Delhi District Court
Ms. Divya Mohan vs Mrs. Anupama Juneja on 10 June, 2022
IN THE COURT OF SH. ANKIT KARAN SINGH,
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI.
CS SCJ No. : 610987/16
Date of Institution of suit : 06.06.2015
Date of reservation of judgment : 04.06.2022
Date of pronouncement of Judgment : 10.06.2022
Ms. Divya Mohan
D/o Sh. Dharmesh Mohan
R/o Plot no. 9Site11, West
Patel Nagar, New Delhi08.
.................Plaintiff
Vs.
1. Mrs. Anupama Juneja
2. Mr. Sumit Juneja
3. Mr. Amit Juneja
All defendants are residents of
A3/146, Janakpuri
New Delhi58
............Defendants
SUIT FOR RECOVERY
JUDGMENT
1. Brief facts of the present case as per plaint are that defendants are legal heirs of Late Mr. Subhash Juneja ( hereinafter referred to as 'deceased') who expired in November, 2012, who was the CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 1/15 proprietor of firm named Jaico Securities which was engaged in the business of share trading. Defendant no.1 is the wife of deceased Mr. Subhash Juneja and defendant no.2 and 3 are sons of defendant no.1.
2. It is further averred by the plaintiff that Late Mr. Subhash Juneja approached plaintiff through her father Mr. Dharmesh Mohan wherein he persuaded her father and other members of the family to provide certain amount of loan and in lieu thereof, promised to provide better rate of interest as compared to banks and other Government Schemes. It is further stated that as per the assurance of Late Mr. Subhash Juneja, the plaintiff started providing loan to the Mr. Subhash Juneja from 15th February, 2010 and the plaintiff provided a loan of Rs. 40,000/ to the deceased on 15.02.2010 and in lieu thereof, a post dated cheque of amount Rs. 44,000/ bearing number 973704 dated 15.02.2011 and drawn on Indian Bank, A3 Block, Janakpuri Branch was issued by the deceased Mr. Subhash Juneja to the plaintiff as surety. It is further stated that since it was assured by the deceased Mr. Subhash Juneja that interest @ 10 % will be paid to the plaintiff on the said loan therefore, the post dated cheque was for a sum of Rs. 44,000/. It is further stated that this loan of Rs. 44,000/ was renewed on February, 28, 2011 and in lieu thereof, a post dated cheque of Rs. 48,840/ bearing number 981860 dated 28.02.2012 and drawn on Indian Bank, A3 Block, Janakpuri Branch was issued by the deceased Mr. Subhash Juneja to the plaintiff, as surety. It is further stated that since, at the time of renewal of the loan it was assured by the deceased Mr. Subhash Juneja that interest @ 11 % will be paid to the plaintiff, therefore on the said loan of Rs. 44,000/ a post dated cheque of Rs. 48,840/ was issued to the plaintiff by the deceased Mr. Subhash Juneja. It is further stated that thereafter the loan of Rs.48,840/ was again CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 2/15 renewed on March 1, 2012 and in lieu thereof a post dated cheque of a sum of Rs. 54,212.40 bearing number 987339 dated March 1, 2013 and drawn on Indian Bank, A3 Block, Janakpuri was issued by the deceased Mr. Subhash Juneja to the plaintiff as surety. It is further stated that since at the time of renewal of the loan it was assured by the deceased that interest @ 11 % will be paid to the plaintiff therefore, on a loan of Rs. 48,840/ a post dated cheque of Rs. 54,212.40/ was issued.
3. It is further stated that since Sh. Subhash Juneja expired on November, 2012 therefore, the defendants being the lawful legal heir requested the plaintiff not to present the cheque and assured that the entire amount will be repaid alongwith interest @ 11 % however, despite assurances the defendants have failed to repay the aforesaid loan amount with interest till date.
4. It is further stated that apart from the aforesaid loan, another loan of Rs. 38,000/ was provided to the deceased by the plaintiff on October, 28, 2010 for one year against which a post dated cheque of Rs. 42,350/ bearing number 981807 dated October, 28, 2011 drawn on Indian Bank, A3 Block, Janakpuri was issued to the plaintiff by the deceased. It is further stated that since it was assured that interest at the rate of 11 % will be provided on the aforesaid loan amount therefore the post dated cheque was for a sum of Rs. 42,350/. It is further stated that thereafter, a sum of Rs. 42,350/ was renewed on October,28,2011 and in lieu thereof a post dated cheque of Rs. 47,220.25/ bearing no. 383478 dated October, 28,2012 drawn on Indian Bank, A3 Block, Janakpuri was issued to the plaintiff by the deceased as surety. It is further stated that since it was assured that interest @ 11.5 % will be provided to the plaintiff on the aforesaid loan CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 3/15 amount, therefore, the post dated cheque was for a sum of Rs. 47,220.25/.
5. It is further stated that Late Sh. Subhash Juneja expired in November, 2012 and therefore, defendants requested the plaintiff not to present the cheque dated October, 28, 2012 and defendant assured that the outstanding amounts of Rs. 47,220.25/ and Rs. 54,212.40/ will be provided to the plaintiff alongwith respective interest i.e. 11.50 % and 11 % once the formality of Succession Certificate is over.
6. It is further stated that despite the assurance by the defendants, they have failed to pay the outstanding amount of Rs. 1,01,432.65/ till date and on every occasion kept on delaying on the pretext of issuance of the Succession Certificate by the court.
7. It is further stated that being left with no other alternative and efficacious remedy plaintiff through his counsel issued a legal notice dated October 7, 2014 viz. registered AD to the defendants but of no avail. Hence the present suit has been filed by the plaintiff.
8. By way of present suit the plaintiff has prayed for the following reliefs :
1. Decree for sum of Rs. 1,01,432.65/ be passed in favour of plaintiff and against the defendant.
2. Pendente lite and future interest @ 18 % p.a be awarded to plaintiff company from the due date of respective cheques till the date of realization of the amount due.
3. Such other relief.
9. Written statement filed on behalf of defendant no.1 and 2 wherein it is stated that no cause of action arose in favour of plaintiff. It is further contended that there is no privity of contract between the plaintiff and deceased Sh. Subhash Juneja. It is further stated that CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 4/15 neither the deceased Sh. Subhash Juneja nor the defendants are liable to pay any amount to plaintiff on any count or account whatsoever.
10. It is further stated that defendant no.3 is Non Resident Indian and is living in Ireland with his family for the last about 13 years. It is further stated that defendant no.1 and 2 have not accepted or received notice/summons on behalf of defendant no.3. It is further stated that plaintiff has not approached the court with clean hands and has deliberately and knowingly tried to mislead the court. It is further stated that the present suit has been filed by plaintiff with an ulterior motive and evil design to extort money from the defendants.
11. In reply to the merits it is stated that defendant no.3 is Non Resident Indian and is living in Ireland with his family for the last about 13 years. It is further stated that defendant no.1 and 2 have not accepted notice/summons on behalf of defendant no.3. It is further stated that plaintiff has leveled absolutely false and frivolous allegations which are even otherwise unbelievable. It is further stated that there are so many fixed deposits, mutual funds, bonds and other investment schemes from banks, financial institutions and companies that it cannot be believed that the plaintiff or any other person of reasonable prudence could be lured by an individual such as the deceased Sh. Subhash Juneja. It is further stated that defendants are not liable to pay any amount to Sh. Dharmesh Mohan on any count or account whatsoever and the suit filed by Sh. Dharmesh Mohan is absolutely false and frivolous. It is further stated that plaintiff has leveled absolutely false and frivolous allegations which are even otherwise unbelievable and there is no reason for the plaintiff to give loan to the deceased Sh. Subhash Juneja without any documentation.
CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 5/15
12. It is further stated that Sh. Manish Krishna Manuja who is cousin brother of defendant no. 1 and cousin mama of defendant no.2, used to visit frequently the office of deceased Sh. Subhash Juneja because he used to conduct business of trading of shares through the deceased Sh. Subhash Juneja who was the proprietor of M/s Jaico Securities, however Sh. Manish Krishna Manuja suffered heavy losses in the said share trading transactions through the deceased Sh. Subhash Juneja and it appears that Sh. Manish Krishna Manuja laid hands upon some cheques kept in the office of deceased Sh. Subhash Juneja during his frequent visits at the office of deceased Sh. Subhash Juneja.
13. It is further stated that deceased Sh. Subhash Juneja was never in any financial difficulties which could have forced him to avail any loan from the plaintiff, in fact deceased Sh. Subhash Juneja was a reputed shares broker doing business for a long period and had never availed any loan from the plaintiff.
Prayer is made for dismissal of suit.
14. Vide Order dated 08.01.2018, defendant no.3 was dropped from the array of parties.
15. Replication to the W.S is filed wherein the averments made in plaint are reiterated and the contentions raised in W.S are denied.
16. Vide Order datd 14.03.2018, the following issues have been framed by the Ld. Predecessor of this court :
1. Whether the plaintiff is entitled to a decree for a sum of Rs. 1,01,432.65/ as prayed for ? OPP
2. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period ? OPP
3. Relief.
CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 6/15
17. In order to prove his case plaintiff examined herself as PW 1 who tendered in evidence her duly sworn in affidavit which is exhibited as Ex. PW 1/A. In her testimony following documents have been exhibited :
1. Copy of the interest chart, chart which shows Mark A that the Jaico Group of Companies, is one of the selective company which accepts deposit and copy of the gift chart.
2. Copy of the photographs of the shop showing Mark B that the Jaico Group of Companies also deals with share and commodities
3. Copy of cheque bearing no. 973704 dated Mark C 15.02.2011 drawn on Indian Bank
4. Copy of cheque bearing no. 981860 dated Mark D 28.02.2012 drawn on Indian Bank
5. Original cheque bearing no. 987339 dated Ex.PW 1/1 01.03.2013 drawn on Indian Bank
6. Copy of cheque bearing no. 918107 dated Mark E 28.10.2010 drawn on Indian Bank
7. Original cheque bearing no. 383478 dated Ex. PW 1/2 28.10.2012 drawn on Indian Bank
8. Copy of legal notice dated 7th October, 2014 Ex. PW1/3
9. Reply dated 31.10.2014 to the legal notice on Ex. PW 1/4 behalf of defendant no.1 and 2.
18. Beside herself plaintiff has also examined another witness namely Sh. Dharmesh Mohan who has tendered in evidence his duly CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 7/15 sworn in affidavit as Ex. PW 2/A.
19. PWs were crossexamined by counsel for defendants and thereafter on 13.12.2018, PE was closed vide statement made by counsel for plaintiff in this respect and the matter was listed for DE .
20. In defendant evidence Sh. Sumit Juneja was examined as DW1 who has tendered in evidence his duly sworn in affidavit as Ex. DW 1/A.
21. DW1 was crossexamined by counsel for plaintiff and thereafter vide statement made by counsel for defendant no.1 and 2, on 10.04.2019, DE was closed and the matter was listed for final arguments.
22. I have heard final arguments advanced by counsel for parties and perused the record.
23. My issuewise findings are as under :
ISSUE NO 1 Whether the plaintiff is entitled to a decree for a sum of Rs. 1,01,432.65 as prayed for ?
24. In the present case, defendants have not relied upon a single document in support of their defence. Plaintiff has relied upon various documents in support of her case. Most of these documents are photocopies. Lets determine whether plaintiff has sufficiently proved all the documents relied by her. PW1 has relied upon various documents during testimony most of which are marked.
25. Indian Evidence Act provides that
61. Proof of contents of documents. -- The contents of CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 8/15 documents may be proved either by primary or by secondary evidence.
62. Primary evidence. -- Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. --Where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. -- Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
63. Secondary evidence. -- Secondary evidence means and includes --
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: --
(a) when the original is shown or appears to be in the possession or power --of the person against whom the document is sought to be proved, orof any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 9/15 been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
26. Hon'ble Supreme Court in Jagmail Singh & Anr vs Karamjit Singh & Ors, Civil Appeal no 1889 of 2020, held that "11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.
....
CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 10/15
14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence."
27. In the present case, PW1 has marked various documents being photocopy. The affidavit of PW1 or plaint does not lay the foundation for leading secondary evidence. Plaintiff not even suggested during course of proceedings in whose possession or power the original document lies. PW2 also did not lay any foundation for leading secondary evidence in the present case. PW2 during his cross examination stated that he is not in possession of the originals of loan receipts or application. It is further stated that the originals were returned in lieu of the cheque. As per Section 64 of Evidence Act, documents must be proved by primary evidence except in the cases mentioned in section 65 of Evidence Act. Clause (a) of sec 65 of Evidence Act, cannot be applied as PW1 and PW2 did not mention in whose possession or power original document lies though PW2 during his crossexamination merely mentioned that the same is in possession of Sh. S. C. Juneja. Clause (b) of sec 65 of Evidence Act, cannot be applied in the present case as the documents are not admitted by the defendants. Clause (c) of sec 65 of Evidence Act, cannot be applied in the present case as PW1 and PW2 have not specifically stated that original documents cannot be traced due to reason not arising from their own default or neglect. Similarly, clause (d), (e), (f) and (g) of sec 65 CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 11/15 also does not apply in the present case. It is apparent that without laying foundation for leading secondary evidence PW1 and PW2 cannot rely upon photocopies. In view of the above, this court finds that photocopies are not sufficiently proved in the present case and thus, cannot be relied upon by the court. Hence, marked documents cannot be appreciated.
28. Hon'ble High Court of Delhi in Vijay Singh & Ors vs Smt. Manali Malik & Ors, 2009 (160) DLT 259, has held that "13. It is to be noted that the drawing of a cheque does not by itself operate as an assignment of the monies in the hands of the banker in favour of the payee. The holder of a cheque has no right to enforce payment from the bank unless the banker has contracted with the holder to honour. The banker is only liable to the order of the drawer and thus if there is no order of the drawer on the banker, on the date of the presentment owing to the death of the drawer, the bank is not liable to pay. Section 57 provides that the legal representatives of a deceased person cannot negotiate by delivery only a cheque payable to order and endorsed by the deceased but not delivered. This is on the ground that the legal representative is not the agent of deceased. Upon demise, the estate including the amounts with the bank vest in the legal representatives or nominee and it requires a fresh act on the part of the legal representative or nominee to transfer the money, if any. Only if the cheque had been signed by the legal representative, at the instance of holder thereof does the legal representative becomes personally liable thereunder, under Section 29 of the Act.
14. Sir Ernest Pollock M.R. speaking for the court of Appeal in Re Swinburne; Sutton Vs. Featherley 1926 (134) Law Times 121 held that a cheque is clearly not an assignment of money in the hands of a banker; Lord Romilly in Hewitt Vs. Kaye L. Reports 6 E.Q. 198 was quoted :
"A cheque is nothing more than an order to obtain a certain sum CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 12/15 of money, and it makes no difference whether the money is at the banker or anywhere else. It is an order to deliver the money and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing."
It was further held that it is merely a mandate or authority in the hands of the holder of the cheque to go to the bank and get the money from it. Warington L.J. in the same judgment held that a cheque is nothing more than an order directed to the person who has the custody of the money, requiring him to pay so much to the person in whose favour the cheque is drawn.
15. The House of Lords in London Joint Stock Bank Limited Vs. Mac. Millan Arthur 1918 LR (HL) 777 speaking through Lord Finlay L.C. so described the relationship between the banker and the customer: "The relation between banker and customer is that of debtor and creditor, with a super added obligation on the part of the banker to honour the customers' cheques if the account is in credit. A cheque drawn by a customer is in point of law a mandate to the banker to pay the amount according to the tenor of the cheque." The said mandate, on demise of customer, ceases to be a mandate. On the moment of demise of customer, the bank, in terms of its contract, is holding the money not to the order of the deceased customer, but to the order of his nominees or legal representatives. The bank cannot thus act on the order of the deceased customer. The cheque, which has been held to be merely an order, thus, on demise of drawer, ceases to be a cheque.
16. Closer home, in Canara Bank Vs. Canara Sales Corporation MANU/SC/0904/1987 it has been held that a cheque on which the signatures of the account holder are forged is not cheque in as much as it is no order/mandate of the drawer to the banker to pay the money. To the same effect is Bihta Cooperative Development Cane Marketing Union Ltd. and Anr. v. The Bank of Bihar AIR 1967 SC 389.
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 CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 13/15 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."
29. It is to be noted that facts of the present case are not in pari materia with the facts of above mentioned case. In Suresh Kumar Joon vs Mool Chand Motors & Ors. decided on 22 August, 2012, Hon'ble High Court of Delhi has observed that "8. It is true that the cheque does not contain an express promise in writing, to pay the amount of the cheque to the payee or the cheque. However, Section 9 of the Indian Contract Act makes it very clear that the promise can be express as well as implied. In my view, when a debtor issues a cheque to his creditor, he makes an implied promise to him to pay the amount of the cheque being issued by him. It is only towards fulfillment of that such promise that a cheque is issued by the debtor to the creditor. Once it is alleged that the relationship between the parties was that of debtor and a creditor and it is further alleged that the cheque was issued by the debtor to the creditor, it would be difficult to dispute that a cheque contains an implied promise, in writing, to pay the amount of the cheque. Since, even a timebarred debt is saved by Section 25(3) of the Indian Contract Act, 1872, the issuance of a cheque towards repayment of a timebarred debt constitutes a contract within the meaning of Section 25(3) of the Indian Contract Act, 1872."
30. In the present case, plaintiff has not been able to prove any arrangement with late Sh. S. C. Juneja. Presumption of consideration with respect of cheque is a rebuttal presumption (section 118 (a) of Negotiable Instruments Act). Defendants have totally denied that there was any arrangement between plaintiff and late Sh. S. C. Juneja. In the present case, plaintiff has not filed previous cheques to prove the whole arrangement. The cheques Ex PW 1/1 and Ex PW 1/ 2 were not even presented for encashment by the plaintiff. PW1 during her cross CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 14/15 examination stated that she has never personally dealt with Sh. S.C. Juneja or with the defendants and she has no personal knowledge about the transactions involved in this case. She further conceded that she has not shown Sh. S.C. Juneja as her debtor in income tax returns or account books or anywhere else. It appears that transaction was executed by PW2 with late Sh. S. C. Juneja. The primary burden to prove this case was upon plaintiff. Plaintiff has not brought a single document to prove any arrangement of loan or deposit was there with late Sh. S. C. Juneja. Further, plaintiff (during her crossexamination) has implied that transaction was done by PW2 on her behalf, however, the plaint says otherwise. Moreover, plaintiff has not been able to prove the estate inherited by the defendants of late Sh. S. C. Juneja. In the crossexamination of DW1, DW1 has stated that Sh. S.C. Juneja had no properties. It was further stated that DW1 has no knowledge about the bank account number 719060077. Thereafter plaintiff has not led any rebuttal evidence to show properties left behind by Late Sh. S.C. Juneja for the defendants. Issue no.1 is decided against the plaintiff.
31. ISSUE NO.2
2. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period ? OPP Issue no 2 is consequently also decided against plaintiff.
32. In view of above findings and observations, the suit of the plaintiff stands dismissed. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
ANKIT Digitally signed by ANKIT KARAN SINGH KARAN Date: 2022.06.10 SINGH 20:07:39 +0530 Pronounced in the open court (Ankit Karan Singh) today i.e. on 10.06.2022 Civil Judge01(West)/Delhi CS SCJ No. : 610987/16 Divya Mohan vs. Anupama Juneja 15/15