work ......". But DW2 Jai Prakash in his crossexamination has deposed that, "..............It is wrong to suggest that I am still working with Mr. Harish Dua." Further DW2 Mr. Jai Prakash has deposed that, "........ Mr. Harish Dua had given money to the plaintiff Mr. Harish Dua had to give Rs.1,70,000/ to plaintiff. Mr. Harish Dua had returned the money to Madan Mohan. I do not know the date when the money was returned to the plaintiff. The same was in the year 2005. It was about 6:00 PM in the evening....". This witness has baldly deposed that payment was made in the year 2005 and is not even able to depose as to in which month alleged payment was made by defendant no.2 to father of plaintiff. Further initially this witness deposed that payment was made by Mr. Harish Dua to plaintiff. He so deposed in his crossexamination twice but subsequently he improved upon his version and deposed that Mr. Harish Dua had returned the money to Madan Mohan. This all affects the reliability of the witness DW2 Mr. Jai Prakash. Also DW1 Mr. Harish Dua in his crossexamination has deposed that, "...... It is correct that other two suits filed by Renu Gupta and Pankaj Gupta Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 15/20 have been decreed. One of them decreed six months ago. I have filed appeal which is pending. The same is pending in the Court of Sh. S. K. Sharma ld. ADJ. I have filed appeal in one case which was decreed in favour of Pankaj Gupta. I have not filed any appeal with respect to suit decreed in favour of Renu Gupta............".
The two suit referred to in above noted depositions of DW1 Mr. Harish Dua and this suit alongwith another suit titled as Smt. Nutan Gupta Vs. Smt. Komal & Anr. have arisen out of the one and the same transaction between the plaintiffs acting through their father and defendants. The fact that the said two other suits stands decreed in favour of plaintiffs in those suits and against the present defendants also support the case of plaintiff in this case. Further, admittedly defendants have not filed any appeal with respect to suit decreed in favour of Ms. Renu Gupta.
The stand as taken by defendants regarding father of plaintiff charging extra consideration from them against sale of sugar bags is vague (without any specific details) and further has not establish on Judicial file by leading cogent and convincing possible evidence in this regard. Complaint made to agent of the Mill has not been Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 16/20 produced/proved on Judicial file. The concerned agent to whom complaint was made has not been even named in the WS. He has also not been examined by the defendants. Also keeping in view the normal competitive nature of wholesale business it appears highly improbable that anybody / defendant no. 2 will pay Rs. 10 or Rs. 20/ more on every bag of sugar by purchasing the same through father of the plaintiff.
In the totality of facts and circumstances of this case when defendants have failed to establish their stand of having made payment to father of plaintiff by leading cogent and convincing evidence, mere failure on the part of plaintiff to present the cheque in question for encashment during its validity does not necessarily imply that it was not so presented as payment stood already made to plaintiff through her father.
In the case in hand plaintiff cannot be said to be indulged in the business of money lending. Also no such evidence has been led by defendants that plaintiff is indulged in such as business of money lending. Thus plaintiff need not have money lending license.
In view of above discussion, preponderance of probabilities Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 17/20 suggest that defendants have not made the payment to father of plaintiff as alleged in WS and, thus, issue no.2 is decided against the defendants.
As a natural consequence of my finding on issue no.2, issue no. 3, deserves to be decided in affirmative in favour of plaintiff. But the fact that cheque Ex. PW1/2 has been issued by defendant no.1 under her trade name as none as proprietor of M/s. J. N. Traders suggest that it was defendant no.1 who had taken the loan. It is not the case of plaintiff even that defendant no.2 stood as guarantor for defendant no.
1. Thus it is held that only defendant no.2 is liable to pay Rs.40,000/ to plaintiff & no liability can be attached to defendant no.2 who was otherwise instrumental in the loan transaction between plaintiff acting through her father and defendants. Issue no.3 stands decided accordingly.
ISSUE No.4 Whether the plaintiff is entitled to interest on the principal amount ? If yes, at what rate and for which period ? OPP No documentary proof regarding agreed rate of interest being 1.75 per month has been led by plaintiff. Also this rate of interest appears to be on the very higher side. To my mind, plaintiff is entitled Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 18/20 to interest @ 10% p.a. on Rs.40,000/ from the date of loan (i.e. 14/3/2005) till the date of decree & further interest @ 6% on Rs. 40,000/ for the subsequent period till recovery of decreetal amount. Issue is decided accordingly in favour of plaintiff. ISSUE No.5 Whether the plaintiff has not valued the suit properly for the purpose of court fee and jurisdiction ? OPD Plaintiff has in this suit prayed for a decree of Rs.65,360/ with costs and pendentelite & future interest. Court fee affixed with plaint is Rs.3030/. Court fee payable for suit valued at Rs.65,360/ is Rs. 3027.20. Suit has been valued at Rs.65,360/. Thus it is held that suit has been properly valued & appropriate court fee has been affixed thereon. Issue is accordingly decided against the defendant. RELIEF : In view of my above findings on various issues suit of plaintiff is decreed in favour of plaintiff and against the defendant no.1 for a sum of Rs.40,000/ with interest @ 10% p.a. from 14/3/2005 till the date of decree and further interest @ 6% on Rs.40,000/ for the subsequent period till recovery of decreetal amount. Counsel fee allowed as per High Court Rules. Also costs of suit are awarded in Anand Swaroop Aggarwal Date: 04/06/2012 SCJCumRC:East, Delhi Suit No.355/08 Page 19/20 favour of plaintiff. Suit against defendant no.2 is dismissed. Decree sheet be prepared. File be consigned to RR.
Pronounced in the open court
on 4/06/2012 (Anand Swaroop Aggarwal)
SCJCumRC/East Delhi
Anand Swaroop Aggarwal
Date: 04/06/2012 SCJCumRC:East, Delhi
Suit No.355/08 Page 20/20