Delhi District Court
Sh. Anil Gangwani vs Shri Chaman Lal Sharma on 4 April, 2022
CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022
CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit no. 43/2016 (16457 / 2016)
In the matter of:
Sh. Anil Gangwani
Proprietor of M/s DSI Tours & Travels
A15, Massodpur, Vasant Kunj,
New Delhi 110 075
........ Plaintiff
VERSUS
Shri Chaman Lal Sharma
R/o Sunny Apartments
B3B, 10th Floor, Plot no. 27,
Sector 12, Dwarka,
New Delhi 110 075
.......Defendant
Date of Institution of Suit : 30.11.2016
Date of transfer to this court : 16.01.2017
Date of reserving judgment : 28.03.2022
Date of pronouncement : 04.04.2022
Appearance:
(i) Sh. Hamid Ali, Advocate, Ld. Counsel for plaintiff
(ii) Sh.Jasbir Singh, Advocate, Ld. Counsel for defendant
SUIT FOR RECOVERY OF ₹ 20,05,247/ (RUPEES
TWENTY LAKHS FIVE THOUSAND TWO HUNDRED
FORTY SEVEN ONLY)
Page nos. 1 of 83
CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022
CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
Counter Claim no. 07/2017
In the matter of:
Chaman Lal Sharma (since died on 11.05.2021)
son of Sh.Bali Ram
Through his legal heirs
a) Nirmal Sharma
W/o late Chaman Lal Sharma
R/o Flat 220/B, Khalifa
AlFahed Building
Al Hamriya Area
Bur Dubai, Dubai
b) Girish Sharma
S/o late Chaman Lal Sharma
R/o Flat No.3B, IInd Floor
Mount2, Kailash Colony
Gazipur Road, Zirakpur
Punjab140603
c) Sandeep Sharma
S/o late Chaman Lal Sharma
R/o Flat B3B Sunny Valley CGHS Ltd.
Plot No.27, Sector12, Dwarka
New Delhi110078
d) Amita Sharma
D/o late Chaman Lal Sharma
W/o Sh.Sansar Chand Sharma
R/o Flat No.11A, Building9
The HIBUSCUS, Sector50
Gurugram122018, Haryana
e) Vipin Sharma
S/o late Chaman Lal Sharma
R/o Flat 220/B
Page nos. 2 of 83
CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022
CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
Khalifa AlFahed Building
Al Hamriya Area
Bur Dubai, Dubai
f) Pawan Sharma
S/o late Chaman Lal Sharma
R/o 1042340
Avenue NW, Edmonton
Alberta, Canada
... Counter Claimants
VERSUS
Sh. Anil Gangwani
Proprietor of M/s DSI Tours & Travels
A15, Masood Pur, Vasant Kunj,
New Delhi 110 070
... Non Counter Claimant
COUNTER CLAIM FOR RECOVERY OF ₹26,00,000/
(RUPEES TWENTY SIX lakhs) ALONG WITH INTEREST @
24% P.A. W.E.F. 01.01.2015 TO 28.02.2017 WITH FUTURE
INTEREST @ 24% P.A. TILL REALIZATION
Date of Institution of Suit : 22.11.2019
Date of reserving judgment : 28.03.2022
Date of pronouncement : 04.04.2022
Appearance:
(i) Sh.Jasbir Singh, Advocate, Ld. Counsel for counter claimants.
(ii) Sh. Hamid Ali, Advocate, Ld. Counsel for non counter claimant.
J U D G M E N T:
1. Vide this common Judgment, I shall decide the suit filed by the plaintiff and the counter claim filed by the defendant.
Page nos. 3 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
2. The present suit has been filed by the plaintiff against the defendant seeing recovery of ₹ 20,05,247/ (Rupees Twenty Lakhs Five Thousand Two Hundred Fourty Seven Only) along with interest.
(i) It is averred that Shri Anil Kumar Gangwani is a proprietor of M/s DSI Tours & Travels (in short, The said firm) and is in the business of Tours & Travel from office at A15, Masoodpur, Vasant Kunj, New Delhi110070. Whereas, defendant, Shri Chaman Lal Sharma is residing at Sunny Apartments, B3B, 10th Floor, Plot no.
27, Sector12, Dwarka, New Delhi110075. The plaintiff and the defendant were having cordial relation since March, 2005.
(ii) It is averred that during first week of July, 2006, the defendant as a gesture to ease out plaintiff from financial difficulties in his business offered an advance of ₹ 26,00,000/ in parts till the month of December 2008 subject to the condition that plaintiff shall refund the said advance progressively considering its earnings. The defendant accordingly paid the said amount in parts totaling ₹ 26,00,000/ to the plaintiff over the period ending with 01.12.2008.
(iii) It is averred that plaintiff progressively started refunding payment to defendant from his earnings as and when asked by defendant either through Bank transactions or by cash. However, in the first week of August, 2016 during conciliation of the accounts, Page nos. 4 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 the parties, namely, plaintiff and defendant found that defendant has been paid a sum of ₹ 46,05,247/ against his advance of ₹ 26,00,000/ i.e. an excess amount of ₹ 20,05,247/ (in short, the said amount).
(iv) It is averred that defendant, realising that he has received the said amount in excess from plaintiff, agreed to refund the said amount to plaintiff by 29.08.2016. However, the defendant did not fulfill his promise by releasing the said amount to plaintiff. The plaintiff, accordingly, by letter dated 30.08.2016 made a request to defendant to remit the said amount within seven days from receipt thereof.
(v) It is averred that the defendant despite the letter of the plaintiff dated 30.08.2016, did not remit the said amount to plaintiff. Thus, the plaintiff through his Advocate issued a legal notice dated 24.09.2016 to defendant calling upon him to pay the said amount together with interest thereon @ 18% within 21 days from receipt hereof, failing which plaintiff will file a suit for recovery of the said amount along with interest thereon. The defendant, despite issuance of legal notice and plaintiff's letter dated 30.08.2016 has not released the said amount alongwith interest thereon. Hence the present suit.
Page nos. 5 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
3. After filing of the suit, summons for settlement of issues was issued to defendant, and defendant after service has filed written statement and, interalia, submitted that defendant is a senior citizen and is suffering from various ailments and is on wheel chairs The present suit is an attempt to convert the criminal proceedings into civil proceedings. It is averred that plaintiff is in the business of tours & travels and defendant was his regular customer and thus have good relations with each other since 2005. The plaintiff in order to develop his new office at A15 Shanker Lane Masoodpur, New Delhi and to enhance business activities approached defendant, in the month of February 2006 for a friendly loan, alluring him with fake promises and showing rosy dreams that he will get higher rate of returns more that of any bank interest rate or fixed deposit rate of interest, to meet his day today expenses and eventually became successful in raising friendly loan of ₹26,00,000/ by gaining his trust with religious acts. The plaintiff in a very calculated manner, took away all his hard earned savings, leaving him behind with no other source of income. On several requests, plaintiff managed to raise a friendly loan from the defendant, for total amount of ₹25,00,000/ (Rupees Twenty Five Lakhs), on different installments on interest @24% per annum for a duration of 5 years i.e. until December 2014. As per terms settled between plaintiff and defendant, in case, the payment of interest is not made within time i.e. on every 7th day of each English calendar month, late payment charges will also have to be paid by plaintiff @ 24% per annum.
Page nos. 6 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
4. It is submitted that plaintiff paid monthly interest payment and the late payment charges upto August 2009 and failed to pay the interest for the month of September and October 2009 @ 24% per annum which comes to ₹50,000/ hence the amount payable for 2 months became ₹1,00,000/, which was added in the friendly loan amount thereby raising the loan amount to the tune of ₹ 26,00,000/. Hence the suit of plaintiff deserves to be dismissed on the grounds of concealment of facts. The plaintiff from November 2009 onwards, started paying interest of ₹ 52,000/ per month, thereafter. The Axis Bank statement of the defendant is another proof of the fact that payments made by the plaintiff were monthly interest payments and late payments charges.
5. It is submitted that the said payment shows that plaintiff raised the loan from defendant and was repaying the same along with interest. No one gives such a big amount of ₹26,00,000/ without interest and no one pay the said amount in excess other than the payable amount. The plaintiff has paid interest and late payment charges to defendant up to December, 2014 and, thereafter, he failed to make payment of interest and late payment charges to the defendant till date despite repeated demands and requests made by the defendant/counterclaimant from time to time. The plaintiff according to his statement of account upto 26.08.2014 had paid an amount of ₹39,81,600/ which is in excess to ₹13,81,600/ only.
Page nos. 7 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
6. It is averred that plaintiff has paid interest and late payment charges upto December 2014, however, nothing has been paid towards principal amount. The plaintiff is the proprietor of the said firm wherein the chartered accountant is maintaining the accounts and this fact is unbelievable that a firm can give a sum of ₹20,05,247/ in excess without being noticed by anybody in the said firm. The defendant and his son Sh.Sandeep Sharma in November 2014 met plaintiff to repay the principal amount, however, the plaintiff kept on evading the same on one pretext or the other.
7. It is submitted that plaintiff on the persuasion of defendant entered into Loan Repayment Agreement on 28.09.2015 (in short, the said agreement) in Dwarka, duly signed by both the parties along with witnesses, wherein the plaintiff agreed that he took loan from defendant amounting ₹26,00,000/ and one year interest amount of ₹6,24,000/ from January to December 2015 @ 24% per annum i.e. ₹ 52,000/ per month on the principal amount will be paid latest by December 2015. The defendant agreed to waive off the late payment charges of amount ₹61,690/ calculated up to 30.09.2015 under the condition that plaintiff will clear all the payments by December 2015 and, in case of default of payments by 31.12.2015, the plaintiff will become liable to pay enhanced interest rate of 4% per month i.e. 4 % per month on the principal amount and on the late payment charges.
Page nos. 8 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
8. It is submitted that despite the said agreement executed between the parties, namely, plaintiff and defendant, the plaintiff did not make any payment after 31.12.2014 with regard to the principal amount of ₹ 26,00,000/ and the monthly interest payments. It is not denied by the defendant that the plaintiff made some minor and irregular payments of ₹ 10,000/ on 13.07.2015, ₹ 5,000/ on 18.12.2015, ₹ 25,000/ on 02.05.2016, ₹ 5,000/ on 30.06.2016 and ₹ 4,000/ on 14.07.2016 which are late payment charges only. The defendant upon realizing plaintiff's false commitments, strange and awkward behaviour, filed a police complaint on 08.08.2016, in the Office of the Deputy Commissioner of Police, Police Station Dwarka, District South West, New Delhi, for committing offence of cheating, fraud and misappropriation of funds of the defendant wherein defendant made a statement to the DCP against plaintiff.
9. That plaintiff in an attempt to evade the legally enforceable rights and interests of defendant and to convert the criminal police proceedings against him into a civil matter, fabricated a frivolous demand letter dated 24.09.2016 and served upon defendant wherein he concocted a interest free advance story and called upon defendant to refund a ridiculous and unbelievable huge amount i.e. the said amount which according to him was paid in excess. The defendant made reply of the same through his counsel 'GLX Law Officers' on 07.12.2016 along with counter claim.
Page nos. 9 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
10. It is submitted that the aforesaid counter claim and reply to the notice of the plaintiff dated 24.09.2016 is duly received by plaintiff and plaintiff made reply to the same on 04.01.2017 in false manner. The plaintiff has failed to comply with the counter claim of defendant/counter claimant till date, hence plaintiff is liable to pay the amount of ₹68,14,246.40 paise up to 31.12.2016 and is also liable to pay the interest, thereafter till the date of filing the present suit and also till its realization with future interest @ 48 % per annum.
11. That the total amount recoverable from plaintiff was ₹68,14,246.40/ up to 31.12.16 as per defendant counter claim/notice dt. 07.12.2016. The amount recoverable from the plaintiff is raised to ₹72,08,421.44/ (Principal Amount ₹26,00,000/ and interest amount ₹46,08,421.44/) up to February of 2017 calculated at enhanced interest rate of 4 % per month.
12. Replication to the written statement has been filed reaffirming and reasserting the averments made by the plaintiff in the plaint.
13. On the basis of pleadings of the parties, following issues were framed in the present suit by ld. pre decessor of this court vide order dated 13.04.2017 :
1. Whether the claim of plaintiff or any part thereof,is barred by limitation, as alleged ? OPD Page nos. 10 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
2. Whether plaintiff is entitled to the amount claimed in the suit ? OPP
3. 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 which period ? OPP
4. Relief ;
Counter Claim
14. Brief facts relevant for disposal of the present counter claim are like this:
(i) It is averred that plaintiff is sole proprietor of the said firm and he is carrying on business of Tours & Travels from the office at A 15, Masoodpur, Vasant Kunj, New Delhi110070.
(ii) The defendant was a regular customer of plaintiff, who is in the business of tours and travels and thus were having cordial and friendly relations prior to 2005. Plaintiff in order to develop his new office at A15 Shanker Lane Masoodpur, New Delhi and to enhance business activities, in the month of February 2006 approached defendant for a friendly loan, alluring him with fake promises and showing rosy dreams that he will get higher rate of returns more that of any bank interest rate or fixed deposit interest rate to meet his day today expenses and eventually became successful in raising friendly loan of ₹ 26,00,000/, by gaining his trust with religious acts. The plaintiff in a very calculated manner took away all his hard earned savings, leaving him behind with no other source of income.
(iii) It is averred that plaintiff upon several requests managed to raise a friendly loan from defendant, for total amount of ₹ 25,00,000/ as detailed in para no. 3 of written statement filed by Page nos. 11 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 defendant. As per terms settled between plaintiff and defendant, in case, the payment of interest is not made within time i.e. on every 7 th day of each English calendar month, late charges will also have to be paid by plaintiff @ 24% per annum.
(iv) It is averred that present suit is based on absolutely false grounds without any strict proof, and an attempt to evade the legal enforceable rights and interests of defendant and to convert the criminal police proceedings against him into a civil matter. No one gives such a big amount of ₹ 26,00,000/ without interest and no one pay the said amount in excess other than the payable amount. The plaintiff has paid interest and late payment charges to the defendant/counterclaimant up to December, 2014 and, thereafter, he failed to make payment of interest and late payment charges to defendant till date despite of repeated demands and requests made by the defendant/counterclaimant from time to time .
(v) It is averred that plaintiff on the persuasion of defendant/counter claimant, entered into the said agreement duly signed by both the parties along with witnesses, wherein the plaintiff agreed that he took loan from the defendant amounting ₹ 26,00,000/ from period 20062008, on interest @ 24 % per annum, payable on every 7th day of each month. The plaintiff also agreed in the said agreement that he is liable to pay interest w.e.f. 01.01.2015 @ ₹ 52,000/ per month i.e. 24 % per annum. The plaintiff also agreed to refund the principal loan amount of ₹ 26,00,000 and one year interest amount of ₹6,24,000/ to the defendant/counter Page nos. 12 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 claimant by 31.12.2015. The defendant on good will basis agreed to waive off the late payment charges of amount ₹ 61,690/ calculated up to 30.09.2015 under the condition that the plaintiff will clear all the payments by December 2015 and in case of default of payments by 31.12.2015, plaintiff will become liable to pay enhanced interest rate of 4% per month i.e. 48 % per annum to the principal amount and on the late payment charges.
(vi) Plaintiff, despite the execution of the said agreement, did not make any payment after 31.12.2014 with regard to the principal amount of ₹26,00,000/ and the monthly interest payments. It is not denied by the defendant that the plaintiff made some minor and irregular payments of ₹ 10,000/ on 13.07.2015, ₹ 5,000/ on 18.12.2015, ₹ 25,000/ on 02.05.2016, ₹ 5,000/ on 30.06.2016 and ₹ 4,000/ on 14.07.2016 which are late payment charges only.
(vii) That defendant upon realizing false commitments, strange and ackward behaviour of plaintiff, filed a Police complaint on 08.08.2016, in the Office of the Deputy Commissioner of Police, Police Station Dwarka, District South West, New Delhi, for committing offence of cheating, fraud and misappropriation of funds of the defendant wherein the defendant made a statement to the DCP against plaintiff.
(viii) That plaintiff in an attempt to evade the legal enforceable rights and interests of defendant and to convert the criminal police proceedings against him into a civil matter, fabricated a frivolous demand letter dated 24.09.2016 and upon defendant wherein he Page nos. 13 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 concocted a interest free advance story and calling upon the defendant to refund a ridiculous and unbelievable huge amount i.e. the suit amount which according to him was paid in excess. The defendant made reply of the same through his counsel 'GLX Law Officers' on 07.12.2016 along with counter claim.
(ix) That the total amount recoverable from the plaintiff was ₹68,14,246.40/ up to 31.12.16 as per defendant counter claim/notice dt. 07.12.2016. The amount recoverable from the plaintiff is raised to ₹ 72,08,421.44/ (Principal Amount ₹ 26,00,000/ and Interest amount ₹ 46,08,421.44/) up to February of 2017 calculated at enhanced interest rate of 4 % per month in the following manner: TABLE I Period Capital Interest @4% p.m. January15 2,600,000 104,000 February15 2,704,000 108,160 March15 2,812,160 112,486.40 April15 2,924,646.40 116,985.86 May15 3,041,632.26 121,665.29 June15 3,163,297.55 126,531.90 July15 3,289,829.45 131,593.18 August15 3,421,422.63 136,856.91 September15 3,558,279.53 142,331.18 October15 3,700,610.71 148,024.43 November15 3,848,635.14 153,945.41 December15 4,002,580.55 160,103.22 January16 4,162,683.77 166,507.35 February16 4,329,191.12 173,167.64 Page nos. 14 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 March16 4,502,358.76 180,094.35 April16 4,682,453.11 187,298.12 May16 4,869,751.24 194,790.05 June16 5,064,541.29 202,581.65 July16 5,267,122.94 210,684.92 August16 5,477,807.86 219,112.31 September16 5,696,920.17 227,876.81 October16 5,924,796.98 236,991.88 November16 6,161,788.86 246,471.55 December16 6,408,260.41 256,330.42 January17 6,664,590.83 266,583.63 February17 6,931,174.46 277,246.98 TOTAL 7,208,421.44 4,608,421.44
(x) The plaintiff is also liable to pay 15 % of the voluntary payable amount i.e. ₹10,81,263.22/ towards the court fees, attorney fees and other misc. collection expenses. The plaintiff has failed to comply with the counterclaim/notice reply dated 07.12.2016 and also despite of repeated demands and requests made by defendant from time to time and also despite police complaint made by the defendant to the DCP, PS Dwarka, New Delhi, hence this counter claim is being filed by the defendant/counter claimant against the plaintiff. The defendant, being 87 years of age and considering his past cordial and friendly relations with the plaintiff, is willing to settle the counter claim amicably and quickly for a total amount of ₹ 43,50,887.10/ (Principal amount ₹ 26,00,000/ and interest amount ₹ 17,50887.10/) up to 28.02.2017, calculated at old interest ratre of 24% per annum compoundly, as shown in the table below, giving Page nos. 15 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 the plaintiff a huge relief and waiver of ₹ 28,57,534.34/. The plaintiff is also liable to pay the interest and late payment charges @ 24% per annum, till the date of filing the present suit and also till its realization of payment with future interest @ 24 % per annum in the following manner: TABLE II Period Capital Interest@24%p.a January15 2,600,000 52,000 February15 2,652,000 53,040 March15 2,705,040 54,100.80 April15 2,759,140.80 55,182.82 May15 2,814,323.62 56,286.47 June15 2,870,610.09 57,412.20 July15 2,928,022.29 58,560.45 August15 2,986,582.74 59,731.65 September15 3,046,314.39 60,926.29 October15 3,107,240.68 62,144.81 November15 3,169,385.49 63,387.71 December15 3,232,773.20 64,655.46 January16 3,297,428.67 65,948.57 February16 3,363,377.24 67,267.54 March16 3,430,644.78 68,612.90 April16 3,499,257.68 69,985.15 May16 3,569,242.83 71,384.86 June16 3,640,627.69 72,812.55 July16 3,713,440.24 74,268.80 August16 3,787,709.05 75,754.18 September16 3,863,463.23 77,269.26 October16 3,940,732.49 78,814.65 November16 4,019,547.14 80,390.94 Page nos. 16 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 December16 4,099,938.09 81,998.76 January17 4,181,936.85 83,638.74 February17 4,265,575.59 85,311.51 TOTAL 4,350,887.10 1,750,887.10
xi) The defendant is also giving waiver to 15 % attorney fees of the total unpaid amount i.e. ₹ 10,81,263.22/ to plaintiff, leaving upon this court to decree appropriate reliefs in favour of the defendant. The plaintiff, up to August 2009, paid the monthly interest payments and the late payment charges regularly to defendant and failed to pay the interest for the month of September and October, 2009 @ 24 % per annum which comes to ₹50,000/ per month, hence the payable amount became ₹1,00,000/ and on the request of plaintiff the said amount of ₹1,00,000/ was added in the friendly loan amount at that given time i.e. ₹ 25,00,000/, raising the total principal amount paid by the defendant to the plaintiff to ₹26,00,000/. The factum of raising friendly loan for total amount of ₹26,00,000/ has already been admitted by plaintiff in his present suit.
(xii) That from November 2009 onwards the plaintiff started paying interest of ₹ 52,000/ per month regularly @ 24% per annum on the principal loan amount of ₹ 26,00,000/ along with late payment charges which can also be clearly verified from the plaintiff's statement of account provided in his suit file. The defendant AXIS bank statement of account further clarified and give strict proof Page nos. 17 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 regarding the late payment charges, monthly interest etc. made by plaintiff.
15. Written statement to the counter claim has been filed wherein the contents of the counter claim were denied in toto and the contents of the plaint are reiterated which are not reproduced for the sake of brevity. It is prayed that the counter claim filed by the defendant/counter claimant be dismissed.
16. Replication to the written statement to counter claimant filed wherein the contents as mentioned in the counter claim were reiterated and those stated in the written statement were denied.
17. On the basis of pleadings of the parties, following issues were framed in the counter claim by ld. pre decessor of this court vide order dated 07.07.2017 : Issues
1. Whether the parties to the proceedings had entered into any legally enforceable loan repayment agreement, either on 28.09.2015 or any other date ? Onus on Counter Claimant/defendant.
2. Whether the counter claim, or any part thereof is barred by limitation? Onus on noncounter claimant/plaintiff.
3. Whether the counter claimant/defendant is entitled to the amount claimed in the counter claim ? Onus on counter claimant/defendant.
4. If the answer to the aforesaid issue is in affirmative, whether the counter claimant/defendant is entitled to Page nos. 18 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 interest thereupon, if so at what rate and for which period ? OPP
5. Relief ;
18. Thereafter, parties to the suit were called upon to substantiate their case by leading evidence.
19. Plaintiff appeared as PW1 and testified through his affidavit by way of evidence Ex.PW1/A and relied on the following documents :
(i) Copy of the bank statement downloaded from Axis Bank is Ex. PW1/1,
(ii) Copy of the bank statement of Canara Bank is Ex. PW1/2,
(iii) Copy of the letter dated 30.08.2016 is Ex. PW1/3,
(iv) Legal notice dated 24.09.2016 is already exhibited as Ex.
P1 to Ex. P3.
(v) Legal notice/reminder dated 16.11.2016 is Ex. P4 to Ex.
P6.
20. Thereafter plaintiffs evidence was closed and matter was listed for recording of defendants evidence. Defendant appeared as DW1 and testified through his affidavit by way of evidence Ex.DW1/A and the additional affidavit which is Ex. DW1/B which are not reproduced herein for sake of brevity. He relied on following documents :
1. Receipt dated 18.07.2006 is Ex. D1,
2. Receipt dated 10.10/2007 is Ex. D2,
3. Receipt dated 08.11.2007 is Ex. D3,
4. Receipt dated 08.10.2008 is Ex. D4,
5. Receipt dated 25.11.2008 is exhibited as Ex. D5,
6. Original cheque No. 411350 is exhibited as Ex. D6, Page nos. 19 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
7. Copy of emails dated November 04, 2014 and February 14, 2015 sent by his son & SPA holder, Shri Sandeep Sharma, to DSI Tours & Travel Ex. DW1/1,
8. Loan Repayment Agreement dated 28.09.2015 is Ex. DW 1/2,
9. Copy of police complaint dated 08.08.2016 filed against the plaintiff is Ex. DW1/3,
10. Letter/notice dated 24.09.2016 alongwith envelope Ex. D7
11. Letter/notice reply/counterclaim dated 07.12.2016 along with two postal receipts dated 20.12.2016 is already Ex. D8,
12. Letter/notice dated 04.01.2017 along with envelope already exhibited as Ex. D9,
13. Report dated 09.04.2018 of Truth Labs regarding Forensic Mobile Phone Analysis, is exhibited as Ex.DW1/4
14. Report of Handwriting Expert is exhibited as Ex.DW1/5.
21. Defendant has also got examined SI Vikash Yadav as DW2 who has proved on record the complaint Ex.DW1/3,. Sh. Sandeep Sharma has been examined as Ex.DW3 who has deposed on affidavit Ex.DW3/A and additional affidavit of evidence Ex.DW3/B. He has relied upon the documents already exhibited as Ex.D1 to Ex.D9, Ex.DW1/1 to Ex.DW1/5 and Ex.DW3/1 to Ex.DW3/3. Plaintiff has also examined one Sh.Rajiv Vashisth as DW4 who has testified that the record of CDR of mobile phone of defendant bearing no.9871234702 is not traceable in terms of the letter of Nodal Officer of Airtel, Ex.PW4/1. Plaintiff has also examined one Sh. Ashok T, Senior Scientific Officer as DW5 who has given the forensic opinion through Ex.DW1/4 in respect of the mobile phone of DW3. The handwriting expert DW6 proved his report Ex.DW1/5. Thereafter, defendant's evidence was closed.
Page nos. 20 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
22. I have heard the counsel for the parties and with their assistants have gone through the record and have considered the rival contentions raised by Ld counsels for the parties.
23. My issue wise findings are as under : Issue no. 2 & 3 of main suit and issue no. 1 of counter claim
24. These issues are overlapping each other and, therefore, disposed off by this common order. Plaintiff to prove its case appeared as PW1 and has deposed through his affidavit by way of evidence Ex.PW1/A and reiterated the contents of plaint which are not reproduced for the sake of brevity. Plaintiff/PW1 testified that he was in financial difficulty in the year 2006 and defendant, as a good gesture, to bring the plaintiff out from financial difficulty, advanced a loan of ₹ 26 lakhs in part. The said amount was paid in parts to plaintiff over the period ending on 01.12.2008. However, no written agreement was executed for such loan or the refund thereof.
25. PW1 further testified that plaintiff progressively started refunding payment to defendant from his earnings, as and when asked by defendant, either through bank transactions or by cash as per the instruction of defendant, to avoid his tax liability with an understanding that such amount in the bank statement would not be considered as monthly amount or towards late payment charges as it was with a view to accommodate the defendant as aforesaid in his tax returns. The amount so refunded by plaintiff to defendant was to be regarded only as a refund against the advance amount of ₹ 26 Page nos. 21 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 lakhs. Plaintiff returned the amount as per the bank statement of Axis Bank Ltd, Ex.PW1/1 and bank statement of Canara Bank Ex. PW1/2 respectively.
26. PW1 further testified that plaintiff and defendant conducted mutual conciliation of accounts and defendant verified the running account statement maintained by plaintiff. It was found that the defendant has been paid a sum of ₹ 46,05,247 against his advance of ₹ 26 lakhs i.e. an excess amount i.e. the said amount has been paid by plaintiff to defendant. Defendant, however despite request, could not return the said amount.
27. PW1 further testified that defendant had agreed to return the said amount to plaintiff by 29.08.2016, however, defendant did not fulfill his promise to return the said amount and, therefore, the plaintiff through letter dated 30.08.2016 made a request to defendant to remit the said amount within seven days. The said letter dated 30.08.2016 was signed by Sh.Santosh Kumar for and on behalf of plaintiff being accountant of the said firm. The said letter was handed over to defendant personally but having not received any response from defendant, plaintiff sent letter dated 30.08.2016 to defendant through speed post in terms of the receipt Ex. PW1/3. The defendant despite receipt of letter dated 30.08.2016 failed to refund the said amount. The plaintiff issued a legal notice dated 24.09.2016 to defendant for return of the said amount along with interest @ 18% per annum. The said letters/correspondence Page nos. 22 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 have been admitted by defendant as Ex. P1 to Ex. P3 during admission and denial of the documents.
28. PW1 further testified that despite receipt of notice Ex.P1 to Ex.P3, the defendant did not release the said amount. Ultimately, the plaintiff issued a reminder dated 16.11.2016 (Ex.P1 to Ex.P6) calling upon the defendant to pay the said amount along with interest @ 18%, however, defendant did not respond.
29. In crossexamination, PW1 has testified and made the following admissions :
i. the letter Ex. PW1/3 was returned and signed by his accountant Santosh Kumar ii. PW1 was not aware as to whether as per requirement of law, he has to maintain his books of account iii. the plaintiff was filing his tax returns on annual basis while doing business and he did not taken into account that no excess payment is made by his firm to anyone. iv. PW1 can lend money to a person who is in financial difficulty without asking any security depending upon his relation with that person.
v. He had received a sum of ₹ 13,25,000 from defendant till April 2007 and in all, plaintiff has received ₹ 26 lakhs from defendant which is duly reflected in his books of accounts vi. PW1 admitted that he has not filed the books of accounts Page nos. 23 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 along with his affidavit but volunteered that he has given the statement of account to defendant. vii. PW1 has the books of account in his office and he can produce the same viii. No receipt was obtained by PW1 from the defendant against the cash payment made to defendant towards the return of the loan amount owing to his relation with defendant ix. PW1 admitted that when he has taken money from defendant, he has acknowledged the same by issuing receipt x. PW1 denied that joint verification of statement of accounts as stated by him in his affidavit Ex. PW 1/A is false xi. PW1 has denied the suggestion that nothing with respect to joint verification was mentioned in the notice Ex. PW1/3 and Ex. PW1/6 xii. the joint verification of the statement of account was handed over by him to defendant in the beginning of August 2016 when defendant came to his office xiii. PW1 testified that he has written the letter dated 06.08.2016 and denied the suggestion that letter dated 06.08.2016 has been forged by him so as to pre date his claim before the complaint filed by defendant on 08.08.2016. xiv. He admitted that the letter dated 06.08.2016 was posted by him after the fortnight of its date of issuance as the staff, he had deputed, was not so competent to put a watch on the over payments made by him, therefore, it did not came to his notice Page nos. 24 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 from April 2012 to 2016 that the over payment has been made xv. PW1 denied any discrepancy in the statement of account relied upon by him in his affidavit Ex. PW1/A and the notice Ex. P1 dated 24.09.2006 xvi. He has taken the services of the accountant for filing his ITR but he did not know as to how the chartered accountant engaged by him has filed his return without noticing payment of the excess amount made by the said firm xvii. PW1 has not lodged any complaint with the police against the defendant and he do not know whether the defendant has filed any complaint against him with the police xviii. he admitted that he used to call defendant as uncle and he never visited his residence in Dwarka but volunteered that his staff used to visit defendant once in a year for giving the Diwali gifts xix. he admitted that he has communication with defendant through mobile phone i.e. through phone call and SMS and he has sent SMS to defendant but did not recall that he has sent messages from 2014 till 2016.
xx. Whenever PW1 has transfered the amount to the account of defendant he has sent a confirmatory SMS to defendant stating that the said amount has been transferred by him to the account of defendant xxi. He admitted that, whenever the request has been made by defendant made, he had paid his electricity, water and house Page nos. 25 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 tax bills and he used to send SMS to defendant mentioning all the payments made by him towards the charges. xxii. It might be possible that as per the instructions of defendant, he might have sent SMS mentioning a particular bill paid by him along with late fees charges and by mentioning the amount paid towards late fees. He did not remember as to whether from 20142016 he has sent 68 messages to defendant on various subjects including personal problems xxiii. He denied the suggestion that the entry shown at point X in Ex. PW1/1 was made on 25.07.2014 with respect to the payment which was due for April 2014. xxiv. He volunteered that he had mentioned April 2014 only as per the instruction of defendant so is his reply with respect to the entry at point Y on Ex. PW1/1 with respect to payment made on 26.08.2014 xxv. PW1 used to transfer money as per request received from defendant and in para no. 4 of his affidavit Ex. PW1/A, he has mentioned the pattern in which defendant used to ask money from him.
xxvi. He admitted that the payment of ₹ 18,000 was made by him only once i.e. 30.07.2007 xxvii. He admitted that he made payments of ₹ 24,000 only once in October 2007 xxviii. PW1 denied the suggestion that he included the payment of ₹ 18,000/ and ₹24,000/ stating to be a pattern, in which Page nos. 26 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 defendant used to ask money only to mislead this court so that the monthly payment interest cannot be discerned. xxix. PW1 has denied the suggestion that an amount of ₹ 26 lakhs was given by him to defendant as loan @ 24% per annum, defendant was having good relation with him, therefore, in order to support his business, defendant has given a sum of ₹ 26 lakhs to the plaintiff and plaintiff used to give defendant money, as and when defendant needed
30. To rebut the case of plaintiff defendant no. 1 appeared as DW1 and has testified through his affidavit by way of evidence Ex.DW1/A and reiterated the contents of written statement which are not reproduced for the sake of brevity. DW1 has testified that he has paid an amount of ₹ 25 lakhs through Ex.D1 to Ex.D5.
31. The defendant paid monthly interest and late payment charges to the defendant for the month of August 2009 and failed to pay the interest for the month of September and October @ 24% per annum which comes to ₹ 50,000 per month, therefore, the amount payable for the interest towards the said amount for the month of September and October comes to ₹ 1 lakhs; the said amount of ₹ 1 lakh, on request of plaintiff, was added to the friendly loan amount of ₹ 25 lakhs. The principle amount, thus became ₹ 26 lakhs and the factum of raising the friendly loan for an amount of ₹ 26 lakhs is admitted by plaintiff in the present suit, but plaintiff has concealed the payment of interest for the month of September and October Page nos. 27 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 2009 to the tune of ₹ 1 lakh, which was added to the principal amount of ₹ 25 lakhs, making it an amount of ₹ 26 lakhs.
32. DW1 has further testified that the plaintiff from October 2009, started paying interest amount of ₹ 52,000 per month @ 24% per annum on the principal amount of ₹ 26 lakhs along with late payment charges. The payments so made by plaintiff to defendant is further proved through the axis bank statement of defendant that the payment was made by plaintiff and monthly interest payment and late payment charges are writ large in the said statement of account.
33. The plaintiff has paid an amount of ₹ 10,000, ₹11,000, ₹11,000 and ₹ 3440 as late payment charges and plaintiff paid ₹ 26,000 each on 25.07.2014 and on 26.07.2014 for interest for the month of April 2014 which is half amount of the monthly interest i.e. payment of ₹52,000 @ 24% per annum on the principal amount. The remaining amount for the month of April 2014 is paid on 28.07.2014, and the remaining amount for the month of may 2014 on 03.09.2014. As per the statement of account of plaintiff, there was an excess payment of ₹ 13,81,622 on 13.08.2014 yet plaintiff declared on the bank transaction that specific month for the interest and late payment charges matching the defendants record.
34. DW1 further testified that plaintiff paid interest and late payment charges up to December 2014 and, thereafter, he failed to make the payment of interest and late payment charges to Page nos. 28 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 defendant till date, despite various requests made by defendant from time to time, except for some minor and irregular payments. The plaintiff has never paid the principal amount, and filed a suit with ulterior motives to evade the genuine payment of defendant and has not provided any strict proof for payment of interest along with loan amount.
35. DW1 further testified that defendant along with his son Sandeep Sharma met plaintiff several times for return of the principal amount of ₹ 26 lakhs along with interest and late payment charges, however, plaintiff evaded his liability on one pretext or the other. The record of such meetings is writ large on record in terms of the e mails Ex.DW1/1. Thereafter, the plaintiff and defendant entered into the said agreement on 28.09.2015 whereby plaintiff admitted that he has taken a loan of ₹ 26 lakhs along with interest @ 24% per annum, and he agreed for repayment of the said loan in terms of the terms & conditions of the said agreement Ex. DW1/2. The plaintiff has made minor and irregular payments of petty amount up to year 2016 which are late payment charges only.
36. DW1 filed a complaint dated 08.08.2016 (Ex.DW1/3) against plaintiff before police and, thereafter, plaintiff issued demand notice dated 24.09.2016 by concocting an interest free loan amount given by defendant to plaintiff. The said letter was replied through attorney of defendant on 07.12.2016 along with counter claim of defendant in terms of reply dated 07.12.2016 (Ex.D8). The said Page nos. 29 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 counter claim was received by plaintiff and plaintiff replied the same through letter dated 04.01.2017 (Ex.D9). Therefore, plaintiff is liable to pay an amount of ₹ 7,208,421 comprising principal amount of ₹ 26 lakhs and interest amount of ₹ 4,608,821 up to 2016 calculated at enhanced rate of rent @ 4% per month up to February 2017, however, defendant has calculated the final amount due at the old rate of interest of 24% per month and have foregone the 15% court/attorney etc. fees on the unpaid amount i.e. ₹ 1,081,263.
37. In crossexamination DW1 has testified and made the following admissions.
• DW1, admitted that he has received demand notice dated 24.09.2016 Ex. P1.
• DW1 denied that he has not replied letter Ex. P1 and denied having received a letter dated 30.08.2016 Ex. DW 1/3. • DW1 admitted that when loan is advanced to any loanee, all the documents of the loan transaction are prepared on or before the advancement of law, but volunteered that plaintiff has assured him that plaintiff is like his son and, as and when need arises, he will return the money given to plaintiff as loan by defendant.
• DW1 admitted that no document has been prepared for the loan transaction advanced by him to plaintiff but some receipt were issued by plaintiff. Plaintiff has agreed to give him interest @ 2% per month on the loan amount.
Page nos. 30 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 • Plaintiff has undertaken to pay him higher interest of 2%, in case, the plaintiff will not repay the loan amount to defendant as per the terms and conditions of the said agreement. • DW1 admitted that he advanced the financial help to plaintiff on different dates and different amounts and plaintiff has been given a total sum of ₹ 25 lakhs.
• DW1 admitted that interest was paid by plaintiff in proportion to the loan amount while replying in response to the question put by plaintiff to defendant that since the date of advancement of the financial help and the amount were different, so it was not possible that the amount of interest remained fixed i.e. ₹ 52,000 per month.
• PW1 denied the suggestion that the amount of loan was advanced for a particular period and the said loan amount was also verifying and its duration also, therefore, ₹ 52,000 was not the interest agreed upon between the parties at all the time • DW1 admitted that he has mentioned the rate of interest on the loan amount of ₹ 26 lakhs @ 4% in his complaint Ex. DW1/3 made to police.
• DW1 admitted that there was no terms and conditions of loan given by defendant to plaintiff. The plaintiff used to pay him interest and he has received an amount of ₹ 39 lakhs as interest from the plaintiff.
• DW1 admitted that no document was executed in respect of Page nos. 31 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 the loan and the loan was given on the oral request of plaintiff. He admitted that the plaintiff used to issue receipt in lieu of the amount given by him.
• DW1 admitted that no loan agreement was executed between plaintiff and defendant.
38. DW1 denied having received the letter Ex.DW1/3 and Ex. P1 containing address of defendant i.e. B3B, 10 th floor, plot no. 27, sector 12, Dwarka, New Delhi.
39. To support the case of plaintiff, his son Sandeep Sharma appeared as DW3 and testified through his affidavit by way of evidence Ex. DW3/A and deposed on the lines of his father/DW1 being his SPA holder and in crossexamination, he admitted that plaintiff has returned an amount of ₹ 39 lakhs to defendant. DW3 admitted that his father disclosed him about the giving of money to plaintiff in the year 2006 itself. He informed the office of Truth Lab Forensic services regarding the present case and told that some message of his mobile phone have to be retrieved for the purposes of filing the same to the court and handed over the phone and Sim card to Truth Lab Forensic Services, he stated that he cannot tell the IP address of the computer system from where the print out of the said messages were taken.
Page nos. 32 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
40. During the course of arguments learned counsel for plaintiff has raised the following contention regarding the genuineness of the said agreement:
(i) That not only plaintiff has denied execution of said agreement but defendant/DW1 has made admissions in his cross examination that no document was executed in respect of the said loan. The defendant has also admitted the suggestion that no loan agreement was executed between plaintiff and defendant.
(ii) That one of the witness to the said agreement DW3 Sandeep Sharma, SPA of plaintiff has been examined and he is highly interested witness, therefore, his testimony is of no relevance to prove the factum of execution of the said agreement.
(iii) That the said agreement is stated to have been witnessed by two independent witnesses, namely, Satyam Singh and the notary public but defendant neither produced the said witness nor the notary public to prove the execution of the said agreement.
(iv) That the testimony of DW5 Ashok T. did not inspire confidence in as much as he is the paid witness of the defendant and furthermore, the said witness could not produce his qualification to give the opinion regarding the mobile phone and he has also not even conducted any photography of his actual examination of the alleged mobile phone, therefore, his testimony also cannot be taken into consideration.
(v) That the testimony of DW6 A.L. Daksh is also not reliable because despite the fact that he has not been authorized to appear by the Truth Lab Forensic Sciences as per law.
Furthermore, and he has not conducted the examination so as to give his opinion on the genuineness of said agreement Ex.DW1/2. DW6 has admitted that he never examined the Page nos. 33 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 original disputed signature and the original admitted signature. He has taken the photographs of the enlarged image of disputed signature and he has even not filed the said photographs on record. In this regard reliance is placed upon 'Bahadur Singh & Anr. v. State of Madhya Pradesh, 2003 Legal Eagle (MP) 584' and S.Gopal Reddy v. State of Andhra Pradesh, 1996(3) Crimes 35 (SC).
(vi) That the defendant has made different statement at different stages of proceedings of the suit in as much as in written statement he has stated that the interest rate was @ 2% per month on the loan amount whereas, in document Ex.DW1/3 he has shown the interest @ 4% per month on the amount of ₹26,00,000/ which makes the document Ex.DW1/3 highly doubtful.
(vii) That defendant has paid the loan amount up to the year 2008 then why the plaintiff will execute the said agreement in the year 2015 whereas, in normal course of business the loan agreement always has to be executed before giving or taking of the loan. However, the said agreement has been executed after a lapse of seven years of the loan transaction which has been forged and fabricated by defendant.
(viii) That the defendant in his written statement and counter claim has contended that he has paid an amount of ₹ 25 lakhs as loan to plaintiff, whereas in the complaint Ex. DW1/2 he claimed loan amount to be ₹ 26 lakhs
(ix) That the defendant in his examination has varied his statement at different stages in as much as DW1 admitted that he has received an amount of ₹ 39 lakhs as interest from plaintiff till date, but, later on, he denied the suggestion that plaintiff has given an amount of interest to him, therefore, DW1 denied the receipt of any money as interest, as such, whatever the amount DW1 has received from plaintiff was received as principal amount.
Page nos. 34 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
(x) That the defendant having came to know about the intention of the plaintiff as alleged even before 08.08.2016 as per the contents of Ex. DW1/3, then why defendant did not file any case against plaintiff seeking recovery of his money and defendant waited for filing of the present suit, otherwise also, admission is the best proof which has been made by defendant in his deposition.
(xi) Defendant has made false counter claim under the pressure of his son/SPA holder namely Santosh Sharma.
(xii) The notary public who has notarised the said agreement has never been examined and apart from that on the date of notarization of the said agreement the said notary public was not competent to notarize the same in as much as his term has expired, prior to that in terms of the documents placed on record by the plaintiff in this regard.
41. Learned counsel for the defendant/counter claim and has raised the following contention during the course of arguments :
• That without prejudice to the counter claim of the defendant and, it is presumed that the plaintiff has a claim, though not admitted, the plaintiff's claim in respect of the period prior to 29.11.2013 is time barred. Furthermore, as per the details of payment made by plaintiff to defendant, the amount paid by him after 29.11.2013 is only an amount of ₹ 1,165,147, however, even in respect of the said amount of ₹ 1,165,145, the plaintiff has not accounted for the payment relating to entry no.141147, 149 and 150, as detailed in para 5 of his plaint which amount comes to ₹ 293,307.
• That the plaintiff has no claim in as much as whatever the payment is made by plaintiff are with respect to the interest payment/late payment charges. The plaintiff has led no Page nos. 35 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 evidence that the said amount is excess payment against the alleged amount paid by plaintiff to defendant or amount of ₹ 46,05,247.
• The plaintiff has contended that he has noticed the excess payment on reconciliation of the account between the parties in the first week of August 2016 and thereupon, plaintiff issued letter dated 30.08.2016 to the defendant requesting defendant to return the said amount, however, no proof has been filed by the plaintiff in this respect.
• The alleged letter dated 30.08.2016 (Ex.PW1/2) signed by the accountant Santosh Kumar, of the said firm has been denied by defendant and objected to during examination in chief of PW1 and, however, the said accountant, who had sent the letter, has not been called as a witness in the evidence, therefore, adverse inference is to be drawn against plaintiff. The falsity of this letter is writ large in as much as it is posted on 15.09.2016 i.e. 15 days after issuance of the same whereas, the reply has been sought from defendant within 7 days. Therefore, the said letter is fabricated and the postal receipt of the same has been fraudulently presented by plaintiff to put forth a false case.
• The plaintiff has referred to another letter dated 06.08.2016 in his written statement to the counter claim of defendant alleging that through the said communication he paid thanks to the defendant for acknowledgement and assurance for repayment of the said amount with the submission that the said letter is not traceable. However, there is no whisper of the said letter in the plaint and this letter has been cooked up to predate the complaint lodged by defendant on 08.08.2016. The SMS dated 07.08.2016 from plaintiff as detailed in Ex.
Page nos. 36 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 DW1/4 shows the holiness of the claim of plaintiff • That the plaintiff, received a sum of ₹ 25 lakhs in terms of receipts Ex.D1 to Ex.D5, on the other hand, the plaintiff has submitted that he received a loan amount of ₹ 26 lakhs and the 4 entries so reproduced by plaintiff in para no. 5 of the plaint namely entry no. 4 - 7 matched with the amount stated by the counter claimant/defendant. However, the first three entries i.e. serial no. 1 to serial no. 3 totalling for an amount of ₹ 3 lakhs is against the amount of ₹ 14 lakhs in terms of receipt Ex. D1 and D2. The additional amount of ₹ 1 lakh came to be added to the principal amount following the non payment of interest for the month of September and October 2009 @ 50,000 per month by plaintiff, therefore, the total loan amount came to ₹26 lakhs.
• The plaintiff has not produced any proof regarding the receipt of 26 lakhs. The plaintiff claimed the receipt of the said amount of ₹ 26 lakhs as in his books of account which has never been reproduced. The plaintiff has not furnished any proof, whatsoever, of the receipt of ₹26 lakh at the initial stage itself, in particular in respect of the first three entries at serial nos.1 to 3. However, the defendant in written statement has categorically stated the manner, in which the amount of ₹ 25 lakhs comes to ₹ 26 lakhs given in installments initially.
• That the plaintiff has not stated anything in his plaint as to how the excess payment of the said amount came to be made by him, however, plaintiff in written statement to the counter claim, has vaguely stated that the excess payment was paid because of misrepresentation of the defendant.
• That the payment of ₹ 26 lakhs stood completed on Page nos. 37 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 16.04.2012 on entry at serial no. 76 of para no. 5 of the plaint, and it is not possible that the said fact might not have been noticed by plaintiff and, thereafter, he kept on making further payment month after month for 4 years till the alleged notice issued by plaintiff in the first week of August 2016.
• It is beyond imagination that a prudent person would not have noticed the same while making payments month after month for 4 year There was no cause for plaintiff for not noting the said payment in as much as the same are adjusted towards the interest/late payment charges as per the arrangement between the parties.
• The plaintiff has not brought on record any misrepresentation which he has alleged and during his crossexamination he admitted that he has not lodge any complaint with the police against defendant of his having been defrauded by defendant while taking excess payment, otherwise, any prudent man must have taken action against the defendant for such misrepresentation.
• The plaintiff in his crossexamination admitted that he was maintaining the account books through his accountant and the statements are being audited on annual basis, however, neither the plaintiff nor his accountant have noted the excess payment for four years, however, a person of ordinary prudence exercising even the minimum diligence/care would have discovered the same.
• The plaintiff realising the superficiality of his claim attempted to prove its case by raising a joint verified statement in his affidavit of evidence Ex. PW1/A in para no.5 which amount he claimed that defendant did not return. However, no Page nos. 38 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 statement has been mentioned in the plaint as well as in the legal notice nor any joint verified statement has been placed on record by the plaintiff, despite the fact that plaintiff admitted in crossexamination that, whenever any joint statement is made between the two parties, ordinarily both the parties should retain a copy thereof, therefore, the plaintiff should have a copy of the said joint verified statement and would have produce the same if the same happened to be there.
• That a meeting regarding the payment made by plaintiff was held on 11.02.2015 as detailed in email dated 14.02.2015 Ex. DW 1/1 and payment of the principal and remaining amount and interest amount to be paid by him, thereafter are detailed in said agreement Ex. DW1/2.
• That the amount paid by the plaintiff was interest payment is also evident from the fact that amount of monthly payment of ₹ 52,000, which was paid twice @ 26,000 per month with effect from October 2009 matches with the amount of interest when calculated @ 24% per annum on the amount of ₹ 26 lakhs. This amount paid month after month and year after year with effect from October 2009 is clearly indicative of the fact that interest payment as stated by the defendant and no part of the principal amount has been paid as falsely claimed by the plaintiff. In the same manner, the monthly payment of ₹ 30,000 and ₹ 50,000 matches the interest amount due when calculated @ 24% of the principal amount of ₹15 lakhs, ₹25 lakhs loan, that was outstanding against the plaintiff during the period of the payment of these amounts.
• That the plaintiff has acknowledged in his affidavit of evidence in para no. 4.1 that the money was remitted by him in such manner, but has falsely stated that the defendant has asked Page nos. 39 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 for return in such manner which is a frivolous afterthought made only to escape his liability to defendant. Otherwise also, no person would advance a huge amount of ₹25 lakhs without any interest for such a long time without any such consideration, therefore, the story of the plaintiff with regard to the loan is a complete falsehood and totally unbelievable. The statement of account of the plaintiff is yet another proof that the payment was made as interest payment for the specific months indicated therein or late payment charges.
• The plaintiff has claimed in his written statement to the counter claim that the said remarks were reflected as per request of the defendant to save his tax liability in ITR returns, which is another excuse offered by plaintiff.
• That defendant has denied some of the payments as detailed in para no. 5 of the plaint claiming that out of ₹46,05,247 the amount of ₹712,808 has not been paid and the amount paid by the plaintiff towards interest and late payment charges, therefore, works out to be ₹ 3,892,440, therefore, the plaintiff failed to substantiate the payment to the extent of ₹46,05,247. The cash payment has not been proved by plaintiff even by production of book of accounts.
• That the emails placed on record proved the fact of interest payment and late payment clause on the principal amount by plaintiff to defendant, which emails has not been replied. The authenticity of the emails is underscored by the plaintiff indication for "April 2014 and for May 2014" in his bank statement, payment made on 25.07.2014 and on 26.08.2014. Therefore, taking into consideration these entries and the late payment charges at the reference points, the months for which the interest would have been paid on the date of email Page nos. 40 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 (14 February 2015) works out (as per the statement of plaintiff in the plaint also) to be 24.10.2014. This is also the month and year mentioned in the said email, thus proving the correctness of the case of defendant.
• The plaintiff has also admitted that earlier he was having an email ID and now he is not using the said email ID for the last 89 years and wrongly denied that he has sent the email on 17.02.2005 to Sandeep Sharma, son of defendant.
• The defendant has placed on record the mobile and the forensic mobile report dated 09.04.2018(Ex. DW 1/4) disclosing therein that the SMS messages were received by him on his mobile phone from the mobile phone of the plaintiff bearing mobile no. 9810232911. The said report was prepared and examined by DW5. The SMS messages as detailed in Ex. DW1/4 and the admission made by the plaintiff during crossexamination further fortifies the case of defendant and proved the falsity of the case of plaintiff.
• The said agreement Ex.DW1/2 is another proof that loan was agreed to be repaid by plaintiff @ 24% per month, which is further proved through the handwriting expert, DW5. The plaintiff has availed a loan of ₹ 26 lakhs and has paid the interest and, thereafter, executed the said agreement admitting his liability to pay the principal amount of ₹ 26 lakhs @ 2% per month, therefore, the plaintiff has failed to prove its case and defendant has proved the factum of issuance of the loan of ₹ 26 lakhs to the plaintiff @ 24% per month.
• That the said agreement has basically three things, namely,
(a) preexisting "Loan amount and other Liabilities", (b) A "Promise to Repay" the full loan amount and interest due by a Page nos. 41 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 Specific Date i.e. by 31.12.2015, and (c) what happens in case of "Failure to Pay" by agreed date. The defendant in his crossexamination has referred to the execution of Ex.DW1/2 and a distinction has been drawn between a document at the time of advancement of loan and the document undertaking to return the money by a specific date and regarding first transaction i.e. advancing of loan, there is no agreement that is what has been stated by defendant.
• The defendant has exhibited document Ex.DW1/2 and his testimony must be read as a whole and in context and not in piecemeal sentences extracted from here and there to give different interpretation to his deposition.
• That underlying principles of evidence that whenever the maker of a statement is to be contradicted then his attention should be drawn to his previous statement to clear up the point of ambiguity. In this regard reliance is placed upon "Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753' • That counsel for plaintiff has raised the issue with regard to the response of defendant to a suggestion in cross examination and defendant is contended to have admitted that the plaintiff has not given any amount of interest to defendant till date. However, defendant 6 times in his cross examination has reiterated the payment of interest and late payment charges and the testimony of defendant must be read as a whole.
• That the said agreement is an agreement defined under Section 2(e) of the Indian Contract Act and no attesting witness was supposed to be examined to prove the contents Page nos. 42 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 of said agreement Ex.DW1/2, otherwise, the said agreement has been proved by the testimony of DW5 in terms of his report Ex.DW1/5, therefore, the said agreement is deemed to have been proved as per law.
42. First of all, I will deal with the issue regarding genuineness of the said agreement which is claimed to have been executed in favour of defendant by plaintiff. In this regard, it may be noted that the defendant has pleaded and tried to prove that the said agreement Ex.DW1/2 was executed by plaintiff in lieu of the return of the loan amount of ₹26 lakhs along with interest availed by plaintiff during the year 2006 to 2008. Plaintiff is alleged to have agreed to pay loan amount of ₹6.24 lakhs along with interest from January to December 2015 at the rate of ₹52,000/ p.m.
43. It may be noted that the said agreement is allegedly signed by plaintiff and defendant and one witness Sh.Satyam Singh and Sh.Sandeep Sharma, who happened to be SPA holder of plaintiff being his son. The said agreement is attested by notary public. However, plaintiff to prove the said agreement has neither summoned the said witness Sh.Satyam Singh nor notary public and relied upon the testimony of his son Sh.Sandeep Sharma and the handwriting expert report Ex.DW1/5 also proved through DW5. In this regard, it may be noted that Sh.Sandeep Sharma is an interested witness in as much as he is not only the son of plaintiff but his SPA holder also, therefore, his testimony being an attesting witness needs to be discarded and is hereby discarded.
Page nos. 43 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
44. The defendant has neither examined Sh.Satyam Singh, who has allegedly signed the said agreement as a witness nor has examined the notary public who has notorized the same, therefore, the only evidence left is the report of handwriting expert, whose relevant portion reads as under:
1. The red enclosed admitted signatures/initials marked A1, A6 to A21 and specimen signatures Marked S1 are freely written and show natural variations and normal consistency among themselves.
2. The red enclosed questioned signatures/initials marked Q1 to Q4 are also freely written and show natural variations and normal consistency among themselves.
3. On comparison of red enclosed questioned signatures/initials marked Q1 to Q4 with standard signatures/initials marked A1, A6 to A21 and S1, similarities are observed in detailed execution of characters and parts of the characters such as in the: hooked commencement of 'A' nature of its apex and nature of second arm of 'A'; similar manner of formation of triangle at terminal part of 'A'; commencement of second character representing 'G' in continuation of terminal part of 'A' and formation of small lower lower loop at the end of 'G'; the other characters are simplified in nature and finish with downward stroke (Q1 to Q4, A6, A17); occasional habit of putting small under scoring below the signatures/initials.
4. Similarities are also observed between the questioned and the standard signatures/initials in the general features of movement, skill, speed, spacing, slant, upward alignment, relative size and proportion of characters etc. Page nos. 44 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
5. There is no differences observed between the questioned and the standard signatures/initials and the aforesaid similarities are significant and sufficient and cannot be attributed to accidental coincidence.
OPINION I Cumulative consideration of the above observations indicate towards the common authorship of the red enclosed standard signatures/initials marked A1, A6 to A21 and S1 and the red enclosed questioned signatures/initials marked Q1 to Q4.
However, for a definite opinion, specimen signatures of the person concerned signed as short signatures/initials are essential for thorough scientific examination and comparison with questioned signatures which appear as short signatures/initials at all given places.
II. Red enclosed questioned writings marked Q5 in comparison with red enclosed standard writings marked A2 to A5 and S2.
FORENSIC OBSERVATIONS
1. The red enclosed admitted writings marked A2 to A5 and specimen writings marked S2 are freely written and show natural variations.
2. The red enclosed questioned writings marked Q5 are also freely written and inter se show natural variations
3. On comparison of red enclosed questioned writings marked Q5 with standard writings marked A2 to A5 and S2, similarities are observed in detailed execution of characters Page nos. 45 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 and parts of the characters such as in the: Manner of formation of 'K' movement of stroke in formation of buckle of 'K' is similarly observed (Q5 and A3); nature and location of commencement of 'S', shape of its two body curved parts and natures of its terminal part; nature of commencement, body shape of 'G', formation of small horizontal stroke and its straight downward finish; downward commencement of 'A', round nature of its apex and location of its horizontal bar; downward commencement of 'N', nature of its diagonal stroke and downward finish of its terminal part; similar manner of writing 'W', 'D', 'E' and 'P'; similar manner of writing figures '2', '4', '5' (Q5 and A5).
Etc.
4. Similarities are also observed between the questioned and the standard writings in the general features of movement, skill, speed, spacing, slant, alignment, relative size and proportion of characters Etc.
5. There is no differences observed between the questioned and the standard writings and the aforesaid similarities are significant and sufficient and cannot be attributed to accidental coincidence.
OPINIONII Cumulative consideration of the above observations lead to the opinion that the red enclosed questioned writings marked Q5 and the red enclosed standard writings marked A2 to A5 and S2l are written by one and the same person.
Page nos. 46 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
45. A bare perusal of this report depicts that same is containing two opinions, OpinionI opined that specimen signature of the plaintiff signed as short signature/initials are essential for thorough examination and comparison with questioned signatures which appear as short signatures/initials at all given places.
46. However, second opinion is categoric that the disputed handwriting is that of plaintiff, therefore, there is two opinions i.e. opinion I regarding short signatures of plaintiff and opinionII is regarding handwriting of plaintiff. The opinionI is inconclusive in nature as the said agreement contains the short signatures of plaintiff.
47. It may also be relevant to observe here that during the course of arguments, counsel for defendant has contended that plaintiff has not given his signatures in abbreviated form, however, the said contentions, prima facie, appears to be attractive, but the same is fallacious in as much as documents were sent to Truth Labs Forensic Services and the same are received after examination by expert from the Truth Labs Forensic Services. The report depicts that the standard signatures/initials of the plaintiff were sent to the said lab as the said lab in terms of the opinionI has sought further short signature/initials of plaintiff. It is not detailed in the said opinionI that short signature/initials of the plaintiff were sent to the said lab. Otherwise also, the defendant never come forward to request the court again to ask plaintiff to give short signature, and the same may be sent to the said lab for getting genuine opinion in Page nos. 47 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 respect of the short signatures/initials of the plaintiff.
48. At this stage, it may also relevant to observe here that all the documents sent for examination to the said lab were photocopy/certified copies only as detailed in the said report Ex. PW1/5 and on the basis of photocopy of the documents no impeccable opinion can be given by the handwriting expert for the following reasons :
1. Loss of detail intricate pen direction Pen direction is a very critical factor in the evaluation of handwriting.
Copies make it difficult and sometimes impossible to follow intricate writing movements essential for reaching accurate conclusions. Not only is direction important, but also the pressure of the writing instrument can tell us more about the condition of the writer and the writing surface.
2. Overall loss of detail beginning and ending strokes Natural writing is frequently demonstrated by the tapered beginning and ending strokes. The copying process can eliminate these tapered strokes and make them appear as blunt or chopped off in an otherwise naturally executed signature. Sometimes, blunt ending and beginning strokes are characteristics of "signatures" produced through simulation (emulation) or tracing process.
3. Loss of detail evaluation of line quality A photocopy of a genuine signature may show "lumpiness" or lack of smooth, clearcut strokes, resulting in poor line quality (record of the strokes), when in reality the original document may contain good line quality upon examination. Unexpected visual results.
If a genuine signature is written under uncommon circumstances, the copying process may make it appear as containing the "tremor Page nos. 48 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 of fraud," giving the appearance of poor line quality. With the examination of the original questioned document, it may be possible to determine that there is an explanation for what appeared to be poor line quality in the copy.
4. Hesitations Hesitations, a pause in the writing line, generally cannot be detected in copies. Hesitations are common artifacts of "forged" signatures or can be a habit of the true writer. With only copies for evidence, this significant characteristic cannot be determined.
5. Patching Patching is the careful retouching sometimes seen in "forged" signatures as a result of the "forger's" perception that the simulation or tracing needs some mending to pass it off as genuine. It is also seen in some people's natural writing but generally cannot be detected and evaluated in copies.
6. Fraudulent manipulations Evidence of cutandpaste of a genuine signature from a genuine document onto the questioned document cannot always be detected, especially if the genuine signature was added by using computer software.
7. Tracings Traced signature "guidelines" consisting of pencil, carbon or indentations produced with a stylus which correspond with the outline of the genuine signature cannot be conclusively established via the examination of a copy.
8. Writing Instrument While sometimes it is possible with photocopies to make a preliminary determination as to the type of writing instrument used, a Page nos. 49 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 definitive determination cannot be made without the original document.
9. Paper Paper can sometime be dated as to its first date of availability through use of watermarks, but obviously this determination cannot be made based on photocopies. Neither can the document be compared as to any other physical characteristics such as the thickness or colour value of the paper.
10. Indentations Occasionally, "indented writings" can be detected with oblique/side lighting or by using a laboratory device on original documents, revealing key information that could resolve some critical issue. While this technique can be applied to photocopies for other purposes, it will not reveal the indentations that are present in the original document.
11. Measurements Accurate measurements cannot be made on photocopies. As a rule, photocopiers do not precisely reproduce the document being copied. Copies impede the reliability of tests that include measuring lines and spaces to determine alterations or insertions in a document.
12. Threedimensional vs. twodimensional images Photocopies are twodimensional representations of original documents, which are threedimensional. Originals disclose all of the physical and optical features of the printing processes and handwriting features. On the other hand, photocopies are high contrast images which leave out all of the midtones present in the original images.
Page nos. 50 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 Originals are always the best evidence. For a more productive result, both questioned and admitted documents should be in original.
Therefore, on this ground also, the expert report deserves to be rejected. In addition to it, the handwriting expert opinion is only corroborative evidence of weak type.
49. So is the ratio of law in S.Gopal Reddy (supra) where in para 21, it has been held as under: "21. Thus, the evidence of PW3, is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letter The evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking, independent and reliable corroboration. In Magan Bihari Lal Vs. State of Punjab (AIR 1977 SC 1091), while dealing with evidence of a handwriting expert, this Court opined:
We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with mare caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law.
xxxxxx"
Page nos. 51 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 So is the ratio of judgment in Murari Lal (supra), wherein it has been observed as under: "xxxxxxxxxx
2. There is no rule of law nor any rule of prudence which has crystalized into a rule of law that opinion evidence of a handwriting expert must never be acted upon unless substantially corroborated. But having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be an inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. [258 AD]"
In the same manner though not quoted reliance is placed upon RVE Venkatchalam v. B.A. Devaneshan and O₹ 2015 SCC Online Madras 1233, wherein, in para no. 56, it has been observed as under: "56. That apart, to prove the sale agreement, no witness has been examined by the plaintiff. The admitted and the disputed signatures of the first defendant were sent to the handwriting expert for comparison. Though the handwriting expert, in his report, has stated that there is no dissimilarity in the Page nos. 52 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 signatures, it is not sufficient to prove the case of the plaintiff when all other evidences are against the plaintiff and the fourth defendant."
50. From the perusal of above said case law and the report (Ex.DW1/5), it can be safely concluded that the handwriting expert report in respect of the said agreement is not prepared as per law in as much as opinion has been given by the handwriting expert on the photocopy/certified copies only. The said report cannot be said to be an opinion submitted as per forensic science examination of handwriting and to be acted upon, so as to infer that said agreement has been signed by plaintiff, therefore, this report is unreliable and, therefore, needs to be ignored in view of the settled principles of law. In addition to it, the defendant in his crossexamination at one place had admitted that no loan agreement was executed between him and plaintiff. The said agreement, as such has not been proved by defendant as per law and the same needs to be discarded so as to fasten the plaintiff with any liability arising out of the said agreement.
51. Now coming to the entitlement of the plaintiff of the said amount as claimed in the plaint, it may be noted that plaintiff has claimed that he has availed the interest free loan of ₹26 lakhs from the defendant as per the details contained in para 5 of the plaint which are reproduced as under in Table A. Page nos. 53 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 TABLE A S. No. Date Amount paid by the defendant and received by the plaintiff
1. 01.04.2007 ₹ 13,25,000
2. 26.06.2007 ₹ 1,50,000
3. 28.08.2007 ₹ 25,000
4. 10.11.2007 ₹ 1,00,000
5. 10.10.2008 ₹ 3,00,000
6. 11.10.2008 ₹ 2,00,000
7. 01.12.2008 ₹ 5,00,000 TOTAL ₹ 26,00,000 Whereas, as per the defendant he has paid the amount of ₹25 lakhs as loan at the rate of 24% p.a. on the amount of ₹25 lakhs in terms of the details as contained in para 4 of written statement which are reproduced as under in Table B. TABLE B Sl.No. Date Amount (₹) Exhibit No.
01. 16.02.2006 3,00,000.00
02. 21.02.2006 1,75,000.00 D1
03. 11.07.2007 2,25,000.00
04. 18.07.2006 3,00,000.00
05. 01.10.2007 4,00,000.00 D2
06. 08.11.2007 1,00,000.00 D3
07. 08.10.2008 5,00,000.00 D4
08. 25.11.2008 5,00,000.00 D5 However, it is pleaded case of defendant that after adding the amount of ₹50,000/ each as monthly interest installment for the month of September 2009 and October 2009 for amount of ₹25 Page nos. 54 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 lakhs, the total amount came to be an amount of ₹26 lakhs. The break up of calculation of the loan amount of ₹26 lakhs given by defendant to plaintiff is also detailed in para 5 of counter claim which is reproduced as under :
TABLE III Date Mode Bank Cheque Amount in ₹ Cum.
No. Amount
16/02/2006 Cheque ICICI 464427 110,000
16/02/2006 Cheque OBC 906713 50,000
OBC 906714 40,000
16/02/2006 Cheque STAND. 356782 100,000 300,000
CH.
21/02/2006 Cheque HDFC 175534 100,000
21/02/2006 Cheque UTI/AXIS 162827 35,000
21/02/2006 Cheque HDFC 36,000
21/02/2006 Cash 4,000 475,000
10/07/2006 Cheque SBH 561651 130,000 605,000
11/07/2006 Cheque HSBC 80,000
11/07/2006 Cheque SBP 848421 15,000 700,000
18/07/2006 Cash FD mat. 200,000
Cash FD mat. 12,500
Cash FD mat. 40,000
Cheque OBC 906724 40,000
Cash 7,500 10,00,000
01/10/2007 Cheque OBC 467981 200,000
Cheque ICICI 464434 200,000 1,400,000
Page nos. 55 of 83
CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022
CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
08/11/2007 Cheque OBC 467982 100,000 1,500,000
08/10/2008 Cheque ICICI 464435 300,000
08/10/2008 Cheque OBC 467986 200,000 2,000,000
25/11/2008 Cheque ICICI 464436 500,000 2,500,000
31/10/2009 Sep.Oct Int. 100,000 2,600,000
Total 2,600,000 2,600,000
52. It may also be noted that it is the contention of defendant that plaintiff has defaulted so far as the payment of interest for the month of September and October 2019 at the rate of 24% p.a. which comes to ₹50,000/ p.m. for each month hence the amount became ₹1 lakh as installment of interest for the month of September and October 2009, which was added to the friendly loan of ₹25 lakhs and the said loan comes to an amount of ₹26 lakhs. It is further case of the defendant that plaintiff has paid the late payment charges and monthly installments, which is writ large as per the details contained in Axis Bank statement of plaintiff, which is reproduced hereunder as contained in para 6 of written statement.
TABLE C Sl. No. Date Amount (₹) Concept
1. 20.05.14 10,000/ Late Payment Charges
2. 31.05.14 26,000/ Monthly Amount
3. 03.06.14 26,000/ Monthly Amount
4. 25.07.14 26,000/ For April 2014
5. 28.07.14 26,000/ Monthly Amount Page nos. 56 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
6. 30.07.14 11,000/ Late Payment Charges
7. 26.08.14 26,000/ For May 2014
8. 03.09.14 26,000/ Monthly Amount
9. 17.11.14 13,400/ Late Payment Charges
10. 30.01.15 3,440/ Late Payment Charges
53. It is contention of the counsel for defendant that perusal of contents of table C depicts that plaintiff has made the late payment charges as well as the monthly interest installment of an amount of ₹52,000/ p.m. @ 24% p.a. on the said amount of ₹26 lakhs.
54. It may be noted here that plaintiff has claimed that he has availed loan of ₹26 lakhs as per the contents of Table A in the year 2006 to 2008 whereas as per the contention of defendant, plaintiff has availed loan of ₹25 lakhs in terms of contents of Table B and an amount of ₹1 lakh was added as monthly interest installment on the said amount of ₹25 lakhs at the rate of 24% p.a. for the month of September 2009 and October 2009 which comes to ₹1 lakhs, and the said amount of ₹1 lakh was added to the loan of ₹25 lakhs, therefore, total loan amount come to an amount of ₹26 lakhs. However, plaintiff has led no evidence except his solitary statement that the loan was advanced to the tune of ₹26 lakhs in as much as plaintiff admitted that he received the amount of ₹25 lakhs in terms of Ex.D1 to Ex.D5 and there is no evidence on record when plaintiff received ₹1 lakh more from defendant during that period. Defendant, in the same manner, except his statement led no Page nos. 57 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 evidence as to how the amount of ₹25 lakhs advanced as loan to plaintiff happened to be the loan amount of ₹26 lakhs in as much as except the pattern of payment of amount by plaintiff to defendant, no documentary evidence has been relied upon by defendant, to even infer that the amount of ₹1 lakhs was the two months interest payment for September 2009 and October 2009, which stood added to the loan amount of ₹25 lakhs to make it as the total amount of ₹26 lakhs in the month of November 2009, from which month onwards plaintiff paid monthly interest @ ₹52,000/ per month. Therefore, there is no evidence from any side of parties to prove that the amount of ₹1 lakh was advanced through which mode.
55. Be that as it may be, there is admission of the plaintiff that he has received a loan of ₹26 lakhs upto December 2008, whereas it is the case of defendant that the said loan was advanced to the tune of ₹25 lakhs, which, later on, became ₹26 lakhs in the month of November 2009. However, in absence of any evidence led in this regard, as to how the amount of ₹25 lakhs happened to allegedly become a loan of ₹26 lakhs, it cannot be concluded that defendant advanced the loan of ₹1 lakh to plaintiff upto November 2009 in as much as plaintiff has outrightly denied the adding of such amount of interest to the principal amount of ₹25 lakhs. Defendant has led no evidence, except his solitary statement, that by way of oral agreement this amount of ₹1 lakh claimed as monthly interest installment for the month of September and October 2009 was ever agreed upon to be added in the loan amount of ₹25 lakhs advanced Page nos. 58 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 in terms of the contents of Table D. Therefore, in absence of any evidence led by defendant in this regard, the admission of plaintiff that defendant has advanced a loan of ₹26 lakhs to plaintiff by the end of year 2008 is to be taken as the date on which the amount of ₹26 lakhs was received by plaintiff as loan from defendant.
56. It may also relevant to observe here that the said agreement has not been proved as per law and, therefore, stood discarded. The defendant has claimed interest @24% per annum on the said amount of ₹26 lakhs from the date of advancing of the same. However, the plaintiff has claimed the said loan to be interest free and the amount of ₹26 lakhs has been returned by plaintiff to defendant by AprilMay 2012 and the said amount has been paid in excess by plaintiff to defendant The plaintiff in para 6 of the plaint has claimed to have paid the amount of ₹4,60,524/, the details of such amount are reproduced as under :
TABLE D S. No. Date Amount paid by the plaintiff and received by the defendant
1. 01.04.2007 2,61,000/
2. 10.07.2007 30,000/
3. 30.07.2007 18,000/
4. 08.10.2007 24,000/
5. 12.11.2007 15,000/
6. 08.04.2008 30,000/
7. 09.05.2008 30,000/
8. 10.06.2008 30,000/
9. 10.07.2008 30,000/
10. 11.08.2008 30,000/
11. 10.09.2008 30,000/ Page nos. 59 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
12. 08.10.2008 30,000/
13. 10.10.2008 30,000/
14. 03.02.2009 30,000/
15. 12.02.2009 30,000/
16. 30.03.2009 7,000/
17. 08.04.2009 26,000/
18. 11.04.2009 26,000/
19. 23.05.2009 50,000/
20. 23.05.2009 50,000/
21. 25.05.2009 50,000/
22. 10.06.2009 50,000/
23. 10.07.2009 45,500/
24. 03.09.2009 14,000/
25. 05.09.2009 40,000/
26. 20.10.2009 52,500/
27. 22.10.2009 52,500/
28. 10.11.2009 52,000/
29. 07.12.2009 50,000/
30. 17.12.2009 26,000/
31. 21.12.2009 26,000/
32. 11.01.2010 50,000/
33. 12.01.2010 2,000/
34. 25.02.2010 20,000/
35. 27.02.2010 32,000/
36. 20.03.2010 26,000/
37. 22.03.2010 26,000/
38. 08.04.2010 26,000/
39. 09.04.2010 26,000/
40. 14.05.2010 26,000/
41. 15.05.2010 26,000/
42. 08.06.2010 26,000/
43. 09.06.2010 26,000/
44. 12.07.2010 26,000/
45. 13.07.2010 26,000/
46. 10.08.2010 26,000/
47. 11.08.2010 26,000/
48. 15.10.2010 52,000/
49. 15.10.2010 52,000/
50. 09.11.2010 26,000/ Page nos. 60 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
51. 10.11.2010 26,000/
52. 22.12.2010 26,000/
53. 30.12.2010 26,000/
54. 07.01.2011 26,000/
55. 08.01.2011 26,000/
56. 14.02.2011 26,000/
57. 21.02.2011 26,000/
58. 10.03.2011 26,000/
59. 11.03.2011 26,000/
60. 07.04.2011 26,000/
61. 08.04.2011 26,000/
62. 07.05.2011 26,000/
63. 09.05.2011 19,600/
64. 07.06.2011 26,000/
65. 08.06.2011 26,000/
66. 07.07.2011 26,000/
67. 08.07.2011 26,000/
68. 06.08.2011 26,000/
69. 20.08.2011 26,500/
70. 09.09.2011 50,000/
71. 12.11.2011 52,000/
72. 14.11.2011 52,000/
73. 09.03.2012 26,000/
74. 10.03.2012 26,000/
75. 04.04.2012 52,000/
76. 16.04.2012 50,000/
77. 17.04.2012 55,120/
78. 24.04.2012 54,080/
79. 14.05.2012 26,000/
80. 15.05.2012 26,000/
81. 28.06.2012 26,000/
82. 30.06.2012 26,000/
83. 11.07.2012 26,000/
84. 12.07.2012 26,500/
85. 04.08.2012 23,300/
86. 04.10.2012 26,000/
87. 05.10.2012 26,000/
88. 25.10.2012 26,000/
89. 26.10.2012 26,000/ Page nos. 61 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
90. 26.11.2012 52,000/
91. 29.12.2012 52,000/
92. 15.01.2013 50,000/
93. 27.02.2013 26,000/
94. 28.02.2013 26,000/
95. 02.05.2013 52,000/
96. 05.06.2013 52,000/
97. 11.07.2013 52,000/
98. 22.08.2013 52,000/
99. 19.09.2013 26,000/
100. 20.09.2013 26,000/
101. 05.10.2013 26,000/
102. 15.10.2013 26,000/
103. 15.11.2013 26,000/
104. 20.11.2013 26,000/
105. 16.12.2013 26,000/
106. 24.12.2013 26,000/
107. 15.01.2014 26,000/
108. 06.03.2014 26,000/
109. 21.03.2014 26,000/
110. 25.03.2014 26,000/
111. 12.04.2014 26,000/
112. 17.04.2014 26,000/
113. 30.04.2014 26,000/
114. 07.05.2014 26,000/
115. 20.05.2014 10,000/
116. 31.05.2014 26,000/
117. 03.06.2014 26,000/
118. 25.07.2014 26,000/
119. 28.07.2014 26,000/
120. 30.07.2014 11,000/
121. 26.08.2014 26,000/
122. 03.09.2014 26,000/
123. 15.09.2014 26,000/
124. 23.09.2014 26,000/
125. 14.10.2014 26,000/
126. 20.10.2014 26,000/
127. 17.11.2014 26,000/
128. 20.11.2014 13,400/ Page nos. 62 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
129. 04.12.2014 26,000/
130. 23.12.2014 26,000/
131. 29.12.2014 26,000/
132. 30.01.2015 3,440/
133. 31.01.2015 26,000/
134. 02.02.2015 26,000/
135. 17.02.2015 16,000/
136. 21.02.2015 10,000/
137. 03.03.2015 26,000/
138. 23.03.2015 16,000/
139. 04.04.2015 10,000/
140. 13.04.2015 26,000/
141. 16.04.2015 2,62,400/
142. 28.04.2015 2,640/
143. 07.08.2015 4,500/
144. 13.07.2015 10,000/
145. 14.08.2015 5,000/
146. 12.09.2015 5,000/
147. 04.11.2015 10,000/
148. 18.12.2015 5,000/
149. 18.12.2015 2,040/
150. 27.04.2016 1,727/
151. 02.05.2016 25,000/
152. 16.06.2016 5,000/
153. 30.06.2016 5,000/
154. 14.07.2016 4,000/ TOTAL ₹46,05,247/ (as per plaint) ₹47,35,747/ (Accurate Amount)
57. The defendant has relied upon the contents of Table C and Table D in order to contend that by way of conduct, plaintiff has paid the monthly interest installment as well as late payment charges for the amount of ₹26 lakhs. However, even for the sake of arguments, it is presumed that contents of said Table C and Table D are presumed to be true, though not admitted, from the contents thereof, in the absence of any written contract between the parties, it Page nos. 63 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 cannot be safely concluded that plaintiff has paid the said amount as detailed in Table C and Table D as monthly installment of interest as well as late payment charges, in as much as the said agreement Ex.DW1/2, which already stood discarded, pertains to the period from 2015 whereas the said payment as detailed in Table D pertains to the period prior to the execution of said agreement.
58. Therefore, in absence of any oral or documentary evidence, in order to infer that plaintiff has agreed to pay interest at the rate of 24% p.a. on the loan amount of ₹26 lakhs, it cannot be stated with certainty that plaintiff has agreed to pay the interest at the rate of 24% p.a. on the amount of ₹26 lakhs. Apart from this, defendant in his crossexamination has admitted that he has advanced loan to plaintiff in different amount at different intervals, therefore, for the said amount, the uniform interest @ 24% per annum i.e. the total amount of ₹52,000/ p.m. on the total amount of ₹26 lakhs cannot be given.
59. It may be relevant to observe that defendant is not sure as to how much interest was agreed upon between the parties in as much as in the complaint made to police Ex.DW1/3, he claimed interest on the said amount of ₹26 lakhs at the rate of 4% p.m. i.e. ₹48,000/ p.a. whereas, in the said agreement, which could not be proved as per law, defendant has claimed interest @ 24% p.a. on the said amount of ₹26 lakhs, therefore, defendant is not found entitled to claim interest of 24% on the said amount of ₹26 lakhs.
Page nos. 64 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
60. So far as, the contention of ld. counsel for the defendant that plaintiff has agreed to pay the interest @ 24% per annum on the said amount of ₹ 26 lakhs in terms of the contents of email Ex. DW1/1 is concerned, suffice is to say that the email of DW3, son of the defendant, which has been proved, contains discussion allegedly held between plaintiff, defendant and his son and from the contents of the said email, it cannot be inferred that plaintiff has agreed to pay the interest @ 24% per annum on the amount of ₹ 26 lakhs or any other amount.
61. As far as the contention regarding the report (Ex. DW1/4) filed by DW5, through which it has been contended that plaintiff has sent messages from his mobile phone bearing mobile no. 9810232911 to defendant is concerned. In this regard, suffice is to say that that from the contents of the said messages, which have not been admitted by plaintiff, it cannot be inferred that plaintiff has ever agreed to pay interest @ 24% per annum on the amount of ₹ 26 lakhs.
62. It may be relevant to observe here that though report Ex. DW1/4 has been tendered to prove the contents of mobile phone of defendant and his sim card, yet there is no connecting evidence that the said messages were sent by plaintiff to defendant.
63. DW3 has deposited mobile phone of defendant along with sim card before the Truth Lab Forensic Services, and the said Page nos. 65 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 lab filed the report Ex. DW1/4. However, from the perusal of the contents of the said report Ex. DW1/4, it can be presumed that the said messages were received by defendant on his mobile phone, however, it cannot be concluded that the said messages was sent from mobile number of plaintiff in as much as the mobile phone and the sim card of the plaintiff were never got examined by any Forensic Science Lab in order to cross verify whether the messages so received by defendant were sent from the mobile phone of the plaintiff. Therefore, from the perusal of this report, it could not be concluded that the said messages were sent by plaintiff to defendant and further plaintiff admitted his liability as well as the payment of the interest @ ₹ 52,000 per month by way of monthly interest installment.
64. Apart from that, even if, for the sake of arguments, it is presumed, though not admitted, that plaintiff has ever agreed to pay interest @ 24% per annum on the amount of ₹ 26 lakhs there is no material on record even to infer that plaintiff has agreed to pay interest @24% per annum on the amount of ₹ 26 lakhs in as much as on the basis of pattern of payment of monthly amount by plaintiff to defendant during the interregnum, it cannot be concluded that agreed rate of interest on the amount of ₹ 26 lakhs was @ 24% per annum.
65. Now the question arises as to how much interest defendant is entitled on the said amount of ₹26 lakhs. In this regard, Page nos. 66 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 it may be noted that plaintiff has paid the amount to the defendant in terms of the details given in para no. 6 of the plaint already reproduced in Table D and plaintiff claimed to have received the amount of ₹26 lakhs as interest free loan. The plaintiff, except his self serving statement, has led no evidence to infer that the said loan was interest free loan. In the same manner, defendant has failed to led any evidence that plaintiff had agreed to return the said loan alongwith interest @24% per annum. Both the parties failed to prove the interest payable by plaintiff to defendant on the amount of ₹26 lakhs.
66. It is the contention of ld. counsel for defendant that the plaintiff has claimed to have over paid the said amount to the defendant under misrepresentation as neither plaintiff nor his chartered accountant could notice the said over payment made by plaintiff to defendant which conduct is beyond the imagination of a man of ordinary prudence. However, by way of preponderance of probabilities it cannot be held that plaintiff had earlier noticed the alleged overpayment to defendant as per his statement of account.
67. It may be noted that the following amount as detailed in para no. 6 of the written statement has not been paid by plaintiff to defendant in as much as all these entries are also shown in TableD but could not be reflected in the statement of account of plaintiff Ex. PW1/1 and Ex. PW1/2. The said table is reproduced in para no. 6 of the written statement. Apart from entries 1 to 13 in said Table E, Page nos. 67 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 there are three other parties in the table D which could not be proved by plaintiff which are named as entries 14 to 16, therefore, the same are added to the said Table E. The details of said table after adding three entries are reproduced as under :
Table E S. S. No. Date Amount paid by the plaintiff and No. (as per received by the defendant WS/CC) 1 1. 01.04.2007 2,61,000/ 2 13. 10.10.2008 30,000/ 3 18. 11.04.2009 26,000/ 4 26. 20.10.2009 52,500/ 5 29. 07.12.2009 50,000/ 6 141. 16.04.2015 2,62,400/ 7 142. 28.04.2015 2,640/ 8 143. 07.08.2015 4,500/ 9 145. 14.08.2015 5,000/ 10 146. 12.09.2015 5,000/ 11 147. 04.11.2015 10,000/ 12 149. 18.12.2015 2,040/ 13 150. 27.04.2016 1,727/ TOTAL 7,12,807/ The following entries are also not proved 14 10.07.2007 30,000 15 30.07.2007 18,000 16 22.10.2009 52500 TOTAL 7,12,807 + 1,00,500 = 8,13,307
68. It may also be relevant to observe that after deducting the said amount in Table E from the total amount detailed in table D, Page nos. 68 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 the net amount which has been paid by plaintiff to defendant is reproduced by way of following table Table F :
Amount paid by the plaintiff and S. No. Date received by the defendant 1 01.04.2007 0 2 10.07.2007 0 3 30.07.2007 0 4 08.10.2007 24,000/ 5 12.11.2007 15,000/ 6 08.04.2008 30,000/ 7 09.05.2008 30,000/ 8 10.06.2008 30,000/ 9 10.07.2008 30,000/ 10 11.08.2008 30,000/ 11 10.09.2008 30,000/ 12 08.10.2008 30,000/ 13 10.10.2008 0 14 03.02.2009 30,000/ 15 12.02.2009 30,000/ 16 30.03.2009 7,000/ 17 08.04.2009 26,000/ 18 11.04.2009 0 19 23.05.2009 50,000/ 20 23.05.2009 50,000/ 21 25.05.2009 50,000/ 22 10.06.2009 50,000/ 23 10.07.2009 45,500/ 24 03.09.2009 14,000/ 25 05.09.2009 40,000/ 26 20.10.2009 0 27 22.10.2009 0 28 10.11.2009 52,000/ 29 07.12.2009 0 30 17.12.2009 26,000/ Page nos. 69 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 Amount paid by the plaintiff and S. No. Date received by the defendant 31 21.12.2009 26,000/ 32 11.01.2010 50,000/ 33 12.01.2010 2,000/ 34 25.02.2010 20,000/ 35 27.02.2010 32,000/ 36 20.03.2010 26,000/ 37 22.03.2010 26,000/ 38 08.04.2010 26,000/ 39 09.04.2010 26,000/ 40 14.05.2010 26,000/ 41 15.05.2010 26,000/ 42 08.06.2010 26,000/ 43 09.06.2010 26,000/ 44 12.07.2010 26,000/ 45 13.07.2010 26,000/ 46 10.08.2010 26,000/ 47 11.08.2010 26,000/ 48 15.10.2010 52,000/ 49 15.10.2010 52,000/ 50 09.11.2010 26,000/ 51 10.11.2010 26,000/ 52 22.12.2010 26,000/ 53 30.12.2010 26,000/ 54 07.01.2011 26,000/ 55 08.01.2011 26,000/ 56 14.02.2011 26,000/ 57 21.02.2011 26,000/ 58 10.03.2011 26,000/ 59 11.03.2011 26,000/ 60 07.04.2011 26,000/ 61 08.04.2011 26,000/ 62 07.05.2011 26,000/ 63 09.05.2011 19,600/ 64 07.06.2011 26,000/ 65 08.06.2011 26,000/ 66 07.07.2011 26,000/ 67 08.07.2011 26,000/ 68 06.08.2011 26,000/ 69 20.08.2011 26,500/ 70 09.09.2011 50,000/ 71 12.11.2011 52,000/ 72 14.11.2011 52,000/ 73 09.03.2012 26,000/ 74 10.03.2012 26,000/ 75 04.04.2012 52,000/ 76 16.04.2012 50,000/ 77 17.04.2012 55,120/ Page nos. 70 of 83 78 24.04.2012 54,080/ CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 79 14.05.2012 26,000/ 80 15.05.2012 26,000/ 81 28.06.2012 26,000/ 82 30.06.2012 26,000/ 83 11.07.2012 26,000/ 84 12.07.2012 26,500/ 85 04.08.2012 23,300/ 86 04.10.2012 26,000/ 87 05.10.2012 26,000/ 88 25.10.2012 26,000/ 89 26.10.2012 26,000/ 90 26.11.2012 52,000/ 91 29.12.2012 52,000/ 92 15.01.2013 50,000/ 93 27.02.2013 26,000/ 94 28.02.2013 26,000/ 95 02.05.2013 52,000/ 96 05.06.2013 52,000/ 97 11.07.2013 52,000/ 98 22.08.2013 52,000/ 99 19.09.2013 26,000/ 100 20.09.2013 26,000/ 101 05.10.2013 26,000/ 102 15.10.2013 26,000/ 103 15.11.2013 26,000/ 104 20.11.2013 26,000/ 105 16.12.2013 26,000/ 106 24.12.2013 26,000/ 107 15.01.2014 26,000/ 108 06.03.2014 26,000/ 109 21.03.2014 26,000/ 110 25.03.2014 26,000/ 111 12.04.2014 26,000/ 112 17.04.2014 26,000/ 113 30.04.2014 26,000/ 114 07.05.2014 26,000/ 115 20.05.2014 10,000/ 116 31.05.2014 26,000/ 117 03.06.2014 26,000/ 118 25.07.2014 26,000/ 119 28.07.2014 26,000/ 120 30.07.2014 11,000/ Page nos. 71 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 Amount paid by the plaintiff and S. No. Date received by the defendant 121 26.08.2014 26000 122 03.09.2014 26000 123 15.09.2014 26000 124 23.09.2014 26000 125 14.10.2014 26000 126 20.10.2014 26000 127 17.11.2014 26000 128 20.11.2014 13400 129 04.12.2014 26000 130 23.12.2014 26000 131 29.12.2014 26000 132 30.01.2015 3440 133 31.01.2015 26000 134 02.02.2015 26000 135 17.02.2015 16000 136 21.02.2015 10000 137 03.03.2015 26000 138 23.03.2015 16000 139 04.04.2015 10000 140 13.04.2015 26000 141 16.04.2015 0 142 28.04.2015 0 143 07.08.2015 0 144 13.07.2015 10000 145 14.08.2015 0 146 12.09.2015 0 147 04.11.2015 0 148 18.12.2015 5000 149 18.12.2015 0 150 27.04.2016 0 151 02.05.2016 25000 152 16.06.2016 5000 153 30.06.2016 5000 154 14.07.2016 4000 TOTAL 3922440
69. A bare perusal of the contents of Table F depicts that the plaintiff has paid an amount of ₹39,22,440/ Although, the defendant has failed to prove on record that he is entitled to seek interest @ 24% per month on the amount of ₹ 26 lakhs, however, Page nos. 72 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 the defendant is hereby allowed interest @ 9% per annum on the amount of ₹ 26 lakhs in the interest of justice, which was the prevailing bank rate of interest in the year 2006 onwards. The simple interest calculated @ 9% per annum on the amount of ₹ 26 lakhs comes to to an amount of ₹ 9,25,894 in the following manner (Amount x 9 /1200) i.e. 123452580 x 9/1200= ₹ 9,25,894. The amount of ₹ 26 lakhs was paid upto 15.01.2013 and interest @9% on the said amount i.e. ₹ 9,25,894 stood paid upto 23.09.2014.
Therefore, and the said amount of ₹ 26 lakhs along with interest @ 9% per annum on the said amount has already been paid by plaintiff to defendant till 23.09.2014 as detailed in Table G :
TABLE G Intrest Sl. RECEIVE Deleted Outstan bearing No. DATE D PAID Entries ding balance 1325000 0 1 01/04/07* 0 0 261000 1325000 1325000 2 26/06/07 150000 0 1475000 2800000 3 10/07/07* 0 0 30000 1475000 4275000 4 30/07/07* 0 0 18000 1475000 5750000 5 28/08/07 25000 0 1500000 7250000 6 08/10/07 0 24000 1476000 8726000 7 10/11/07 100000 0 1576000 10302000 8 12/11/07 0 15000 1561000 11863000 9 08/04/08 0 30000 1531000 13394000 10 09/05/08 0 30000 1501000 14895000 11 10/06/08 0 30000 1471000 16366000 12 10/07/08 0 30000 1441000 17807000 13 11/08/08 0 30000 1411000 19218000 14 10/09/08 0 30000 1381000 20599000 15 08/10/08 0 30000 1351000 21950000 16 10/10/08* 300000 0 30000 1651000 23601000 17 11/10/08 200000 0 1851000 25452000 18 01/12/08 500000 0 2351000 27803000 19 03/02/09 0 30000 2321000 30124000 20 12/02/09 0 30000 2291000 32415000 21 30/03/09 0 7000 2284000 34699000 22 08/04/09 0 26000 2258000 36957000 23 11/04/09* 0 0 26000 2258000 39215000 24 23/05/09 0 50000 2208000 41423000 Page nos. 73 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 Intrest Sl. RECEIVE Deleted Outstan bearing No. DATE D PAID Entries ding balance 25 23/05/09 0 50000 2158000 43581000 26 25/05/09 0 50000 2108000 45689000 27 11/06/09 0 50000 2058000 47747000 28 10/07/09 0 45500 2012500 49759500 29 03/09/09 0 14000 1998500 51758000 30 05/09/09 0 40000 1958500 53716500 31 20/10/09* 0 0 52500 1958500 55675000 32 22/10/09* 0 0 52500 1958500 57633500 33 10/11/09 0 52000 1906500 59540000 34 07/12/09* 0 0 50000 1906500 61446500 35 17/12/09 0 26000 1880500 63327000 36 21/12/09 0 26000 1854500 65181500 37 11/01/10 0 50000 1804500 66986000 38 12/01/10 0 2000 1802500 68788500 39 25/02/10 0 20000 1782500 70571000 40 27/02/10 0 32000 1750500 72321500 41 20/03/10 0 26000 1724500 74046000 42 22/03/10 0 26000 1698500 75744500 43 08/04/10 0 26000 1672500 77417000 44 09/04/10 0 26000 1646500 79063500 45 14/05/10 0 26000 1620500 80684000 46 15/05/10 0 26000 1594500 82278500 47 08/06/10 0 26000 1568500 83847000 48 09/06/10 0 26000 1542500 85389500 49 12/07/10 0 26000 1516500 86906000 50 13/07/10 0 26000 1490500 88396500 51 10/08/10 0 26000 1464500 89861000 52 11/08/10 0 26000 1438500 91299500 53 15/10/10 0 52000 1386500 92686000 54 15/10/10 0 52000 1334500 94020500 55 09/11/10 0 26000 1308500 95329000 56 10/11/10 0 26000 1282500 96611500 57 22/12/10 0 26000 1256500 97868000 58 30/12/10 0 26000 1230500 99098500 59 07/01/11 0 26000 1204500 100303000 60 08/01/11 0 26000 1178500 101481500 61 14/02/11 0 26000 1152500 102634000 62 21/02/11 0 26000 1126500 103760500 63 10/03/11 0 26000 1100500 104861000 64 11/03/11 0 26000 1074500 105935500 65 07/04/11 0 26000 1048500 106984000 66 08/04/11 0 26000 1022500 108006500 67 07/05/11 0 26000 996500 109003000 68 09/05/11 0 19600 976900 109979900 69 07/06/11 0 26000 950900 110930800 70 08/06/11 0 26000 924900 111855700 71 07/07/11 0 26000 898900 112754600 72 08/07/11 0 26000 872900 113627500 73 06/08/11 0 26000 846900 114474400 Page nos. 74 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 Interest Sl. Deleted Outstand bearing No. DATE RECEIVED PAID Entries ing balance 74 20/08/11 0 26500 820400 115294800 75 09/09/11 0 50000 770400 116065200 76 12/11/11 0 52000 718400 116783600 77 14/11/11 0 52000 666400 117450000 78 09/03/12 0 26000 640400 118090400 79 10/03/12 0 26000 614400 118704800 80 04/04/12 0 52000 562400 119267200 81 16/04/12 0 50000 512400 119779600 82 17/04/12 0 55120 457280 120236880 83 24/04/12 0 54080 403200 120640080 84 14/05/12 0 26000 377200 121017280 85 15/05/12 0 26000 351200 121368480 86 28/06/12 0 26000 325200 121693680 87 30/06/12 0 26000 299200 121992880 88 11/07/12 0 26000 273200 122266080 89 12/07/12 0 26500 246700 122512780 90 04/08/12 0 23300 223400 122736180 91 04/10/12 0 26000 197400 122933580 92 05/10/12 0 26000 171400 123104980 93 25/10/12 0 26000 145400 123250380 94 26/10/12 0 26000 119400 123369780 95 26/11/12 0 52000 67400 123437180 96 29/12/12 0 52000 15400 123452580 97 15/01/13 0 15400 0 123452580 98 15/01/13 0 34600 34600 123487180 99 27/02/13 0 26000 60600 123547780 100 28/02/13 0 26000 86600 123634380 101 02/05/13 0 52000 138600 123772980 102 05/06/13 0 52000 190600 123963580 103 11/07/13 0 52000 242600 124206180 104 22/08/13 0 52000 294600 124500780 105 19/09/13 0 26000 320600 124821380 106 20/09/13 0 26000 346600 125167980 107 05/10/13 0 26000 372600 125540580 108 15/10/13 0 26000 398600 125939180 109 15/11/13 0 26000 424600 126363780 110 20/11/13 0 26000 450600 126814380 111 16/12/13 0 26000 476600 127290980 112 24/12/13 0 26000 502600 127793580 113 15/01/14 0 26000 528600 128322180 114 06/03/14 0 26000 554600 128876780 115 21/03/14 0 26000 580600 129457380 116 25/03/14 0 26000 606600 130063980 117 12/04/14 0 26000 632600 130696580 118 17/04/14 0 26000 658600 131355180 119 30/04/14 0 26000 684600 132039780 120 07/05/14 0 26000 710600 132750380 121 20/05/14 0 10000 720600 133470980 122 31/05/14 0 26000 746600 134217580 Page nos. 75 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 Interest Sl. Deleted Outstand bearing No. DATE RECEIVED PAID Entries ing balance 123 03/06/14 0 26000 772600 134990180 124 25/07/14 0 26000 798600 135788780 125 28/07/14 0 26000 824600 136613380 126 30/07/14 0 11000 835600 137448980 127 26/08/14 0 26000 861600 138310580 128 03/09/14 0 26000 887600 139198180 129 15/09/14 0 26000 913600 140111780 130 23/09/14 0 26000 939600 141051380 131 14/10/14 0 26000 965600 142016980 132 20/10/14 0 26000 991600 143008580 133 17/11/14 0 26000 1017600 144026180 134 20/11/14 0 13400 1031000 145057180 135 04/12/14 0 26000 1057000 146114180 136 23/12/14 0 26000 1083000 147197180 137 29/12/14 0 26000 1109000 148306180 138 30/01/15 0 3440 1112440 149418620 139 31/01/15 0 26000 1138440 150557060 140 02/02/15 0 26000 1164440 151721500 141 17/02/15 0 16000 1180440 152901940 142 21/02/15 0 10000 1190440 154092380 143 03/03/15 0 26000 1216440 155308820 144 23/03/15 0 16000 1232440 156541260 145 04/04/15 0 10000 1242440 157783700 146 13/04/15 0 26000 1268440 159052140 147 16/04/15* 0 0 262400 1268440 160320580 148 28/04/15* 0 0 2640 1268440 161589020 149 07/08/15* 0 0 4500 1268440 162857460 150 13/07/15 0 10000 1278440 164135900 151 14/08/15* 0 0 5000 1278440 165414340 152 12/09/15* 0 0 5000 1278440 166692780 153 04/11/15* 0 0 10000 1278440 167971220 154 18/12/15 0 5000 1283440 169254660 155 18/12/15* 0 0 2040 1283440 170538100 156 27/04/16* 0 0 1727 1283440 171821540 157 02/05/16 0 25000 1308440 173129980 158 16/06/16 0 5000 1313440 174443420 159 30/06/16 0 5000 1318440 175761860 160 14/07/16 0 4000 1322440 177084300 Total 2600000 3922440 813307 Page nos. 76 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
70. It may also be noted that plaintiff has placed on record the calculation of the interest payable by him @ 6% compound interest on the said amount of ₹ 26 lakhs which is reproduced as under :
Table H S. Amount Interest Date Balance From To Days Interest No. Paid Due 01.07.2006 26,00,000 01Jul2006 31Mar2007 274 1,17,107 1 01.04.2007 2,61,000 1,17,107 24,56,107 01Apr2007 09Jul2007 190 76,502 2 08.10.2007 24,000 76,502 25,08,609 08Oct2007 11Nov2007 35 14,394 3 12.11.2007 15,000 14,394 25,08,003 12Nov2007 07Apr2008 148 60,850 4 08.04.2008 30,000 60,850 25,38,853 08Apr2008 08May2008 31 12,938 5 09.05.2008 30,000 12,938 25,21,791 09May2008 09Jun2008 32 13,265 6 10.06.2008 30,000 13,265 25,05,056 10Jun2008 09Jul2008 30 12,354 7 10.07.2008 30,000 12,354 24,87,410 10Jul2008 10Aug2008 32 13,084 8 11.08.2008 30,000 13,084 24,70,494 11Aug2008 09Sep2008 30 12,183 9 10.09.2008 30,000 12,183 24,52,677 10Sep2008 07Oct2008 28 11,289 10 08.10.2008 30,000 11,289 24,33,966 08Oct2008 09Oct2008 118 47,212 11 03.02.2009 30,000 47,212 24,51,178 03Feb2009 11Feb2009 9 3,626 12 12.02.2009 30,000 3,626 24,24,804 12Feb2009 29Mar2009 46 18,336 13 30.03.2009 7,000 18,336 24,36,140 30Mar2009 07Apr2009 9 3,604 14 08.04.2009 26,000 3,604 24,13,744 08Apr2009 10Apr2009 3 1,190 15 11.04.2009 26,000 1,190 23,88,934 11Apr2009 22May2009 42 16,493 16 23.05.2009 50,000 16,493 23,55,427 23May2009 24May2009 17 23.05.2009 50,000 23,05,427 23May2009 24May2009 2 758 18 25.05.2009 50,000 758 22,56,185 25May2009 09Jun2009 16 5,934 19 10.06.2009 50,000 5,934 22,12,119 10Jun2009 09Jul2009 30 10,909 20 10.07.2009 45,500 10,909 21,77,528 10Jul2009 02Sep2009 55 19,687 21 03.09.2009 14,000 19,687 21,83,215 03Sep2009 04Sep2009 2 718 22 05.09.2009 40,000 718 21,43,933 05Sep2009 19Oct2009 45 15,859 23 20.10.2009 52,500 15,859 21,07,292 20Oct2009 21Oct2009 21 7,274 24 10.11.2009 52,000 7,274 20,62,566 10Nov2009 06Dec2009 27 9,154 25 07.12.2009 50,000 9,154 20,21,720 07Dec2009 16Dec2009 10 3,323 26 17.12.2009 26,000 3,323 19,99,043 17Dec2009 20Dec2009 4 1,314 27 21.12.2009 26,000 1,314 19,74,357 21Dec2009 10Jan2010 21 6,816 28 11.01.2010 50,000 6,816 19,31,173 11Jan2010 11Jan2010 1 317 29 12.01.2010 2,000 317 19,29,490 12Jan2010 24Feb2010 44 13,956 30 25.02.2010 20,000 13,956 19,23,446 25Feb2010 26Feb2010 2 632 31 27.02.2010 32,000 632 18,92,078 27Feb2010 19Mar2010 21 6,532 32 20.03.2010 26,000 6,532 18,72,610 20Mar2010 21Mar2010 2 616 33 22.03.2010 26,000 616 18,47,226 22Mar2010 07Apr2010 17 5,162 34 08.04.2010 26,000 5,162 18,26,388 08Apr2010 08Apr2010 1 300 35 09.04.2010 26,000 300 18,00,688 09Apr2010 13May2010 35 10,360 Page nos. 77 of 83 36 14.05.2010 26,000 10,360 17,85,048 14May2010 14May2010 1 293 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 S. Amount Interest Date Balance From To Days Interest No. Paid Due 37 15.05.2010 26,000 293 17,59,341 15May2010 07Jun2010 24 6,941 38 08.06.2010 26,000 6,941 17,40,282 08Jun2010 08Jun2010 1 286 39 09.06.2010 26,000 286 17,14,568 09Jun2010 11Jul2010 33 9,301 40 12.07.2010 26,000 9,301 16,97,869 12Jul2010 12Jul2010 1 279 41 13.07.2010 26,000 279 16,72,148 13Jul2010 09Aug2010 28 7,696 42 10.08.2010 26,000 7,696 16,53,844 10Aug2010 10Aug2010 1 272 43 11.08.2010 26,000 272 16,28,116 11Aug2010 14Oct2010 65 17,396 44 15.10.2010 52,000 15Oct2010 08Nov2010 45 15.10.2010 52,000 17,396 15,41,512 15Oct2010 08Nov2010 25 6,335 46 09.11.2010 26,000 6,335 15,21,847 09Nov2010 09Nov2010 1 250 47 10.11.2010 26,000 250 14,96,097 10Nov2010 21Dec2010 42 10,329 48 22.12.2010 26,000 10,329 14,80,426 22Dec2010 29Dec2010 8 1,947 49 30.12.2010 26,000 1,947 14,56,373 30Dec2010 06Jan2011 8 1,915 50 07.01.2011 26,000 1,915 14,32,288 07Jan2011 07Jan2011 1 235 51 08.01.2011 26,000 235 14,06,523 08Jan2011 13Feb2011 37 8,555 52 14.02.2011 26,000 8,555 13,89,078 14Feb2011 20Feb2011 7 1,598 53 21.02.2011 26,000 1,598 13,64,676 21Feb2011 09Mar2011 17 3,814 54 10.03.2011 26,000 3,814 13,42,490 10Mar2011 10Mar2011 1 221 55 11.03.2011 26,000 221 13,16,711 11Mar2011 06Apr2011 27 5,828 56 07.04.2011 26,000 5,828 12,96,539 07Apr2011 07Apr2011 1 213 57 08.04.2011 26,000 213 12,70,752 08Apr2011 06May2011 29 6,041 58 07.05.2011 26,000 6,041 12,50,793 07May2011 08May2011 2 410 59 09.05.2011 19,600 410 12,31,603 09May2011 06Jun2011 29 5,855 60 07.06.2011 26,000 5,855 12,11,458 07Jun2011 07Jun2011 1 199 61 08.06.2011 26,000 199 11,85,657 08Jun2011 06Jul2011 29 5,637 62 07.07.2011 26,000 5,637 11,65,294 07Jul2011 07Jul2011 1 192 63 08.07.2011 26,000 192 11,39,486 08Jul2011 05Aug2011 29 5,417 64 06.08.2011 26,000 5,417 11,18,903 06Aug2011 19Aug2011 14 2,568 65 20.08.2011 26,500 2,568 10,94,971 20Aug2011 08Sep2011 20 3,590 66 09.09.2011 50,000 3,590 10,48,561 09Sep2011 11Nov2011 64 11,001 67 12.11.2011 52,000 11,001 10,07,562 12Nov2011 13Nov2011 2 331 68 14.11.2011 52,000 331 9,55,893 14Nov2011 08Mar2012 116 18,178 69 09.03.2012 26,000 18,178 9,48,071 09Mar2012 09Mar2012 1 156 70 10.03.2012 26,000 156 9,22,227 10Mar2012 03Apr2012 25 3,790 71 04.04.2012 52,000 3,790 8,74,017 04Apr2012 15Apr2012 12 1,724 72 16.04.2012 50,000 1,724 8,25,741 16Apr2012 16Apr2012 1 136 73 17.04.2012 55,120 136 7,70,757 17Apr2012 23Apr2012 7 887 74 24.04.2012 54,080 887 7,17,564 24Apr2012 13May2012 20 2,359 75 14.05.2012 26,000 2,359 6,93,923 14May2012 14May2012 1 114 76 15.05.2012 26,000 114 6,68,037 15May2012 27Jun2012 44 4,832 77 28.06.2012 26,000 4,832 6,46,869 28Jun2012 29Jun2012 2 213 78 30.06.2012 26,000 213 6,21,082 30Jun2012 10Jul2012 11 1,123 79 11.07.2012 26,000 1,123 5,96,205 11Jul2012 11Jul2012 1 98 80 12.07.2012 26,500 98 5,69,803 12Jul2012 03Aug2012 23 2,154 Page nos. 78 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 S. Amount Interest Date Balance From To Days Interest No. Paid Due 81 04.08.2012 23,300 2,154 5,48,657 04Aug2012 03Oct2012 61 5,502 82 04.10.2012 26,000 5,502 5,28,159 04Oct2012 04Oct2012 1 87 83 05.10.2012 26,000 87 5,02,246 05Oct2012 24Oct2012 20 1,651 84 25.10.2012 26,000 1,651 4,77,897 25Oct2012 25Oct2012 1 79 85 26.10.2012 26,000 79 4,51,976 26Oct2012 25Nov2012 31 2,303 86 26.11.2012 52,000 2,303 4,02,279 26Nov2012 28Dec2012 33 2,182 87 29.12.2012 52,000 2,182 3,52,461 29Dec2012 14Jan2013 17 985 88 15.01.2013 50,000 985 3,03,446 15Jan2013 26Feb2013 43 2,145 89 27.02.2013 26,000 2,145 2,79,591 27Feb2013 27Feb2013 1 46 90 28.02.2013 26,000 46 2,53,637 28Feb2013 01May2013 63 2,627 91 02.05.2013 52,000 2,627 2,04,264 02May2013 04Jun2013 34 1,142 92 05.06.2013 52,000 1,142 1,53,406 05Jun2013 10Jul2013 36 908 93 11.07.2013 52,000 908 1,02,314 11Jul2013 21Aug2013 42 706 94 22.08.2013 52,000 706 50,314 22Aug2013 18Sep2013 28 232 95 19.09.2013 26,000 232 24,314 19Sep2013 19Sep2013 1 4 96 20.09.2013 26,000 4 1,686 20Sep2013 97 05.10.2013 26,000 27,686 98 15.10.2013 26,000 53,686 99 15.11.2013 26,000 79,686 100 20.11.2013 26,000 1,05,686 101 16.12.2013 26,000 1,31,686 102 24.12.2013 26,000 1,57,686 103 15.01.2014 26,000 1,83,686 104 06.03.2014 26,000 2,09,686 105 21.03.2014 26,000 2,35,686 106 25.03.2014 26,000 2,61,686 107 12.04.2014 26,000 2,87,686 108 17.04.2014 26,000 3,13,686 109 30.04.2014 26,000 3,39,686 110 07.05.2014 26,000 3,65,686 111 20.05.2014 10,000 3,75,686 112 31.05.2014 26,000 4,01,686 113 03.06.2014 26,000 4,27,686 114 25.07.2014 26,000 4,53,686 Page nos. 79 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 S. Amount Interest Date Balance From To Days Interest No. Paid Due 115 28.07.2014 26,000 4,79,686 116 30.07.2014 11,000 4,90,686 117 26.08.2014 26,000 5,16,686 118 03.09.2014 26,000 5,42,686 119 15.09.2014 26,000 5,68,686 120 23.09.2014 26,000 5,94,686 121 14.10.2014 26,000 6,20,686 122 20.10.2014 26,000 6,46,686 123 17.11.2014 26,000 6,72,686 124 20.11.2014 13,400 6,86,086 125 04.12.2014 26,000 7,12,086 126 23.12.2014 26,000 7,38,086 127 29.12.2014 26,000 7,64,086 128 30.01.2015 3,440 7,67,526 129 31.01.2015 26,000 7,93,526 130 02.02.2015 26,000 8,19,526 131 17.02.2015 16,000 8,35,526 132 21.02.2015 10,000 8,45,526 133 03.03.2015 26,000 8,71,526 134 23.03.2015 16,000 8,87,526 135 04.04.2015 10,000 8,97,526 136 13.04.2015 26,000 9,23,526 137 16.04.2015 2,62,400 11,85,926 138 28.04.2015 2,640 11,88,566 139 07.08.2015 4,500 11,93,066 140 13.07.2015 10,000 12,03,066 141 14.08.2015 5,000 12,08,066 142 12.09.2015 5,000 12,13,066 143 04.11.2015 10,000 12,23,066 144 18.12.2015 5,000 12,28,066 145 18.12.2015 2,040 12,30,106 146 27.04.2016 1,727 12,31,833 147 02.05.2016 25,000 12,56,833 148 16.06.2016 5,000 12,61,833 149 30.06.2016 5,000 12,66,833 150 14.07.2016 4,000 12,70,833 46,05,247 7,35,356 7,35,356 Page nos. 80 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 A bare perusal of the contents of Table H depicts that plaintiff has calculated the interest on the amount, which was not paid to defendant in terms of the contents of Table E. Therefore, the said table could not be relied upon so far as the calculation of rate of interest @ 6% compound interest on the amount of ₹ 26 lakhs payable by plaintiff to defendant.
71. It may be noted that as per the contents of Table G the principle amount of ₹ 26 lakhs along with interest comes to ₹ 9,25,894/ which has been paid by plaintiff to defendant till 23.09.2014, therefore, after deducting amount of ₹ 35,25,894 the amount paid by plaintiff to defendant after 15.01.2013 comes to ₹ 3,96,546/. At the sake of repetition, it is hereby observed that the total amount payable by plaintiff to defendant i.e. ₹ 26 lakhs as principal amount + the interest amount of ₹9,25,894 happens to be the total amount of ₹ 35,25,894. The plaintiff has paid an extra amount to defendant after 15.01.2013 within the period of limitation the present suit.
Issue no. 1 (Main suit)
72. The suit has been filed on 30.11.2016 whereas, as per the Table D, the amount paid on or before 29.11.2013 is barred by limitation. The amount paid prior to 29.11.2013 has already been stood adjusted for the amount payable by the plaintiff to defendant for principal amount of ₹ 26 lakhs along with interest @ 9% per Page nos. 81 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022 annum and after adjusting the principle amount of ₹ 26 lakhs along with interest calculated @ 9% per annum comes to ₹ 35,25,894/. Therefore, it is held that amount paid before 23.11.2013 is barred by limitation, but as stated above the amount of ₹ 35,25,894 already stood adjusted upto 23.09.2014 payable by plaintiff to defendant. The total amount payable by defendant to plaintiff comes to the total amount of ₹3,96,546. The remaining amount paid after 23.09.2014 which comes to ₹ 3,96,546 is not found to be barred by limitation. This issue is partly decided in favour of the plaintiff and against the defendant.
Issue no. 2,3 & 4 of the Counter claim
73. In view of my findings on issue no. 1 of the counter claim along with findings on issue no. 2 & 3 of the main suit, whereby the said agreement is to be found forged and fabricated, the counter claimant is not entitled to any relief under issue no. 2, issue no. 3 and issue no. 4. These issues are accordingly decided in favour of the non counter claimant/plaintiff and against the counter claimant/defendant.
Relief
74. In view thereof, the suit of the plaintiff is "decreed" as follows :
Page nos. 82 of 83 CS no. 48/2017 Anil Gangwani v. Chaman Lal Sharma DOD : 04.04.2022 CC no. 218/2017 Chaman Lal Sharma v. Anil Gangwani DOD : 04.04.2022
(a) Decreed for the amount of ₹ ₹ 3,96,546/ (Rupees Three Lakhs Ninety Six Thousand Five Hundred Fourty Six Only) along with interest @ 6% from the date of filing of the suit till its realization is passed in favour of the plaintiff/non counter claimant and against the defendant/counter claimant.
(b) Plaintiffs is also entitled to cost.
The counter claim filed by the counter claimant is hereby dismissed. Copy of this judgment be placed in the counter claim file.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
VIJAY
VIJAY KUMAR
Announced in the open court on KUMAR DAHIYA
04th Day of April 2022. DAHIYA Date:
2022.04.20
14:49:18
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
Page nos. 83 of 83