Delhi District Court
Surender Gaur vs Praveen Kumar on 28 September, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 516737/2016
CNR No.DLSW010014032014
IN THE MATTER OF:
Surender Gaur
S/o Sh.Bal Kishan Sharma
R/o House No.203,
Village Samalkha, New Delhi-110037 ... Plaintiff
v.
Praveen Kumar
S/o Sh. Sudershan Kumar
R/o RZ-239, Dharampura Part-I
Najafgarh, New Delhi-110043 ... Defendant
Date of institution of suit: 15.03.2014
Date of judgment reserved: 06.08.2019
Date of pronouncement of judgment: 28.09.2019
JUDGMENT
1. This is a money recovery suit for ₹9,80,000/- (Rupees Nine lakhs eighty thousands only) filed by the plaintiff, namely, Surender Gaur (hereinafter "plaintiff") against the defendant, namely, Praveen Kumar (hereinafter "defendant").
CS DJ ADJ No. 516737/2016 Page No. 1/32 Facts
2. The facts of the case in a nutshell are that the plaintiff advanced a friendly loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant on 10.10.2010 on the assurance that the same would be returned back by 10.08.2011. The defendant towards the repayment of loan issued a cheque dated 12.09.2011 for an amount of ₹7,00,000/- (Rupees Seven lakhs only) and the same was dishonoured. Subsequently, the defendant issued another cheque dated 19.12.2011 for an amount of ₹3,00,000/- (Rupees Three lakhs only) and the same was also dishonoured. Thereafter, the defendant requested his friend Sidharth Bakshi, who issued a third cheque dated 05.06.2012 in favour of the plaintiff for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only) towards the part payment of the loan. The plaintiff issued a demand notice dated 27.07.2012 through his counsel to the defendant and called upon him to return the cheque amount i.e. loan amount, failure of which would force the plaintiff to resort to legal recourse. The plaintiff thereafter preferred a criminal complaint against the defendant and Sidharth Bakshi qua the cheque dated 05.06.2012 issued by Sidharth Bakshi in favour of the plaintiff for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only) under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "NI Act"). Hence, the present suit for recovery of loan along with interest.
CS DJ ADJ No. 516737/2016 Page No. 2/32Pleadings
3. The plaintiff has pleaded that he advanced a loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant on 10.10.2010 against which the defendant gave an affidavit dated 12.10.2010. The plaintiff has averred in the plaint that defendant told the plaintiff that he would return the aforesaid loan to him on 10.08.2011. Towards the repayment of the loan, the defendant issued a cheque of ₹7,00,000/- (Rupees Seven lakhs only) dated 12.09.2011 to the plaintiff, which was dishonoured on being presented for encashment. Subsequently, the defendant issued a second cheque dated 19.12.2011 for the repayment of the loan for an amount of ₹3,00,000/- (Rupees Three lakhs only). The second cheque issued by the defendant was also dishonoured on presentation by the plaintiff. Thereafter, the defendant issued a third cheque dated 05.06.2012, this time drawn by his friend Sidharth Bakshi for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only). The third cheque was also dishonoured on presentation by the plaintiff.
4. The plaintiff has averred in the plaint that on all the cheques being dishonoured issued by the defendant, the plaintiff issued a legal notice dated 27.07.2012 to the defendant herein and also to Sidharth Bakshi. With no reply to the notice, the plaintiff preferred a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the defendant and Sidharth Bakshi. It is averred by the plaintiff that the concerned court of Metropolitan Magistrate, Dwarka was pleased to CS DJ ADJ No. 516737/2016 Page No. 3/32 summon the defendant and his friend Sidharth Bakshi to face trial but the defendant made an application to the court that since the cheque in question does not belong to him, he cannot be an accused in the complaint case and the plaintiff has only remedy to file a suit for recovery against the defendant for the loan amount. It is averred by the plaintiff in the plaint that the Ld. Metropolitan Magistrate was pleased to discharge the defendant.
5. The defendant filed his written statement claiming the defence that neither the cheques nor the affidavit filed by the plaintiff bear his signatures and the plaintiff has preferred the present suit to extort money from the defendant on the basis of fake and fabricated documents. The defendant in his defence has urged that the cheques filed by the plaintiff have been certainly procured/stolen by the plaintiff during the existence and currency of partnership firm Accurate Infocom which ran for the period between 2009 to 2010. The defendant has also urged that the plaintiff has knowingly withheld and not disclosed to this court that he was in partnership with the defendant. With regard to the third cheque, the defendant has urged in his defence that the said cheque has been manipulated by the plaintiff, as Sidharth Bakshi was known to the plaintiff and to the defendant. The defendant has urged that he cannot be held liable for a cheque purportedly issued by Sidharth Bakshi. The defendant has also urged in his defence that the Ld. Metropolitan Magistrate, South West District, Dwarka discharged the defendant herein on the ground that CS DJ ADJ No. 516737/2016 Page No. 4/32 the third cheque was not issued by the defendant herein.
6. At this stage, it is relevant to observe that in view of the above defence urged by the defendant, the plaintiff did not file replication. Questions
7. On completion of pleadings, the following issues were framed for adjudication on 19.11.2014:
(a)Whether the suit filed by the plaintiff is based upon fake and fabricated documents?
(b)Whether the plaintiff is entitled to the recovery of amount as prayed for?
(c) If the answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon, if so at what rate and for what period?
(d)Relief.
8. To prove the issues, for which the onus was casted upon the plaintiff, the plaintiff stepped into the witness box as PW1, whereas, the defendant examined four witnesses - defendant in person (DW1), Sumit Verma (DW2), Satpal (DW3), and Manju Dutta (DW4).
9. The plaintiff relied upon and proved the following documents:
S.No. Description and date, if any of the Exhibit Mark put on document the document
(a) Affidavit dated 12.10.2010 Ex.PW1/1
(b) Cheque dated 12.09.2011 for an amount of Ex.PW1/2 ₹7,00,000/- (Rupees Seven lakhs only) CS DJ ADJ No. 516737/2016 Page No. 5/32
(c) Photocopy of bank return memo dated Ex.PW1/3 de-exhibited 03.11.2011 and marked as Mark-A
(d) Cheque dated 19.12.2011 for an amount of Ex.PW1/4 ₹3,00,000/- (Rupees Three lakhs only)
(e) Photocopy of bank return memo dated Ex.PW1/5 (de-exhibited 14.03.2012 and marked as Mark -
B)
(f) Cheque dated 05.06.2012 for an amount of Ex.PW1/6 ₹2,40,000/- (Rupees Two lakhs and forty thousand only)
(g) Bank return memo dated 14.07.2012 Ex.PW1/7
(h) Legal notice dated 27.07.2012 Ex.PW1/8
(i) Certified copy of criminal complaint in Ex.PW1/DA legal proceedings titled as Surender Gaur v. Sidharth Bakshi & Anr. - CC No. 776/1/2012 before the Court of LdMetropolitan Magistrate - 08, South West District, Dwarka Courts, Delhi
(j) Certified copy of order dated 30.10.2013 Ex.PW1/DB Surender Gaur v. Sidharth Bakshi & Anr.
- CC No. 776/1/2012 before the Court of Metropolitan Magistrate - 08, South West District, Dwarka Courts, Delhi
10. The defendant relied upon and proved the following documents:
S.No. Description and date, if any of the Exhibit Mark put document on the docume
(a) Certified copy of criminal complaint in legal Ex.PW1/DA proceedings titled as Surender Gaur v.
Sidharth Bakshi & Anr. - CC No. 776/1/2012 before the Court of LdMetropolitan Magistrate
- 08, South West District, Dwarka Courts, Delhi
(b) Certified copy of order dated 30.10.2013 Ex.PW1/DB Surender Gaur v. Sidharth Bakshi & Anr. -
CC No. 776/1/2012 before the Court of CS DJ ADJ No. 516737/2016 Page No. 6/32 Metropolitan Magistrate - 08, South West District, Dwarka Courts, Delhi
(c) Letter issued on behalf of the branch manager Ex.DW3/A w.r.t. statement of account of A/c No. 00291131000896, Oriental Bank of Commerce, Mahipalpur, Delhi
(d) Letter dated 05.04.2018 issued on behalf of Ex.DW3/B the branch manager along with account operation letter/intimation and supporting documents of the four partners of the firm Authentic Infotech with regard to A/c No. 00291131000896, Oriental Bank of Commerce, Mahipalpur, Delhi/ Submissions by Counsel for the parties
11. Sh. D.S.Patial, Ld. counsel for the plaintiff submitted that the plaintiff has preferred a suit for recovery of ₹9,80,000/- (Rupees Nine lakhs eighty thousands only) against the defendant out of which ₹7,00,000/- (Rupees Seven lakhs only) is the principal amount and ₹2,80,000/- (Rupees Two lakhs and eighty thousand only) is the interest component calculated @ 12% per annum.
12. Ld. counsel for the plaintiff submitted that the plaintiff advanced a friendly loan to the defendant on 10.10.2010 and the same was to be paid back by 12.09.2011. The defendant with regard to the return of the loan gave a cheque of ₹7,00,000/- (Rupees Seven lakhs only) to the plaintiff, which was dated 12.09.2011. Thereafter, the defendant issued a cheque No.035358 dated 19.12.2011 for an amount of ₹3,00,000/- (Rupees Three lakhs only) towards the payment of loan. The said cheque was also dishonoured. Ld. counsel submitted CS DJ ADJ No. 516737/2016 Page No. 7/32 that subsequent to the dishonour of the aforesaid cheque, the defendant gave a cheque bearing No. 472847 dated 05.06.2012 for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only). Ld. counsel submitted that the said cheque was also dishonoured. Ld. counsel further submitted that with all the cheques issued by the defendant to the plaintiff, being dishonoured, the plaintiff had no other recourse than to prefer a complaint under Section 138 of the NI Act before the Ld. Metropolitan Magistrate, South West District, Dwarka, Delhi. Ld. counsel for the plaintiff submitted that the defendant by way of an affidavit dated 12.10.2012 deposed and acknowledged the loan amount to be paid by him to the plaintiff.
13. Ld. counsel for the plaintiff submitted that the cause of action to institute the suit arose on 10.08.2011 and thereafter on 27.07.2012. Ld. counsel for the plaintiff further submitted that the defendant took loan from the plaintiff to start his call centre business.
14. Ld. Counsel for the plaintiff submitted that the defence urged by the defendant is hollow and a money decree is bound to be passed in favour of the plaintiff and against the defendant.
15. Ld counsel for the plaintiff submitted that the defendant in his written statement has urged that a partnership deed was in existence between the parties since October, 2010. Ld. counsel for plaintiff contended that no such partnership was in existence and thus the question of existence of any partnership deed at the time when loan was advanced on 10.10.2010 is preposterous.
CS DJ ADJ No. 516737/2016 Page No. 8/3216. Ld. counsel for the plaintiff submitted that the defendant in the paragraph No. 12 of the written statement has admitted receiving an amount of ₹7,00,000/- (Rupees Seven lakhs only) from the plaintiff. Ld. counsel for the plaintiff submitted that the plaintiff had advanced a friendly loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant. Ld. counsel for the plaintiff further submitted that the defendant during his cross-examination admitted receiving loan of ₹7,00,000/- (Rupees Seven lakhs only) from the plaintiff at the call centre, whereas in the written statement, there is no mention of receiving money i.e. ₹7,00,000/- (Rupees Seven lakhs only) at the call centre.
17. Ld. counsel for the plaintiff submitted that the defendant denied his signatures on the cheque for ₹7,00,000/- (Rupees Seven lakhs only) and also on cheque of ₹3,00,000/- (Rupees Three lakhs only), whereas the defendant has led no evidence to prove his signatures. Ld. counsel for the plaintiff further submitted that the defendant has admitted that the cheques belong to him but the same were stolen/lost during the partnership business. Ld. counsel for the plaintiff further submitted that even the signatures of the defendant on the application moved by the defendant under Order XVIII, Rule 17, CPC are different.
18. Ld. counsel for the plaintiff place reliance upon the judgment passed by the Hon'ble High Court of Delhi in Mukesh Kumar CS DJ ADJ No. 516737/2016 Page No. 9/32 Sharma v. Girish Chander1 on the proposition that where a defendant admitted the friendly loan and also the admission with regard to the cheque.
19. Per contra, Sh.Vinod Sehrawat, Ld. counsel for the defendant submitted that till date the plaintiff has not filed the original cheque in court. Ld. counsel for the defendant further submitted that neither in the plaint nor in the evidence by way of affidavit of the plaintiff (Ex.PW1/A), there is any whisper by the plaintiff about the existence of partnership. Ld. counsel stated that the plaintiff has concealed material fact from this court about the partnership and thus the plaintiff is not entitled to any relief.
20. Ld. counsel for the defendant submitted that the plaintiff during his cross-examination denied about the existence of any partnership between the plaintiff and the defendant. Ld. counsel further submitted that plaintiff has concealed material facts from this court, as the same have been averred by the defendant in the paragraph Nos. 2 and 4 of the written statement.
21. With regard to the defendant's cheque in the possession of the plaintiff, Ld. counsel for the defendant submitted that the defendant in the paragraph-7 and 8 has averred that the cheque in question, which is the cheque for ₹7,00,000/- (Rupees Seven lakhs only) does not bear the signatures of the defendant and not only the cheque No.483823 but also the cheque Nos.035358 and 472847 have been procured/stolen by 1 2019 (1) CLJ 457 (Del.) CS DJ ADJ No. 516737/2016 Page No. 10/32 the plaintiff during the existence of the partnership firm under the name and style of Accurate Infocom. The Ld. counsel for the defendant contended that the defendant gained knowledge about the plaintiff extorting money when the defendant received a complaint preferred by the plaintiff against him under Section 138 of the NI Act.
22. The Ld. counsel for the defendant submitted that Naresh Kumar, the attesting witness to the affidavit dated 12.10.2010 has not been produced by the plaintiff as a witness before this court for the reason that no such document i.e. an affidavit dated 12.10.2010 (Ex.PW1/1) was ever signed and executed. Ld counsel for the defendant further submitted that this court should not lose sight of the fact that once the defendant having denied the Ex.PW1/1, it was imperative for the plaintiff to ensure the presence of Naresh Kumar, as his witness to prove the contents of the affidavit.
23. The Ld. counsel for the defendant concluded his arguments on the note that the plaintiff has miserably failed to lead any evidence to prove his case and thus the suit is liable to be dismissed with exemplary costs, which may be awarded to the defendant for having dragged the defendant in a frivolous suit.
24. I, have carefully perused the pleadings, documents filed by the parties, the testimonies of the witnesses and the submissions advanced by the counsel for the parties. My issue-wise findings ensue in the following paragraphs of this judgment.
CS DJ ADJ No. 516737/2016 Page No. 11/32 Issue No. 1Whether the suit filed by the plaintiff is based upon fake and fabricated documents?
And Issue No. 2 Whether the plaintiff is entitled to the recovery of amount as prayed for?
25. As the plaintiff has preferred a money claim of ₹7,00,000/- (Rupees Seven lakhs only) along with interest @12%p.a. against the defendant, I deem appropriate to deal with the issue Nos. 1 and 2 together.
26. The onus to prove the issue No. 1 that the plaintiff has based his suit upon fake and fabricated documents was casted upon the defendant. However, on careful perusal of the plaint, written statement and the documents on record it is observed that the defendant in his written statement has denied his signatures on the impugned cheques and also on the affidavit, thus it was imperative for the plaintiff to prove the signatures of the defendant on the documents propounded by him, and on whose basis the plaintiff preferred the present suit.
27. The Apex Court in Thiruvengadam Pillai v. Navaneethammal2 in paragraph No. 19 held that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, the ruling that it was for the defendants to establish that the document was 2 (2008) 4 SCC 530 CS DJ ADJ No. 516737/2016 Page No. 12/32 forged or concocted is not a sound proposition.
28. In K. Laxmanan v. Thekkayil Padmini,3 the Apex Court held that when there are suspicious circumstances regarding the execution of the will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even when there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair... or there might be other indications in the will to show that the testator's mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator.
29. In the present case, the plaintiff has come to court alleging that he had advanced a loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant, who failed to repay and the cheques issued by the defendant time and again towards the repayment of the loan were dishonoured.
30. The plaintiff has based his case against the defendant on the basis of three cheques, an affidavit, cheque returning memos and a 3 (2009) 1 SCC 354 at p. 361, para 19 CS DJ ADJ No. 516737/2016 Page No. 13/32 legal notice. The defendant in his defence has urged that the plaintiff's suit is based on forged and fabricated documents, particularly, the cheque No. 483823 dated 12.09.2011for an amount of ₹7,00,000/- (Rupees Seven lakhs only) drawn upon the Bank of Maharashtra (Ex.PW1/2) and the affidavit dated 12.10.2010 (Ex.PW1/1), as the same does not bear the signatures of the defendant.
31. The dictum in law is as old as the hills, one who avers must prove. Law of Evidence provides the legal framework for an orderly and reliable means of adjudicating a suit or proceeding between the parties. The Law of Evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, constitute the trinity of the principal procedural codes that govern the law of procedure as applied in the courts. The Law of Evidence lays down the ground rules for determining on whom the burden of proof will lie for proving his case in a suit or proceeding which he has set in motion, what facts may be considered as relevant for treating them as evidence and what facts may be proved and in what manner so as to ensure high probative value, who may be considered as competent witnesses to prove the facts and the modes of examining those witnesses.
32. Evidence is the usual means of proving or disproving a fact or matter in issue. The law of evidence envisages the proof of facts by the parties by means of: (i) oral evidence - which means and includes CS DJ ADJ No. 516737/2016 Page No. 14/32 all statements which the court permits or requires to be made before it by witnesses in relation to the facts in issue; (ii) documentary evidence
- is all documents produced for the inspection of the court, and (iii) material objects - such as guns, knives, etc., to which the oral evidence relates.
33. The Halsbury's Laws of India, Evidence, 4 on the Incidence of Legal Burden, reads as under:
"[145.022] (C) Incidence of Legal Burden As a rule, legal burden lies on the party who has set in motion the legal machinery by filing a case. The simple principle is: "You went to the Court, so you prove your case". In this sense, it is the Plaintiff or Prosecution, as the case may be, who should prove the case. The same rule can also be expressed in another form: "You want a judgment in your favour, so you bear the burden and prove the case."
"It is well established dictum of the Evidence Act that misplacing the burden of proof vitiates the judgment."5 The rules relating to burden of proof are based upon certain practical considerations of convenience and reasonableness and also of policy. The rules relating to burden of proof are the following:
(a) S 101: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
4 Halsbury's Laws of India, Second Edition, Volume 18, Evidence in paragraph 145.022 at page 47 5 Rangammal v. Kuppuswami - (2011) 12 SCC 220 CS DJ ADJ No. 516737/2016 Page No. 15/32
(b) S 102: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
(c) S 103: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
34. Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party - See Rangammal v. Kuppuwami.6
35. A fact is said to have been proved in Court of law when the court is persuaded to believe in its existence or to consider its existence probable. 'Burden of proof' is defined in Section 101 of the Indian Evidence Act, 1872 (hereinafter "Evidence Act") as "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Section 101 Evidence Act makes a distinction between a party proving his case on the basis of facts which he asserts and a person bound to prove the 6 ibid.
CS DJ ADJ No. 516737/2016 Page No. 16/32existence of any fact.
36. The principle that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. A fact is said to be proved when, after 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 the particular case, to act upon the supposition that it exists. In civil cases, the standard of proof is satisfied on a balance of probabilities.
37. Except when judicial notice is taken of official signatures, the handwriting or signature of unattested documents must be proved. Where a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting - See Section 67 of the Indian Evidence Act, 1872. The same be done in the following ways:
(a) by calling the writer;
(b) by an expert;
(c) by a witness who is familiar with the handwriting of the writer;
(d) by comparison of the disputed writing, signature or seal with some other admitted or proven writing, signature or seal of the person; or
(e) by admission of the part against whom the document is tendered.CS DJ ADJ No. 516737/2016 Page No. 17/32
38. The plaintiff in the case at hand has led no evidence to prove that the signatures on the impugned cheque dated 12.09.2011 - Ex.PW1/2, affidavit dated 12.10.2010 - Ex.PW1/1 and the impugned cheque dated 19.12.2011 - Ex.PW1/4 are the signatures of the defendant. It is observed that the plaintiff did not lead any evidence be it any person, who is familiar with the signatures of the defendant. It is also observed that the plaintiff failed to lead any evidence by expert opinion to prove that the purported signatures on the impugned cheques and the impugned affidavit are forged and fabricated.
39. The onus to prove the issue No. 2 was saddled upon the plaintiff. The case made by the plaintiff is that he advanced a loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant on 10.10.2010, which was to be paid back on 10.08.2011. The plaintiff has pleaded that the defendant also acknowledged taking loan from the plaintiff on an affidavit dated 12.10.2010 (Ex.PW1/1). Towards the discharge of the loan, the defendant issued a cheque No. 483823 dated 12.09.2011 (Ex.PW1/2) drawn upon the Bank of Maharashtra for an amount of ₹7,00,000/- (Rupees Seven lakhs only) to the plaintiff on the assurance that in case the defendant fails to make payment of the loan by 10.08.2011, the plaintiff would be at liberty to encash the cheque.
40. The cheque dated 12.09.2011 (Ex.PW1/2) was dishonoured on presentation by the plaintiff with his banker. The plaintiff has stated in his plaint that on account of the first cheque being dishonoured, the CS DJ ADJ No. 516737/2016 Page No. 18/32 defendant issued another cheque, bearing No. 035358 dated 19.12.2011 (Ex.PW1/4) drawn upon the ICICI Bank for an amount of ₹3,00,000/- (Rupees Three lakhs only). The second cheque (Ex.PW1/4) issued by the defendant to the plaintiff for an amount of ₹3,00,000/- (Rupees Three lakhs only) was also returned dishonoured.
41. The plaintiff subsequent to the dishonour of the second cheque approached the defendant for the payment of the loan and this time the defendant asked his friend Sidharth Bakshi, who issued a cheque, bearing No. 472847 dated 05.06.2012 (Ex.PW1/6) for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only) towards the part-payment of the loan. The third cheque, which was issued by Sidharth Bakshi towards the part-payment of the loan taken by the defendant was also dishonoured.
42. The plaintiff issued a notice dated 27.07.2012 (Ex.PW1/8) with regard to the third cheque dated 05.06.2012 - Ex.PW1/6 to the plaintiff and Sidharth Bakshi calling upon them to pay the cheque amount i.e. ₹2,40,000/- (Rupees Two lakhs and forty thousand only). Neither the defendant nor Sidharth Bakshi replied to the plaintiff's notice dated 27.07.2012 (Ex.PW1/8).
43. The plaintiff preferred a complaint under Section 138, NI Act (Ex.PW1/DA), against the defendant herein and Sidharth Bakshi with regard to the third cheque i.e. Ex.PW1/6 at the South West District Court, Delhi. It is observed that the plaintiff has not averred a word in CS DJ ADJ No. 516737/2016 Page No. 19/32 the plaint about the fate, outcome of the aforesaid complaint.7
44. On the other hand, the defendant in his defence has denied his signatures on the cheques i.e. Ex.PW1/2 and Ex.PW1/4. The defendant in his defence has also urged that the parties herein were in a partnership along with two more persons, and the plaintiff had procured/stolen the cheques in question during the subsistence of the partnership. With regard to the third cheque, issued by Sidharth Bakshi, the defendant has urged the defence that Sidharth Bakshi has been one of the employees of the firm and the plaintiff has manipulated the third cheque (Ex.PW1/6) issued by Sidharth Bakshi to extort money from the defendant.
45. The defendant has also urged in his defence that with regard to the criminal complaint (Ex.PW1/DA) preferred by the plaintiff before the concerned Metropolitan Magistrate, South West District, Delhi in relation of the third cheque issued by Sidharth Bakshi, the plaintiff misled the court by not disclosing that the defendant herein, who was impleaded as one of the accused persons, was discharged vide order dated 30.10.2013 (Ex.PW1/DB) passed by the Ld. Metropolitan Magistrate, South West District, Delhi. The defendant in his defence has denied not only the loan amount of ₹7,00,000/- (Rupees Seven lakhs only) but also any liability towards the plaintiff.
46. As it has been observed earlier that the onus to prove the issue was on the plaintiff, the plaintiff only examined himself to prove his 7 See Ex.PW1/DA CS DJ ADJ No. 516737/2016 Page No. 20/32 case. The plaintiff produced total 8 (eight) documents in evidence. Whereas, the defendant examined four witnesses and summoned the relevant record from the Oriental Bank of Commerce, Mahipalpur, Delhi, to prove that the parties to the suit and two more persons, namely, Naresh Kumar, Surender Gaur, Praveen Kumar and Kuldeep Singh were in a partnership. DW4 stated that the bank account of the partnership firm under the name and style of Authentic Infotech was at the Oriental Bank of Commerce, Mahipalpur, Delhi. DW4 further deposed that out of the four partners, only two partners, namely, Naresh Kumar and Surender Kumar were the authorised signatories. It is observed that there is no averment in the plaint about the plaintiff being in a partnership with the defendant along with other partners.
47. This court observes that the narration of the facts pleaded by the plaintiff in the plaint ensues as the plaintiff advanced a loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant on 10.10.2010 to be returned by the defendant by the month of August 2011. The plaintiff has averred that subsequent to the advancement of loan by him to the defendant, the defendant acknowledged the same on an affidavit dated 12.10.2010 (Ex.PW1/1). Towards the return of the said loan, the defendant issued a first cheque (Ex.PW1/2) for an amount of ₹7,00,000/- (Rupees Seven lakhs only), which was dishonoured. Thereafter, the defendant issued a second cheque (Ex.PW1/4) for an amount of ₹3,00,000/- (Rupees Three lakhs only) to the plaintiff and that cheque was also dishonoured. Subsequently, at the behest of the CS DJ ADJ No. 516737/2016 Page No. 21/32 defendant his friend, Sidharth Bakshi issued a third cheque (Ex.PW1/6) for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only) as part-payment of the loan and that cheque was also dishonoured.
48. The affidavit (Ex.PW1/1) relied by the plaintiff is not an affidavit for the reasons that the same merely bears the alleged signature of the deponent but the same has not been duly notarised. The paragraph No. 3 of the affidavit - Ex.PW1/1 reads as under:
"3. That If I fail the return the amount of loan & interest in time to Sh. Surender Gaur receive the amount from my company Authentic Infotech in my share."
It is also observed that the affidavit - Ex.PW1/1 bears the signature of one Naresh Kumar, whose name also appears as one of the four partners in the partnership Authentic Infotech. It is observed that once the defendant denied his signatures on the affidavit, the plaintiff ought to have summoned Naresh Kumar as a witness, who is stated to be the witness to the affidavit - Ex.PW1/1.
49. Section 3(3) of the General Clauses Act, 1897 defines "affidavit" shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. An affidavit is a sworn statement made by a person as to the truth of the facts within his knowledge mentioned therein. An affidavit is in first person and contains facts and not inferences or submissions. The court must verify an affidavit so as to test the genuineness and authenticity CS DJ ADJ No. 516737/2016 Page No. 22/32 of the facts stated in it and to make the deponent responsible for allegations made in to, and to enable the court to determine whether it is safe to rely upon that evidence.
50. Ordinarily, interlocutory applications, such as application for attachment before judgment, a temporary injunction, and the appointment of receivers or commissioners inter alia are decided on affidavit.
51. Every affidavit contains the following essentials:
(a) It is a declaration by a person;
(b) It relates to fact;
(c) It is in writing;
(d) It is in the first person;
(e) It is sworn or affirmed before a Magistrate or any other authorized person.
52. The affidavit i.e. Ex.PW1/1 filed by the plaintiff herein is neither affirmed before a Magistrate or before any other authorized person. It is observed that it merely bears the purported signatures of the defendant and one Naresh Kumar as a witness. It is held that the purported affidavit (Ex.PW1/1) filed by the plaintiff is not an affidavit in accordance with law and the same cannot be relied upon to prove any fact.
53. Now coming to the testimony of the plaintiff. The plaintiff during his cross-examination admitted that no separate receipt in respect to the loan amount was issued. The plaintiff voluntarily stated CS DJ ADJ No. 516737/2016 Page No. 23/32 that the loan amount was paid by way of cheque in sum of ₹4,00,000/- (Rupees Four lakhs only) for two months, after two months the defendant came to return the sum of ₹4,00,000/- (Rupees Four lakhs only) and also asked(sic) him that the defendant was in the process of establishing a call centre and was in need of ₹7,00,000/- (Rupees Seven lakhs only) and persuaded the plaintiff to pay the amount ensuring that he would execute an affidavit and make the plaintiff a partner in the call centre business, on that the plaintiff paid him ₹3,00,000/- (Rupees Three lakhs only) in cash i.e. ₹7,00,000/- (Rupees Seven lakhs only) in total and an affidavit was executed by the defendant in support of receipt of the amount of ₹7,00,000/- (Rupees Seven lakhs only) and also an undertaking to pay interest on this amount.
54. That plaintiff in his plaint has not pleaded that the advancement of loan of ₹7,00,000/- (Rupees Seven lakhs only) was done in two tranches i.e. first tranche through cheque for an amount of ₹4,00,000/- (Rupees Four lakhs only) and through second tranche the plaintiff paid ₹3,00,000/- (Rupees Three lakhs only) in cash to the defendant. It is observed that the plaintiff has not produced any relevant record to corroborate his claim that he advanced ₹4,00,000/- (Rupees Four lakhs only) through cheque, neither the particulars of cheque nor of the bank account on whom the cheque was drawn and the bank statement. It is also observed that the plaintiff has failed to lead any evidence with regard to proving that he had ₹3,00,000/- (Rupees Three lakhs CS DJ ADJ No. 516737/2016 Page No. 24/32 only) in cash at his disposal. It is also observed that the plaintiff during his cross-examination stated that at the time of handing over of the cheque to the defendant, he was an income tax payee and used to file his income tax return. The plaintiff also stated to having shown the loan amount in his income tax return of the relevant period. It is further observed that the plaintiff did not produce any of his income tax return In short, the plaintiff has miserably failed to prove that he paid an amount of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant as loan be it friendly loan. It is observed that before seeking return of loan amount along with interest it was incumbent for the plaintiff at first place to prove that a loan of ₹7,00,000/- (Rupees Seven lakhs only) was actually advanced by him to the defendant. It is observed and held that the plaintiff has failed to prove et al that a loan of ₹7,00,000/- (Rupees Seven lakhs only) was advanced by him to the defendant.
55. The case of the plaintiff for recovery of money is based upon advancement of loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant in lieu of the return of the loan, three cheques were issued by the defendant and/or at his behest handed over to the plaintiff.
56. I, have observed a few anomalies which upheaval the case of the plaintiff. Firstly, the plaintiff has averred in the plaint that when the first cheque was dishonoured, the defendant issued the second cheque (Ex.PW1/4) for an amount of ₹3,00,000/- (Rupees Three lakhs only) to the plaintiff. On careful, examination of Ex.PW1/4, it is CS DJ ADJ No. 516737/2016 Page No. 25/32 observed that the drawer of the cheque (Ex.PW1/4) is SPN Technovision Private Limited. It is further observed that there is no averment in the plaint that how and why the cheque was drawn by SPN Technovision Private Limited. It is settled position in law that a company is a separate legal entity and the company sue and be sued in its own name, thus it was incumbent for the plaintiff to plead and prove that why a cheque for an amount of ₹3,00,000/- (Rupees Three lakhs only) was issued by SPN Technovision Private Limited to the plaintiff towards payment of purported loan taken by the defendant.
57. Secondly, with regard to the third cheque (Ex.PW1/6), this court observes that the third cheque was issued by one Sidharth Bakshi for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only), at the behest of the defendant towards the part-payment of the loan. It is observed that the plaintiff has pleaded that on account of the third cheque also being dishonoured on presentation, the plaintiff issued a notice dated 27.07.2012 (Ex.PW1/8) to the defendant and Sidharth Bakshi. With no response from the defendant and Sidharth Bakshi to the notice dated 27.07.2012, the plaintiff herein preferred a complaint against the defendant and Sidharth Bakshi under Section 138, NI Act in the year 2012 itself. It is observed that the present suit was preferred in the year 2014 by the plaintiff against the defendant and not Sidharth Bakshi. It is also observed that neither plaintiff nor defendant summoned Sidharth Bakshi, as a witness.
58. On careful perusal of the plaint it is observed that the plaintiff CS DJ ADJ No. 516737/2016 Page No. 26/32 only speaks about the criminal complaint preferred against the defendant and Sidharth Bakshi in one paragraph of the plaint. The relevance of the above observation reveals that the plaintiff has not approached this court with clean hands. The plaintiff herein preferred a criminal complaint against the defendant and Sidharth Bakshi before the concerned Metropolitan Magistrate, South West District, Delhi. It is observed that the defendant put the criminal complaint to the plaintiff during his cross-examination and the same was marked as Ex.PW1/DA. It is also observed that the Ld. Metropolitan Magistrate by order dated 30.10.2013 discharged the defendant herein from the criminal court. It is further observed that the defendant also put the order dated 30.10.2013 passed in Surender Gaur v. Sidharth Bakshi & Anr. - CC No. 776/1/2012 by the Ld. Metropolitan Magistrate - 08, South West District, Dwarka Courts, Delhi to the plaintiff during his cross-examination.
59. During the cross-examination of the defendant (DW1) on 03.05.2016, DW1 was confronted with a mediation settlement dated 26.03.2013 (Ex.DW1/P1) with regard to the Surender Gaur v. Sidharth Bakshi & Anr. - CC No. 776/1/2012. Before delving into the mediation settlement (Ex.DW1/P1), I would observe that defendant admitted that he reached into a settlement with the plaintiff herein on 26.03.2013 with regard to the Surender Gaur v. Sidharth Bakshi & Anr. - CC No. 776/1/2012. The defendant also admitted that he appeared on behalf of Sidharth Bakshi who was also an accused in the CS DJ ADJ No. 516737/2016 Page No. 27/32 criminal complaint. The defendant admitted that he did not have any attorney of Sidharth Bakshi in the criminal case. The defendant (DW1) during his cross-examination admitted that the plaintiff had given a loan of ₹7,00,000/- (Rupees Seven lakhs only) on 10.10.2010. DW1 voluntarily stated that the same was given in the call centre. DW1 also admitting knowing Sidharth Bakshi. DW1 also admitted that the first cheque for ₹7,00,000/- (Rupees Seven lakhs only) was dishonoured for insufficient funds. DW1 also admitted that the second cheque (Ex.PW1/4) was also dishonoured for insufficient funds. DW1 voluntarily stated that the second cheque was taken by the plaintiff himself from the partnership firm and not by him. DW1 also admitted that Sidharth Bakshi had given a cheque of ₹2,40,000/- (Rupees Two lakhs and forty thousand only) to the plaintiff and the same was dishonoured, and a criminal complaint was preferred by the plaintiff herein. DW1 denied that the signature on the cheque Ex.PW1/1 were his signature. DW1 denied the suggestion that he took any loan from the plaintiff.
60. I, am of the considered view on careful perusal of the pleadings, documents lead in evidence and the testimony of the witnesses that the plaintiff is a sporting chap and the fate of plaintiff's claim against the defendant is inevitable i.e. dismissal. The raison d'être for the above observation and finding is the mediation settlement dated 26.03.2013 entered into and signed by the plaintiff herein and the defendant herein.
CS DJ ADJ No. 516737/2016 Page No. 28/3261. The plaintiff had preferred a criminal complaint under Section 138, NI Act against the defendant herein and Sidharth Bakshi with regard to the third cheque (Ex.PW1/6) i.e. cheque No. 472847 dated 05.06.2012 drawn upon ICICI Bank for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only) before the Metropolitan Magistrate, South West District, Dwarka Courts, Delhi. It is the case of the plaintiff that the said cheque was issued by Sidharth Bakshi at the behest of the defendant and the same was towards the part- payment of the loan. It is not disputed by the plaintiff that the defendant was discharged vide order dated 30.10.2013. It is also not disputed by the parties that a settlement was arrived at between the parties through mediation vide mediation report dated 26.03.2013 (Ex.DW1/P1). Above all it has come on record during the cross- examination that the plaintiff had advanced a loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant and out which ₹4,00,000/- (Rupees Four lakhs only) was paid through cheque and the balance ₹3,00,000/- (Rupees Three lakhs only) in case. The plaintiff has failed to lead an iota of evidence to prove how and when the loan of ₹7,00,000/- (Rupees Seven lakhs only) was advanced in the above manner.
62. The reliance placed by the plaintiff on Mukesh Kumar Sharma v. Girish Chander8 is clearly distinguishable on facts that the plaintiff therein had given a loan of ₹7,00,000/- (Rupees Seven lakhs only) on 8 2019 (1) CLJ 457 (Del.) CS DJ ADJ No. 516737/2016 Page No. 29/32 three occasions to the defendant and which was secured by cheques, every time the plaintiff advanced the loan to the defendant. On presentation of the cheques by the plaintiff the same were dishonoured and the plaintiff preferred the money recovery suit against the defendant. The trial court decreed the plaintiff's suit against the defendant. Before the Hon'ble High Court of Delhi in regular first appeal, the Hon'ble High Court rejected the argument advanced by the defendant that the plaintiff did not have means to advance the loan of ₹7,00,000/- (Rupees Seven lakhs only) to the defendant in light of the presumption provided under Section 118 of the NI Act that a cheque when issued is presumed to have been given for consideration. In the case at hand, the defendant from the word go has been denying that the signature on the cheques are not his and the defendant has urged in his defence that the parties were in a partnership and during the currency of the partnership, the plaintiff gained access to the cheques and misused the same. The defendant led evidence by summoning the bank record to show that there was a partnership under the name and style of Authentic Infotech and who had four partners. It is also come on record that Naresh Kumar, the witness to the purported affidavit - Ex.PW1/1 was also one of four partners of the partnership firm with the plaintiff, defendant and Kuldeep Singh.
63. Another distinguishable fact is that in Mukesh Kumar Sharma v. Girish Chander9 the plaintiff secured the loan by cheques, whereas, 9 ibid.
CS DJ ADJ No. 516737/2016 Page No. 30/32in the present case, as urged by the plaintiff, after advancement of loan, the defendant issued a cheque for ₹7,00,000/- (Rupees Seven lakhs only), which was dishonoured, thereafter second cheque for ₹3,00,000/- (Rupees Three lakhs only) was issued and the same was also dishonoured, subsequently, third cheque for an amount of ₹2,40,000/- (Rupees Two lakhs and forty thousand only) was issued by one Sidharth Bakshi, who was allegedly the friend of the defendant. It is observed that the plaintiff preferred a criminal complaint against the defendant herein and Sidharth Bakshi before the Ld. Metropolitan Magistrate, South West District, Delhi and in which the defendant herein was discharged vide order dated 30.10.2013 - Ex.PW1/DB. The plaintiff has neither averred a word about the above fact of the defendant being discharged nor a word about the outcome of the above mentioned legal proceedings titled as Surender Gaur v. Sidharth Bakshi & Anr. - CC No. 776/1/2012 in the Court of Metropolitan Magistrate - 08, South West District, Dwarka Courts, Delhi.
64. That said, the defendant has rebutted the presumption under Section 118 of the NI Act, however, it is the plaintiff, who failed to lead any cogent evidence to secure his entitlement for a money decree against the defendant. In view of the above observations, the issue Nos. 1 and 2 are accordingly decided against the plaintiff and in favour of the defendant.
CS DJ ADJ No. 516737/2016 Page No. 31/32 Issue No. 3If the answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon, if so at what rate and for what period?
65. The onus to prove the issue No. 3 was casted upon the plaintiff. It is observed that with the issue No. 2 having been answered in negative and against the plaintiff, I am of the considered opinion that no case for granting interest @12%p.a. arises to the plaintiff. The issue No. 3 is accordingly decided against the plaintiff and in favour of the defendant.
Relief
66. In view of my findings in the preceding paragraphs of this judgment, I am of the considered opinion, that the plaintiff is not entitled for any relief and the suit of the plaintiff is bound to fail. Accordingly, the suit is dismissed. Parties to bear their own costs.
67. Decree sheet be drawn accordingly.
68. File be consigned to record room only after due compliance and necessary action, as per Rules.
Digitally signed by HARGURVARINDERHARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2019.09.27 16:52:21 +0530 Pronounced in the Open Court (Hargurvarinder Singh Jaggi) on September 28, 2019 Addl. District Judge - 02 South West District Dwarka Courts, Delhi CS DJ ADJ No. 516737/2016 Page No. 32/32