Delhi District Court
Sh. Dale Ram vs Sh. Mahinder Singh on 8 June, 2018
IN THE COURT OF SH. SANJEEV KUMARI, ADDITIONAL DISTRICT JUDGE12,
TIS HAZARI COURTS, DELHI
Suit No. 18172/16
Sh. Dale Ram,
S/o Late Sh. Chaudhary Jug Lal,
R/o E1, Lakshmi Park,
Saini Mohalla, Behind MCD School,
Nangloi, New Delhi 110041. .... Plaintiff.
Versus
Sh. Mahinder Singh,
S/o Sh. Hardeva,
R/o A82, Lakshmi Park,
Nangloi, New Delhi 110041. .... Defendant.
SUIT FOR RECOVERY OF RS. 5 LACS.
Date of Institution : 29.09.2007
Date of reserving Judgment : 29.05.2018
Date of pronouncement : 08.06.2018
JUDGMENT
Vide this Judgment I shall decide the present suit filed for recovery of Rs. 5 lacs filed by the plaintiff under Order 37 CPC.
2. Brief facts of the case as set out in the plaint are that the plaintiff and Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 1 of 23 defendant have friendly relations and on 11.10.2006, the defendant approached the plaintiff for financial assistance for the sum of Rs. 5 lacs for his urgent need. The plaintiff arranged the money from is friend Jai Pal and gave the same to the defendant in cash on interest @ 1.5% per month and the defendant assured the plaintiff to repay the same within six months. Defendant also executed a promissory note cum receipt in respect of the said loan in presence of Jai Pal and Joginder Singh. The defendant did not pay the said amount despite repeated requests of the plaintiff. Hence, the plaintiff sent a legal demand notice dated 28.6.2007 to the defendant through his counsel but despite service of the said notice, the loan amount was not paid and hence, the present suit was filed.
It is stated that the cause of action for filing the suit was arose on 11.10.2006 when the plaintiff paid Rs. 5 lacs to the defendant and further arose on 28.6.2006 when the plaintiff sent legal notice. He prayed for relief of decree of Rs. 5 lacs along with interest @ 1.5% per month.
3. Summons of the suit were issued to the defendant u/o 37 Civil Procedure Code. The defendant put his appearance and thereafter filed leave to defend which was initially allowed vide order dated 23.11.2009 with the directions to deposit Rs. 2.5 lacs but the defendant failed to comply with the said order. Hence, vide order dated 04.03.2010, the Ld. Predecessor had decreed the suit in favour of the Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 2 of 23 plaintiff and against the defendant for a sum of Rs. 5 lacs along with interest @ 1.5% per month from the date of institution till decree.
4. The defendant filed RFA No. 277/10 before the Hon'ble High Court challenging the said Judgment and the Hon'ble High Court, vide order dated 25.08.2010, has set aside the Judgment and decree and permitted the defendant to contest the suit on merits. Hence, the suit was again revived.
5. The defendant filed written statement in which he has stated that the plaintiff was running the business of Chit Fund and defendant has also invested in the Chit Fund (Committee) in May, 2007. When the defendant had got the committee coupon in his favour and asked for amount of Rs. 1.5 lacs, the plaintiff refused to pay a single penny to him and to his shock and surprise, on 6.6.2007 and 24.6.2007, the plaintiff entered into the premises of the defendant and tried to eliminate him. His informed the police and police lodged the complaint and to pressurize him, he has filed the present suit.
Further defendant has taken preliminary objection (1)that the suit of the plaintiff is based on forged documents and with a view to cheat, fraud and harass the defendant with ulterior motive to pressurize him to withdraw the complaint filed against the plaintiff.(2) That nobody can give/accept any loan or deposit of Rs.20,000/ or more Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 3 of 23 otherwise then by way of cheque or an account payee draft as per provision of section 26SS of Income Tax Act.
On merits, the defendant has denied the contents of the plaint as incorrect. He has stated that the plaintiff was known to him but he was not doing business of property dealer. He denied that he has approached the plaintiff for financial assistance of Rs. 5 lacs. He has also denied the execution of promissory note cum receipt and prayed for dismissal of the suit.
6. Plaintiff has filed replication in which he alleged that defendant is known criminal and cheater and number of cases are registered against him in Delhi and Haryana. He submitted that for friendly loan there is no requirement to obtain a income tax certificate. He stated that plainitiff is not a registered financier and provision of income tax are applicable on the finance company and registered financier. On merits he denied the contents of the written statement as incorrect and reiterated the averments of the plaint as correct.
7. On the basis of the pleadings of the parties, following issues were framed on 22.2.2011 for consideration :
1. Whether the plaintiff is entitled for the recovery of amount, as prayed for in the plaint? OPP.
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2. Whether the plaintiff is entitled for the interest? If yes, for which period and at what rate? OPP.
3. Relief.
Thereafter, the matter was listed for plaintiff's evidence.
8. In order to prove his case, the plaintiff has examined himself as PW1, Sh. Yogender Singh as PW2 and Sh. B.N. Srivastava as PW3. He also filed the affidavit of Jaipal in evidence but Jaipal did not appear to give evidence despite several opportunity hence his evidence was closed.
9. On the other hand, defendant has examined himself as DW1 and Sh. Deepak Jain as DW2.
10. Arguments heard from Sh V.P.Singh Advocate the Ld. counsel for the plaintiff and Sh. Mahipal Singh Ld. Counsel for the defendants. Both the parties have argued almost on the same lines as taken by them in their respective pleadings. I have considered the submissions and have gone through the case file. My issuewise findings are as follows :
11. ISSUE NO. 1.
Whether the plaintiff is entitled for the recovery of amount, as Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 5 of 23 prayed for in the plaint? OPP.
The onus to prove this issue was placed upon the plaintiff. Plaintiff has examined three witnesses. He has examined himself as PW1 and tendered his evidence by way of affidavit as Ex. PW1/A. In his examination in chief he almost reiterated the same contents as stated by him in his plaint. He deposed that he has friendly relation with the defendants for last many years. On 11.10.2016 defendant approach for financial assistance of Rs. 500,000/ On the same day he arrange the money from his friend Jaipal and gave the same to defendant @ interest of 1.5% and amount was to be repaid in six months. He further deposed that defendant executed a promissory note cum receipt on the same day. The defendant did not repay the loan despite repeated request. He has relied upon the following documents:
1. Promissory note cum receipt dated 11.10.2006 as Ex. PW1/1.
2. Legal notice dated 28.6.2007 as Ex. PW1/2.
3. AD card as Ex. PW1/3.
4. Courier receipt dated 29.6.2007 as Ex. PW1/4.
5. UPC as Ex. PW1/5.
6. Copy of reply dated 3.7.2007 as Ex. PW1/6.
12. Plaintiff has initially filed affidavit of Sh. Jai Pal as PW2 but Jaipal did not appear to record his testimony despite giving number of opportunity hence Ld. Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 6 of 23 Predecessor close Jaipal evidence. Thereafter Sh. Yogender Singh, who is mentioned as PW3 in his affidavit was examined as PW2, led his evidence by way of affidavit as Ex. PW2/A. He has deposed that on 10.11.2006, the defendant took a loan of Rs. 5 lacs from the plaintiff in his as well as in presence of Jai Pal and executed promissory note cum receipt which was signed by the defendant in Hindi. He also signed the said promissory note at point A and B.
13. Sh. B.N. Srivastava, was examined as PW3 who has tendered in evidence by way of affidavit as Ex. PW3/A. PW3 has deposed that he is a handwriting and finger print expert since last 45 years and has done one year Forensic Science from Delhi University. He examined the disputed signatures of Mahinder Singh in Hindi on promissory note cum receipt and compared the same with the admitted signatures of Mahinder Singh and in his opinion, disputed signatures at Mark B1 and B2 have been written by writer whose signatures are at Mark A1 and A3. He has relied upon his report as Ex. PW3/1.
14. On the other hand, defendant has examined two witnesses. Defendnat has examined himself as DW1 and has tendered his evidence by way of affidavit as Ex. DW1/A. DW1 has deposed that he has filed he written statement Ex. D2 and its contents are correct which bears his signatures at point A and B. He further deposed Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 7 of 23 that he was not doing business of property dealer and was having buffaloes and selling their milk to earn livelihood. He did not approach the plaintiff for financial assistance of Rs. 5 lacs on 11.10.2006 an no amount was given by the plaintiff nor he executed any promissory note of Rs. 5 lacs in favour of the plaintiff nor he signed on receipt. He deposed that he was having chit fund and has got coupon in his favour and ready to got agreed amount of Rs. 1.5 lacs as per rules and conditions of the committee but the said amount was not paid by the plaintiff. On 20.6.2007, instead of giving of money, the plaintiff approached the defendant in his house and tried to eliminate him and his family members. He made complaint to the police and to pressurize him, the story of giving loan was concocted by the plaintiff. He has rely upon the notice Ex. PW1/6 and two police complaints Mark A and Mark B.
15. Defendant No. 2 also examined Sh. Deepak Jain as DW2 who, in his evidence by way of affidavit, Ex. DW2/A has deposed that he is handwriting and finger print expert since 1990. He did BSC in 1967 and obtained one year certificate from Forensic Science in the year 1988. He examined and compared the signatures at Mark Q1 and Q2 with admitted signatures at Mark A1 and A2 and found that they were not written by same person. He produced his report as Ex. DW2/1.
16. On analyzing of the pleadings and evidence, it is evident that the entire Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 8 of 23 case of the plaintiff rest upon the promissory note cum receipt EXPW1/1 allegedly executed by the defendant while accepting Rs. 5 lacs as loan.Since the defendant has denied the execution of said document hence besides oral testimony of PW1 and PW2 and defendant himself as DW1 relied upon the testimony of handwriting experts. i.e. PW3 and DW2 respectively and both have given contradictory opinion regarding execution of promissory note and receipts. Hence, it would be appropriate to go through the report of both the handwriting experts thoroughly which are reproduced as under :
17. "Report given by PW3 Sh. B.N. Srivastava as Ex. PW3/1.
1. The disputed signatures of Mahender in Hindi on Pronote and Receipt dt. 11.10.06 and they have been marked as D1 & D2 on the photographic enlargements.
2. The comparative signatures of Mahender, Ex. PW1/3 and Vakalatnama of Mr. Arvind Singh dt. 12.10.07 and they have been marked as 'A' and A34 on the photographs.
3. The comparative signatures reading as Mahender Singh, on Evidence by way of Affidavit, Cross and closure of Evidence 03.04.12, Application u/s 151, affidavit, W.S. and its Affidavit all documents dt. 07.09.10, order of High Court, Reply by Defendant dt. 23.12.10, Application for Handwriting Expert, Application, along with Affidavit 7.9.10, Reply dt. 3.7.07 Application of A.C.P., Vakalatnama of Mr. Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 9 of 23 Mahipal Singh, Application u/o 37 Rule 3 (5), Affidavit dt. 2.208 (sic.) application u/o 37 Rule 3 (1), Affidavit dt. 12.10.07, Vakalatnama of Mr. Rajan Khanna dt. 12.1.08, Vakalatnama of Mr. Mahipal Singh dt. 31.6.10 and they have been marked as A1 to A33 and A35 & A36 on the photographic enlargements.
POINT UNDER ENQUIRY: Required to examine and report whether the disputed signatures of Mahender in Hindi on Pronote and Receipt and marked as D1 and D2 have been written by the writer of the comparative signatures "a" and A 1 to A36 or not?
OBSERVATIONS I examine the above mentioned signatures from original with the help of scientific instruments, and prepared their photographic enlargements. The enlargements with 'markings' on them and along with Negative's C.D. is enclosed herewith. My observations are as under :
(a) The examination of the disputed signatures show that they have been written with slow speed and flow and by a unskilled person, having little knowledge of the language. The disputed signatures are free from the defects of forgery such as faulty penlifts, retouching, tremors, hesitations penpauses and slow and drawn movement. The disputed signatures when examined interse show natural variations as are found in set of genuine signatures of person having little knowledge of language.
(b) The examination of the comparative signatures reading as Mahender / Mahender Singh marked as 'A' and A1 to A36 show that they too have been written with slow speed and skill like the Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 10 of 23 disputed. An interse comparison of the comparative signatures show natural variations as are always found in a set of genuine signatures.
(c) Both the disputed and the comparative signatures have been written with finger movement.
(d) The SLANT is slightly backwards and ALIGNMENT is descending both in the disputed and the comparative signatures.
(e) In the relative sizing of the letters, it may be seen that the size of the letter "Ha" is bigger than other letters in word "Mahender' both in the disputed and the comparative signatures.
(f) The pictorial appearance as well as the manner of formation of letters is similar in the disputed and the comparative signatures 'A' and A1 to A36 within the range of natural variations. No fundamental differences are found. The similarities have been marked on the photographic enlargements and described as under : The initial letter 'ma' has been written in two operations of the pen; one forming the initial part, with the horizontal middle part and the second, the 'staff' of the letter. The base of the initial stroke has clear 'loop' formation. The loop formed is of elliptical type, in the disputed and the comparative signatures. Like letter 'ma', the letter 'ha' is also written in two separate operations of the pen. Both the left and the right parts of the letter 'ha' show defined curvature. The 'Ae' matra has 'loop' start and the lower part falls on top of letter 'ha' and this is true for the disputed as well as the comparative signatures. The half letter 'na' has curved start and has long horizontal stroke. The last letter 'da' has small vertical start and long vertical ending. The body part is 'flat'. The 'ra' matra is written Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 11 of 23 separately both in the disputed and the comparative. A single 'top' line covers all the letters of the signatures both in the disputed and the comparative.
(g) The LINE QUALITY of the disputed and the
comparative signatures is of medium type.
(h) The ARRANGEMENT of letters and PENSCOPE
is found similar in the disputed and the comparative signatures. OPINION On the cumulative effect of the reasons stated above, I am of the opinion that the disputed signatures of Mahender on Pronote and Receipt and marked as D1 and D2 have been written by the writer of the comparative signatures, marked as 'A' and A1 to A36".
18. PW3, in his cross examination has denied the suggestion that disputed signature was written in good speed and he stated that infact disputed signature was written by unskilled person with slow speed. He also denied the suggestion that in all comparative signature "Ha" with straight line. He also denied the suggestion that lower part of letter DA has loop formation in all comparative signature. He further answered that comparative signature A3, A36 have no loop formation and no loop is found in disputed signature. He admitted the suggestion that the letter DA has been written in straight line but denied the suggestion that in the disputed signature DA is not in the straight line. He also denied the suggestion that he has filed wrong report despite knowing that the signatures on the were different.
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19. Report of Sh. Deepak Jain, Ex. DW2/1.
"DISPUTED SIGNATURES : The signatures alleged to be of Mahender Singh from the promissory note and receipt dated 11.10.2006 as Ex. PW1/1 (marked Q1, Q2 on their enlarged photographs).
COMPARATIVE SIGNATURES: The signatures of Mahender Singh from the acknowledgment receipt Ex. PW1/3 (marked A1 on its enlarged photograph) and from the vakalatnama Ex. DW1/P1 (marked A2 on its enlarged photograph). POINT UNDER ENQUIRY: Whether the aforesaid disputed signatures marked Q1, Q2 are also written by one and the same person Mahender Singh, whose comparative signatures are marked A1, A2, or not? OBSERVATIONS AND REASONS: I have carefully examined and compared the above referred signatures from the above referred original documents with the aid of necessary scientific instrument such as low power microscope, magnifying lenses and measuring scales.
I have also exposed the signatures under comparison from the aforesaid documents with due permission from the Hon'ble Court from which enlarged photographs havae been prepared by me, which are the true production of the signatures under comparison and may be confirmed by comparing them with their counterpart documents. After examination and comparison the signatures from the above referred documents as well as from their enlarged photographs, I reached to the following observations: Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 13 of 23
1. Pen position and shading cannot be examined in the disputed and comparative signatures being written with mono type writing instruments, but this does not affect my opinion.
2. From the quality of the strokes, it is clearly visible in the disputed signatures that these are written with light pen pressure in comparison to the comparative signatures.
3. An interse comparison of the comparative signatures under comparison shows that these signatures are corresponding to each other in respect of their writing characteristics and are falling in the similar range of natural variations with regards to size, curvatures, angles and slant and there is no internal inconsistencies showing any attempt of disguise. Hence, these signatures can be taken as suitable standard signatures for comparison with the disputed signatures.
4. A further comparison of the disputed with the comparative signatures shows that the range of natural variations as observed in the comparative signatures do not cover the disputed signatures as the comparative signatures are written in a bold manner.
5. An examination of the line quality of the comparative signatures shows that it is full of line quality defects as are having tremors. In short, the line quality can be graded as defective, which is quite in contradistinction with the smooth line quality of the disputed signatures. This fact alone is sufficient to conclude that the disputed signatures is a product of forgery. Pertinently, this defective line quality of the comparative signatures cannot be attributed due to some external factors like rough supportive surface, defective writing instrument etc.
6. The manner of writing and making of the strokes of the Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 14 of 23 signatures under comparison shows unequal development of handwriting as well as difference in the freedom, fluency and continuity in the motion of pen and hand with which these signatures are written, wherein pen scope is restricted in the comparative signatures as in written in a slow and drawn/inconsistent movement of hand, whereas the pen scope is extended in the disputed signatures as are written consistently in a freely manner and the disputed signatures are showing better executional skill than that of the comparative signatures, again this fact alone is sufficient to conclude that the disputed and comparative signatures are not written by one and the same person as no one can write better than his / her writing skill.
7. The disputed signatures are written with wrist movement with medium speed of writing, whereas the comparative signatures are written with finger movement with slow speed of writing as are written with heavy pen pressure and due to defective line quality.
8. The disputed and comparative signatures are found written with ascending alignment of the writing line with uneven angle of slant, but the same is not due to forgery involved in the disputed signatures.
9. The pictorial aspect of signatures under examination shows slight similarities in both the sets of signatures, but on minute examination, it is revealed that there are differences in the formation of letters and strokes, directional approach of the strokes, proportionate size of letters and strokes, relative spacing between the letters and strokes. Pertinently, it is the form of letter not of the formation of letters, which is a characteristic to be examined in a proper manner. Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 15 of 23
10. Differences in the formation of letters and strokes in between disputed and comparative signatures may be observed as under :
1. There is a triangular loop in the comparative signatures at the joining of first down going stroke with the middle horizontal stroke in letter 'Ma', but there is an elliptical loop in the disputed signatures.
2. There is a small slanting stroke at the commencement in the comparative signatures in letter 'Ha', but there is a direct commencement in the disputed signatures.
3. There is a loop formation in the comparative signatures at the joining of middle body part with the terminal part in letter 'Da', but there is no such loop in the disputed signatures.
11. After examination and comparison of both the sets of the signatures and after evaluating similarities or dissimilarities of whatsoever nature, I observed that there are fundamental differences in all the general and personal writing characteristics to prove their different authorship which are neither superficial nor incidental and if there is any similarities, than can be discarded being not fundamental in natures.
OPINION:
Taking into consideration all the above mentioned observations and others cumulatively, my considered opinion is that the disputed signatures marked Q1, Q2 are not written by one and the same person Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 16 of 23 Mahender Singh, whose comparative signatures are marked A1, A2".
20. DW2 in his cross examination has denied the suggestion photographs taken by him are manipulated. He deposed that he only examine two documents as he was allowed only examination documents which he examined.
21. In view of the contradictory report of PW3 and DW2 , I would have to myself compared the handwriting of defendant on the promissory note cum receipt and documents which he has filed in the court as per the provisions of Section 73 of the Indian Evidence Act to ascertained whose report is correct for doing this I will take assistance of enlarged photographs of signatures taken by both the handwriting experts for comparison of the handwriting of the defendant. Even otherwise section 73 Of Indian Evidence Act permits to compare the handwriting. Section 73 of the Indian Evidence Act is reproduced as under : "3. Comparison of signature, writing or seal with others admitted or proved.In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written of made, any signature, written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 17 of 23 words or figures so written with any words or figures alleged to have been written by such person".
22. On perusal photographs showing enlarged signature of disputed/ questioned documents EXPW3/6 and EXPW3/9 with the photographs showing enlarged signature on comparative documents i.e. Ex. PW3/7, Ex. PW3/8 and Ex. PW3/10 to Ex. PW3/46 I found that while signing on the questioned/disputed document i.e. promissory note cum receipt appeared to be in freeflow and appeared to be in very neat handwriting written by a person who know very well how to write whereas the signatures on the comparative documents does not appear to be in freeflow and appear to be made by person who can hardly write or has shivering in his hand while writing and thus, same in not in very neat handwriting. The formation of wording 'Ma", "Ha" and "Da" also look different in disputed and comparative signatures. Hence, I am unable to accept the report of PW3, Sh. B.N. Srivastava that the signatures on promissory note and comparative signatures are similar and made by one person i.e. the defendant.
23. On the other hand on perusal of enlarge signature on photographs of disputed and comparative signature Ex. DW2/2 examined by DW2 it is evident that both are quite different. Hence I found report of DW2 more probable than the PW3. Moreover, PW1 has himself in his affidavit Ex. PW1/A has deposed that know he has change his signature intentionally which means PW1 himself knew defendant signature Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 18 of 23 on documents which were sent for comparison and promissory notes were not similar and that is why he has taken the said defense preempting any adverse outcome of handwriting expert report. It is worthwhile to mentioned that both handwriting experts i.e. PW3 and DW2 compare the signature of defendant after the filing of affidavit Ex. PW1/A.
24. Now let me examine whether plaintiff beside handwriting expert report has been able to proved his case that he gave loan of Rs. 500,000/ to defendant. PW1, Sh. Dale Ram, in his testimony has deposed that on 11.10.2006 the defendant has approached him for grant of loan / financial assistance for a sum of Rs. 5 lacs as he has friendly relations with the defendant and he gave the same after taking the money from his friend Jai Pal, son of Sh. Hawa Singh. He has further deposed that Jai Pal has come to his house at 1.30/2.00 pm with money of Rs. 5 lacs where but Jaipal in his evidence affidavit has mentioned that plaintiff took Rs. 5,00,000/ from him on 10.11.2006. Since said affidavit was file by the plaintiff witness hence even if Jaipal has not appeared in evidence it could be read against the plaintiff. Hence the affidavit of Jaipal clearly demolished the entire case of plaintiff that on 11.10.06 defendant approached to the plaintiff for Rs. 500,000/ friendly loan and he asked him that he will arrange the same from his friend Jaipal and on the same time he arrange the money from Jaipal.
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25. Further on the one hand he stated that he was having friendly relation with defendant and gave friendly loan but at the same time in his replication he has stated that defendant is well known criminal and cheater and number of criminal cases were registered against him in Delhi and Haryana hence these two version appears to be contradictory. It does not sound to the logic that plaintiff an ex police officer choose to gave friendly loan to the tune of Rs. 5,00,000/ to a criminal and cheater. Further in his examination in chief, he has stated that he knows the defendant for many years as defendant was residing in his locality and he has visited to the defendant's house a number of times. He is having buffaloes and defendant is working as property dealer but in his cross examination, he has stated that he does not know whether board of property dealer is affixed on the house of defendant or not which creates doubt as to whether he has ever visited the house of the defendant. Further, in his cross examination, he has stated that the defendant has told him that he will be purchasing one plot for which he wants Rs. 5 lacs from him but in his plaint as well as evidence by way of affidavit, Ex. PW1/A, he has not stated the said fact.
26. As far as testimony of DW2 is concerned as stated above DW2 has stated in his evidence affidavit EXPW2/A has deposed that defendant took a loan on 10.11.2006 whereas plaintiff has stated that defendant took loan on 11.10.2006 hence there is major contradiction in his testimony and testimony of PW1. Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 20 of 23
27. The most crucial witness to prove the fact that the plaintiff has given the money to the defendant could be Jai Pal from whom the plaintiff has taken the money. He has also filed the affidavit of Jai Pal in evidence but for the reasons best known to the plaintiff, Jai Pal has not come to give his evidence despite given a number of opportunities. Further, the plaintiff, if has taken money from Jai Pal, then he must have return the said money to Jai Pal but neither in his plaint nor in his evidence, he has stated that he ever returned the money to Jai Pal and no explanation has been given by him why he has not returned the said amount to Jai Pal.
28. The plaintiff in his cross examination has deposed that promissory note was written by Surat Singh. but he has not examined the Surat Singh to proved the said facts for the reason best known to him.
29. On the other hand defendant in his written in his testimony led through affidavit, Ex. DW1/A has categorically denied receiving of Rs. 5 lacs as friendly loan from the plaintiff. In his cross examination, also he has denied the suggestion that apart from the present transaction, he used to take amount from the plaintiff in the past also. In my view this suggestion is even beyond pleading or evidence led by plaintiff as plaintiff in his plaint, replication or even in his testimony has stated that defendant has earlier also taken the loan. The defendant has further deposed that the plaintiff was Suit No. 18172/16 Dale Ram Vs. Mahinder Singh Page No. 21 of 23 running a business of chit fund / committee. In May, 2007, he has got the committee coupon and obtained the right to get the agreed amount of Rs. 1.5 lacs but the plaintiff refused to pay a single penny and then he made the complaint to the police. Thereafter, concocted the false story. In the cross examination of DW1, no suggestion has been given that the plaintiff was not running chit committee (unrecognized/ informal form of chit fund in which many person contribute monthly a particular sum and every month the person who gave lowest bidder get the committee and profits are share by all the member in proportion of the bid) rather suggestion given by the counsel for the plaintiff to the defendant, "It is correct that I was the part of chit fund / committee and used to pay the amount" clearly led to presumption that the plaintiff was running/organizer of the committee. In this circumstances in my view plaintiff has failed to extract anything in cross of defendant which could led to discard his testimony.
30. In view of the above facts and circumstances, I held that plaintiff has failed to prove his case even by preponderance of probability that he has given loan of Rs. 5,00,000/ to the defendant on 11.10.2016 therefore I held that plaintiff is not entitled to the recovery of said amount. Hence, issue No. 1 is decided against the plaintiff and in favour of the defendant.
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31. ISSUE NO. 2.
Whether the plaintiff is entitled for the interest? If yes, for which period and at what rate? OPP.
In view of my findings on issue No. 1 in which I held that the plaintiff is not entitled to any amount, no question of grant of interest arise. Hence, this issue is also decided against the plaintiff and in favour of the defendant.
32. RELIEF.
In view of the aforesaid discussion, in my view, the plaintiff is not entitled to any relief. The present suit is therefore dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Sanjeev KumarI)
on 08.06.2018 Additional District Judge12, Central
Tis Hazari Courts, Delhi
08.06.2018
Digitally signed
SANJEEV by SANJEEV
KUMAR
KUMAR Date: 2018.06.08
15:28:03 +0000
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