Delhi District Court
Judge Code Dl0804 vs Smt. Poonam Nath on 19 January, 2019
IN THE COURT OF MS.NUPUR GUPTA, CIVIL JUDGEI, NEW DELHI
Judge Code DL0804
C.S. No.57068/16
Unique Case ID No.
Sh. Yogeshwar Nath
S/o late Sh. Sri Nath
R/o 36, Hanuman Road,
New Delhi 110001 ... Plaintiff
Versus
Smt. Poonam Nath
W/o Sh. Vishwanath
R/o 42, Hanuman Road,
New Delhi 110001 ... Defendant
Date of Institution : 31.03.2014
Date of Reserving Judgment : 20.12.2018
Date of Judgment : 19.01.2019
SUIT FOR RECOVERY OF RS. 2,60,000/ (RUPEES TWO LAKHS SIXTY
THOUSAND ONLY) ALONGWITH PENDENTELITE AND FUTURE
INTEREST AS WELL AS COST OF THE SUIT
JUDGMENT
1. By filing the present suit, the plaintiff has sought a recovery of Rs. 2,60,000/ alongwith pendentelite and future interest @ 24% per annum from the filing of the suit till its realization as well as cost of the suit against the defendant.
CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 1/18 PLAINTIFF'S VERSION AS PER PLAINT
2. Succinctly, the plaintiff has asserted that father of plaintiff had died interstate on 22.02.2013 leaving behind two sons and two daughters as his only surviving classI legal heirs. The defendant is the wife of brother of the plaintiff. It is submitted that late father of the plaintiff was having a savings bank account bearing no. 076201000010127 with Indian Overseas Bank, Parliament Street branch, New Delhi, which was being operated by him during his lifetime and all the self acquired income was deposited by himself in the said bank account. It is further submitted that the defendant has also been maintaining her savings bank account bearing no. 076201000014879 with Indian Overseas Bank, Parliament Street Branch, New Delhi.
3. It is further submitted that on 02.02.2014, the plaintiff came to know from the statement of account of his late father Sri Nath that following amounts were given to the defendant as a loan : a. Cheque bearing no. 949527 dated 04.08.2010 in the sum of Rs. 2 lacs. b. Cheque bearing no.949535 dated 13.8.2010 in the sum of Rs.1 lac. c. Cheque bearing no. 949540 dated 08.09.2010 in the sum of Rs. 2 lacs. d. Cheque bearing no. 14013 dated 20.10.2010 in the sum of Rs. 40,000/ e. Cheque bearing no. 14015 dated 06.11.2010 in the sum of Rs. 5 lacs.
4. It is further submitted that a total sum of Rs. 10,40,000/ was given by late Sri Nath, father of the plaintiff to the defendant and after his death, all his class I heirs including the plaintiff have a right to 1/4th share in the said CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 2/18 amount paid to the defendant as a loan. It is further submitted that therefore, the plaintiff has a right to recover a sum of Rs.2,60,000/ from the defendant as his 1/4th share (as per section 8 of the Hindu Succession Act). Hence, the present suit has been filed by the plaintiff against the defendant for recovery of Rs. 2,60,000/ alongwith pendentelite and future interest @ 24% per annum from the filing of the suit till its realization as well as cost of the suit.
DEFENDANT VERSION AS PER WRITTEN STATEMENT
5. On notice, defendant has filed written statement contesting the present suit. It is stated in the written statement of the defendant that no cause of action whatsoever has arise in favour of the plaintiff and against the defendant for filing the present suit and the same is liable to be dismissed. It is stated that in para 5 of the plaint, the dates of loan as given by the plaintiff was from 04.08.2010 to 06.11.2010 whereas the present suit has been filed only on 27/28th March 2014 which is much beyond the prescribed period of limitation. It is further stated that it is admitted by the plaintiff in para 5 of his plaint, the loan amount is Rs.10,40,000/ and the suit is needed to be valued at Rs. 10,40,000/ for the purpose of pecuniary jurisdiction. It is further stated that the suit of the plaintiff is based only on presumption and even otherwise, plaintiff has not filed any document to show the payment of interest. It is further stated that suit filed by the plaintiff is frivolous, malicious and vexatious as has been filed only out of greed and for unlawful gain to which the plaintiff is not entitled.
CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 3/18 REPLICATION
6. Ld.counsel for the plaintiff had filed a replication to the written statement of defendant reiterating the averments in the plaint. The contents of the written statement were denied and the contents of the plaint were reaffirmed and the claim was maintained.
IDENTIFICATION OF ISSUES
7. Admission/ denial of documents was conducted. From the pleadings of the parties, following issues were framed by ld. Predecessor Court vide Order dated 10.10.2014 :
1.Whether the sum of Rs. 10,40,000/ given by the father of the plaintiff to the defendant vide cheques bearing no. 949527, 949535, 949540, 14013, 14015 as alleged in para 5 of the plaint was gifted by father of the plaintiff to the defendant? OPD.
2. Whether the sum of Rs.10,40,000/ given by the father of the plaintiff to the defendant vide cheques bearing no. 949527, 949535, 949540, 14013, 14015 as alleged in para 5 of the plaint was a loan extended to the defendant by the father of plaintiff? OPP.
3. Whether the present suit is barred by limitation on account of delay in filing of the same? OPD.
CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 4/18
4. Whether this Court does not have pecuniary jurisdiction to entertain the present suit? OPP.
5. Whether the plaintiff is entitled to suit amount of Rs.2,60,000/ with interest? If so, at what rate. OPP.
6. Relief.
EVIDENCE
8. PW1/plaintiff Yogeshwar Nath has stepped into the witness box and deposed vide his affidavit Ex.PW1/A. He has relied upon the following documents: S.No. Exhibit/Mark Nature of Document
1. Ex.PW1/1 Copy of death certificate of Sh. Sri Nath.
2. Ex. PW1/2 (OSR) Copy of voter ID of plaintiff.
3. Ex.PW1/3 Certified copy of succession petition.
4. Ex.PW1/4 Certified copy of application under Order 6 Rule 17 r/w section 151 CPC moved before the Succession Court.
5. Ex.PW1/5 Another certified copy of application under Order 6 Rule 17 r/w section 151 CPC moved before the Succession Court.
9. PW2 Abhinav Gautam, working as Assistant Manager, Indian Overseas Bank, Parliament Street, New Delhi has stepped into the witness box and has produced the certified copy of statement of account of account bearing CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 5/18 no. 076201000010127 maintained in the joint name of Vishwanath and Sri Nath at Indian Overseas Bank, Parliament Street Branch for the period between 01.8.2010 to 06.11.2010 Ex.PW2/1 (Colly). PW2 has also brought a letter issued by Senior Manager of Indian Overseas Bank wherein it is stated that the said statement of account has been produced in compliance of Order dated 09.02.2015 Ex.PW2/2. PW2 has also produced the certified copies of cheques bearing no. 014013 dated 19.10.2010 in the sum of Rs. 40,000/, no. 014015 dated 06.11.2010 in the sum of Rs.5 lacs, no. 949527 dated 04.08.2010 in the sum of Rs. 2 lac, no. 949535 dated 12.08.2010 in the sum of Rs.one lac and no. 949540 dated 08.09.2010 in the sum of Rs.2 lac pertaining to the account bearing no. 076201000010127, which are collectively Ex.PW2/3.
10. Both the witnesses were cross examined at length by counsel for the defendant. Thereafter, plaintiff evidence was closed on 28.03.2017. This is entire evidence of the plaintiff adduced in the present case.
11. DW1/defendant Smt. Poonam Nath stepped into the witness box and deposed vide her affidavit Ex.DW1/A. She has relied upon the following documents : S.No. Exhibit/Mark Nature of Document
1. Mark DW1/1 Gift deeds dated 04.08.2010, 12.08.2010, to Mark DW1/5 08.09.2010, 19.10.2010 and 06.11.2010.
12. DW2 Faizan Ahmad Khan has stepped into the witness box and has produced the accounts books maintained by Sh. Sri Nath during his lifetime for the years 2010, 2011 and 2012. DW2 has produced the original accounts CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 6/18 book pertaining to the year 201011 containing the entries regarding gifts as shown in index at pages no. 151, 152, 153 and 154 pertaining to Sh. Sri Nath Ex.DW2/1 (Colly). DW2 has also stated that the relevant record as shown in the accounts books pertaining to the year 201011 contains index and page no.191 of the defendant Ex.DW2/2 (Colly).
13. DW3 Abhinaw Gautam, working as Assistant Manager, Indian Overseas Bank has brought the copies of two applications dated 24.01.2013 and 08.2.2014 under Right to Information Act moved by the plaintiff in the present suit. Copies of the same are marked as Mark A and B. DW3 has also brought the replies of the said applications. DW3 stated that there is no provision to find out in the system as to when the statement of account was issued lastly and what was the mode of issuance.
14. DW4 Kashi Nath Panda has produced copy of record of financial year 201011 (assessment year 201112), that is, copy of efiling acknowledgment Mark C, copy of computer generated form ITR V Mark D, copy of computer generated form ITR2 Mark E, copy of working computation sheet of the total income Mark F, copy of computation of capital gain Mark G, copy of the profit & loss account and balance sheet Mark H, copy of details of gifts given by Sri Nath Mark J, copy of ledger account comprising of front page, index page and pages 151154 of financial year 201011 (assessment year 201112) collectively Ex.DW4/1 (OSR).
15. DW4 has also produced record of financial year 201112 (assessment year 201213), that is, copy of efiling acknowledgment Mark K, CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 7/18 copy of computer generated form ITRV Mark L, copy of computer generated form ITR2 Mark M, copy of working computation sheet of the total income Mark N, copy of profit and loss account and balance sheet Mark P, copy of the details of gifts given by Sri Nath Mark Q, copy of the ledger account comprising of front page, index page and page 69 collectively Ex.DW4/2 (OSR).
16. DW5 Vishwa Nath stepped into the witness box and deposed vide his affidavit Ex.DW5/A. He has relied upon the following documents : S.No. Exhibit/Mark Nature of Document
1. Ex.DW5/1 Certified copy of the civil suit titled 'Sh.Yogeshwar Nath Vs Sh. Vishwa Nath'.
2. Ex.DW5/2 Certified copy of the civil suit titled 'Sh.Yogeshwar Nath Vs Smt.Usha Gupta'.
3. Ex.DW5/3 Certified copy of the civil suit titled 'Sh.Yogeshwar Nath Vs Nisha Gaind'.
4. Ex.DW5/4 Certified copy of the civil suit titled 'Sh.Yogeshwar Nath Vs Vidur Nath'.
5. Ex.DW5/5 Computation sheet.
6. Ex.DW5/6 Certified copy of the memorandum of family settlement filed before the Company Law Board.
7. Ex.DW5/7 Certified copy of the gift deed dated 27.07.2012.
8. Ex.DW5/8 (OSR) Copy of letter dated 24.07.2012 alongwith the Mark X envelope and postal receipt.
9. Ex.DW5/9 (OSR) Copy of reply dated 09.08.2012 alongwith envelope.
17. All the witnesses were cross examined at length by counsel for the plaintiff. Thereafter, defence evidence was closed on 04.07.2018. This is CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 8/18 entire evidence of both the parties adduced in the present case.
ARGUMENTS
18. Ld.counsel for the plaintiff submits that defendant has himself admitted the receiving of amount of Rs. 10,40,000/ from the father of plaintiff late Sh. Sri Nath. It is further submitted by counsel for plaintiff that defendant has placed on record the alleged gift deeds but the same were never proved in accordance with law nor the originals of the same were ever produced. It is also submitted by counsel for plaintiff that no admissible evidence has been led by the defendant in order to prove that late Sh. Sri Nath had gifted any money to the plaintiff or his family members even though only they were residing with late Sh. Sri Nath till he was alive nor late Sh. Sri Nath had ever told the plaintiff personally about the amount given to the defendant.
19. Per contra, ld.counsel for the defendant submits that an amount of Rs.10,40,000/ was received from late Sh. Sri Nath, however, the said amount was gifted to her by her fatherinlaw late Sh. Sri Nath during his lifetime between the period 04.08.2010 to 06.11.2010. Ld.counsel for the defendant submits that present suit is apparently barred by limitation and is not supported by any kind of documentary proof to show the alleged loan to the defendant by her fatherinlaw. Ld.counsel for the defendant contended that the gift deeds Mark DW1/1 to Mark DW1/5 are duly placed on record in order to prove the case of the defendant. Therefore, the suit of the plaintiff is liable to be dismissed.
CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 9/18
20. I have heard the submissions of counsel for the defendant and the counsel for the plaintiff. I have also gone through the entire case record meticulously with the kind assistance of both the parties. After weighing the rival contentions and after appreciating the evidence adduced, my issuewise findings are as below : ISSUE NO.1 Whether the sum of Rs. 10,40,000/ given by the father of the plaintiff to the defendant vide cheques bearing no. 949527, 949535, 949540, 14013, 14015 as alleged in para 5 of the plaint was gifted by father of the plaintiff to the defendant? OPD.
21. The onus to prove this issue is upon the defendant. The present suit has been filed for recovery of Rs. 2,60,000/, out of which, defendant has admitted in his written statement that he has received an amount of Rs. 10,40,000/ from the father of the plaintiff late Sh. Sri Nath. However, she took the defence that the said amount was gifted to her by Late Sh. Sri Nath. In support of her claim, defendant has placed on record five copies of the alleged gift deeds Mark DW 1/1 to Mark DW1/5. However, the original gift deeds have not been placed on record.
22. Section 61 of the Evidence Act states that the contents of documents may be proved either by primary or by secondary evidence. Section 64 provides that documents must be proved by primary evidence except in the cases where secondary evidence is allowed.
CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 10/18
23. However, in the present case neither the original gift deeds have been produced, nor the defendant has been able satisfy any of the circumstances provided in Section 65 Indian Evidence Act in order to lead secondary evidence. Therefore, defendant has failed to prove the gift deeds and therefore, the copies of Gift deed Mark DW1/1 to Mark DW1/5 are not admissible in evidence.
24. Defendant has also attempted to prove the factum of gift by placing on record the books of account for the year 2010, 2011 and 2012 claimed to have been maintained by late Sh. Sri Nath during his life time which is exhibited as Ex. DW2/1. Books of account for the year 201011 pertaining to defendant was also placed on record as Ex.DW2/2. DW2 Faizan Ahmad Khan has deposed that the account books were used to be prepared in respect of all the family members of every year.
25. However, these account books are hand written statements which do not bear signatures of any respective family members or of the person who has prepared these entries. DW2 has also stated in his cross examination that account books were not maintained by him but he supervised the same. He further stated that entries were made by one Mr. Goyal but defendant did not made any efforts to examine the said person for the reasons best known to her. In view of this, since DW2 is not the author of document Ex DW1/1 and DW2/2, much weightage cannot be attached to the account books Ex.DW2/1 and Ex.DW2/2 produced by the said witness. Moreover, since the account books brought by the witness are hand written they are more likely to be tampered, CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 11/18 thus, credibility of these documents are doubtful.
26. Defendant has also placed on record computer generated copies of details of gifts given by late Sh. Sri Nath, copy of profit and loss account and balance sheet. However, since the same are not accompanied by any certificate under Section 65B of Indian Evidence Act, 1963, secondary evidence in the form of computer generated copies of books of account are not admissible. It has been held by Hon'ble Apex Court in Anvar P.V. Vs. P.K. Basheer, (2014) 10 SCC 473: The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 12/18 so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
27. Therefore, documents Mark C to Mark H, Mark J to Mark N, Mark P and Mark Q produced by DW4 cannot be read in evidence in absence of certificate under section 65B Indian Evidence Act.
28. The claim of the defendant that the alleged loan amount was in fact a gift, is not substantiated by Income Tax Returns either. DW2 has admitted in his cross examination that he did not know if the gifts made were reflected in the income tax returns filed by the Sh. Kashi Nath Panda. DW4 Kashi Nath Panda admitted in his cross examination that the income tax returns did not reflect that any gift was made to the defendant since there is no provision to show any gift in ITR.
29. In view of the above discussion, defendant has failed to discharge onus to prove the aforesaid issue. This issue is accordingly decided against defendant.
CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 13/18 ISSUES NO.2 & 5 Whether the plaintiff sum of Rs.10,40,000/ given by the father of the plaintiff to the defendant vide cheques bearing no. 949527, 949535, 949540, 14013, 14015 as alleged in para 5 of the plaint was a loan extended to the defendant by the father of plaintiff? OPD.
Whether the plaintiff is entitled to suit amount of Rs.2,60,000/ with interest? If so, at what rate. OPP.
30. The onus to prove this issue is upon the plaintiff. Plaintiff has claimed in the present suit that father of the plaintiff has transferred an amount of Rs.10,40,000/ from his bank account to the defendant during his lifetime as a loan. Therefore, plaintiff is entitled to 1/4th share in the estate of his father which amounts to Rs. 2,60,000/ as claimed by way of present suit.
31. In order to prove his case, apart from himself, plaintiff has examined a witness from Indian overseas Bank, Parliament Street, New Delhi as PW2. PW2 has brought the certified copy of statement of accounts maintained in the joint name of Vishwanath and Sri Nath at Indian Overseas Bank, Parliament Street Branch for the period 01.08.2010 to 06.11.2010, which is Ex.PW2/1 (Colly). The witness has also brought the certified copies of cheques Ex.PW2/3. However, none of these documents proves that the amount transferred from the abovementioned account to the account of the defendant was given towards loan. Moreover, PW2 has categorically been stated in reply to a question that "I cannot tell the purpose of cheques because the only CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 14/18 beneficiary and cheque amount are required to be mentioned on cheques". The witness has also stated that he does not have any knowledge that whether plaintiff has obtained any copy of statement of account Ex.PW2/1 on or before 02.04.2014 from the bank or not. Therefore, this witness was of no help to the plaintiff. Also, mere crediting of cheques in the account of the defendant is not sufficient to prove that the said cheques were given towards the loan to the defendant. Apart from these documents, plaintiff has failed to place on record any document in support of his case to show that the amount of Rs.10,40,000/ was given to the defendant by late Sh. Sri Nath as loan. In crossexamination of PW1, that is, plaintiff he has specifically admitted that there is no mention of loan amount in the bank statements and therefore, merely on the basis of bank statements, the amount cannot be assumed to be given as a loan and that too, when the suit has been instituted after the death of the person who has transferred the said amount. Plaintiff has further categorically admitted that he does not have any acknowledgment of debt relating to the loan given by his father. Admittedly, plaintiff was never informed by late Sh. Sri Nath during his lifetime about the loan advanced to the defendant nor the same was given in the presence of the plaintiff. Plaintiff has also admitted in his crossexamination that he is not aware in whose presence his father has given the amount of loan to the defendant. Plaintiff has clearly failed to place on record any document or examine any witness in order to prove his case that the said amount of Rs. 10,40,000/ was credited to the account of defendant as loan by late Sh. Sri Nath and as a legal heir, he has a right to receive 1/4th share of the said CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 15/18 amount.
32. Moreover, there are contradictions in the stand taken by the plaintiff as plaintiff has stated in para 5 of the plaint that on 02.02.2014, plaintiff came to possess the statement of bank account of Sh. Sri Nath after which he came to know the amounts given to the defendant as loan. However, on the other hand, in para 8 of the plaint, plaintiff has stated that during the lifetime of Sh. Sri Nath, he told the plaintiff that various amounts were given by him to the family members of Vishwanath (husband of the defendant) by way of loans. However, the plaint is totally silent about the date, month or year as to when he was told by his father about the said fact of advancing loan to the family members of Vishwanath. Also, there is no specific mention of the knowledge of the plaintiff about the loan being given to the defendant by his father late Sh. Sri Nath.
33. It is well settled law that plaintiff has to stand on his own legs and he is not allowed to take advantage of the weaknesses in the case of the defendant. Though, the defendant has also failed to prove that the amount of Rs. 10,40,000/ was given to her as gift, however, since the plaintiff has also failed to prove that the amount was given towards loan. Therefore, plaintiff cannot be granted a right to receive 1/4th share of the said amount as claimed by him by way of present suit. Accordingly, this issue is decided against the plaintiff.
ISSUE NO.3 CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 16/18 Whether the present suit is barred by limitation on account of delay in filing of the same? OPD.
34. The onus to prove this issue is upon the defendant. It is contended that alleged amount of loan was given during the period between 04.08.2010 to 06.11.2010 and plaintiff came to possess the statement of account of late Sh. Sri Nath and gained the knowledge of alleged loan on 02.02.2014. It is further submitted on behalf of the defendant that since in cross examination, plaintiff has admitted that there is no mention of loan amount in bank statement, thus the stand taken by plaintiff about gaining knowledge on 02.02.2014 is false. Thus, limitation starts from the date of last transaction, that is, 06.11.2010 and the present suit being filed on 29.03.2014 is barred by Limitation Act.
35. The transactions as reflected in the bank statement Ex.PW2/1 shows that the amount in question was given during the year 2010. However, plaintiff has claimed that he has acquired knowledge in the year 2014 after the death of Sh. Sri Nath. It is clear from the cross examination that plaintiff has admitted that there is no mention of loan in the account statement, thus, he must not have gained the knowledge of the loan on obtaining the account statement. However, since the onus was upon the defendant to prove this issue, it was for the defendant to show that plaintiff had gained knowledge about the alleged loan before the date as alleged by the plaintiff or that the plaintiff was aware about the transaction before the date as alleged by him in the plaint. However, defendant has failed to adduce any evidence to show the same, thus CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 17/18 it cannot be said that the present suit is barred by the provisions of Limitation Act.
36. Therefore, this issue is decided against the defendant.
ISSUE NO.4 Whether this Court does not have pecuniary jurisdiction to entertain the present suit? OPP.
37. The onus to prove this issue is upon the defendant. However, defendant at the time of arguments submitted that defendant does not wish to press this issue and hence in in dearth of any specific evidence or arguments, this issue is decided against the defendant.
RELIEF
38. Consequent to above discussion, especially on issues no.2 and 5, present suit is liable to be dismissed with no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after compliance of necessary formalities.
Announced in the open Court (Nupur Gupta)
on 19.01.2019 Civil JudgeI, New Delhi District
New Delhi
The judgment contains pages 1 to 18
all checked and signed by me.
CS No.57068/16 Yogeshwar Nath Vs Smt. Poonam Nath 18/18