Delhi District Court
Mohd Javed vs Shri Saddam Hussain on 17 May, 2025
IN THE COURT OF MS AUNRADHA JINDAL, ADDL.
SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM-GUARDIAN JUDGE, DISTRICT: SOUTH,
NEW DELHI
CS SCJ 457/23
Mohd. Javed Vs. Saddam Hussain
CNR No. DLST03-001035-2023
1. Mohd Javed
S/o Mohd Shakil
R/o H. No. F-170, Village - Lado Sarai,
New Delhi-110030.
.....PLAINTIFF
VERSUS
1. Shri Saddam Hussain
S/o Mohammad Rafik
R/o H. No. 1061-B, Ward No.7,
Mehrauli, New Delhi-110030.
.....DEFENDANT
SUIT FOR RECOVERY OF A SUM OF Rs. 2,50,000/-
WITH PENDENTE-LITE & FUTURE INTEREST
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 1/15
Date of institution : 30.05.2023
Date of reserving judgment : 17.05.2025
Date of pronouncement of judgment : 17.05.2025
JUDGMENT
THE CASE
1. This suit has been filed by the plaintiff, Mohd Javed, against the defendant, Saddam Hussain, for recovery of a sum of Rs. 2,50,000/- along with pendente lite and future interest at the rate of 24% per annum. The amount in question pertains to an alleged outstanding payment arising from a transaction where the defendant purchased a flat from the plaintiff.
2. The present suit was instituted on 30.05.2023. Upon receipt of summons, the defendant appeared through counsel on 23.08.2023. The Written Statement was filed by the defendant with delay, which was condoned by the court on 22.12.2023 subject to payment of costs of Rs. 1,000/- to be deposited with DLSA, South, Saket Court, New Delhi. Pleadings were completed and issues were framed on 22.12.2023. The matter was referred to the Mediation Center on 22.12.2023, but was returned unsettled as per report received on 13.05.2024. Evidence of the parties was recorded. The plaintiff examined himself as PW-1 on 03.12.2024, and the defendant examined CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 2/15 himself as DW-1 on 16.01.2025 and 30.04.2025. Final arguments were heard on behalf of both the parties.
3. This Court has duly considered the final arguments advanced by the learned counsel for both parties. The Court has meticulously examined the entire record, giving careful attention to the pleadings, the evidence presented, and the submissions made on behalf of the parties. Each aspect of the case has been analysed in light of the relevant facts and law, ensuring that all material brought before the Court has been fully reviewed and assessed in reaching a fair and just decision.
PLAINTIFF'S CASE
4. The plaintiff's case, in brief, is that:
a) The plaintiff was the owner of Property No. 1061-B, land measuring 110 sq. yards out of Khasra No. 1151/3 Min, situated in the revenue of Village and Tehsil Mehrauli, New Delhi-110030.
b) The defendant purchased a Flat/Private Portion bearing No. 101 (Left Side Portion) at First Floor, having its area 50 sq. yards without terrace right of the said property along with one bike parking space for a total consideration of Rs. 9,36,000/- from the plaintiff through registered sale deed dated 27.11.2019.
c) Out of the total consideration of Rs. 9,36,000/-, the defendant paid Rs. 6,86,000/- by cash/NEFT/cheque to CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 3/15 the plaintiff. For the remaining balance amount of Rs.
2,50,000/-, the defendant issued six cheques, each of Rs. 50,000/- (Cheque Nos. 000025, 000026, 000027, 000028, 000029, and 000030) drawn on Bank of Baroda, Delhi, which were mentioned in the sale deed.
d) Out of these six cheques, only Cheque No. 000025 dated 30.12.2019 for Rs. 50,000/- was cleared in the plaintiff's bank account.
e) For the remaining cheques, the defendant allegedly took back four cheques (Nos. 000026, 000027, 000028, and 000029) and issued fresh cheques (Nos. 018756, 018757, 018758, and 018759) drawn on Central Bank of India, Branch Barauli, District Gopal Ganj-841405.
f) When the plaintiff deposited Cheque No. 000030 dated 29.05.2020, it bounced on 03.09.2020. The plaintiff informed the defendant about this, who requested not to deposit the remaining cheques due to the COVID-19 lockdown, promising to arrange funds later.
g) The plaintiff alleges that the defendant has paid only Rs. 6,86,000/- (plus Rs. 50,000/- from the cleared Cheque No. 000025) out of the total consideration of Rs. 9,36,000/-, leaving an amount of Rs. 2,50,000/- outstanding.
h) Despite multiple attempts to contact the defendant and a police complaint dated 08.10.2021, the plaintiff could not recover the amount. A legal notice dated 17.05.2023 was sent to the defendant, which was received but not complied with.
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 4/15 DEFENDANT'S CASE
5. The defendant's case, in brief, is that:
a) While admitting the purchase of the flat from the plaintiff for a consideration of Rs. 9,36,000/-, the defendant claims to have paid the entire amount.
b) The defendant admits that out of the six cheques mentioned in the sale deed, Cheque No. 000025 for Rs.
50,000/- was encashed. However, the defendant claims that after this, the plaintiff demanded the amounts for the remaining five cheques in cash, which the defendant paid, and thereafter the plaintiff returned those five cheques.
c) Regarding the cheques numbered 018756, 018757, 018758, and 018759, the defendant contends that these were security cheques given at the time of finalization of the deal, not as payment for the consideration amount.
d) The defendant claims that despite receiving the full consideration amount, the plaintiff is misusing the security cheques with the motive to extract money.
e) The defendant has further stated that the building where the flat was located was constructed without MCD permission and has been demolished in August 2024, with the MCD also issuing a notice for demolition charges of Rs. 8,39,535/-.
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 5/15 REPLICATION
6. In the replication, the plaintiff denied all the contentions of the defendant and reiterated his claim that the defendant had paid only Rs. 6,86,000/- plus Rs. 50,000/- from the cleared cheque, leaving Rs. 2,50,000/- unpaid. The plaintiff denied that the defendant had paid the amount of Rs. 2,50,000/- in cash and alleged that the defendant had failed to provide any documentary evidence to support his claim of payment.
ISSUES FOR DETERMINATION
7. Based on the pleadings of the parties, the following issues were framed on 22.12.2023:
(a) Whether the plaintiff is entitled to a decree of recovery of Rs. 2,50,000/- along with pendente lite and future interest @ 24% per annum, as prayed for in prayer clause (a)? OPP
(b) Whether the plaintiff is entitled to a decree for award of costs of the suit in his favor, as prayed for in prayer clause no. (b)? OPP
(c) Relief.
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 6/15 PLAINTIFF'S EVIDENCE
8. The plaintiff examined himself as PW-1 and relied upon the following documents:
Mark A: Copy of sale deed dated 27.09.2019 Ex. PW1/B (OSR) (colly): Copies of cheques Ex. PW1/C (OSR): Copy of cheque returning memo dated 03.09.2020 Ex. PW1/D: Copy of legal notice dated 17.05.2023 Ex. PW1/E: Copy of postal receipt dated 17.05.2023 Ex. PW1/F: Copy of tracking report Ex. PW1/G: Copy of legal notice delivered through WhatsApp Mark B: Copy of complaint to SHO PS Mehrauli, New Delhi dated 08.10.2021 Ex. PW1/I: Copy of certificate u/S 65B of the Indian Evidence Act
9. In his testimony, PW-1 stated that the defendant purchased the property for Rs. 9,36,000/-, out of which Rs. 6,86,000/- was paid by cash/NEFT/cheque by the defendant. For the remaining Rs. 2,50,000/-, six cheques of Rs. 50,000/- each were issued by the defendant, of which only one cheque (No. 000025) was cleared. PW-1 further stated that Cheque No. 000030 was dishonored due to insufficient balance.
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 7/15
10.During cross-examination, PW-1 admitted that the cheque No. 000025 was cleared in his bank account. However, he denied that cheques No. 000026, 000027, 000028, and 000029 were cleared in his bank account, stating that "Only one cheque was cleared in the year 2020, thereafter, no cheque was cleared in my bank account."
DEFENDANT'S EVIDENCE
11.The defendant examined himself as DW-1 and relied upon the following documents:
Ex. DW1/A (OSR) (colly): Copy of the passbook of the defendant Mark DW1/B (colly): Copy of photographs of the demolished building Mark DW1/C: Copy of notice dated 16.08.2024 sent by MCD
12.In his testimony, DW-1 stated that he had made the entire payment to the plaintiff except for the payment of one cheque (No. 000030) of Rs. 50,000/- which became stale being outdated. He claimed that the rest of the cheques were cleared from his account. DW-1 further stated that the plaintiff did not return his cheques bearing No. 018756, 018757, 018758, and 018759 of Rs. 50,000/- each, which were given as security.
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 8/15
13.During cross-examination, DW-1 admitted that it is not mentioned in his evidence affidavit how he made the payments for cheques No. 018756, 018757, 018758, 018759, and the outdated cheque No. 000030.
FINAL ARGUMENTS Submissions on behalf of Plaintiff:
14.The plaintiff submits that the defendant purchased a flat for Rs. 9,36,000/- through registered sale deed dated 27.11.2019, paying Rs. 6,86,000/- initially and issuing six post-dated cheques of Rs. 50,000/- each for the balance. Only the first cheque (No. 000025) was honored, leaving Rs. 2,50,000/- outstanding. Despite multiple recovery attempts, including a police complaint (08.10.2021) and legal notice (17.05.2023), the defendant failed to pay the balance. The defendant has presented no documentary evidence of alleged cash payments, while the plaintiff has produced evidence of dishonor of cheque No. 000030. The defendant's testimony contains contradictions regarding the nature of replacement cheques, and the recent demolition of the property is irrelevant to the payment obligation that arose years earlier. The plaintiff therefore prays for a decree of recovery for Rs. 2,50,000/- with interest.
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 9/15 Submissions on behalf of Defendant:
15.The defendant contends that the entire consideration of Rs.
9,36,000/- has been fully paid. After the first cheque (No. 000025) was encashed, the defendant paid the remaining Rs. 2,50,000/- in cash as requested by the plaintiff. The bank passbook (Ex. DW-1/A) shows clearance of multiple cheques totaling nearly Rs. 2,00,000/-. The additional cheques (No. 018756-59) were merely security cheques given at the time of deal finalization and were misused by the plaintiff after receiving full payment. The plaintiff has failed to produce any bank statement proving that only one cheque was honored. Furthermore, the property has been demolished by MCD in August 2024 for unauthorized construction, causing significant hardship to the defendant who now pays rent elsewhere. The plaintiff's claim is therefore baseless and should be dismissed with costs.
ANALYSIS AND FINDINGS
16.The issues are adjudicated as under:-
Issue No. (i):
Whether the plaintiff is entitled to decree of recovery of Rs. 2,50,000/- along with pendente lite and future interest @ 24% per annum, as prayed for in prayer clause (a)?
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 10/15
17.This is primarily a question of fact regarding whether the defendant has paid the entire consideration amount of Rs. 9,36,000/- or still owes Rs. 2,50,000/- to the plaintiff.
18.The facts not in dispute are:
(a) The defendant purchased the flat from the plaintiff for Rs. 9,36,000/-
(b) The defendant initially paid Rs. 6,86,000/- to the plaintiff
(c) For the remaining amount, six post-dated cheques of Rs. 50,000/- each were issued by the defendant
(d) Cheque No. 000025 dated 30.12.2019 for Rs.
50,000/- was cleared
19.The main disputed fact is whether the remaining five cheques were honored or paid in cash, or remain unpaid.
20.Upon careful examination of the evidence on record, I find the testimony and evidence of the defendant more reliable and credible for the following reasons:
21.First, the defendant has produced his Bank of Baroda passbook (Ex. DW1/A) which shows the account from which the cheques were issued. The passbook on record shows that cheque no. 25, 26, 27, 28 and 29 all show debit entries in the passbook of the defendant, which conclusively proves that these five cheques were cleared from the defendant's account. This documentary evidence CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 11/15 directly contradicts the plaintiff's claim that only the first cheque was honored.
22.Second, the plaintiff made a significant admission during cross-examination that Cheque No. 000026 dated 30.01.2020 was cleared in his account on 31.01.2020, contradicting his written testimony that only the first cheque was honored. This admission severely undermines the plaintiff's credibility and supports the evidence presented in the defendant's passbook.
23.Third, the plaintiff stated he could not produce his bank statement as the account was closed. This raises serious doubts about his claim, as banking records are essential evidence in a suit for recovery based on dishonored cheques. In contrast, the defendant has presented concrete proof in the form of his bank passbook showing that five cheques were debited from his account.
24.Fourth, there are inconsistencies in the plaintiff's testimony regarding the four Central Bank of India cheques. In his affidavit, he claimed the defendant "took back 4 cheques which were mentioned in sale deed," but in cross-examination admitted that "the cheque no. 000026/27/28/29 was never given to me. The same was with the defendant."
25.Fifth, regarding Cheque No. 000030, there is a contradiction in the defendant's testimony. While in his CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 12/15 affidavit (Ex. DW1/1) he claimed that "cheque bearing no.000030, for Rs.50,000/- dated 29.05.2020 was Stale on 02.09.2020 and after that the plaintiff received in cash in lieu of cheque bearing no.000030, for Rs.50,000/-", during cross-examination, DW-1 admitted that "nowhere in the entire affidavit of evidence it has been mentioned that I had made the payments of cheque no. 018756, 018757, 018758 and 018759 of Rs. 50,000/- each and cheque no. 30 which was outdated to the plaintiff." This contradiction raises some doubt about the defendant's claim of cash payment for this particular cheque. However, this contradiction pertains only to one cheque of Rs. 50,000/- and does not materially affect the overall finding, since the bank passbook (Ex. DW1/A) conclusively proves that five cheques (Nos. 25, 26, 27, 28, and 29) were debited from the defendant's account. At most, this creates doubt only regarding the sixth cheque amounting to Rs. 50,000/-, not the entire claim of Rs. 2,50,000/- as asserted by the plaintiff. The plaintiff has only produced a cheque returning memo for Cheque No. 000030, which corroborates that this particular cheque was not honored through banking channels.
26.The burden of proof in a recovery suit lies primarily on the plaintiff. Where there are serious inconsistencies in the plaintiff's evidence and admissions contrary to his pleadings, the benefit of doubt must go to the defendant. In this case, the documentary evidence in form of the defendant's passbook clearly shows that five out of six CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 13/15 cheques were honored, leaving at most only one cheque of Rs. 50,000/- in dispute, not Rs. 2,50,000/- as claimed by the plaintiff.
27.Regarding the interest rate of 24% per annum claimed by the plaintiff, there is no evidence on record to show that the parties agreed to such a high rate of interest. Given that I have found no amount is due from the defendant to the plaintiff, the question of interest does not arise.
28.Accordingly, I find Issue No. (i) in the negative against the plaintiff.
Issue No. (ii):
Whether the plaintiff is entitled to decree for award of cost of suit in his favour, as prayed for in prayer clause no. (b)?
29.As the plaintiff has failed to prove his claim for recovery, he is not entitled to costs of the suit.
Relief:
30.In light of the above findings and discussions, the suit of the plaintiff is dismissed. The plaintiff's claim for recovery of Rs. 2,50,000/- along with interest @ 24% per annum is rejected.
31.The suit is accordingly dismissed. No order as to costs.
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 14/15
32.Decree be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court
on 17.05.2025. Digitally signed
ANURADHA by ANURADHA
JINDAL
JINDAL Date: 2025.05.17
(ANURADHA17:54:13
JINDAL)+0530
ASCJ-cum-JSCC-CUM-GJ (South)
Saket Courts, New Delhi
CS SCJ 457/23 Mohd. Javed Vs. Saddam Hussain 15/15