Delhi District Court
Ramesh Kumar vs Balbir Singh Yadav on 12 March, 2025
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE-02, SOUTH-WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No. 785/2017
CNR No. DLSW010102072017
IN THE MATTER OF:
RAMESH KUMAR
S/O Sh Amar Singh
R/O Village Samaspur Khalsa,
Near MCD Primary School, PO Ujwa,
New Delhi-43 ........Plaintiff
Versus
BALBIR SINGH YADAV
S/O Sh. Bishamber Dayal
R/O Village Dariyapur Khurd,
Near Pond, PO Ujwa, New Delhi-73 .......Defendant
Date of institution 26.08.2017
Date of reserving judgment 15.02.2025
Date of pronouncement of judgment 12.03.2025
JUDGMENT
This is a suit for recovery of ₹16,00,000 with pendente lite and future interest. The suit was instituted under Order 37 CPC but the defendant was granted unconditional leave to defend. The brief facts of the case are:− PLAINT 1 The plaintiff and the defendant were acquainted for past several years. In the first week of February 2016, the defendant requested the plaintiff for a loan of ₹16 lakhs as his son was suffering from cancer. Relying on their relationship, the plaintiff agreed and gave the defendant a self-payee cheque drawn on CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 1/18 Axis Bank, Najafgarh Branch, in the sum of ₹4 lakhs. The defendant withdrew the said amount on 08.02.2016. Thereafter, the plaintiff gave a sum of ₹10 lakhs in cash and another self- payee cheque in the sum of ₹2 lakhs on 18.02.2016 to the defendant. The second cheque was also got encashed by the defendant. The defendant promised to repay the amount in one year and executed a receipt dated 18.02.2016 in favour of the plaintiff.
2 In February 2017, the plaintiff demanded repayment, whereupon the defendant issued a cheque bearing number 000013 dated 10.07.2017 drawn on Bank of Baroda, branch Ujwa, in the sum of ₹16 lakhs. When the said cheque was presented, it was returned dishonoured with the remarks "Insufficient Funds" vide return memo dated 12.07.2017. 3 The plaintiff states that after the cheque was given, the defendant also lodged a false complaint at PS Jaffarpur Kalan against him to avoid repayment and as such, it was his intention to give a bad cheque since the beginning.
4 When the defendant did not pay the amount, the plaintiff sent a legal notice dated 08.08.2017 to the defendant demanding repayment within 15 days. The defendant refused to accept the notice and also did not repay the amount. Hence, the present suit has been filed for recovery of ₹16 lakhs along with interest at the rate of 24% per annum.
WRITTEN STATEMENT 5 The defendant filed a written statement denying issuing any receipt or cheque to the plaintiff. He stated that his son had passed away on 17.02.2016 after which he was grief stricken, therefore, he could not have received any money or executed any CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 2/18 receipt on 18.02.2016. It is stated that the plaintiff had failed to show that he had the financial capacity to advance such a huge amount.
6 It is stated that the defendant had taken a loan of ₹1.20 lakhs from the plaintiff and the same had been repaid with interest. It is stated that the plaintiff had taken several blank cheques as security from the defendant at the time of advancing the loan. It is stated that the plaintiff pressured the defendant to pay interest at the rate of 5% per month and when the defendant refused, the plaintiff and his friend Manish Kumar with some other people attacked the defendant. A complaint was given to PS Jaffarpur Kalan in this regard.
7 It is stated that the plaintiff and Manish Kumar have misused the security cheques of the defendant. ADMISSION-DENIAL OF DOCUMENTS 8 The plaintiff admitted the death certificate of the son of the defendant as Ex D1.
9 The defendant admitted his signatures on the cheque but denied the contents thereof as Ex P1.
ISSUES 10 On 03.09.2019, eight issues were framed by Ld Predecessor Court:
"(1) Whether the plaintiff advanced a friendly loan of ₹16,00,000/- (Rupees Sixteen lakhs only) to the defendant in the month of February, 2016? ... OPP (2)Whether the defendant signed and executed the receipt dated 18.02.2016, in favour of the plaintiff? ... OPP (3) Whether the cheque --Ex.P1 was issued by defendant to the plaintiff towards return of friendly loan of CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 3/18 ₹16,00,000/- (Rupees Sixteen lakhs only) ? ... OPP (4) Whether the cheque - Ex P-1 was handed over by the defendant to the plaintiff as a security cheque towards the loan of ₹1,20,000 (Rupees One lakh twenty thousand only)? ...OPD (5) Whether no cause of action has been arisen in favour of the plaintiff to file and institute the present suit against the defendant?... OPD (6) Whether the plaintiff is entitled for recovery of ₹16,00,000/- (Rupees Sixteen lakhs only) from the defendant?... OPP (7) Whether the plaintiff is entitled for interest @24% p.a on the amount of ₹16,00,000/- (Rupees Sixteen lakhs only)?... OPP (8) Relief, if any."
EVIDENCE 11 In order to prove his case, the plaintiff examined two witnesses:
11.1 The plaintiff entered the witness box as PW1 and tendered his affidavit Ex PW-1/A in evidence. Ex. PW-1/A mostly reiterates the facts mentioned in the plaint. He relied on the following documents:
S. No. Document Marked as 1. Receipt Ex PW1/1 2. Cheque Ex PW1/2 (also Ex P1) 3. Return memo Ex PW1/3 4. Legal notice and its postal receipt Ex PW1/4 to Ex PW1/6 11.2 PW2/Sushil Kumar tendered his affidavit Ex PW2/A
stating that he was known to both parties and the loan of ₹10 CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 4/18 lakhs and ₹2 lakhs was given in his presence. He identified the signatures of the defendant in receipt Ex PW1/1. 12 The defendant entered the witness box as DW1 and tendered his affidavit Ex DW-1/A in evidence which reiterates the contents of the written statement. He relied on the documents Ex D1 and Ex D2.
FINDINGS 13 I have heard Sh. J.R. Mathur, Ld Counsel for the plaintiff and Sh Prashant Yadav, Ld Counsel for the defendant. 14 Issue-wise findings are as under:
15 (1) Whether the plaintiff advanced a friendly loan of ₹16,00,000/- (Rupees Sixteen lakhs only) to the defendant in the month of February, 2016? ... OPP (2)Whether the defendant signed and executed the receipt dated 18.02.2016, in favour of the plaintiff? ... OPP 15.1 The aforementioned issues are interrelated and are, therefore, being considered together for adjudication.
15.2 The plaintiff, in his affidavit, deposed that he had maintained friendly relations with the defendant for several years, and pursuant to this relationship, he extended a loan of ₹16 lakhs to him. However, during cross-examination, the plaintiff conceded that no such relationship existed and, in fact, he met the defendant for the first time on the day the initial loan instalment was given. The plaintiff further stated during cross- examination that the loan was extended on the recommendation of one Sushil Kumar, who was subsequently examined as PW2. Notably, PW2 was never mentioned in the pleadings. Moreover, PW2 also admitted that no prior relationship existed between the parties and that the loan had been advanced at his instance. Thus, it is evident that the plaintiff has failed to disclose the true and CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 5/18 complete facts before this Court.
15.3 The plaintiff has asserted that he issued a bearer cheque amounting to ₹4 lakhs to the defendant on 08.02.2016 to cover the medical expenses for the treatment of the defendant's son, a fact which the defendant has admitted.
15.4 Ld counsel for the defendant has contended that if the plaintiff had intended to extend a loan, he could have issued the cheque directly in the name of the defendant instead of providing a bearer cheque. It has been argued that the plaintiff's case is nothing more than a fabrication of falsehoods. 15.5 However, I find that this argument loses its strength, as the defendant has admitted to encashing the first bearer cheque in the sum of ₹4 lakhs.
15.6 The defendant contends that he did not retain the entire amount withdrawn but kept only ₹1.20 lakhs while handing over the remaining ₹1.80 lakhs to the plaintiff. However, the defendant has failed to provide any explanation regarding the specific time or circumstances under which this payment was made. Furthermore, it appears highly unnatural that the plaintiff would issue a cheque for ₹4 lakhs when the defendant required only ₹1.20 lakhs. There is no assertion that the plaintiff accompanied the defendant to the bank, making it highly improbable that the defendant retained only ₹1.20 lakhs. 15.7 Ld. Counsel for the plaintiff has drawn my attention to the notice framed against the defendant in the case under Section 138 Negotiable Instruments Act, wherein the defendant had stated that he had borrowed only ₹1 lakh from the plaintiff. It is argued, and in my opinion rightly so, that such inconsistency in the stands of the defendant renders his statement regarding the CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 6/18 first instalment of loan untrustworthy.
15.8 Turning to the second instalment of the loan--cash amounting to ₹10 lakhs--the defendant has categorically denied the existence of both the second and third instalments in their entirety.
15.9 The plaint merely asserts that the plaintiff provided the cash amount but fails to specify the exact date of payment. In affidavit Ex PW1/A, the plaintiff deposed that the amount was handed over 2-3 days after the first instalment of ₹4 lakhs, that is, 2-3 days after 08.02.2016. However, during cross- examination, the plaintiff altered his stance, stating that the said cash amount was given on 18.02.2016, the date on which the receipt was signed. While the receipt will be examined in detail later in this judgment, at this stage, it is sufficient to note that the receipt mentions the dates of the two cheques (corresponding to the first and third instalments) but does not specify when the cash instalment was paid. These inconsistencies regarding the date of payment, coupled with the absence of a recorded date in the receipt, cast serious doubt on the plaintiff's assertion regarding the second instalment.
15.10 Further, the plaintiff testified that the money had been given on the recommendation and in the presence of PW2. PW2 stated that the second and the third instalments were both paid on the same date, that is, 18.02.2016. However, I note that there are several contradictions in the version of 18.02.2016 given by the plaintiff and PW2.
15.11 Firstly, the plaintiff testified that he and Sushil (PW2) had counted the money before handing it over. However, this assertion was expressly denied by PW2.
CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 7/18 15.12 Secondly, while the affidavits of PW1 and PW2 state that the loan was taken for a period of one year, inconsistencies arose during cross-examination. The plaintiff stated that the loan was for two years, whereas PW2 testified that no specific time for repayment had been fixed. Furthermore, PW2 claimed that the defendant had assured repayment upon receiving funds from certain plotted lands, yet no such assertion was made by the plaintiff.
15.13 Thirdly, PW2 stated that the defendant also signed on some diary belonging to him (PW2) acknowledging the loan. Not only was such diary never produced in the Court, the plaintiff made no mention of it in his evidence.
15.14 Furthermore, the plaintiff also asserted that he had given the money in currency notes of ₹2000, which is impossible since the banknote in the denomination of ₹2000 was introduced by the Reserve Bank of India in November 2016 whereas the loan was allegedly given in February 2016.
15.15 Apart from this, the purpose for which the second and third instalments were given is also unclear. Both PW1 and PW2 have consistently deposed that the purpose of loan was to meet the medical expenses of the son of the defendant who was admitted in the hospital. PW2 further elaborated on the circumstances of 18.02.2016, stating that as the condition of the defendant's son was deteriorating, he advised the plaintiff to advance an additional loan of ₹12 lakhs to the defendant on the said date. PW2 also claimed to have been acquainted with the defendant since 2012 and asserted that it was at his request that the plaintiff, who had no prior connection with the defendant, agreed to extend the loan. However, it is striking that neither CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 8/18 PW1 nor PW2 was aware that the defendant's son had, in fact, passed away on 17.02.2016. Notably, even at the time their testimonies were recorded, they remained unaware that the defendant's son had died a day before the disbursement of the second and third loan instalments.
15.16 Ld Counsel for the defendant has contended that the defendant's son was suffering from a liver disease and not cancer, as claimed by both PW1 and PW2. He further argued that it is highly improbable that a grieving father would execute a receipt and encash a cheque on the very next day following his son's demise.
15.17 With regard to the cause of death of the defendant's son, there is no evidence on record to establish that he suffered from a liver disease rather than cancer. Nonetheless, there is merit in the argument that it would be highly unnatural for a bereaved father to execute a receipt and visit a bank to withdraw money on the day following his son's death. Moreover, it appears improbable that the plaintiff would extend, and PW2 would recommend, a loan of such a significant amount without a clear and well-defined purpose for which the funds were required. 15.18 For the same reasons, the encashment of the cheque in the sum of ₹2 lakhs is also doubtful. The defendant had clearly denied receiving or encashing any such bearer cheque. The onus of proving the encashment of this cheque by the defendant was thus, on the plaintiff under Section 101 of the Evidence Act. The plaintiff has neither proved his bank account statement reflecting such withdrawal nor established the identity of the person who encashed the cheque by summoning the relevant records from his bank, for reasons known only to him.
CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 9/18 15.19 With respect to the receipt marked as Ex. PW1/1, the defendant has denied its execution. The burden of proving its execution rested upon the plaintiff.
15.20 According to the plaintiff, not only was the receipt executed, but it was also brought by the defendant himself. However, as previously observed, it appears highly improbable that the defendant would execute such a receipt merely a day after the passing of his son. Furthermore, PW2 stated that the receipt was prepared at the residence of the plaintiff which seems to be inconsistent with the version of the plaintiff that the defendant had brought the receipt with him to his house. 15.21 PW2 testified that the receipt was executed in his presence and further identified the defendant's signature thereon. However, a mere perusal of the signature purported to be that of the defendant on the receipt reveals a stark dissimilarity when compared to the defendant's admitted signature on the cheque marked as Ex. P1.
15.22 Ld Counsel for the plaintiff has vehemently argued that the defendant admitted that the cheque Ex P1 belonged to him and it bore his signatures. Although in the written statement, the defendant had stated that the cheque was a blank one, he admitted during his cross-examination that the cheque amount was written by him in figures as well as digits. It is argued that this admission is sufficient to prove that the defendant had actually taken a loan of ₹ 16 lakhs from the plaintiff. 15.23 At first blush, I find this argument to be persuasive, especially because the defendant has failed to give any explanation whatsoever for drawing up the cheque Ex P1. However, upon consideration of the totality of the facts of the CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 10/18 case, I hold that this fact itself would not be sufficient to decree the suit of the plaintiff.
15.24 Sure enough, law presumes that every cheque is drawn for consideration, until the contrary is proved under Section 118(a) of the Negotiable Instruments Act, however it is no longer res integra that such presumption is rebuttable. 15.25 As to the ambit and scope of Section 118 of the Act, the Hon'ble Supreme Court observes in Kundan Lal Rallaram vs. Custodian, A.I.R. 1961 SC 1316 as under :
"As soon as the execution of the promissory note is proved, the rule of presumption laid down in Section 118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, Section 118 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration and, if he adduced acceptable evidence, the burden again shifts to the plaintiff and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so realised upon are compelling, the burden may likewise thrift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in Section 114 and other Sections, of the Evidence Act. Under Section 114 of the Evidence Act 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. Illustration (g) to that Section shows that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. A plaintiff, who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be expected to produce his documents. In those circumstances, if such a relevant evidence is withheld by the plaintiff, Section 114 enables the Court to draw a presumption to the effect that, if CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 11/18 produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a Court, can under certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact...."
(emphasis supplied) 15.26 Further, it has been held in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35:
"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 non-existence 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 non- existence 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. ... 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 non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist...."
(emphasis supplied) 15.27 In the present suit, the defendant has effectively discharged his onus by establishing, through the cross- examination of the plaintiff's witnesses, that the existence of consideration was improbable and doubtful. Consequently, the CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 12/18 burden then shifted to the plaintiff to prove, independent of such presumption, that there was a valid and lawful consideration for the issuance of cheque Ex.P1. It was incumbent upon the plaintiff to establish this fact, as a cheque issued without consideration does not create any obligation of payment under Section 43 of the Negotiable Instruments Act. However, the plaintiff failed to substantiate the receipt of the amount as well as the circumstances surrounding the second and third instalments of the alleged loan.
15.28 The plaintiff has presented an inconsistent and improbable case concerning the alleged cash loan, as previously observed. Similarly, with respect to the third instalment of the loan amounting to ₹2 lakhs, he failed to produce his statement of accounts to establish such a withdrawal. More importantly, he did not substantiate, through bank records, that it was the defendant who collected the cash against the said cheque. 15.29 In the absence of any evidence presented by the plaintiff to establish the genuineness of receipt Ex PW1/1 and to substantiate the advancement of the second and third instalments of the loan, it is held that the plaintiff extended a loan of only ₹4 lakhs to the defendant in February 2016. Furthermore, it is determined that the defendant neither signed nor executed the receipt dated 18.02.2016.
15.30 These issues are accordingly answered.
16 (3) Whether the cheque --Ex.P1 was issued by defendant to the plaintiff towards return of friendly loan of ₹16,00,000/- (Rupees Sixteen lakhs only) ? ... OPP 16.1 Since it is held that the plaintiff did not advance a loan CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 13/18 of ₹16 lakhs, issue no.(3) is decided in negative and in favour of the defendant.
17 (4) Whether the cheque - Ex P-1 was handed over by the defendant to the plaintiff as a security cheque towards the loan of ₹1,20,000 (Rupees One lakh twenty thousand only)? ...OPD 17.1 The burden of proving this issue rested upon the defendant. However, as noted in paragraph 15 of this judgment, the defendant has failed to establish that he retained only ₹1.20 lakhs, despite the undisputed fact that he was issued a bearer cheque for ₹4 lakhs, which he alone had encashed. Consequently, it is not proven that the defendant had taken a loan of only ₹1.20 lakhs.
17.2 The next issue to be examined pertains to whether the cheque marked as Ex P1 was issued at the time of obtaining the loan on 08.02.2016, as asserted by the defendant, or in February 2017, as claimed in the plaint.
17.3 There is no documentary evidence of when the cheque was given since no paperwork was done at the time of exchange of the cheque.
17.4 The defendant has remained consistent in his testimony, maintaining that the said cheque was issued as security when the loan was obtained. Conversely, the plaintiff has provided inconsistent statements regarding this aspect. The plaintiff was unable to recall when Ex P1 was handed over, how many days later it was presented, or whether it bore the same date when it was given to him.
17.5 Furthermore, during his cross-examination, the plaintiff CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 14/18 initially deposed that the loan was for a period of two years; however, in the very next sentence, he stated that the cheque was handed over to him after one year. If the loan was indeed for two years, there would have been no rationale for the defendant to issue Exhibit P1 after one year, particularly when he lacked sufficient funds in his account.
17.6 It is also noteworthy that the plaintiff asserts that the defendant personally visited his residence to deliver the cheque Ex P1 and that the cheque was presented for encashment only after consulting the defendant. However, it is an undisputed fact that the defendant had lodged a complaint-Ex PW1/DX against the plaintiff in June 2017, whereas the cheque was presented in July 2017. The plaintiff was aware of this complaint, as it is referenced in paragraph 7 of the plaint when the suit was filed in August 2017. Given these circumstances, it is highly improbable that the defendant advised the plaintiff to present the cheque in July 2017.
17.7 Ld Counsel for the plaintiff has drawn my attention to the page 3 of cross-examination of the plaintiff wherein he was put a positive suggestion that defendant and Sushil were present when the receipt was signed. However, I find that this is a mere error in phrasing of the question/suggestion by Ld Counsel for the defendant. Even the Ld Counsel for the plaintiff had given wrongly suggestions to the defendant, including the suggestion that "Sunil" was present when the loan was advanced (instead of Sushil.) I am not inclined to hold adverse against any party for the inadvertent mistakes committed by their counsels. 17.8 A civil suit is decided upon preponderance of probabilities. In this case, it appears more probable that the CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 15/18 cheque was not given at a subsequent stage but at the time of availing the loan, that is, on 08.02.2016. As noted in paragraph 17.1 of this judgment, it was given not to secure the loan of ₹1.20 lakhs but ₹4 lakhs. This issue is accordingly answered.
18 (5) Whether no cause of action has been arisen in favour of the plaintiff to file and institute the present suit against the defendant?... OPD 18.1 Since this Court has observed that the plaintiff has successfully proved that he had loaned ₹4 lakhs to the defendant and the defendant has not led any evidence to prove its repayment, the plaintiff did have a cause of action to file this suit. This issue is decided in favour of the plaintiff and against the defendant.
19 (6) Whether the plaintiff is entitled for recovery of ₹16,00,000/- (Rupees Sixteen lakhs only) from the defendant?... OPP 19.1 In view of the findings on issue nos. (1), (2) and (3), the plaintiff is not entitled to seek recovery on the basis of the cheque Ex P1 as Section 43 of the Negotiable Instruments Act bars the same. Reference may be made to the case of W.S. Sethu Narayana Babu and Ors. vs. S. Sathindar and Ors., MANU/TN/3052/2023, wherein it was held:
"173. There are two parts to Section 43 of the Negotiable Instruments Act, 1881. First part provides for a common consequence where a negotiable instrument is made, drawn and accepted without consideration. In such a case, it creates no liability on the person who has drawn the instrument. ...
178. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 16/18 on record the preponderance of probabilities by reference to the circumstances upon which he relies. The defendant can prove the non- existence of a consideration by raising a probable defence. If the defendant discharges initial burden 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.
179. 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 non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. Thereafter, the onus can shift on the plaintiff. If the plaintiffs fail to discharge the burden of proof, they will fail in their endeavour. "
(emphasis supplied) 19.2 The plaintiff has failed to prove adequate consideration for drawing up of cheque Ex P1. Therefore, he is not entitled to the sum mentioned therein, but only to the amount loaned, that is, ₹4 lakhs.
19.3 This issue is decided partly in favour of the plaintiff.
20 (7) Whether the plaintiff is entitled for interest @24% p.a on the amount of ₹16,00,000/- (Rupees Sixteen lakhs only)?... OPP 20.1 The plaintiff has claimed interest at the rate of 24% per annum but no justification has been given for such an exorbitant rate of interest. Keeping in view the prevalent rates of interest and Section 34 CPC, interest at the rate of 5% per annum appears to be fair and just.
20.2 The plaintiff is entitled to interest at the rate of 5% per annum from the date of filing of this suit till the date the payment is made.
CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 17/18 21 "(8) Relief, if any."
21.1 The suit of the plaintiff is partly decreed with parties left to bear their own costs.
22 Decree sheet be prepared accordingly.
23 File be consigned to record room after due compliance.
Digitally signed by RICHA RICHA GUSAIN
GUSAIN SOLANKI
Date: 2025.03.12
SOLANKI 14:54:40 +0530
Announced in open Court today (Richa Gusain Solanki)
th
on 12 March, 2025 District Judge-02, South West
Dwarka Courts Complex
New Delhi
CS DJ ADJ No. 785/2017 Ramesh Kumar vs Balbir Singh Yadav Page no. 18/18