Delhi District Court
Sh. Charan Singh (Since Deceased) vs Sh. Dinesh Kumar Tanwar on 27 February, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No.516925/2016
CNR No. 010005032012
IN THE MATTER OF:
Sh. Charan Singh (since deceased)
S/o Late Sh Tilak Ram
Through Lrs
Sh. Robin Malihan
s/o Late Sh. Charan Singh
and
Smt. Anuradha Malihan
d/o Late Sh. Charan Singh
Both R/o M-74, Chanakya Place Part II
Pankha Road
New Delhi -110059 ... Plaintiff
v.
Sh. Dinesh Kumar Tanwar
S/o Sh Jaipal Singh
R/o WZ-911/1, Ring Road
Naraina, New Delhi - 110028 ... Defendant
Date of institution of suit: 17.11.2012
Date of judgment reserved: 21.01.2023
Date of pronouncement of judgment: 27.02.2023
CS DJ ADJ No.516925/16
Page No. 1/14
JUDGMENT
1. The plaintiff has preferred summary suit under Order XXXVII of the Code of Civil Procedure,1908 (hereinafter "CPC") for recovery principal amount of ₹2,50,000/- (Rupees two lakh fifty thousand only) together with interest at the rate of 24% p.a calculated w.e.f 08.02.2011 to 07.08.2012 amounting to Rs.90,000/- (Rupees Ninety thousand only) and thus, for total recovery of ₹3,40,000/- (Rupees Three lakh forty thousand only) on the basis of promissory note (pronote), against the defendant.
2. Briefly stated, it is the case of the plaintiff that he and defendant are known to each other being distant relatives. It is further averred that defendant approached the plaintiff for a loan of Rs.5,00,000/- on the pretext of business losses in his lucky draw scheme and for urgent need for the purpose of construction of his building and promised to pay interest @ 2% per month.
3. It is further stated that plaintiff did not have that much amount with him but he could not stop himself due to the inducement of the plaintiff and he promised to advance the loan amount to the plaintiff at the offered rate of interest and accordingly, on 08.02.2011, plaintiff arranged a sum of Rs. 2,50,000/- and informed the defendant and accordingly, defendant came to his house and plaintiff handed over Rs 2,50,000/- to him and the defendant executed the promissory note for a sum of Rs 2,50,000/- carrying interest @ 2% per month with a promise to repay the loan amount on demand.
4. It is further averred in the plaint that on 09.08.2012 he issued a legal demand notice to the defendant demanding the CS DJ ADJ No.516925/16 Page No. 2/14 return of the loan amount alongwith interest at the rate of 2% through registered AD/Courier and the same was served upon him but despite of receiving the aforesaid notice but defendant did not pay the amount to the plaintiff till date. Hence, the present suit.
5. The Ld. Predecessor of this Court allowed the leave to defend application filed by the defendant vide its order dated 15.04.2014 subject to deposit of 50% of the principal amount by way of FDR and converted the suit into a regular one. On 31.05.2014 FDR of Rs.1,25,000/- dated 30.05.2014 drawn on Punjab National Bank was filed by the defendant.
6. Thereafter, defendant filed its written statement wherein he has taken more or less the same grounds as taken in the application for leave to defend. It is the case of the defendant that he has never taken any money from the plaintiff due to loss in lottery business or construction of the house due to shortage of money as alleged by the plaintiff and he never signed any pronote or receipt in favour of the plaintiff and the same is forged and fabricated. The defendant denied his liability to pay the suit amount. The defendant however, admitted that he was doing the business of lucky draw scheme in the year 2000 and thereafter, the said draw was closed by him due to personal reasons. It is contended by the defendant that he was having sufficient means to construct his house. It is the case of the defendant that the whole story was concocted by the plaintiff to extort money from the defendant. It is denied by the defendant that he never approached the plaintiff for taking loan of Rs. 5,00,000/- and he further, denied that he had taken ₹2,50,000/- from the plaintiff CS DJ ADJ No.516925/16 Page No. 3/14 and signed any promissory note or any receipt in favour of the plaintiff for a sum of Rs. 2,50,000/-.
7. In replication plaintiff denied the contentions raised by the defendant in the written statement and reiterated and reaffirmed the stand taken by him in the plaint.
8. On the basis of the pleadings of the parties, the following issues were framed:-
(i) Whether plaintiff had paid a sum of Rs.2,50,000/- to the defendant as loan? ... OPP
(ii) Whether pronote-cum-receipt dated 08.02.2011 was duly executed by the defendant in favour of plaintiff in respect of loan? ... OPP
(iii) Whether the plaintiff is entitled for the principal amount of Rs 2,50,000/- alongwith interest @2% per month? ... OPP
(iv) Relief
9. In order to prove his case, plaintiff examined three witnesses.
10. On 13.12.2017 plaintiff tendered his evidence by way of affidavit - Ex. PW1/1. As per the Ex. PW1/1, the plaintiff proved the following documents:
(i) Promissory note - Ex. PW1/A,
(ii) Legal notice, postal receipt and courier receipt - Ex PW1/B to Ex PW1/D, respectively.
(iii) Acknowledgment - Ex. PW1/E CS DJ ADJ No.516925/16 Page No. 4/14
11. Plaintiff also produced attesting witness of the promissory note i.e. Mr. Jatin and wife Mrs. Veena in the witness box to prove the pronote and they tendered their evidence by way of affidavit Ex. PW2/1 and Ex PW3/1 respectively and reiterated the facts of plaint in toto, they were cross-examined at length and were discharged.
12. Thereafter, plaintiff closed his evidence and defendant in order to prove his case has examined two witnesses.
13. On 21.03.2018, defendant himself appeared in the witness box and tendered its evidence by way of affidavit - Ex. DW1/A and reiterated the stand taken by him in the written statement and he was examined and thereafter cross-examined at length by the Ld. Counsel for the defendant and discharged.
14. He also produced Mr Vijender Singh in the witness box and he tendered its evidence by way of affidavit Ex. DW2/A, he was examined and cross-examined and discharged.
Arguments
15. It is argued by the learned counsel for the plaintiff that the plaintiff has duly proved his case by proving the promissory note Ex. PW1/A by calling the attesting witnesses, namely, Jatin (PW2) and Ms Veena (PW3) of the promissory note in the witness box. He further argued that the defendant failed to cause any dent in the case of the plaintiff and prays for decree of the suit as per the reliefs prayed for.
16. Per contra, the Ld. Counsel for the defendant argued that the plaintiff not only failed to prove the source of funds out of CS DJ ADJ No.516925/16 Page No. 5/14 which he has paid the alleged loan amount to the defendant but the plaintiff as well as attesting witnesses failed to prove the to the promissory note in their testimonies and the ld. counsel further argued that there are glaring contradictions in the testimony of the plaintiff and the witnesses regarding the payment of Rs.2,50,000/- by the plaintiff as in the plaint he has not mentioned the source of funds and even from the cross examination of the plaintiff it stands proved that he was not having sufficient income to have a sum of Rs 2,50,000/- and prays for dismissal of the present suit with exemplary costs.
17. Arguments heard on behalf of the counsel for the parties at length and I have gone through the judicial file.
FINDING
18. All the three issues are taken up and are being discussed together as they are inter connected and finding on one will have bearing on other.
ISSUE NOS. 1 TO 319. Onus to prove all the three issues was on the plaintiff.
20. Coming to the point that whether the plaintiff has successfully proved the source of payment of Rs 2,50,000/- alleged to be paid by him to the defendant and also the due execution of the alleged promissory note by the defendant in his favour?
21. It is observed that the plaintiff in paragraph no. 3 of his plaint himself pleaded that he was not having that much amount CS DJ ADJ No.516925/16 Page No. 6/14 with him but due to inducement of the plaintiff he could not stop himself and in paragraph no.5 of the plaint, it is averred that the plaintiff arranged Rs 2,50,000/- and informed the defendant that money is ready. However, neither in the plaint nor in chief examination by way of affidavit, he has divulge the details about the source from of arrangement of Rs 2,50,000/-. Similarly, neither in plaint nor in evidence by way of evidence it is mentioned by the plaintiff as to in whose presence the loan amount was given by him to the defendant and promissory note was executed by the defendant in his favour.
22. In the cross examination, qua source of funds, plaintiff has deposed that he is working as a share broker in the share market and have a monthly income of around Rs 50,000/- to Rs 1 lakh and his average monthly expenditure is around Rs 20,000/- to Rs 25,000/- and the remaining amount is his saving. He further deposed that he duly mentioned the loan amount in his ITR but he has not filed the ITR for the year 2010-2011 with the case. He further deposed that he had given the loan amount in presence of his Jatin and his wife and before taking the loan defendant never visited his house and the defendant approached him for the loan for the purpose of construction of his house whereas in the plaint he claimed that the loan amount was sought by the plaintiff for loss in lottery business and construction of house. He further deposed that defendant came to his house with Jatin who is the son of his (plaintiff's) brother-in-law, namely, Vinod. Plaintiff further deposed that he knows that the defendant was running lucky draw scheme but he cannot tell the time period when the CS DJ ADJ No.516925/16 Page No. 7/14 defendant was running the said scheme. He further deposed that it is the defendant who told him about the losses in the lucky draw scheme. The plaintiff further deposed that he was not aware that five -six other peoples also filed a suit against the defendant but he came to know about the same only after coming to the Court and lastly, the plaintiff deposed that he never told Vinod and Sanjeev that he had given loan to defendant.
23. However, he has not placed on record any documentary proof to show that he is working as a share broker and have monthly income of around Rs.50,000/- to Rs.1 lakh. It is also relevant to mention that PW2, namely, Jatin, who is the attesting witness to the promissory note dated 08.02.2011 in the present case is also an attesting witness to the promissory note dated 01.02.2011 on the basis of which one Shri Kulbhushan also filed a recovery suit bearing CS DJ ADJ No.516972/2016 pending before this Court. Thus, the deposition of the plaintiff that he was not aware that the defendant has also taken loan from other person and have came to know about the same only after filing of the present suit is not sustainable. Even his plea that he never told Vinod that is father of PW2 Jatin is also not sustainable as Vinod is admittedly the brother in law of the plaintiff. It is also relevant to mention that even Shri Vinod father of PW2 has also filed a recovery suit against the defendant herein on the basis of promissory note dated 01.04.2011 on almost similar facts and circumstances as pleaded in the present case. Thus, this Court is of the view that there are only two possible situations, one that the plaintiff was very well aware about the fact that the defendant CS DJ ADJ No.516925/16 Page No. 8/14 has already taken loan from other persons and second that the plaintiff, Vinod and other person are in hand and gloves with each other as they have filed as much as 7 suits for recovery on the basis of almost similar facts and circumstances.
24. As far as the promissory note is concerned, plaintiff in his cross examination had deposed that after he handed over the money to the defendant then defendant handed over me the already filled pronote. It is pertinent to mention that plaintiff has not specifically deposed either in his examination in chief by way of affidavit that the alleged pronote was executed by the defendant in presence of Jatin and his wife and they have witnessed the pronote nor he identified the signatures of the defendant as well as of the attesting witnesses to the promissory note.
25. Whereas PW-2 i.e. Jatin, in his cross examination has deposed that he was already present at the house of the plaintiff when the defendant came to the house of the plaintiff. Initially, he deposed that the money was paid to the defendant in his presence at the residence of the plaintiff but in latter part of his cross examination he deposed that it is correct that the money was not paid in his presence but defendant admitted that he has received the amount from the plaintiff. He further deposed that he saw money in the hand of the defendant. He further deposed that the promissory note was not filled by the defendant in his presence but he has mentioned so in paragraph No.4 of his examination in chief by way of affidavit Ex PW2/1. He also admitted that he has CS DJ ADJ No.516925/16 Page No. 9/14 already signed as a witness in other promissory note of his father. He further deposed that besides him his bua namely, Veena also signed the promissory note. He showed his inability to recall whether he has written his name and complete address on the promissory note after signing the same.
26. Similarly, Smt. Veena, wife of the plaintiff also deposed in her cross examination that defendant signed a paper after taking the loan. When she signed the promissory note it was already filled. She further deposed that defendant came to our house alone.
27. Thus, on combined reading of the testimony of PW-1 to PW-3 there are glaring contradictions as PW-1 has deposed that the defendant came to his house to take the loan alongwith Jatin (PW2) , whereas Jatin deposed that he was already present at the house of the plaintiff when the defendant came to take the loan. Further, PW-2 even though initially deposed that loan amount was paid in his presence by the plaintiff to the defendant but in the latter part resiled from his deposition and stated the money was not paid in his presence but defendant told him so and he has seen the money in the hands of the defendant.
28. It is also pertinent to mention that neither the plaintiff nor PW-2 and PW-3 either in their examination in chief or in the cross examination identified the signatures of the defendant on the promissory note and further, even PW-2 and PW-3 in their respective testimony have not identified the signatures of each other on the promissory note Ex PW1/A. Thus, the primary CS DJ ADJ No.516925/16 Page No. 10/14 requirement as envisaged by Section 67 of the Indian Evidence Act, 1872 has not been fulfilled by the plaintiff which provides as follows:-
67. Proof of signature and handwriting of a person alleged to have signed or written document produced-
if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting.
29. The Hon'ble High Court of Madhya Pradesh in L.S. Trading Company, Gwalior v. Manish Mishra (2010) 93 AIC 838 MP, while examining the scope of Section 67 of the Evidence Act has held that the following are the modes for proving a document:
(a) by calling a person who signed or wrote a document;
(b) by calling a person in whose presence the documents are signed or written;
(c) by calling handwriting expert;
(d) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
(e) by comparing in Court, the disputed signatures or handwriting with some admitted signatures or writing;
(f) by the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person;CS DJ ADJ No.516925/16 Page No. 11/14
(g) A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant;
(h) by other circumstantial evidence.
30. However, plaintiff has not adopted any of the methods mentioned above to prove the signatures of the defendant on the promissory note. Therefore, once the signatures on the promissory note was denied by the defendant on the ground that the same is a forged and fabricated document, the initial burden was upon the plaintiff to prove that the promissory note bears the signature of the defendant and it is only thereafter, the onus to prove plea of forgery and fabrication could have shifted on the defendant. It is relevant to mention that rather it is the defendant who filed an application to get his signatures examined for CFSL Rohini in order to prove that same are forged and fabricated but the CFSL Rohini failed to give any satisfactory report after examining the disputed and admitted signatures of the defendant.
31. The fact that the both the attesting witness to the promissory note are related to the plaintiff i.e. son of his brother in law and the wife and thus, their testimony must be of such an impeccable nature that it can repose confidence before the Court but this Court has no hesitation to observe that the both the witnesses have miserably failed to do so. Needless to say, adverse inference can be drawn against the plaintiff as he can easily take their signatures of the related witnesses to manufacture the promissory note against the defendant.
CS DJ ADJ No.516925/16 Page No. 12/1432. Further, the contradiction between the testimony of plaintiff viz-a- viz PW-2 and PW-3 also demolishes the case of the plaintiff as already discussed and pointed above.
33. Furthermore, the plaintiff failed to create any contradiction or elucidate any favorable statement from the testimony of defendant who in his evidence by way of Ex DW1/A he reiterated the stand taken by him in the written statement. In his cross examination he has deposed that he is an income tax assesses and have two building in Village Naraina. He is also the owner of WZ-165, Village Naraina consisting of 3-1/2 floors and also owner of half portion of building No. WZ-911/1 Ring Road, Naraina and have given them on rent and receiving a total rent of Rs 70,000/- to Rs 80,000/- per month since 2010. He further deposed that WZ-165 was constructed in the year 2005 and 2-1/2 storey of WZ-911/1 was constructed in the year 1992. He further deposed that he built the WZ-165 out of the funds taken from his father. He denied all the suggestion with respect to taking of loan from the plaintiff for the construction of the house and repayment of the loan amount taken by him from other people etc.
34. Thus, in totality of the discussion and observations made above after going through the relevant pleadings and evidence of the parties, this Court is of the considered view that the plaintiff has miserably failed to prove his case by preponderance of probabilities as not only the plaintiff himself and through the witnesses produced by him failed to prove the payment of Rs CS DJ ADJ No.516925/16 Page No. 13/14 2,50,000/- to the plaintiff but also failed to prove the promissory note alleged to be executed by the defendant.
35. Accordingly, the issue Nos. 1 to 3 are decided against the plaintiff and in favour of the defendant.
Relief
36. On the basis of my finding on issue no. 1 to 3, the suit of the plaintiff is hereby dismissed with no orders as to costs.
37. The original FDR of Rs 1,25,000/- placed on record by the defendant be returned to him after taking on record the certified copy of the same against acknowledgment and the concerned bank is directed to release the FDR amount alongwith accrued interest as on date in favour of the defendant.
38. File be consigned to record room, after due compliance and necessary action, as per Rules. Digitally signed SACHIN by SACHIN JAIN Date:
JAIN 2023.02.28 15:39:01 +0530 Pronounced in the open (Sachin Jain) Court on 27.02.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No.516925/16 Page No. 14/14