Delhi District Court
Sh. Vijay Singh vs Manali Malik & Ors. Page No. 1/75 on 31 March, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE05: WEST:
TIS HAZARI COURTS: DELHI
CNR No. DLWT010045652016
Civ DJ/613064/16
1. Sh. Vijay Singh,
S/o Sh. Pritam Singh,
2. Sh. Harbhajan Singh,
S/o Sh. Pritam Singh,
Both Residents of
C1/1112, Vasant Kunj,
New Delhi 110070.
3. Sh. Pritam Singh, R.K.
(Since deceased now represented by LRs)
(i) Sh. Gurcharan Singh,
Husband of Late Smt. Narender Kaur
(Deceased daughter of plaintiff no.3.)
(ii) Mrs. Taranjit Kaur,
(Granddaughter of plaintiff no.3)
W/o Sh. Pawan Deep Singh
Both Residents of
D8/8118, SectorD, PocketA,
Vasant Kunj, New Delhi 110070.
(iii) Smt.Sumeet Kaur
(Granddaughter of plaintiff no.3)
W/o Sh. Manjit Singh
J5/156, SF, Rajouri Garden,
New Delhi 110027. ..........Plaintiffs
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 1/75
Vs.
1. Smt. Manali Malik,
Wife of Late Sh. Anil Kumar Malik,
2. Ms.Rupali Malik,
Daughter of Late Sh. Anil Kumar Malik,
3. Ms.Gul Malik,
Daughter of Late Sh. Anil Kumar Malik,
All abovenamed respondents are
residents of R/o 32C/75, West Punjabi Bagh,
New Delhi 110026.
.........Defendants
Date of institution :17.05.2007
Order Reserved On: 24.03.2022
Date of Decision: 31.03.2022
SUIT FOR RECOVERY OF Rs.22,65,000/ ALONGWITH
INTEREST
JUDGMENT
1. The present suit was initially filed under Order XXXVII CPC for recovery of Rs.22,65,000/ alongwith interest by Plaintiffs against the LRs of Sh. Anil Kumar Malik, the drawer of the cheques, since the drawer of the cheque died after issuance of the cheque, alleging the following facts: "That the defendants are the only known legal heirs of Late Sh. Anil Kumar Malik. The plaintiff Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 2/75 no.1 and 2 were having friendly relationship with Late Sh. Anil Kumar Malik for about twenty years or so and Late Sh. Anil Kumar Malik was working as Development Officer with Life Insurance Corporation of India and he got the agency of LIC to the wife of Sh.Harbhajan Singh, plaintiff no.2, namely Smt.Jagjit Singh vide DO Code No.1151 dated 20.02.1989 and the agency code is 58252111. That during this long friendly association plaintiffs as also Late Sh. Anil Kumar Malik financially helped each other, whenever any of them was in need of money. That Sh. Anil Kumar Malik owed a sum of Rs.8 lacs to plaintiff no.3 and against which he issued cheque no.
187146 dated 29.01.2007 for Rs.8 Lacs drawn on Indian Overseas Bank, New Rajinder Nagar, New Delhi as a security. That Sh. Anil Kumar Malik was in need of money and approached plaintiffs no.1 and 2 to arrange money and plaintiff no.1 arranged a sum of Rs.8.5 lacs to Sh. Anil Kumar Malik against which he issued cheque no. 636299 dated 27.01.2007 for Rs.8.5 Lacs drawn on Indian Overseas Bank, New Rajinder Nagar, New Delhi.
That plaintiff no.2 paid a sum of Rs.6,15,000/ Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 3/75 against which Sh. Malik issued cheque no. 196235 dated 30.01.2007 for Rs.6,15,000/ drawn on Indian Overseas Bank, New Rajinder Nagar, New Delhi. That the aforesaid amounts were paid by the plaintiffs to Late Sh. Anil Kumar Malik in good faith and in view of friendly relations which they had with him. Sh. Anil Kumar Malik used to make entries in regard to the amounts received from the plaintiffs in the name of plaintiff no.1 only i.e. Sh. Vijay Singh. Unfortunately Sh. Anil Kumar Malik expired on 01.02.2007 in a train accident. That the plaintiffs presented their respective cheques for encashment but all the three cheques were returned dishonoured on or around 06.02.2007 vide respective memorandum dated 08.02.2007 with the remarks, "withdrawal stopped owning to death". That thereafter the plaintiffs approached defendant no.1 for payment against the said cheques but she has been noncommittal and evasive in regard to the payments. That the estate of Late Sh. Anil Kumar Malik is liable to repay the amount owned by him to the plaintiffs and the defendants being the beneficiary of the estate of Late Sh. Anil Kumar Malik are liable to pay the Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 4/75 amount of Rs.22,65,000/ alongwith interest to the plaintiffs. That the plaintiffs through their counsel Sh.Satinder S. Gulati, Advocate issued a legal notice dated 10.03.2007 through postal receipt no. 3585 dated 14.03.2007 and also through UPC dated 14.03.2007. The legal notice sent through registered AD post was received back unserved with the remarks dated 21.03.2007 "Addressee does not meet despite repeated visits". The legal notice sent through UPC was not received back, therefore, the same has been received by the defendants. Based on said averments, plaintiffs moved to the Court seeking decree for a sum of Rs.22,65,000/ alongwith interest of Rs.71,721/ @ 18% per annum calculated from 08.02.2007 to 11.04.2007 in favour of plaintiff alongwith pendentelite and future interest @18% per annum."
2. Summons under the prescribed proforma under Order XXXVII CPC were issued against defendants. During the pendency of the suit, on application being IA No.13861/2007, the defendant no.1 was appointed as guardianadlitum for minorsdefendants no.2 and 3 vide orders dated 04.12.2007 and on 04.12.2007, the defendants entered appearance vide Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 5/75 Application (IA No.13859/2007) and on the application (IA No.13860/2007), summons for judgment were issued to the defendants and thereafter application under Order 37 Rule 3(5) CPC for leave to defend (IA No.6459/2008) was allowed vide orders dated 05.05.2009 and the defendants were granted unconditional leave to defend the present suit. Thus, the defendants filed their written statement jointly.
3. In their written statement, defendants took preliminary objections viz. that the present suit is bad for want of cause of action and is liable to be dismissed. The plaintiffs have not placed any document on record and have not even made any averment in the plaint to show as to when and in what manner and from which source they had extended the alleged loan of Rs.8 Lacs, Rs.8.50 lacs and Rs.6.15 lacs respectively to the late husband of defendant no.1. The plaintiffs have not placed on record any document to show any financial transaction purported to have taken place between the plaintiffs and the deceased husband of defendant no.1 at any point of time including those giving rise to the alleged liabilities in the form of the above three amounts. The plaintiffs have also not filed their income tax returns where the alleged loans if existing ought to have been reflected and no explanation or answer was given regarding their such omission. The plaintiffs have also not placed on record any document that they were possessed of the monies which they alleged to have loaned to the deceased husband of defendant no.1. That the plaintiff no.1 is an employee of a Nationalized Bank and therefore in his normal Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 6/75 course of affairs, he ought to have documented the alleged loan of Rs.8.5 lacs and despite specific objection in this regard, the plaintiffs have not produced any document to show the source of such amounts advanced to the deceased husband of defendant no.1 and thus the story of loan was false and concocted. That in the absence of such proof / document of the source of money allegedly advanced to the deceased husband of defendant no.1, the existence of liability is not explained and nothing has been placed on record to show the manner of creation of the liability. That the plaintiffs have not approached the Court with clean hands and are guilty of distorting the facts and fabricating and manipulating the cheques. That the defendants have reasons to believe that the master mind is plaintiff no.1 and plaintiffs no.2 and 3 have colluded and connived with him in their illegal design. The defendants have come to know that the plaintiff no.1 was working in the same bank where the deceased husband of defendant no.1 was having his bank account i.e. Indian Overseas Bank, New Rajinder Nagar. The statement of account of the deceased husband of defendant no.1 would show that he was a valued customer of the bank and he had very close and cordial relations with the plaintiff no.1, therefore, the defendants have reasons to believe that the deceased husband of defendant no.1 might have handed over blank signed cheques to the plaintiff no.1 to facilitate any transaction with third parties even in his absence and with the help of plaintiff no.1 as he was employed in the same bank. The plaintiff no.1, however, betrayed the trust of Late Anil Kumar Malik and instead of honestly Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 7/75 returning the said cheques to his legal heirs has dishonestly misused the same and has fabricated and manipulated them to give it a color of having been issued in discharge of alleged liability which never existed. That the plaintiff no.1 despite being an employee of bank and fully conscious of the fact that any amount over Rs.20,000/ ought to invite and involve a written instrument to effect any transaction has not substantiated or explained as to how and under what written instrument, he and his relatives allegedly loaned Rs.8 Lacs, Rs.8.5 Lacs and Rs.6.15 lacs to the deceased husband of defendant no.1. That the fraud and mischief further stands substantiated from the fact that except for the signatures, no other writing on the cheques is of Late Sh. Anil Kumar Malik.
4. On merits, defendants refuted the version of the plaintiffs by referring to aforesaid preliminary objections. Same are not repeated here for the sake of brevity. It was explained that the defendant no.1 came to know about plaintiff no.1 through her sisterinlaw after the death of her husband that plaintiff no.1 was employed in the same bank where the deceased husband of defendant no.1 was having his bank account and after receipt of legal notice, defendant no.1 had visited the house of plaintiff no.1 and where she met him for the first time. The defendants had never met any of the plaintiffs prior to the death of Sh.Anil Kumar Malik and had no clue about the association of deceased Sh.Anil Kumar Malik with any of the plaintiffs. The defendants have denied for want of Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 8/75 knowledge whether Late Sh.Anil Kumar Malik had got any agency of LIC in the name of wife of plaintiff no.2. It is submitted that nothing has been placed on record by the plaintiffs to show as to how and when and in what manner Sh.Anil Kumar Malik owed a sum of Rs.8 Lacs to plaintiff no.3. It is stated that the entire story of the plaintiffs is false and concocted because of the fact that Sh.Anil Kumar Malik was a Government servant being a Development Officer with LIC and it is hard to believe that he would take money unaccounted and return the same by a written instrument thereby duly accounting the same. It is further submitted that it has not been stated as to when and in what manner and from which source plaintiff no.2 arranged a sum of Rs.6.15 lacs and paid to Late Sh.Anil Kumar Malik. It is submitted that as on 06.02.2007, the plaintiffs knew that Sh.Anil Kumar Malik was not alive, yet they presented the alleged three cheques for encashment after fabricating and manipulating the same. This was nothing but a mischief for an act to enrich themselves illegally and unjustifiably. It is submitted that the cheques were presented for encashment knowing fully well that neither of the said cheques had been issued to them by Sh.Anil Kumar Malik for discharge of any alleged loan and they knew very well that the cheques would not be encashed and that taking advantage of that they concocted a story and prepared a ground to recover the money summarily. On the basis of said reply, it was prayed that present suit may be dismissed with cost.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 9/755. No replication has been filed by the plaintiffs to the written statement of the defendants.
6. During admission/denial, the defendants admitted the signatures of Sh. Anil Malik on the three cheques in question but rest of the contents were denied. The three cheques in question were marked as Ex.P1 to Ex.P3.
7. After completion of pleadings, vide orders dated 01.09.2020 and 24.02.2022, the following issues were framed:
(i) Whether the suit is liable to be rejected under Order VII Rule 11 (a) CPC? OPD.
(ii) Whether the plaintiff is entitled to a decree for a sum of Rs.22.65 lakh and if so, to what effect? OPP
(iii) If the answer to issue no. (ii) is in affirmative, whether the plaintiff is entitled to interest of Rs.71,721/ calculated at the rate of 18% per annum from 8th February 2007 till 11th April, 2007 and also the future interest at the said rate till the actual amount is paid at the rate of 18%? OPP
(iv) Whether the present suit is within the period of limitation?
OPP
(v) Relief.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 10/75
8. After settlement of issues, matter was fixed for plaintiff's evidence.
9. Plaintiffs examined twelve (12) witnesses to prove their case. 9.1 Plaintiffs examined plaintiff No.1 Sh. Vijay Singh as PW1 and tendered his evidence by way of affidavit as Ex.PW1/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW1 relied upon following documents: Exhibit Description of document Ex.PW1/1 The cheque No. 636299 dated 27.01.2007 for Rs.8,50,000/ drawn on Indian Overseas Bank, New Rajinder Nagar, New Delhi.
Ex.PW1/2 Memo of dishonour dated 08.02.2007. Ex.PW1/3 Memo dated 09.02.2007 issued by Indian Overseas
Bank, Yojana Bhawan i.e. bank of plaintiff no.1.
Ex.PW1/4 Payinslip dated 06.02.2007 vide which the cheque Ex.PW1/1 was deposited by plaintiff no.1.
Ex.PW1/5 Legal notice dated 10.03.2007.
Ex PW1/6 & The postal receipt and UPC receipt.
Ex.PW1/7
Ex PW1/7A The endorsement dated 21.03.2007 of the postman
stating "Addressee does not meet despite repeated visits".
Ex PW1/8A8F The copies of Form No.32 and annual returns of the companies in which defendant no.1 is Director.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 11/75Ex PW1/9 Copy of power of attorney executed by defendant no.1 in favour of Smt.Anita Khanna.
Ex PW1/10 The copy of newspaper report. 9.2 After examining PW1, plaintiffs examined plaintiff no.2
Harbhajan Singh as PW2 who tendered his evidence by way of affidavit as Ex.PW2/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. He relied upon following documents: Exhibit Description of document Ex.PW2/1 The copy of LIC agency vide DO Code No.1151 dated 20.02.1989 and agency code 58252111.
Ex.PW2/2 Greeting card sent by Late Sh.Anil Kumar Malik to PW2.
Ex. PW2/3 Cheque No. 196235 dated 30.01.2007 for Rs.6,15,000/ drawn on Indian Overseas Bank, New Rajinder Nagar, New Delhi.
Ex.PW2/4 Memo of dishonour dated 08.02.2007.
Ex. PW2/5 Memo dated 09.02.2007 issued by Indian Overseas
Bank, Nehru Place i.e. bank of plaintiff no.2.
Ex.PW2/6 Payinslip dated 07.02.2007 vide which the cheque
Ex.PW2/1 was deposited by plaintiff no.2.
Ex.PW2/7 Copy of ITR Form No.1 of plaintiff no.2
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 12/75
PW2 also deposed regarding the legal notice dated 10.03.2007, postal receipt and UPC receipt and endorsement dated 21.03.2007 of the postman stating "Addressee does not meet despite repeated visits" and copies of Form No.32 and annual returns of the companies in which defendant no.1 is Director which are already Ex PW1/5, Ex PW1/6, Ex.PW1/7, Ex PW1/7A and Ex PW1/8A8F and the copy of power of attorney executed by defendant no.1 in favour of Smt.Anita Khanna and newspaper report are already Ex PW1/9 & Ex.PW1/10.
9.3 Then, plaintiffs examined plaintiff no.3 Pritam Singh as PW3. However, the tendering of his affidavit was dispensed with in view of the ruling in FAO (OS) 62/2011 titled as Major V. Ravindran Vs. Cavalier Coaching & Security Networks Pvt. Ltd. disposed off on 13.07.2011. In his affidavit, he reiterated the contents of plaint which are not repeated here for the sake of brevity. He relied upon following documents : Exhibit Description of document Ex.PW3/1 Copy of Ration Card.
Ex.PW3/2 Copy of registered sale deed dated 26.08.2003.
Ex. PW3/3 Copy of FDR No. 340305 for Rs.8 Lacs.
Ex.PW3/4 Loan account No1503409 dated 06.09.2003 and copy
of loan statement against FDR No.340305.
Ex.PW3/5 Cheque No. 187146 dated 29.01.2007 for
Rs.8,00,000/ drawn on Indian Overseas Bank, New Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 13/75 Rajinder Nagar, New Delhi.
Ex. PW3/6 Memo of dishonour dated 08.02.2007. Ex.PW3/7 Memo dated 09.02.2007 issued by Indian Overseas
Bank, Yojana Bhawan i.e. bank of plaintiff no.3.
Ex.PW3/8 Payinslip dated 06.02.2007 vide which the cheque Ex.PW3/5 was deposited by plaintiff no.3.
9.4 PW4 Ms.Nilanjana Sengupta, Asstt. Manager, Indian Overseas Bank, Rajendra Palace, Delhi, a summoned witness, brought the certified copies of service record of plaintiff no.1. As per the service record available in the bank, Mr. Vijay Singh never worked in New Rajinder Nagar Branch of Indian Overseas Bank. The certified copy of service record is Ex.PW4/1.
9.5 PW5 Mr. Hare Krishna Mishra, Manager, Indian Overseas Bank, Rajendra Palace, Delhi, a summoned witness, brought the account ledger statement pertaining to account No.2333 of Sh.Anil Malik and Ms.Manali Malik. The ledger account Ex.PW5/1 and Ex.PW5/2 are pertaining to Sh.Anil Malik and Ms.Manali Malik. The account No. 2656 is also a joint account in the name of Sh.Anil Malik and Ms.Manali Malik. The cheques Ex.P1 and Ex.P2 are from account no.2333 and cheque Ex.P3 is from account no.2656. All three cheques Ex.P1 to Ex.P3 were dishonoured due to the reason "withdrawal stopped owning to death". He further deposed that the account nos. 2333 and Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 14/75 2656 were operational from February 2007 till 01.05.2007. As per the ledger account statement, there were cash transactions in both the aforesaid accounts during April 2004 to 01.05.2007. The entry dated 23.04.2007 for account no.2333 shows an amount of Rs.5,70,449.37 through a banker's cheque. The entry dated 23.04.2007 for account no.2656 shows an amount of Rs.5,72,680.48 through a banker's cheque.
9.6 PW6 Sh. Sanjay Kumar, Clerk from Indian Overseas Bank, Nehru Place Branch, a summoned witness, deposed that he was authorized by Sh. S.S. Narang, Asstt. General Manager of Indian Overseas Bank to appear vide letter dated 04.09.2017 which is Ex.PW6/A. He deposed that the summoned record i.e. cheque No.560699 dated 01.01.2017 is not traceable despite best efforts and letter addressed by Sh. Shyam Sunder Narang, AGM to this effect is Ex.PW6/B. 9.7 PW7 Sh. M. Sivasailam, Asstt. Manager, Indian Overseas Bank, Vasant Vihar Branch, a summoned witness, deposed that he had brought the summoned record i.e. two cheques bearing No.245997 dated 29.06.2005 and 251381 dated 24.03.2006 both drawn on Indian Overseas Bank, Vasant Vihar Branch. Both these cheques were drawn from the account of Vijay Singh in favour of Anil Kumar Malik and were debited from his account. The photocopies of such cheques are Ex.PW7/A and Ex.PW7/B. Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 15/75 9.8 PW8 Sh. Abhinav Gautam, Asstt. Manager, Indian Overseas Bank, Parliament Street Branch, a summoned witness, deposed that he had brought the summoned record i.e. cheques bearing No.234973 dated 06.08.2006 and 234981 dated 04.11.2006 both drawn on Indian Overseas Bank, Parliament Street Branch. Cheque bearing No.234973 dated 06.08.2006 is account payee cheque in the name of Anil Malik and cheque no. 234981 dated 04.11.2006 is self/bearer cheque. The copies of such cheques are Ex.PW8/A and Ex.PW8/B. The statement of account No.18188 in the name of Sh.Vijay Singh for the period from 01.08.2006 to 10.11.2006 is Ex.PW8/C. The certificate issued by Manager regarding debiting of cheque No.234973 from account of Vijay Singh is Ex.PW8/D. 9.9 PW9 Sh. Shashank Kumar, Asstt. Manager, Indian Overseas Bank, Yojana Branch, a summoned witness, deposed that he was authorized vide authorization letter dated 13.10.2017 Ex.PW9/A. He had brought the original ledger for the period April 2013 till 30.09.2003 of account no.2964 of Sh.Pritam Singh which is Ex.PW9/B (OSR). The original cheque no.795714 for Rs.9,50,000/ dated 06.09.2003 drawn on yourself for RPD is Ex.PW9/C(OSR). The original FDR No. 510300823 dated 06.09.2003 in the name of Sh.Pritam Singh RK as well as account opening form for the same FDR dated 06.09.2003 are Ex.PW9/D (OSR) and Ex.PW9/E (OSR). The statement of demand loan letter against FDR deposit from 06.09.2003 to Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 16/75 03.03.2005 is Ex.PW9/F. The original cheque bearing No.795715 dated 06.09.2003 for Rs.8,00,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch. The cheque is a bearer cheque in the name of Anil Malik and Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. The said cheque is Ex.PW9/G(OSR). He further deposed that as per Ex.PW9/G, the said amount of Rs.8,00,000/ stands debited on 06.09.2003 from account No.2964 of Sh.Pritam Singh. The original cheque bearing No.983442 dated 03.11.2006 for Rs.50,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch. The cheque is a bearer cheque in the name of Anil Malik and Sh.Pawan Kumar has withdrawn the money and his signatures are at the back of the cheque. The said cheque is Ex.PW9/H(OSR). The original cheque bearing No.983443 dated 03.11.2006 for Rs.50,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch. The cheque is a bearer cheque in the name of Anil Malik and Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. The said cheque is Ex.PW9/I(OSR). The statement of ledger for account no.2964 in the name of Pritam Singh and entry of Rs.50,000/ is depicted on date 06.11.2006. The said statement made from the original ledger is Ex.PW9/J. The original cheque bearing No.605503 dated 05.10.2004 for Rs.43,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch. The cheque is a bearer cheque in the name of Anil Malik and Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. The said cheque is Ex.PW9/K(OSR). The original cheque Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 17/75 bearing No.605505 dated 18.11.2004 for Rs.50,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch. The cheque is for self. Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. The said cheque is Ex.PW9/L(OSR). The photocopy of passbook of account no. 2961 standing in the name of Vijay Singh wherein the account payee cheque no. 820201 for Rs.5,000/ has been withdrawn on 03.03.2004 by Sh.Anil Malik. The same is Ex.PW9/M (OSR). The two letters dated 13.10.2017 submitted by PW9 are Ex.PW9/N and Ex.PW9/O. 9.10 PW10 Sh.Pawan Kumar, a summoned witness, deposed that he had worked with Sh.Anil Kumar Malik for about 6 years. The office of Sh.Anil Malik was situated at Kailash Colony and he was a Development Officer with LIC. Sh.Anil Kumar Malik was having other business such as he used to take money on commission from others. He was requiring the money for giving commission to the persons who were getting the LIC policies from him. Sh.Anil Kumar Malik was in the property business also and he was having an office at Karol Bagh having area measuring 400 to 500 sq. meters and was doing the business of LCD and Air Conditioners from there. He was having another office at Rohini. He was having Yog Maya Insurance Company also having 5060 employees there. The Yog Maya Insurance Company was in the name of Sh.Anil Kumar Malik.
He further deposed that he used to collect the money from Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 18/75 the customers for Sh.Anil Kumar Malik and was also used to make the agents and was getting the policies. He knew Sh.Vijay Singh, Sh.Harbhajan Singh and Sh. Pritam Singh, the plaintiffs. He produced a list of agents, he had made during the tenure he worked with Sh.Anil Kumar Malik. The said list is Mark PW10/A. He deposed that he used to collect the money from Sh.Vijay Singh, Sh.Harbhajan Singh and Sh. Pritam Singh. He also used to collect cheques from all the three plaintiffs and got them encashed from bank and used to give money to Sh.Anil Kumar Malik.
PW10 was shown the cheque Ex.PW9/H in the name of Anil Kumar Malik, however, the money was collected by the witness by signing on the back side of the cheque. The witness deposed that he had collected the money by signing on the back side of the cheque and the mobile number mentioned on it belonged to him at that time. The money was given to Sh. Anil Kumar Malik.
PW10 was also shown cheques Ex.PW1/1 in favour of Vijay Singh for Rs.8.5 Lacs and cheque Ex.P1 in favour of Sh.Pritam Singh for Rs.8 Lacs. After seeing both the cheques, witness deposed that both these cheques were issued by Sh.Anil Kumar Malik and the signatures and writing on the said cheques is of Sh.Anil Kumar Malik.
PW10 was shown copy of cheque No. 560699 dated 01.01.2007. He admitted his signatures on the back of the cheque which was marked as Mark PW10/B. Witness has produced a list of statement showing the Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 19/75 amount payable to various persons as on 31.01.2007 and at Sr. no.13, the name of Sh.Vijay Singh and the amount shown is Rs.22,70,000/ against which Anil Kumar Malik has issued the cheques totaling Rs.22,65,000/ to the plaintiffs. The said list is Mark PW10/C. 9.11 PW11 Sh.Gurdev Singh Chauhan, Manager, Indian Overseas Bank, Connaught Place, Delhi tendered his affidavit Ex.PW11/1. Certified copy of authority letter is Ex.PW11/A, certified copy of statement of account for the period of 01.04.2003 to 31.01.2007 of account No. 181201000002964 of Pritam Singh is Ex.PW11/B, certified copy of certificate u/s 2A of Bankers Books of Evidence Act Ex.PW11/C, certified copy of statement of demand loan is Ex.PW11/D, certified copy of statement of ledger for the account No. 181201000002964 of Pritam Singh is Ex.PW11/E, certified copy of statement of account is Ex.PW11/G and certified copy of ID proof is Ex.PW11/H. All these eleven witnesses were crossexamined on behalf of the defendants and discharged.
9.12 PW12 Sh.Alok Nanda, Single Window Operation, Punjab National Bank, Nelson Mandela Road, Vasant Kunj, Delhi, a summoned witness, brought the summoned record i.e. Authorization letter dated 04.04.2018 in favour of the witness as Ex.PW12/A, statement of account bearing account No.1962 in the name of Harbhajan Singh/Jagjit Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 20/75 Kaur/Jaideep Singh from 12.12.2006 to 15.03.2007 duly certified u/s 2(A) of Bankers Book of Evidence Act is Ex.PW12/B (colly.) and another statement of account of same account from 04.03.2006 to 16.03.2006, duly certified u/s 2(A) of Bankers Book of Evidence Act is Ex.PW12/C (colly.) The letter dated 04.04.2018 whereby it was informed that voucher dated 16.03.2006 regarding cheque No.918058 dated 14.03.2006 and voucher dated 03.01.2007 for cheque No. 906404 dated 01.01.2007 has been destroyed by Capital Record Center accompanied with email dated 27.03.2018 is Ex.PW12/D (Colly.) PW12 was examinedinchief on 05.04.2018 and his cross examination was deferred. Thereafter, the plaintiffs did not summon the said witness for crossexamination and thereafter Ld. Counsel for plaintiffs closed plaintiffs' evidence vide orders dated 04.03.2021.
10. After examining the said witnesses, plaintiffs closed their evidence.
11. Matter was then fixed for defendant's evidence.
12. In their defence, defendants have only examined defendant no. 1 i.e. Smt.Manali Malik as DW1. She tendered her evidence by way of affidavit as Ex.DW1/A in which she reiterated the contents of written statement which are not repeated here for the sake of brevity. DW1 was crossexamined on behalf of the plaintiffs and discharged. Subsequently, defendants closed their defence evidence.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 21/7513. Consequently, matter was fixed for final arguments and after hearing final arguments, matter was fixed for judgment.
14. Written submissions alongwith copies of judgments relied upon have been filed on behalf of both the parties.
15. It is relevant here, before appreciation of evidence and deciding the issues, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 22/75 proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
16. In subsequent paragraphs, this Court will be deciding the issues as settled in the present suit.
ISSUE - WISE FINDINGS ARE AS UNDER : 17. ISSUE NO. 1 Whether the suit is liable to be rejected under Order VII Rule 11 (a) CPC? OPD.
In their written statement, defendant took preliminary objection viz. that the present suit is bad for want of cause of action and is liable to be dismissed. The plaintiffs have not placed any document on record and have not even made any averment in the plaint to show as to when and in what manner and from which source they had extended the Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 23/75 alleged loan of Rs.8 Lacs, Rs.8.50 lacs and Rs.6.15 lacs respectively to the husband of defendant no.1. The plaintiffs have not placed on record any document to show any financial transaction purported to have taken place between the plaintiffs and the deceased husband of defendant no.1 at any point of time including those giving rise to the alleged liabilities in the form of the above three amounts. The plaintiffs have also not filed their income tax returns where the alleged loans if existing ought to have been reflected and no explanation or answer was given regarding their such omission. The plaintiffs have also not placed on record any document that they were possessed of the monies which they alleged to have loaned to the deceased husband of defendant no.1. That the plaintiff no.1 is an employee of a Nationalized Bank and therefore in his normal course of affairs, he ought to have documented the alleged loan of Rs.8.5 lacs and despite specific objection in this regard, the plaintiffs have not produced any document to show the source of such amounts advanced to the deceased husband of defendant no.1 and thus the story of loan was false and concocted. That in the absence of such proof / document of the source of money allegedly advanced to the deceased husband of defendant no.1, the existence of liability is not explained and nothing has been placed on record to show the manner of creation of the liability and the suit for recovery of such alleged liability is devoid of any cause of action and liable to be dismissed under the provisions of Order VII Rule 11 CPC. During the course of final arguments, Ld. Counsel for defendant has also submitted that that the entire evidence of Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 24/75 the plaintiffs is beyond the pleadings made in the plaint and thus the same are not admissible and he relied upon the judgment of Nand Kishore Lal Bhai Mehta Vs. New Era Fabrics Pvt. Ltd. 2015 (7) SCALE 665, wherein it has been observed as under: "The principle was reiterated by this Court in Ram Sarup Gupta v. Bishun Narain Inter College:
6. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hairsplitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings;
instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. (emphasis supplied)"
Ld. counsel for defendant has also relied upon the judgment Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 25/75 in the case of Nirod Baran Banerjee Vs. Dy. Commissioner of Hazaribagh 1980 AIR (SC) 1109, (1980) 3 SCC 5 wherein it is observed as under: "6. This Court pointed out that in view of the provisions of Order VI, Rule 8, and Order 8, Rule 2 of the Code of Civil Procedure, the appellant would be debarred from raising the point for the first time before this Court or even before the High Court. The facts of the present case appear to be on all fours with facts of the case in the decision cited above. In the instant case also, the appellant contented himself by relying on the resolution by the Government, treated it as a valid arbitration agreement and never raised the question that the said resolution was hit by Article 299 of the Constitution of India. On the other hand, the appellant fully participated in the arbitration proceedings and having taken the benefit of a decision by the Board in his favour made a complete somersault only when the decision went against him, by taking the plea now under examination, which doubtless required investigation of facts. Even that plea too he took neither before the Additional SubJudge nor in the High Court when the appeal was heard on merits but only for the first time in the application which he gave for granting leave to appeal to this Court. In these circumstances it is manifest that if the appellant had raised the plea before the trial court that the arbitration agreement was not in consonance with Article 299 of the Constitution of India, the respondent may have been in a position to rebut the plea by producing evidence and circumstances to show that an agreement for arbitration was authenticated in the form required by Article 299 of the Constitution. It is well settled that no evidence can be looked into by the court for which there is no foundation in the pleadings. We cannot therefore allow the appellant to raise the plea for the first time in this Court and the High Court also ought not to have entertained it at the stage of the application for a certificate of fitness to be granted for leave to appeal to this Court. No other point was pleaded before us."Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 26/75
18. Ld. counsel for defendant has also relied upon the judgment in the case of Mansukhlal Dhanji Vora v. Jupiter Airways Ltd., 1951 SCC OnLine Bom 94, AIR 1953 Bom 112, wherein it is observed as under: "The only two other issues which remain for consideration are issues Nos. 1 and 2. In connection with issue No. 1 it is obvious that there is not the same claim made by the parties, because the dates of allotment and the dates of call moneys, apart from the dates of application, would distinguish one shareholder's case from another, namely, whether the application was after the filing of the statement or before. The dates of allotment would also be different, and the payment of call moneys would also be different. In these circumstances, inasmuch as I have held that the contract is a valid contract, and may be a voidable one or not, the question in each case would raise the question of laches and acquiescence, in other words, estoppel in connection with each of the parties, and, therefore, the efficacy of each contract would depend upon different facts and different conduct of parties, visavis the company, and the conduct of the company 'qua' each shareholder. Besides it would raise the question on the nature of the objection taken by the shareholder, and whether that shareholder had waived it or not. In those circumstances, clearly to my mind, a glance at Exh. H will show that the facts of each case would have to be differently approached and analysed, and, therefore, this is not a suit which can be brought under the provisions of O. 1, R. 1. The same reasoning applies as regards the second issue, namely, the question of a representative suit under O. 1, R.
8. Identical interest cannot possibly be pleaded, and different considerations would apply to each of the plaintiffs, apart from the other shareholders, as appearing from Exh. H. In fact, in certain cases there are transferees, (see Exts. 5 and 6), and, therefore, how can the plaintiffs' relief be applicable or allowed to the transferees? In fact, it is apparent that another suit is pending by certain shareholders, which was on my board immediately after this suit, and for a similar relief."
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 27/7519. Ld. counsel for defendant has also relied upon the judgment in the case of Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, (1987) 2 SCC 555, wherein it is observed as under: "6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hairsplitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 28/7520. Ld. counsel for defendant has also relied upon the judgment in the case of Prakash Rattan Lal v. Mankey Ram, 2010 SCC OnLine Del 184 : ILR (2010) 3 Del 315 : (2010) 166 DLT 629, wherein it is observed as under: "4. The sole purpose of pleadings is to bind the parties to a stand. When the plaintiff makes certain allegations, the defendant is supposed to disclose his defence to each and every allegation specifically and state true facts to the court and once the facts are stated by both the parties, the court has to frame issues and ask the parties to lead evidence. It is settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties are allowed to lead evidence beyond pleadings then the sacrosancy of pleadings comes to an end and the entire purpose of filing pleadings also stand defeated. The other purpose behind this is that no party can be taken by surprise and new facts cannot be brought through evidence which have not been stated by the defendant in the written statement. The law provides a procedure for amendment of the pleadings and if there are any new facts which the party wanted to bring on record, the party can amend pleadings, but without amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings."
21. Ld. counsel for defendant has also relied upon the judgment in the case of Trojan & Co. v. Rm. N.N. Nagappa Chettiar, 1953 SCR 789 : AIR 1953 SC 235 : (1953) 23 Comp Cas 307, wherein it is observed as under: "xxx xxx xxx It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 29/75The allegations on which the plaintiff claimed relief in respect of these shares are clear and emphatic.
xxx xxx xxx"
22. On the other hand, Ld. Counsel for plaintiff has submitted that in the pleadings, the plaintiffs have disclosed material facts of money paid by them to Late Sh. Anil Malik alongwith the personal and financial relations between them in paras 1 to 4 of the plaint. Order VI Rule 2 CPC requires the pleadings to disclose material facts and not evidence. Thus, the submission of the defendants that there is no cause of action since no evidence or explanation is provided by the plaintiff, deserves to be outrightly rejected. To substantiate his submissions, Ld. Counsel for plaintiff is relying upon the judgment in the case of Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors. (2004) 3 SCC 137, 2004 SCC OnLine SC 115 wherein it has been observed as under : "15. There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair splitting technicalities.
xxx xxx xxx
19. Order VI Rule 2(1) of the Code states the basic and cardinal rule Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 30/75 of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
20. There is distinction between 'material facts' and 'particulars'. The words 'material facts' show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between 'material facts' and 'particulars' was brought by Scott, L.J. in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the following passage :
The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" statement is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out" under R.S.C. Order XXV, Rule 4 (see Philipps v. Philipps ((1878) 4 QBD 127)); or "a further and better statement of claim" may be ordered under Rule 7.
The function of "particulars" under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial. xxx xxx xxx"
23. Ld. Counsel for plaintiff also placed reliance upon the judgment in Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 31/75 the case of Virender Nath Gautam Vs. Satpal Singh (2007 3 SCC 617, wherein it has been observed as under : "The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
xxx xxx xxx A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 32/75Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
xxx xxx xxx There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
24. Ld. Counsel for plaintiff has also relied upon the judgment in Bhagwati Prasad Vs. Chandramaul (1966) 2 SCR 286, wherein it has been held as under : "But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 33/75 consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and had had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
25. Before proceeding further, a perusal of Order 6 Rule 2 CPC is relevant and the same is reproduced hereinbelow: "ORDER 6 Rule 2 CPC
2. Pleading to state material facts and not evidence.--(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words."
26. Thus, the mandate of Order VI Rule 2 CPC is that the pleading shall contain only statement of material facts in a concise form and not the evidence. It is also relevant to mention here that "material facts" are those primary or basic facts which must be pleaded in support of cause of action in order to support the case of the party.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 34/7527. On careful perusal, examination, scrutiny and appreciation of plaint, paras no.3, 4 & 5, it is apparent that the basic facts vide which cause of action is shown to arose is the dishonour of three cheques i.e. cheque no. 636299 dated 27.01.2007, cheque No. 187146 dated 29.01.2007 and cheque No. 196235 dated 30.01.2007 vide respective memorandums dated 08.02.2007. It is relevant to mention here that it is a separate issue whether the cheques are for consideration or not which is a triable issue and shall be dealt with in the later part of this judgment and not concerned with cause of action but the mandate of Order VI Rule 2 CPC with regard to pleadings is duly complied and the same is pleaded in paras No.3, 4 & 5 of the plaint. Thus, the submissions of the defendant that the suit is without any cause of action is not sustainable. Accordingly, the issue No.1 is decided in negative, that is, in favour of plaintiffs and against the defendant and the suit is maintainable and is not liable to be rejected under Order VII Rule 11 (a) CPC.
28. Before discussion on other issues, as the question of limitation is raised in the present suit and the same being a mixed question of law and fact, the same is necessary to be adjudicated upon before adjudication of the other issues in the present suit. Accordingly, this Court is adjudicating on issue No.4 before deciding the other other issues.
29. ISSUE NO. 4.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 35/75Whether the present suit is within the period of limitation? OPP Ld. Counsel for the defendant has taken the objection that the present suit is barred by law of limitation and he relied upon Article 19 as given in the Schedule of Limitation Act and drawn the attention of this Court on para no.5 of the testimony of evidence by way of affidavit of Shri Pritam Singh, plaintiff no.3. Para 5 of the affidavit reads as under: "As per advice and request of Late Sh.Malik, I sold my said flat for Rs.9,50,000/ and a registered sale deed dated 26.08.2003, and a copy of the sale deed is exhibited as Ex.PW3/2. Thereafter, the sale proceeds were deposited with Indian Overseas Bank, Yojna Bhawan, New Delhi vide A/c No. 2964. An FDR No. 340305 dated 06.09.2003 for Rs.9,50,000/ was taken for a period of six months and on the same date a loan of Rs.8,00,000/ was taken against the said FDR and a copy of FDR No. 340305 is exhibited as Ex.PW3/3. The loan A/c No. is 1503409 dated 06.09.2003, and a copy of loan statement against FDR No. 340305 is exhibited as Ex.PW3/4. I gave a loan of Rs.8,00,000/ vide my cheque No. 795915 to Late Sh. Anil Malik. Thus, I handed over the total loan amount of Rs.8,00,000/ to Sh. Malik vide the aforesaid cheque. Sh. Malik got the said cheque encashed and issued to me a post dated cheque for Rs.8,00,000/ as a security, which was payable sometime in the year 2004. Sh. Anil Malik promised to me that he would keep on paying the interest being charged by the bank on the loan amount of Rs.8 lac taken from the bank and the interest, which would be accrued on the said FDR would be paid to me. Initially, he took the loan only for a period of six months, but he requested me for extending the same for further period of three years, and therefore, he personally issued and handed over to me a post dated cheque for Rs. 8 lacs encashable in the year 2007, i.e. cheque no 187146 dated 29.01.2007 drawn on Indian Overseas Bank, New Rajinder Nagar Branch, New Delhi from joint account of Smt. Manali Malik and Late Sh. Anil Malik vide their A/c No. Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 36/75 2333 and the said post dated cheque is exhibited as Ex.PW3/5."
30. On the other hand, Ld. Counsel for plaintiff has laid his emphasis upon Article 113 of the schedule of Limitation Act and he relied upon the judgment in the case of Virender Kumar Jain v. Alumate (India) Pvt. Ltd., 2012 SCC OnLine Del 1313, wherein it is observed as under : "5. In my opinion, the suit of the appellant/plaintiff cannot be said to be barred by limitation inasmuch as the averments in the plaint show that the loan was given without fixing any date of repayment. Once that is so, the loan would be a loan which would be repayable on demand. The demand in this case is alleged to have been made upon the respondent/defendant for the first time by the notice dated 14.12.2001. The period of limitation therefore will be three years from 14.12.2001, and therefore the suit which was filed on 8.2.2002 would be within limitation. Suit for recovery of loan without a fixed period or a date of repayment is a suit governed by Article 113 of the Limitation Act, 1963 as per which the suit has to be filed within three years of arising of the cause of action. The cause of action in this case will arise on sending of the legal notice dated 14.12.2001. I therefore hold that the suit was not barred by limitation."
31. To further strengthen his arguments, Ld. Counsel for plaintiff has also relied upon the judgment in the case of Ashok Kumar v. Kartar Singh, 2017 SCC OnLine Del 9024, wherein it is observed as under : "4. Trial court dismissed the suit by observing that since the loan was given on 23.9.2010, therefore the cheque given by the appellant/defendant dated 2.12.2013 is beyond the limitation period of three years from 23.9.2010, and therefore, such an acknowledgment has to be ignored and consequently once there is no acknowledgment the suit filed on 3.10.2015 with respect to loan given on 23.9.2010 is time Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 37/75 barred. xxx xxx xxx"
32. This Court has also minutely scrutinized the cross examination of PW3 at page no.3, wherein he has deposed as under : "xxx xxx xxx I have not filed any statement of account pertaining to cheque no. 795915 dated 'not given' as mentioned in para 5 of my affidavit. It is wrong to suggest that I have purposely not stated as to when I advanced the loan and when the cheque was given by Late Anil Malik as the cheque pertains to the cheque book series of 2004."
33. Further, on careful perusal of the examinationinchief of PW9 Sh. Shashank Kumar, Asstt. Manager, Indian Overseas Bank, Yojna Bhawan, New Delhi, wherein he has deposed in para 2 at page 2 as under : "I have brought along original cheque bearing No. 795715 dated 06.09.2003 which is in the sum of Rs.8,00,000/. The cheque is drawn on Indian Overseas Bank, Yojna Bhawan. The cheque is in the name of Sh. Anil Malik. The cheque was a bearer cheque and Sh. Anil Malik has withdrawn the money and his signatures are at the back of the cheque. I have placed on record the photocopy of the original cheque and the same is Ex.PW9/G (OSR)."
34. The provisions of law of limitation with regard to Article 19 and Article 113 are as follows : Article 19 of the Schedule of Limitation Act reads as under : Description of Suit Period of limitation Time from which period begins to run
19. For money payable three years when the loan is made Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 38/75 for money lent Article 113 of the Schedule of Limitation Act reads as under : PART X - SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD Description of Suit Period of limitation Time from which period begins to run
113. Any suit for three years When the right to sue which no period of accrues.
limitation is provided elsewhere in this schedule
35. From the aforesaid discussion, it is apparent that although amount was given vide cheque No.795915 dated 06.09.2003 but no date was fixed for its repayment and for other two cheques on the basis of which the present suit is filed, there was no mention of any date for repayment. It is settled law where no time period is fixed for repayment, then the limitation will start to run from the date of demand i.e. the suit will be governed by Article 113 of the Schedule of Indian Limitation Act and in the present case, the date of demand vide a legal notice as per plaint is 21.03.2007. The period of limitation has to be three years from 21.03.2007 and the suit at hand was filed on 17.05.2007 and the same is duly filed within the period of limitation. Accordingly, Issue No.4 is decided in affirmative and the present suit is within the period of limitation and not barred by the law of limitation.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 39/7536. ISSUES NO.2 & 3 Both these issues are inter-connected and as such are being taken up together.
(ii) Whether the plaintiff is entitled to a decree for a sum of Rs.22.65 lakh and if so, to what effect? OPP
(iii)If the answer to issue no. (ii) is in affirmative, whether the plaintiff is entitled to interest of Rs.71,721/ calculated at the rate of 18% per annum from 8th February 2007 till 11th April, 2007 and also the future interest at the said rate till the actual amount is paid at the rate of 18%? OPP
37. Before proceeding further, it is relevant to mention here that, in the case in hand, vide orders dated 05.05.2009 in IA No. 6459/2008 in CS (OS) No. 930/2007, the Hon'ble High Court of Delhi has granted leave to defend on the condition that : "21. What strikes one immediately is that the three cheques though bearing dates of a few days apart appear to be drawn from three different cheque books. The case of the plaintiffs is of the cheque in favour of plaintiff No.2 only to be post dated. It is not stated that the cheques in favour of the other plaintiffs were post dated. The plaint is conspicuously quite as to the dates on which the cheques were issued. The plea of the defendants is that the plaintiff No.1 is an employee of the bank on which the cheques have been issued; while the defendants contend him to be employee of the same branch where the account was, the plaintiffs contend he was in another branch. That can only be adjudicated after trial.
22. The plaintiffs besides the cheques have not filed any document whatsoever to show any financial transactions with the predecessor of the defendants. Though, it is claimed that besides transactions subject matter of the suit, in the past also there were financial dealings between the parties but no instance/particulars thereof are also given. I had Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 40/75 during the course of hearing inquired whether the plaintiffs in their income tax returns had shown the alleged loan to the predecessor of the defendants. No reply was given thereto. The plaintiffs have not even placed any documents to show that they were possessed of the monies which are alleged to have been loaned to the predecessor of the defendants. The plaintiff No.1 is admittedly employed with the bank and the vocation of the other plaintiffs has not been stated. No case has been made out of the plaintiffs, in the course of their business or other affairs being possessed of the sums of money alleged to have been loaned to the predecessor of defendants. Not only are the plaintiffs quite in the plaint in this regard but inspite of the said questions being raised in the application for leave to defend also, in the reply thereto nothing further was stated.
23. In view of plaintiff No.1 being an employee of same bank where the account of the deceased was and the averments of the plaintiffs themselves of relationship with the deceased, it is not improbable that the plaintiffs could be in possession of the cheques signed by the deceased, without any money being due from deceased to plaintiffs. Mere possession of a cheque does not entitle the holder thereof to monies thereunder when challenged. In the present case an opportunity for trial ought to be given. In the event of the plaintiffs being unable to prove that the cheques on the basis whereof the suit has been instituted are for consideration, plaintiffs would not be entitled to a decree. It would be unjust to in these circumstances deny leave to defend which would result in a decree.
24. Though no arguments have been addressed on the aspect of security but the plaintiffs along with the suit had filed an application for restraining the defendants from selling the immovable property of the deceased. An exparte order exists in favour of the plaintiffs. The plaintiffs have also applied under Order 38 Rule 5 CPC. In the circumstances, it is not deemed necessary to discuss and the need is not felt to grant to leave to defendants subject to any condition of furnishing security or otherwise. Also, since the suit has been held to be not maintainable under Order 37, the question of at this stage imposing any condition does not arise.
25. The defendants are therefore found entitled to leave to contest."
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 41/7538. In view of the aforesaid order of Hon'ble High Court, on application for leave to defend and in view of this Court, it has to be seen whether financial transactions for the loan as stated by plaintiffs is proved or not, then it has also to be seen that whether the cheques were misused or they were in lieu of consideration or not and the plaintiffs were in possession of sufficient monies to give loan to the deceased husband of the defendant no.1 and father of defendants no.2 and 3.
39. To prove its case, Ld. counsel for the plaintiff submits that the relationship between the plaintiff and defendant were financial, cordial as well as personal. He further submitted that the case of the plaintiff are very well proved by entries which were made by Anil Malik in his accounts and duly proved by the statement of PW10. PW10 submitted a list of agents which he had made during the tenure he worked with Sh. Anil Kumar Malik. The said list is Mark PW10/A. He has further submitted that the transaction between the parties were further proved by PW7 Sh. M. Sivasailam, Asstt. Manager, Indian Overseas Bank, Vasant Vihar Branch who has deposed that two cheques bearing No.245997 dated 29.06.2005 and 251381 dated 24.03.2006 both drawn on Indian Overseas Bank, Vasant Vihar Branch Ex.PW7/A and Ex.PW7/B were drawn from the account of Vijay Singh in favour of Anil Kumar Malik and were debited from his account which stands fortified from the certificate issued by Asstt. Manager Ex.PW7/DA. He further submits that the transaction between the parties are further proved by the Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 42/75 testimony of PW8 Sh. Abhinav Gautam, Asstt. Manager, Indian Overseas Bank, Parliament Street Branch who has deposed that the cheques bearing No.234973 dated 06.08.2006 (account payee cheque in the name of Anil Malik) and cheque No. 234981 dated 04.11.2006 (self/bearer cheque) both drawn on Indian Overseas Bank, Parliament Street Branch Ex.PW8/A and Ex.PW8/B were credited as per the statement of account No.18188 (Ex.PW8/C) in the name of Sh.Vijay Singh for the period from 01.08.2006 to 10.11.2006 showing entry at Sr. No.9 and 25. Further as per the certificate (Ex.PW8/D) issued by Manager the cheque No.234973 has been debited from account of Vijay Singh. He further submits that the transaction between the parties are further proved by the testimony of PW9 Sh. Shashank Kumar, Asstt. Manager, Indian Overseas Bank, Yojana Branch who has produced the original cheque bearing No.795715 (Ex.PW9/GOSR) dated 06.09.2003 for Rs.8,00,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch which is a bearer cheque in the name of Anil Malik and Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. He further deposed that as per Ex.PW9/G, the said amount of Rs.8,00,000/ stands debited on 06.09.2003 from account No.2964 of Sh.Pritam Singh. The witness has also produced the original cheque bearing No.983442 (Ex.PW9/HOSR) dated 03.11.2006 for Rs.50,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch which is a bearer cheque in the name of Anil Malik and Sh.Pawan Kumar has withdrawn the money and his signatures are at the back of the cheque.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 43/75The witness has also produced the original cheque bearing No.983443 (Ex.PW9/I) dated 03.11.2006 for Rs.50,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch which is a bearer cheque in the name of Anil Malik and Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. This witness also produced the statement of ledger for account no.2964 (Ex.PW9/J) in the name of Pritam Singh and entry of Rs.50,000/ is depicted on date 06.11.2006. This witness also produced the original cheque bearing No.605503 (Ex.PW9/K) dated 05.10.2004 for Rs.43,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch which is a bearer cheque in the name of Anil Malik and Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. This witness also produced the original cheque bearing No.605505 (Ex.PW9/L) dated 18.11.2004 for Rs.50,000/ drawn on Indian Overseas Bank, Yojana Bhawan Branch which cheque is for self and Sh.Anil Malik has withdrawn the money and his signatures are at the back of the cheque. Further as per the photocopy of passbook of account no. 2961 (Ex.PW9/M) standing in the name of Vijay Singh wherein the account payee cheque no. 820201 for Rs.5,000/ has been withdrawn on 03.03.2004 by Sh.Anil Malik. Ld. Counsel for plaintiffs further submits that PW10 Sh.Pawan Kumar has proved the fact that he had worked with Sh.Anil Kumar Malik for about 6 years and that he used to collect the money from the customers for Sh.Anil Kumar Malik and was also used to make the agents and was getting the policies. He produced a list of agents (Mark PW10/C) which Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 44/75 he had made during the tenure he worked with Sh.Anil Kumar Malik. He also used to collect cheques from all the three plaintiffs and got them encashed from bank and used to give money to Sh.Anil Kumar Malik. Ld. counsel for plaintiffs further submits that PW11 Sh.Gurdev Singh Chauhan, Manager, Indian Overseas Bank, Connaught Place, Delhi has duly proved certified copy of statement of account for the period of 01.04.2003 to 31.01.2007 of account No. 181201000002964 of Pritam Singh Ex.PW11/B and also produced the certified copy of certificate u/s 2A of Bankers Books of Evidence Act Ex.PW11/C. At last, he submitted that Anil Malik was in the business of doing rotation of money and in support he produced an FIR, news report and Manali Malik's case. He has also submitted that there is no omission in the plaint as all the facta probanda (the facts required to be proved i.e. material facts) are duly stated in the plaint as he has stated his claim in the plaint and he is not required to disclose the details of the transaction which were later disclosed during evidence through facta probantia (the facts by means of which they are proved i.e. particulars or evidence). Ld. counsel for plaintiff relied upon the judgment in the following cases:
(i) Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors. (2004) 3 SCC 137.
(ii) Virender Nath Gautam Vs. Satpal Singh (2007 3 SCC 617
(iii) Bhagwati Prasad Vs. Chandramaul (1966) 2 SCR 286
(iv) Bir Singh Vs. Mukesh Kumar (2019) 4 SCC 197
(v) Official Receiver, Kanpur Vs. Abdul Shakoor & Ors. (1965) 1 SCR 254
(vi) Manali Malik Vs. Rekha Khanna RFA No. 608/2010 Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 45/75
(vii) A. Saraswathammm V. Y. Venkata Narayana Reddy 2020 ALT 27.
40. To rebut the submissions of the plaintiff, Ld. Counsel for defendant has submitted that the entire evidence of the plaintiffs is beyond the pleadings made in the plaint and thus the same are not admissible. He further submitted that the suit is bad for misjoinder of causes of action. PW10 Pawan Kumar has nowhere in his testimony revealed that he was in employment of Anil Malik or how he is related to Anil Malik. He also stated in whole of pleadings as well as cross examination of DW1 and PW10 nowhere it has been mentioned that PW10 was under the employment of Anil Malik, therefore, testimony of PW10 is not at all relevant for the purpose of present case and same is not admissible. He has pointed out that there is no explanation for payments for a long period from 2003 to 2007 and as per the plaint there is only one transaction for the whole amount. He also stated that plaintiff no.1 is an employee of Indian Overseas Bank and all the witnesses summoned by them are employees of Indian Overseas Bank so there is probability of collusion of the plaintiff no.1 and the witnesses.
41. It is also submitted that the cheques were submitted for presentation after death of Sh. Anil Malik and accordingly the suit is not maintainable. It is also submitted that the cheques were without consideration and have been misused. Further source of income on behalf of plaintiffs were not disclosed. It is further stated that no date or time of the transaction were mentioned by the plaintiffs. It is also Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 46/75 submitted that some of the amounts is shown by the plaintiff to be arranged from third persons i.e. brotherinlaw, sister and Jagjit Kaur and those persons were not produced by the plaintiff during the course of trial of the present suit.
42. To strengthen his case, Ld. Counsel for defendant has relied on the following judgments :
(i) Nand Kishore Lal Bhai Mehta Vs. New Era Fabrics Pvt. Ltd. 2015 (7) SCALE 665,
(ii) Nirod Baran Banerjee Vs. Dy. Commissioner of Hazaribagh 1980 AIR (SC) 1109, (1980) 3 SCC 5
(iii) Mansukhlal Dhanji Vora v. Jupiter Airways Ltd., 1951 SCC OnLine Bom 94, AIR 1953 Bom 112,
(iv) Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, (1987) 2 SCC 555
(v) Prakash Rattan Lal v. Mankey Ram, 2010 SCC OnLine Del 184 :
ILR (2010) 3 Del 315 : (2010) 166 DLT 629,
(vi) Trojan & Co. v. Rm. N.N. Nagappa Chettiar, 1953 SCR 789 : AIR 1953 SC 235 : (1953) 23 Comp Cas 307
(vii) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde 2008 (1) Supreme 306.
43. Ld. Counsel for plaintiffs has submitted that presumption under Section 114 of the Indian Evidence Act and Section 118 of Negotiable Instruments Act is in favour of the plaintiff and the onus got shifted to the defendant. Ld. Counsel for plaintiff has also relied upon the following judgments : Khem Singh v. Dinesh Bhatia, 2017 SCC OnLine Del 9047, Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 47/75 wherein it is observed by Hon'ble Delhi High Court as under : "I would like to add that once a cheque is dishonored, a liability arises as a cheque has to be presumed to have been given for consideration. Also, in terms of Section 114 of the Indian Evidence Act, 1872 illustration (i) if a document creating an obligation is in the hands of the obligor, the obligation stands discharged and meaning thereby the opposite is also equally true that if the instrument, i.e banking instrument in this case, is not in the hands of the appellant/defendant, it means that the banking instrument was with the respondent/plaintiff for discharge of the liability of the appellant/defendant. I would also like to add another reason for disbelieving the case of the appellant/defendant because this story is not believable that he gave the cheque to Sh. Rakesh Kumar who had promised to get loans for the appellant/defendant and his family from financial institutions as why would a cheque be required for taking loans from a financial institution."
In Balinder Yadav v. Ram Saran Singh, 2018 SCC OnLine Del 12363, wherein it is observed by Hon'ble Delhi High Court as under : "29. As regards the issue No. 'D' sought to be formulated by the appellant which reads to the effect:
D. Whether issuing of cheque is amount (sic) (amounts) to presumption that cheque is issued for repayment of loan?
30. The presumption of law on issuance of a cheque in favour of the holder of the cheque, unless the contrary is proved that the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge in whole or in part of any debt or other liability, exists in law in terms of Section 139 of the Negotiable Instruments Act, 1881 as rightly held by the learned Trial Court and upheld by the First Appellate Court, and thus the formulation of the question of law to submit as to whether the issuance of a cheque amounts to a presumption that the cheque was issued for repayment of a loan as sought by the appellant does not arise in relation to repayment of any debt or other liability falling with the ambit of Section 139 of the Negotiable Instruments Act, Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 48/75 1881 itself. Thus the said question of law 'D' sought to be formulated as a substantial question of law also thus does not arise in the instant case."
In the case of Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm, (2008) 7 SCC 655, it is observed by Hon'ble Supreme Court as under : ""17. Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. In this connection, reference may be made to a decision of this Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35] . In para 12 of the said decision, this Court observed as under : (SCC pp. 5051) "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 49/75 discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
From the above decision of this Court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.""
Ld. Counsel for plaintiff has also relied upon the judgment of Krishna Devi Vs. Subhash Chand RSA No. 1105/2011 of Hon'ble High Court of Punjab & Haryana.
The provision of law under Section 114 of the Indian Evidence Act reads as under : Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 50/75 "114 Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations. The Court may presume--
"..............
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration ................"
44. The provision of law under Section 118 of Negotiable Instruments Act, 1881 reads as under : "CHAPTER XIII SPECIAL RULES OF EVIDENCE 118 Presumptions as to negotiable instruments. -- Until the contrary is proved, the following presumptions shall be made:--
(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
(b) as to date --that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance --that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer --that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of endorsements --that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps --that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course --that the holder of a negotiable instrument is a holder in due course:Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 51/75
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
The position of law with regard to Section 118 of Negotiable Instruments Act, 1881 and Section 114 of Indian Evidence Act, 1872 has been explained by the Hon'ble Supreme Court in M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30 : 2006 SCC OnLine SC 660 as under :
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
31. A Division Bench of this Court in Bharat Barrel & Drum Mfg. Co. v.
Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms: (SCC pp. 5051, para 12) "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 52/75 improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt."
This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another."
It is relevant to mention here that the use of the words "until contrary is proved" in Section 118 of Negotiable Instruments Act and "may" in Section 114 of the Indian Evidence Act, mean that it is permissible for the Court to look into the preponderance of probabilities and entire circumstances of the particular case and the presumptions are Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 53/75 rebuttable presumptions as presumptions drawn under a statute has only an evidentiary value and each case has to be seen in the light of its own facts and circumstances. Thus the submission of Ld. Counsel for plaintiff that by raising the presumption mechanically the onus has been shifted on the defendant is not tenable as rightly guided by the Hon'ble Delhi High Court in the present matter while granting leave to defend that transactions have to be proved.
45. The plea of Ld. Counsel for defendant that the suit is bad for misjoinder of causes of action/parties has to be seen in the light of the provisions of Order II Rule 3 CPC and Order 1 Rule 9 CPC, which reads as under : ORDER II Rule 3 CPC "3. Joinder of causes of action.--(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subjectmatters at the date of instituting the suit."
Order 1 Rule 9 CPC "9. Misjoinder and nonjoinder.--No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
Provided that nothing in this rule shall apply to nonjoinder of a Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 54/75 necessary party."
46. Thus, the conjoint reading of Order 2 Rule 3 CPC and Order 1 Rule 9 CPC makes it clear that the violation of provisions are mere irregularity and the suit would not be dismissed. Further, plaintiffs may united in the same suit several causes of action against the same defendant or the same defendants jointly, and any plaintiffs having cause of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such cause of action in the same suit.
47. The aforesaid principles if applied to the facts of the case at hand, the picture comes out is like that the plaintiffs are the people in whose favour cheques were issued by the husband of defendant no.1 and on the basis of these three cheques, the present suit for recovery is filed by the plaintiffs together against the same defendant. Accordingly, in the opinion of this Court, the suit is maintainable and not liable to be dismissed for either misjoinder of parties or causes of action.
48. After considering and appreciating the evidence in the foregoing paras of this judgment, it is also relevant to consider here the observations made by the Hon'ble High Court in the present matter while adjudicating on leave to defend application. The order dated 05.05.2009 in the matter of Vijay Singh Vs. Manali Malik, para 23, the relevant extracts are reproduced hereinbelow : Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 55/75 "23. xxx xxx xxx In the event of the plaintiffs being unable to prove that the cheques on the basis whereof the suit has been instituted are for consideration, plaintiffs would not be entitled to a decree xxx xxx xxx."
49. This Court is in full agreement with the aforesaid observations of the Hon'ble High Court and the same is the guiding light for the appreciation of evidence in the present matter. As the onus of proof is on the plaintiffs to prove the consideration and transactions of the loan in lieu of which the cheques were issued as mere possession of a cheque does not entitle the holder thereof to monies thereunder as the transactions of loan were under challenge in the present matter. The appreciation of evidence for the transaction of loans for which the present cheques were issued is essential for proper adjudication of the present matter and the presumptions u/s 114 of Indian Evidence Act and Section 118 of Negotiable Instruments Act are rebuttable and those presumptions become operational in the present matter after transaction of loan being fully proved. To explain the evidence, the plaintiffs has filed a flow chart/table for the transactions to which the defendant has also relied. The chart is reproduced as follows : PW1 (Plaintiff No.1 - Rs.8,50,000/) as Remarks Response of Plaintiffs reiterated per para 4 of Evidence affidavit. Although Defendants dispute the same, and Affidavit of plaintiff No1 in which mentioned earlier in arguments submitted, it is stated that Shri Anil Kumar beyond pleading, Limitation onus upon Malik personally issued to him by plaintiff, Article 19 of Limitation filling the said cheque in his own Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 56/75 Schedule etc. handwriting a postdated cheque bearing No 636299 dated 2701 2007 for Rs 8,50,000/ drawn on I.O.B New Rajinder Nagar Branch New Delhi from account No 2333 which is a joint account of Mrs. Manali Malik and Shri Anil Kumar Malik against the aforementioned amount due and payable to Plaintiff No 1. The said cheque was given to Plaintiff No 1 as a security against the amount due and payable to him.
As at the time of arguments,
judgement was submitted that it is
not beyond the pleading. On the
issue of limitation several
judgements have been sighted that
limitation period has to be counted
from the date of dishonor of the
cheque and not from the date of
loan.
820201 Rs.5,000/ PW9/M PW11 Mr. Gurudev Singh Chauhan
Manager I.O.B New Delhi in
affidavit para No 5 stated he is
placing on record statement of
Account No 181201000002961
from 01012004 to 31032004
standing in the name of Sh Vijay
Singh where in account payee
cheque No 820201 in the sum of Rs
5000 has been credited on 0303
2004 in the amount of Shri Anil
Kumar Malik. The exhibit PW11/G
is same has also certified under
section 2(A) of Bankers book
Evidence Act 1891.
* Exhibit PW9/N, in which
Statement recorded by Sh.Shansank,
Asst, Manager, Indian Overseas
Bank, Yojana Bhawan, states that
PW1 has signed on the below
stated account payee Cheque, vide
cheque No. 820201 dated
03.03.2004 of Rs.5,000/ on
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 57/75
Account No. 181201000002961 of
Plaintiff No.1 (Sh. Vijay Singh).
* The bank Statement of Plaintiff
No.1 which is submitted by Indian
Overseas Bank in point L explicitly
shows debit entry.
605505 Rs. 50,000/ 820201 (BY No evidence lead * Exhibit PW9/L the Statement
AVAILING or document recorded by Shashank Kumar, Asst.
RD LOAN produced/proved Manager, Indian Overseas Bank,
even no Yojana Bhawan, that he has brought
date/month/year along original cheque bearing No.
605505 dated 18.11.2004 which is
in the sum of Rs.50,000/ . The
cheque is drawn on Indian Overseas
Bank, Yojana Bhawan. The amount
in the cheque was withdrawn by.
Sh. Anil Maik and his signatures are
at the back of cheque.
605506 Rs.50,000/ 820201 (BY No evidence lead * Exhibit PW9/N the Statement
AVAILING or document recorded by Shashank Kumar, Asst.
LOAN NO. produced/proved Manager, Indian Overseas Bank,
12/04) even no Yojana Bhawan that Cheque, vide
date/month/year cheque No. 605506 dated
01.03.2005 of Rs.50,000/ on
Account No. 181201000002964
could not be traced as yet, since
these are very old documents.
234973 Rs.30,000/ SB A/C. PW8/A According to PW8 Shri Abhinaw
06.08.2006 18188 WITH Gautam asst. Manager I.O.B
IOB parliament street New Delhi, he has
Parliament brought original cheque drawn on
Street IOB parliament street branch for a
sum of Rs 30,000 cheque bearing
234973 is an account payee cheque
in the name of Shri Anil Kumar
Malik. The bank manager of
parliament street has also issued a
certificate that they confirm the
cheque no 234973 for Rs. 30,000
paid to Anil Malik by debiting
above mentioned account.
234975 Rs.13,000/ (SB A/C. No evidence lead Exhibit PW8/C, The statement
18188 WITH or document recorded by Sh. Abhinaw Gautam,
IOB produced/proved Asst. Manager, Indian Overseas
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 58/75
Parliament even no Bank, New Delhi.
Street date/month/year The statement of account pertaining
to Account No.076201000018188 in
the name of Sh. Vijay Singh for the
period 01.08.2006 to 10.11.2006 by
which 13,000/ is specifically
cleared on 07082006.
234981 Rs.32,000/, (SB A/C. PW8/B PW8 Shri Abhinaw Gautam asst.
04.11.2006 18188 WITH Manager I.O.B parliament street
IOB New Delhi, stated that he had
Parliament brought the summoned record
Street, cheque no 234981 date 04112006
Premature drawn on IOB parliament street of
Closure of Rs 32,000
RD
NO.81060006
0)
245997 Rs.10,000/, (SB A/C. PW7/A Exhibit PW7/A, the manager of
Dated No.55 WITH IOB Vasant Vihar has given a
29.06.2005 IOB Vasant certificate that they confirm that the
Vihar) cheque no 245997 dated 29062005
for Rs 10,000 was paid to Shri Anil
Kumar malik.
Exhibit PW5/A, the statement
recorded by Mr. Hare Krishna
Mishra, Manager Indian Oversea
Bank new Rajendra Nagar branch
submitted certified copies of
Account Ledger statement
pertaining to Sh. Anil Malik and
Ms. Manali Malik. In the account no
034102000002656 which is in the
name of Anil Kumar Malik and or
Manali Malik, the amount has been
credited on 30th June 2005 by
clearing cheque no 245997 of Rs
10,000
245996 Rs.34,500/ SB A/C No evidence lead It is not traceable by the Bank
NO.55 WITH or document despite best efforts, being more than
IOB Vasant produced/proved 10 years old record.
Vihar)
251381 Rs.25,500/ SB A/C NO. PW7/B The manager IOB vasant vihar has
Dated 55 WITH given a certificate that they confirm
24.03.2006 IOB Vasant that the cheque no 251381 dated 24
Vihar) 032006 for Rs 25,500 paid to Shri
Anil Kumar Malik
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 59/75
Exhibit PW5/A, the statement
recorded by Mr. Hare Krishna
Mishra, Manager Indian Oversea
Bank new Rajindra Nagar branch
submitted certified copies of
Account Ledger statement
pertaining to Sh. Anil Malik and
Ms. Manali Malik. In the account no
034102000002656 which is in the
name of Anil Kumar Malik and or
Manali Malik, the amount has been
credited on 27032006 by clearing
cheque no 251381 of Rs 25,500 (on
page no 6 of statement)
245988 Rs.35,000/ SB A/C NO. No evidence lead It is not traceable by the Bank
55 WITH or document despite best efforts being more than
IOB Vasant produced/proved 10 years old record.
Vihar)
Arranged Rs.2,49,000/ Arranged No evidence lead Exhibit PW1/4, His brother in law
From From His or document Gurucharan Singh has withdrawn
This Brother In produced/proved the said amount from his bank
Brother Law, Sh. accounts vide Cheque No. 786914,
In Law, Gurucharan 778430, and 780470. Evidence was Sh. Singh lead but at the time of the cross no Guruchar questions were raised an Singh Arranged Rs.1,96,000/ Arranged No evidence lead Exhibit PW1/4, That his sister from from sister or document Narinder Kaur withdrew the stated sister produced/proved amount from her bank account vide Cheque No. 584573, 584576, 584577 and 984881.
Cash Rs.1,20,000/ Cash No evidence lead Mrs. Jagjit Kaur was an LIC agent,
arranged arranged from or document she has given Rs 120,000 to
from Mr. Jagjit produced/proved Plaintiff No1
Mrs. Kaur Affidavit of Plaintiff No.1 Sh.
Jagjit Vijay Singh as mentioned in PW1
Kaur lend money to late Shri Anil Kumar
Malik through cheques and on some
occasions by cash as needed by Sh.
Anil Kumar Malik.
* it is also mentioned herein that
Pawan Kumar was working with Sh.
Anil Kumar Malik along with other
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 60/75
staff and he used to collect the
cheques and cash from me on behalf
of Sh. Anil Kumar Malik.
PW2 - Plaintiff No.2 - Rs.6,15,000/ as Remarks Affidavit of PW2 in which it is
per para 4 of Evidence affidavit. Although stated that the Cheque No. 196235
Defendants dispute the same, and dated 30.01.2007 for Rs.6,15,000/
mentioned earlier in arguments submitted, was personally handed over by Sh.
beyond pleading, Limitation onus upon Anil Kumar Malik to PW2 as a
plaintiff, Article 19 of Limitation security against the sum of Rs.
Schedule etc. 6,15,000/ advanced to him.
As at the time of arguments,
judgement was submitted that it is
not beyond the pleading. On the
issue of limitation several
judgements have been sighted that
limitation period has to be counted
from the date of dishonor of the
cheque and not from the date of
loan
560699 Rs.1,00,000 (SB A/C. Not proved as only *Please refer order dated
10050 WITH marked as PW 19.12.2017 by Hon'ble Court that
IOB) 10/B, as photocopy PW10 Pawan Kumar examined,
put by plaintiff to Cross examined and discharged.
PW10 in his *Exhibit PW10/B, Pawan Kumar
examination in admitted that the photocopy of
chief, but he failed cheque bears signature of PW10 on to put said alleged the back side of the said cheque.
photocopy to bank PW10 had taken money from
witness PW6, Indian Overseas Bank, Nehru Place
when PW6 said and given the same to Sh. Anil
not traceable. Kumar Malik
On page 2 of testimony of Shri
Pawan Kumar it is recorded by
ADJ 03 I have read the testimony
of PW6 and found the submission of
plaintiff to be correct. Hence the
photocopy of the aforesaid is
allowed to be kept on record at this
stage, the photocopy of the cheque
is put up to the witness
906404 Rs.1,00,000 (SB A/C. No evidence lead * Affidavit of Plaintiff No. 2's
361962 or document statement that Sh. Anil Kumar
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 61/75
WITH PNB) produced/proved Malik requested me to lend money
to him and I had given the money to
Anil Kumar Malik through vide
cheque No. 906404.
* Exhibit PW12, the statement is
also verified under section 2 A of
Banker's Book Evidence Act, 1891
and certificate also granted by
section 65B of the Indian Evidence
Act.
983442 Rs.50,000/ SB A/C. 2964 PW9/H (However Exhibit PW9/H. Statement
03.11.2006 WITH IOB) the PW3, (Father) affirmed by PW10 that bearer
Of father Mainatained has not utter any cheque has been issued by Plaintiff
By His single word in No.2 in favour of Anil Kumar
Father) respect to said Malik. Signature of PW10 Pawan
Cheque of father to Kumar on back Side of cheque
Anil Malik PW establish the statement of PW.10. it 3/Plaintiff No. 3's is pertinent to mention that Shri case is 8 Lacs loan Anil Kumar Malik was making through cheque no. entries in his books in the name of 795715, but said Shri Vijay Singh. He used to regard cheque showing whole family as one unit and all contrary, the father entries were made in the name of entered the witness Vijay Singh. The statement in this box as PW3 so regard is given by PW10 and list of despite available of amount payable is submitted by him best evidence, in which amount payable is shown same was not against the name of Vijay Singh brought/ stated by him on oath and further till the time, the drawer of the cheque i.e. father states that he has given as a loan, it cannot be proved that the said cheque was for loan.
983443 Rs.50,000 (SB A/C. PW9/I (However Exhibit PW9/I, Bearer Cheque 03.11.2006 2964 the PW3, (father) drawn in favour of Anil Malik, The WITH IOB) has not utter any Bank statement of Pritam Singh is (Maintained single word in recorded by Shahsank Kumar, Asst.
by his father) respect to said Manager, Indian Overseas Bank,
cheque of father to from 01.11.2006 to 06.09.2007 of
Anil Malik PW account No. 181201000002964
3/Plaintiff No. 3's Entry at serial No. 6 of that
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 62/75
case is 8 Lacs loan statement.
through cheque No.
795715, but said
cheque showing
contrary, the father
entered the witness
box as PW3 so
despite available of
best evidence ,
same was not
brought/stated by
him on oath and
further till the time,
the drawer of the
cheque i.e. father
states that he has
given as a loan, it
can not be proved
that the said
Cheque was for
loan.
605501 Rs.1,40,000 (SB A/C. No evidence lead Exhibit PW 9/N,
2964 WITH or document cheque no 605501 dated 07092004
IOB) produced/proved. is not traceable despite best efforts
(Maintained of the Bank. however the Bank
By Father) statement is available in which debit
entry of Rs. 140,000 against cheque
no 605501 is shown,
605508 Rs.50,000/ (SB A/C. No evidence lead Exhibit PW 9/N cheque no 605508
2964 WITH or document dated 05042005 is not traceable
IOB ) produced/proved. despite best efforts of the Bank
(MAINTAIN since these are very old documents
ED BY
FATHER)
665292 Rs.50,000/ (SB A/C. No evidence lead Exhibit PW 9/N cheque no
2965 with or document 665292 dated 28012004 is not
IOB, Joint produced/proved. traceable despite best efforts of the
Account With Bank since these are very old
Wife And documents
Brother)
918058 Rs. 15,000/ SB A/C. 2965 No evidence lead Cheque is not traceable despite best
with IOB, or document efforts of the Bank.
Joint Account produced/proved.
With Wife
And Brother)
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 63/75
Rs.60,000/ Paid by cash No evidence lead Exhibit PW10,Statement of
to Anil Malik or document Pawan Kumar (Staff of Anil Kumar
produced/proved. Malik) states in Para8 of PW10
that " I used to collect sometimes
cash from Sh. Vijay Singh and Sh.
Harbhajan Singh on behalf of Sh.
Anil Kumar Malik. Sh. Anil Kumar
Malik used to issue the cheques in
lieu of the money taken to some of
his clients but not all of them. Sh.
Anil Kumar Malik issued the
cheques in favour of Sh. Vijay
Singh, Sh. Harbhajan Singh and Sh.
Pitam Singh".
The amount of Rs 60,000 was given
as follows:
10012006 Rs20,000
03112006 Rs20,000
03012007 Rs 20,000
PW3 Plaintiff No. 3 - Rs.8,00,000/ as Remarks As at the time of arguments,
per Para 5 of Evidence Affidavit. judgement was submitted that it is
Although Defendants dispute the same, not beyond the pleading. On the
and mentioned earlier in arguments issue of limitation several
submitted, beyond pleading, Limitation judgements have been sighted that
onus upon Plaintiff, Article 19 of limitation period has to be counted
Limitation Schedule etc. from the date of dishonor of the
cheque and not from the date of
loan
795915 Rs.8,00,000 Against FDR 06.09.2013 (PW The plaintiff No 3 sold his flat for
No. 340305, 9/G Limitation Rs 950,000 and registered a deed
A/c No. barred and other dated 26082003 and sale deed was
1503409) points etc. executed thereafter sale proceeds
were deposited with the bank for
FDR no 340305 for Rs 950,000.
Against this FDR loan of Rs
800,000 was taken from the bank.
The loan account no 1503409 dated
06092003. The same amount of Rs
800,000 were given to Shri Anil
Kumar Malik vide by cheque no
795915. Shri Anil Kumar got the
said cheque encased and issued me
a postdated cheque of Rs 800,000
as a security to pay back. According
to PW9/G the said amount has been
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 64/75
withdrawn by Shri Anil Kumar
Malik and confirmed by PW10
* In the above chart, Ld. Counsel for plaintiff has made reference of certain case laws, however, the same are not reproduced above as Ld. Counsel for defendant has relied upon the chart only upto the extent of transactions mentioned above.
50. In the subsequent paras, the appreciation of evidence for transactions of loan by plaintiffs to the deceased husband of defendant no.1 is as follows : For plaintiff no.1 Sh. Vijay Singh
51. For plaintiff no.1, the claim is based on the cheque no. 636299 for amount of Rs.8,50,000/ Ex.P2 and except signatures the contents of cheque were denied by DW1/Defendant no.1 Manali Malik. To discharge the onus of consideration i.e. loan, the plaintiff has shown transaction of Rs.5000/ through cheque no.820201 shown in the statement of bank account of plaintiff no.1 marked as Ex.PW9/M and led evidence of Mr.Gurudev Singh Chauhan (PW9); Manager, I.O.B., New Delhi. In the affidavit of evidence produced, statement of account no. 181201000002961 standing in the name of Sh. Vijay Singh and according to which the cheque no. 820201 has been credited on 03.03.2004 to Sh. Anil Malik and statement of account Ex.PW11/G which is certified u/s 2(A) of Bankers Book Evidence Act. Thus, the transaction of Rs.5,000/ through cheque No. 820201 is duly proved by plaintiff no.1. Then, the cheque no. 605505 for Rs.50,000/ exhibited as Ex.PW9/L and on perusal of Ex.PW9/L, it is revealed that the cheque Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 65/75 was signed/issued by Pritam Singh and not by Vijay Singh i.e. plaintiff no.1. Thus, the plaintiff no.1 has failed to prove the transaction through cheque no. 605505 for Rs.50,000/ to deceased husband of defendant no.1. Also, for the cheque no. 605506 for Rs.50,000/, as per the testimony of PW9 Shashank Kumar, Asstt. Manager, IOB, he produced a list of documents exhibited as Ex.PW9/M, the said cheque is not traceable. Thus, the plaintiff no.1 has failed to discharge his onus of proof with regard to the transaction of loan and accordingly has failed to prove the payment of Rs.50,000/ through cheque no. 605506. Now, the cheque no. 234973 for Rs.30,000/ exhibited as Ex.PW8/A and the cheque is an account payee cheque in the name of Anil Malik and the same is proved by PW8. Thus, the transaction of Rs.30,000/ through cheque No. 234973 is duly proved by plaintiff no.1. Now, the cheque no. 234975 for Rs.13,000/ sought to be proved by PW8 who has produced the statement of account of plaintiff no.1 exhibited as Ex.PW8/C as per which the cheque No. 234975 is duly cleared and as such the same is proved by PW8. Thus, the transaction of Rs.13,000/ through cheque No. 234975 is duly proved by plaintiff no.1. Now, the cheque no. 234981 for Rs.32,000/ exhibited as Ex.PW8/B and the same is proved by PW8. Thus, the transaction of Rs.32,000/ through cheque No. 234981 is duly proved by plaintiff no.1. Now, the cheque no. 245997 for Rs.10,000/ exhibited as Ex.PW7/A and the same is proved by PW7. Thus, the transaction of Rs.10,000/ through cheque No. 245997 is duly proved by plaintiff no.1. Now, the cheque no. 245996 for Rs.34,500/ is Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 66/75 not traceable and the same is not proved by plaintiff. Thus, the transaction of Rs.34,500/ through cheque No. 245996 is not proved by plaintiff no.1. Now, the cheque no. 251381 for Rs.25,500/ exhibited as Ex.PW7/B and the same is proved by account statement Ex.PW5/A. Thus, the transaction of Rs.25,500/ through cheque No. 251381 is duly proved by plaintiff no.1. Now, the cheque no. 245988 for Rs.35,000/ is not traceable and the same is not proved by plaintiff. Thus, the transaction of Rs.35,000/ through cheque No. 245998 is not proved by plaintiff no.1. Further an amount of Rs.2,50,000/ as per plaintiff no.1, he has arranged it from his brotherinlaw Sh. Gurcharan Singh and an amount of Rs.1,96,000/ arranged by plaintiff no.1 from his sister namely Late Smt. Narender Kaur and also an amount of Rs.1,20,000/ in cash arranged from Jagjit Kaur by plaintiff no.1. It is important to consider here that none of these three witnesses were produced in the witness box for their testimony by the plaintiff no.1 and the plaintiff no.1 has only made a vague statement with regard to arrangement of money from these three persons. The onus of proof is on the plaintiff to prove his case. Thus, on careful scrutiny and appreciation of evidence in this foregoing para, the plaintiff no.1 has failed to prove the claimed loan of Rs.8,50,000/ except for Rs.1,05,000/ as discussed above and for the rest of the amount, he has failed to prove the transactions.
For plaintiff no.2 Harbhajan Singh Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 67/75
52. For plaintiff no.2, the claim is based on the cheque no. 196235 for amount of Rs.6,15,000/ Ex.P3 and for this cheque also, except signatures the contents of cheque were denied by DW1/Defendant no.1 Manali Malik. To discharge the onus of consideration i.e. loan, the plaintiff no.2 has shown transaction of Rs.1,00,000/ through cheque no.560699 marked as Mark PW10/B and led evidence of PW10 Pawan Kumar. It is relevant to mention here that in the crossexamination, PW10 Pawan Kumar has specifically admitted that he does not have any document/proof to show that he had worked with Sh. Anil Kumar Malik thus, it cannot be said with certainty that Pawan Kumar was an employee of deceased Anil Malik and thus his testimony cannot be relied upon. Further, on perusal of the Mark PW10/B is the photocopy of cheque, so the same document is not admissible in evidence and plaintiff has failed to discharge the onus. Then, cheque No. 906404 for Rs.1,00,000/ was attempted to be proved by statement of account of plaintiff no.2 exhibited as Ex.PW12/B. Perusal of Ex.PW12/B shows that the cheque no. 906404 was a self cheque and through this statement it is no where shown that the amount was given for loan to deceased husband of defendant no.1. Thus, the plaintiff no.2 has failed to prove this transaction. Then, cheque No. 983442 for Rs.50,000/ exhibited as Ex.PW9/H. On perusal of the document Ex.PW9/H, it gets clear that the cheque was issued by the signatures of Sh. Pritam Singh and not by plaintiff no.2 and Pritam Singh has not uttered a single word in support of this cheque. Thus, the plaintiff no.2 has failed to prove this transaction Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 68/75 as well. Then, cheque No. 983443 for Rs.50,000/ exhibited as Ex.PW9/I. On perusal of the document Ex.PW9/I, the cheque was issued by the signatures of Sh. Pritam Singh and not by plaintiff no.2 and in support of this cheque also, Pritam Singh has not uttered a single word. Thus, the plaintiff no.2 has failed to prove this transaction as well. Then, for cheque No. 605501 for Rs.1,40,000/, PW9 Shashank Kumar, Asstt. Manager, IOB has submitted a list of documents Ex.PW9/N, as per which the cheque no. 605501 was not traceable. Thus, in absence of any cogent evidence, the plaintiff no.2 has failed to prove this transaction as well. Then, for cheque No. 605508 for Rs.50,000/, PW9 Shashank Kumar, Asstt. Manager, IOB has submitted a list of documents Ex.PW9/N, as per which the cheque no. 605508 was not traceable. Thus, in absence of any cogent evidence, the plaintiff no.2 has failed to prove this transaction as well. Then, for cheque No. 605501 for Rs.1,40,000/, PW9 Shashank Kumar, Asstt. Manager, IOB has submitted a list of documents Ex.PW9/N, as per which the cheque no. 605501 was not traceable. Thus, in absence of any cogent evidence, the plaintiff no.2 has failed to prove this transaction as well. Then, for cheque No. 665292 for Rs.50,000/, PW9 Shashank Kumar, Asstt. Manager, IOB has submitted a list of documents Ex.PW9/N, as per which the cheque no. 665292 was not traceable. Thus, in absence of any cogent evidence, the plaintiff no.2 has failed to prove this transaction as well. Then, for cheque No. 918058 for Rs.15,000/, the cheque was not produced and no statement of account was produced regarding this cheque. Thus, in absence of any Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 69/75 cogent evidence, the plaintiff no.2 has failed to prove this transaction as well. Now, the plaintiff no.2 claims to have paid a sum of Rs.60,000/ in cash and an attempt to prove the transaction is made by evidence of PW10 Pawan Kumar. It is relevant to mention here that in the cross examination, PW10 Pawan Kumar has specifically admitted that he does not have any document/proof to show that he had worked with Sh. Anil Kumar Malik, thus, it cannot be said with certainty that Pawan Kumar was an employee of deceased Anil Malik and thus his testimony cannot be relied upon. Accordingly, plaintiff has failed to discharge the onus. Thus, on careful scrutiny and appreciation of evidence in this foregoing para, the plaintiff no.2 has failed to prove the claimed loan of Rs.6,15,000/ and he has failed to prove the transactions.
For plaintiff no.3 Pritam Singh
53. For plaintiff no.3, the claim is based on the cheque no.187146 for amount of Rs.8,00,000/ Ex.P1 and for this cheque also, except signatures the contents of cheque were denied by DW1/Defendant no.1 Manali Malik. To discharge the onus of consideration i.e. loan, the plaintiff no.3, in his testimony, as per para 5 of affidavit of evidence, he has categorically explained how he sold his flat for Rs.9,50,000/ through registered sale deed dated 26.08.2003 and then the sale proceeds were deposited with Indian Overseas Bank, Yojana Bhawan, New Delhi vide account No. 2964. An FDR No. 340305 dated 06.09.2003 for Rs.9,50,000/ was taken for a period of six months and on the same date, a loan of Rs.8,00,000/ was taken against the said FDR and then he gave Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 70/75 a loan of Rs.8,00,000/ to the deceased husband of defendant no.1 vide cheque No. 1871466 who gave him a post dated cheque as a security. He further deposed that initially deceased Anil Malik took the loan only for a period of six months but then he requested him to extend the same for a period of three years and therefore deceased Anil Malik personally issued and handed over to him a post dated cheque No. 187146 for Rs.8 Lakhs and the said cheque was presented by him on 06.02.2007 and was returned dishonored by their bank vide memo dated 08.02.2007. In crossexamination, nothing has been brought by the defendants to rebut the evidence as given by PW3 Pritam Singh in his examinationinchief. Further in the light of specific admission of the signatures of Late Anil Kumar Malik on the cheque by DW1 Manali Malik, the onus is discharged by the plaintiff no.3 that he has given an amount of Rs.8,00,000/ as a loan to Late Anil Kumar Malik who issued the cheque Ex.P1 which got dishonored with remarks 'withdrawal stopped owing to death'. Thus, on careful scrutiny and appreciation of evidence in this foregoing para, the plaintiff no.3 has proved the claimed loan of Rs.8,00,000/ as discussed above.
54. It is seen that the plaintiff no.1 and 2 has not came to this Court with clean hands and suppressed material facts in the plaint as well as their evidence. It is often stated that those seeking equity must do equity or equity must come with clean hands. It is settled law that a person who approaches the Court for granting relief, equitable or otherwise, is under Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 71/75 a solemn obligation to candidly and correctly disclose all the material / important facts which have bearing on the adjudication of the issues raised in the case. He owes a duty to the Court to bring out all the facts and desist from concealing / suppressing any material fact within his knowledge or which he could have known by exercising due diligence expected of a person of ordinary prudence. If a person is found guilty of concealment of material facts for making an attempt to pollute the pure stream of justice, the Court not only has the right but a duty to summarily deny relief to such person to prevent an abuse of the process of law and reject the plaint/petition on this ground alone without going to the merits of the case. It would be trite to refer to the case of Ramjas Foundation v. Union of India, (2010) 14 SCC 38, wherein the Hon'ble Apex Court has removed the misconception that these principles are only applicable to Writs and SLPs before the Apex Court and High Courts but also to the cases instituted in other Courts and Judicial Forums. The relevant extracts of the judgment are reproduced as follows : "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."
55. In view of the fact that the amount as proved by plaintiffs Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 72/75 no.1 is explanatory only as a fraction of the total liability and plaintiff no.2 has not proved any amount for liability and the same has been less than convincing. For one, the description of the mode of payment itself was in doubt. Whereas the plaint asserted all amounts to have been advanced as one transaction while affidavits (Ex.PW1/A and Ex.PW2/A) of evidence of plaintiffs no.1 and 2 represented some transactions by way of cheque and some transactions by way of cash, that leads to multiple transactions. Therefore, even if the Court has to see the amount proved i.e. upto the extent of Rs.1,05,000/ then it is a pity amount in establishment a liability of Rs.8,00,000/ on behalf of plaintiff no.1 and not sufficient evidence qua the whole amount, the varying description of the mode of payment appearing in the plaint and affidavit in evidence take away credibility from even this amount of Rs.1,05,000/. More pertinently, the plaintiff did not deny by way of any rejoinder and thus the natural corollary of these discrepancies is the demolition of the charge of duress under which the plaintiffs no.1 and 2 purportedly handed over money to late husband of defendant no.1. It would be equally probable that the amounts were regularly exchanged for some other purpose also and the defence of the defendant that the cheques were manipulated and fabricated cannot be ruled out as the civil suits are decided on the principle of preponderance of probabilities and this Court finds that the plaintiff no.1 and 2 have floundered at the outset the projected liability of Rs.8,50,000/ and Rs.6,15,000/. Even it is not established that they have the capacity to lend the said amounts.
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 73/75However, PW1 has stated that he arranged money from different people but in this regard, he has not produced any material to appreciate and substantiate his contention. Even the plaintiff no.1 has not taken any pain to examine those persons. So, it would be very difficult to place reliance on the bald testimony of PW1 and PW2. Further, though the defendant admits signatures of her deceased husband on the cheques in question, it does not mean that the contents of the cheques are deemed to have been proved. The heavy burden casts upon the plaintiff to prove that the cheque in question was issued by the defendant towards repayment of loan amount as the cheques were presented before the bank after the death of Late Anil Kumar Malik which casts a shadow on the bonafide of the plaintiffs. Further, on careful appreciation of evidence of DW1, it can be said that her evidence is probable and believable. Her evidence is sufficient to believe that plaintiffs no. 1 and 2 obtained blank signed cheques as security. Furthermore, no specific dates of loan transactions have been revealed by the plaintiffs in the plaint or in the evidence as it is settled law that a person who approaches the Court for granting relief, equitable or otherwise, is under a solemn obligation to candidly and correctly disclose all the material / important facts which have bearing on the adjudication of the issues raised in the case.
56. The issue of interest has to be seen and the claim by the plaintiffs is interest of Rs.71,721/ calculated at the rate of 18% per annum from 8th February 2007 till 11th April, 2007 and also the future interest at the said rate till the actual amount is paid at the rate of 18% Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 74/75 which seems to be exorbitant and punitive in nature. The Court is of the considered opinion that the interest @ 12% per annum for prelite, pendentelite and postlite will be sufficient as far as issue no.3 be decided.
57. Thus on the basis of the reasonings and findings in the foregoing paras, the issues no.2 and 3 are decided in the negative with regard to claims of the plaintiffs no.1 and 2 while the same issues no.2 and 3 are decided in the affirmative with regard to the claim of plaintiff no.3. Thus, issues no.1 and 2 are decided against plaintiffs no.1 and 2 and in favour of plaintiff no.3.
58. ISSUE NO.5 : RELIEF Accordingly, the suit is partly decreed for a sum of Rs.8,00,000/ (Rupees eight lakhs only) with interest at the rate of 12% per annum from 08.02.2007 till 11.04.2007 and also during the pendency of the suit and future interest till the amount would be actually paid in favour of LRs of deceased plaintiff no.3 from the defendants. The parties to bear their own cost. Decree sheet be prepared accordingly, subject to payment of deficient court fees as per law. File be consigned to record room, after due compliance.
Announced in the Open Court (Syed Zishan Ali Warsi)
on 31.03.2022 Additional District Judge-05
West District, THC, Delhi
Vijay Singh & Ors. Vs. Manali Malik & Ors. Page No. 75/75