Delhi District Court
Sh. Birender Singh vs Harbhajan Lal Meena on 2 August, 2011
:1:
IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 137/10
Unique Case ID No.02403C0310942010
Sh. Birender Singh
S/o Sh. Banwari Lal
R/o Arya Nagar, Gali No.3,
Bahadur Garh, Distt Jhajhar,
Haryana ... Plaintiff
Versus
Harbhajan Lal Meena
S/o Sh. Tirasi Lal Meena
Sh. Mahavir ji, Distt Karoli Village Sheikhpura
Rajasthan.
Also at:-
Harbhajan Lal Meena (Peon)
Punjab National Bank
RBD, Department Atma Ram House
Tolstoy Marg, New Delhi ... Defendant
SUIT FOR RECOVERY OF RS.58,330/-
(RUPEES FIFTY EIGHT THOUSAND THREE
HUNDRED AND THIRTY ONLY)
ALONGWITH PENDENTE-LITE AND
FUTURE INTEREST
DATE OF INSTITUTION : 02.06.2009
DATE OF ARGUMENTS : 25.07.2011
DATE OF DECISION : 02.08.2011
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for recovery of Rs.58,330/- alongwith costs and Civil Suit No.137/10 :2: pendente-lite and future interest at the rate of 16% per annum.
2. The plaintiff's version of the facts is that he and the defendant are friends and known to each other because they were residing in the same village in District Jhajjar, Haryana. In April 2007, the defendant had approached the plaintiff with a request for grant of a friendly loan of Rs. 58,330/- and assured the plaintiff that he would return the loan amount within the period of one year i.e. on or before April 2008. Keeping in mind, the relationship with the defendant and upon believing the assurance of the defendant, the plaintiff had granted a friendly loan of Rs.58,330/- to the defendant.
3. In April 2008, when the plaintiff had approached the defendant for repayment of the loan, the defendant had showed his inability to fulfill his commitment and requested the plaintiff for some time to arrange the loan amount. Again, keeping in mind, the relationship with the defendant and upon believing the assurance of the defendant, the plaintiff had agreed to accept the repayment of the loan amount by the defendant in December, 2008.
4. In December 2008, when the plaintiff had again approached the defendant, the defendant had once again showed his inability to repay the loan amount and sought time till January 2009. However, upon the insistence of the plaintiff, the defendant had executed an agreement dated 16.12.2008 in the form of a promissory note/affidavit, whereby, the defendant Civil Suit No.137/10 :3: had agreed to repay the loan amount before 31.1.2009.
5. After January 2009, when the plaintiff had approached the defendant for seeking repayment of the loan amount, the defendant had refused to repay the loan amount. Consequently, the plaintiff was constrained to issue a legal notice dated 10.4.2009 to the defendant, seeking repayment of the loan amount of Rs.58,330/- alongwith interest at the rate of 16% per annum.
6. According to the plaintiff, the defendant has till date not repaid the loan amount of Rs. 58,330/- and is, therefore, liable to repay the said amount alongwith pendente-lite and future interest at the rate of 16% per annum.
7. In the preliminary objections taken in the written statement, the defendant has averred that the plaintiff is a complete stranger and the defendant had never taken any loan from the plaintiff. The defendant has denied the execution of the promissory note/affidavit dated 16.12.2008 and averred that the said document is a false and fabricated document because it bears his signatures in Hindi, whereas he always signs in English. Further, the defendant has pointed out certain loopholes in the case of the plaintiff and averred that in the plaint, the plaintiff has not disclosed the reason for which the defendant had allegedly taken the loan and the plaintiff has not given any explanation regarding the odd figure of Rs.58,330/-.
Civil Suit No.137/10 :4:8. In reply on merits, the defendant has expressly denied that he had any cordial or friendly relationship with the plaintiff; that in the month of April 2007, he had approached the plaintiff for grant of a friendly loan of Rs.58,330/- and that he had taken the loan of Rs.58,330/- from the plaintiff. Also, the defendant has expressly denied the execution of the promissory note/affidavit dated 16.12.2008 and averred that he never signs in Hindi, instead, he always signs in English. The defendant has admitted that he is an employee of Punjab National Bank, Delhi and averred that if he needed a loan, he could have taken it from Punjab National Bank, Delhi instead of the plaintiff.
9. In the replication, the plaintiff has traversed the contents of the written statement filed by the defendant and reiterated and reaffirmed the contents of the plaint. In addition, the plaintiff has averred that the defendant is a habitual defaulter in repaying his loans and has cheated many people in District Jhajjar, Haryana.
10. On the aforesaid pleadings of the parties, the following issues were framed on 1.12.2010 :-
"1. Whether the defendant executed, the affidavit dated 16.12.2008? If not, to what effect? OPD.
2. Whether the plaintiff is entitled to the amount of Rs.58,330 /-? OPP.
3. Whether the plaintiff is entitled to interest ? If so, at what rate and for which period? OPP.
4. To what relief, is the plaintiff entitled? OPP."Civil Suit No.137/10 :5:
11. In support of his case, the plaintiff examined himself, PW-2 Sh. Devak Ram and PW-3 Sh. Om Prakash. In his examination in chief, the plaintiff deposed in line with the plaint and tendered in evidence the following documents :-
(i) Original Promissory Note/Affidavit dated 16.12.2008 (Ex.PW1/1).
(ii) Legal Notice dated 10.4.2009 (Ex.PW1/2).
(iii) Courier Receipt (Ex.PW1/3).
12. During cross examination, the plaintiff stated that he knows the defendant since the past 20 years; that the defendant has its native place at Village-Sheikhpura, District- Karoli, Rajasthan and that the defendant used to temporarily reside at Gali no.2, Arya Nagar, Bahadurgarh, District Jhajjar, Haryana. The plaintiff explained that the defendant had taken the loan for paying out his creditors and that the strange sum of Rs.58,330/- was given as the loan amount because the defendant had himself sought such an amount. Further, the plaintiff explained that he had advanced the loan from a sum of Rs.1,20,000/-, which was received, in cash, by him as part of his retirement benefits. The plaintiff admitted that there was no agreement between him and the defendant for payment of interest on the loan amount and that no document was prepared in April 2007 regarding the transaction. However, the plaintiff explained that he had not insisted on any documentation because he and the defendant belonged to the same village and had a cordial relationship. The plaintiff expressly denied that he and the defendant are strangers and Civil Suit No.137/10 :6: that he had not advanced any loan, whatsoever to the defendant.
13. In his examination in chief, PW-2 Sh. Devak Ram stated that he is presently working as Senior Scientific Officer (Documents) in Forensic Science Laboratory (FSL), Rohini, Delhi-85. Further, PW-2 Sh. Devak Ram stated that he had compared the signatures of the defendant at point Q1 and Q2 1 on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 with the 67 specimen signatures of the defendant taken in Court on 2.2.2011 and found that the specimen signatures of the defendant matched with the signatures at point Q1 and Q2 on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
14. During cross examination, PW-2 Sh. Devak Ram stated that he had spent 29 years as an expert for document examination and had testified in more than 2000 cases. Further, PW-2 Sh. Devak Ram stated that he had personally conducted all the tests necessary to conclude and give his opinion, Ex.PW2/1. PW-2 Sh. Devak Ram denied that the tests conducted by him were inconclusive and that the signatures at point Q1 and Q2 on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 did not match with the 67 specimen signatures of the defendant.
15. In his examination in chief, PW-3 Sh. Om Prakash supported the case of the plaintiff and stated that the plaintiff 1 The signatures on promissory note/affidavit Ex.PW1/1 have been referred in Ex.PW2/1 the report of PW2 Sh. Devak Ram as signatures at point Q1 and Q2. However, in the original documents, the said signatures are at point X and Y. Civil Suit No.137/10 :7: had granted the loan of Rs.58,330/- to the defendant. Further, PW-3 Sh. Om Prakash stated that he had signed the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 as a witness.
16. During cross examination, PW-3 Sh. Om Prakash stated that he knows the plaintiff and the defendant since the past 11-12 years as he has been residing at Gali no.4 and the plaintiff has been residing at Gali no.3 and the defendant was residing at Gali no.2, Bahadurgarh, District Jhajjar, Haryana. Further, PW-3 Sh. Om Prakash stated that in the first week of April 2007, the defendant had taken a loan from the plaintiff in his presence and had agreed to return the said loan within one year. In respect of the incident dated 16.12.2008, PW-3 Sh. Om Prakash stated that he and the plaintiff had called the defendant at Parliament Street for execution of the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 and that the defendant had signed the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 at point X and Y in his presence. PW-3 Sh. Om Prakash denied that the defendant is a stranger and that he had not met the defendant on 16.12.2008. After cross examination of PW-3 Sh. Om Prakash, the plaintiff evidence was closed.
17. In support of his case, the defendant examined himself, DW-2 Sh. Siya Ram Gupta, DW-3 Sh. Sunil Kumar and DW-4 Sh. Desh Raj. In his examination in chief, the defendant deposed in line with the written statement and tendered in evidence, the following documents :-
Civil Suit No.137/10 :8:(i) Identity Card issued by Punjab National Bank (Ex.DW/1/1).
(ii) PAN Card (Ex.DW1/2).
(iii) Letter written by the defendant to his employer (Ex.DW1/3).
18. During cross examination, the defendant admitted that he had stayed at Bahadurgarh, District Jhajjar, Haryana from 1991 to 2007. The defendant admitted that he had been issued a Voter ID Card at his address at Bahadurgarh and that he knows PW-3 Sh. Om Prakash s/o Late Sh. Bhale Ram. The defendant denied the suggestion that he had issued other promissory notes/affidavits like promissory note/affidavit dated 16.12.2008, Ex.PW1/1 and taken money from a number of persons. Also, the defendant denied the signatures at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1. Strangely, the defendant refused to admit or deny the thumb impressions at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
19. DW-2 Sh. Siya Ram Gupta was summoned from Punjab National Bank, Rajendra Place, Rajendra Bhawan, New Delhi for production of the salary slips and details of the loans taken by the defendant. In view of Section 139 of the Evidence Act, 1872, no questions were put to the said witness by the Ld. Advocate for the plaintiff.
20. DW-3 Sh. Sunil Kumar was summoned from Punjab National Bank, Head Office, GAD, 7, Bhikaji Cama Place, New Delhi for production of the attendance register, visitor's register Civil Suit No.137/10 :9: and movement register of the said bank for the month of December, 2008. In his examination in chief, DW-3 Sh. Sunil Kumar identified the entry relating to the defendant at point X on page 2 of Ex.DW3/1 (Pg.1-4) (OSR) i.e. the attendance register. Also, DW-3 Sh. Sunil Kumar stated that the movement register, Ex.DW3/3 (Pg.1-2) (OSR) only contains entries regarding 'Officer' rank employees.
21. During cross examination, DW-3 Sh. Sunil Kumar stated that the visitor's register, Ex.DW3/2 (Pg.1-71) (OSR) contains entries regarding outside visitors. Also, DW-3 Sh. Sunil Kumar stated that the bank does not maintain any record regarding the movement of employees below the rank of 'Officer'.
22. In his examination in chief, DW-4 Sh. Desh Raj tendered in evidence, the relevant pages of his register for 16.12.2008, Ex.DW4/1 (Pg.1-4) (OSR). DW-4 Sh. Desh Raj denied the notarization of the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
23. During cross examination, DW-4 Sh. Desh Raj stated that he cannot identify the stamps at point A and the signatures at point B on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1. DW-4 Sh. Desh Raj stated that his correct stamp is at page 1 and 2 of Ex.DW4/2 (OSR) (Pg.1-4) and his correct signatures are reflected at point Y on Ex.DW4/2 (OSR) (Pg.1-4). Also, DW-4 Sh. Desh Raj stated that he had written a complaint Civil Suit No.137/10 :10: to SHO, PS Parliament Street on 3.11.2008, Ex.DW4/3 (OSR) (Pg. 1-5) regarding forgery of his stamp and signatures by some impostor. After cross examination of DW-4 Sh. Desh Raj, the defendant evidence was closed.
24. I had heard Sh. Ravi Kumar, Ld. Advocate for the plaintiff and Sh. Rahul Sood, Ld. Advocate for the defendant on 25.7.2011. The issue wise findings, in this case are as follows:
ISSUE NO.1
25. In support of the case of the plaintiff on this issue, the Ld. Advocate for the plaintiff had referred to the testimony of the plaintiff, PW-2 Sh. Devak Ram and PW-3 Sh. Om Prakash.
26. Drawing reference to the testimony of the plaintiff, the Ld. Advocate had submitted that the plaintiff has explained the loopholes pointed out by the defendant in the written statement. The Ld. Advocate had elucidated the submission by pointing out that during cross examination, the plaintiff has explained the source of the loan amount i.e. the retirement benefits of the plaintiff, the reason for granting the loan amount i.e. the discharge of creditors of the defendant and the reason for the odd figure of Rs.58,330/-. Further, the Ld. Advocate had submitted that the testimony of PW-1 Sh. Birender Singh is believable as it is coherent and devoid of any inconsistencies.
27. Drawing reference to the testimony of PW-2 Sh. Devak Civil Suit No.137/10 :11: Ram, the Ld. Advocate for the plaintiff had submitted that his testimony clearly establishes that the defendant had signed the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 at point X and Y. Further, the Ld. Advocate had submitted that there exists no reason for discrediting the opinion, Ex.PW2/1 given by PW-2 Sh. Devak Ram.
28. Drawing reference to the testimony of PW-3 Sh. Om Prakash, the Ld. Advocate for the plaintiff had submitted that the said witness has supported the case of the plaintiff by stating that the plaintiff and the defendant are known to each other and that in his presence, the defendant had taken the loan and later on, signed the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
29. In support of the case of the defendant, the Ld. Advocate for the defendant had submitted that the plaintiff i.e. PW-1 Sh. Birender Singh is an unreliable witness because his testimony to the effect that on 16.12.2008, he had signed the visitor's register of Punjab National Bank, Bhikaji Cama Place has been found to be false, upon perusal of the visitor's register, Ex.DW3/2 (Pg. 1-71) produced by DW-3, Sh. Sunil Kumar.
Further, the Ld. Advocate had submitted that the claim of the plaintiff is false because he has not given any explanation regarding the odd figure of the loan amount i.e. Rs.58,330/-.
30. While addressing upon the testimony of PW-2 Sh. Devak Ram, the Ld. Advocate for the defendant had drawn Civil Suit No.137/10 :12: reference to the judgments in Thiruvengadam Pillai v Navaneethammal & Anr., (2008) 4 SCC 530, Parma Nand & Anr v Qamar Jahan & Ors, 35 (1998) DLT 359, Mohan Lal v Udha Ram, 26 (1984) DLT 291 and Rajinder Bajaj v Indian Tranning Industries, 2008 AIR (Del) 62. On the strength of the aforesaid judgments, the Ld. Advocate for the defendant had submitted that it is not open for this Court to blindly accept the opinion, Ex.PW2/1 of PW-2 Sh. Devak Ram and that it is incumbent upon this Court to compare the signatures of the defendant and draw its independent conclusion regarding the execution of the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
31. In addition to the aforesaid, the Ld. Advocate for the defendant had drawn reference to the testimony of DW-4 Sh. Desh Raj and submitted that in view of the testimony of DW-4 Sh. Desh Raj that he had not notarized the promissory note/affidavit dated 16.12.2008, Ex.PW1/1, this Court cannot conclude that the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 was executed by the defendant.
32. After hearing the Ld. Advocates for the parties and perusing the record of the Court file in respect of this issue, I find it expedient to refer to Section 67, 68, 71 and 72 of the Evidence Act, 1872.
33. Section 67 of the Evidence Act, 1872 reads as under:
"67. Proof of signature and handwriting of person alleged to have signed or written document produced - If a Civil Suit No.137/10 :13: document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."
34. Section 68 of the Evidence Act, 1872 reads as under:
"68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
35. Section 71 of the Evidence Act, 1872 reads as under:
"Proof when attesting witness denies the execution- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
36. Section 72 of the Evidence Act, 1872 reads as under:
"72. Proof of document not required by law to be attested - An attested document not required by law to be Civil Suit No.137/10 :14: attested may be proved as if it was unattested.
37. Upon examining the aforesaid provisions, I find that the correct position of law is that in case, a document is required by law to be attested, then it can be proved by any of the attesting witness by identifying the relevant signatures. In case, the attesting witness denies or does not recollect the execution of document, its execution can be proved by other evidence. Further, I find that in case, a document is not required by law to be attested, then it can be proved by merely establishing that it was signed or written by the particular person.
38. In my view, in the present case, the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 was not required by law to be attested. Consequently, the plaintiff was/is only required to establish that the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 had/has been signed by the defendant. In order to discharge this onus, the plaintiff has brought on record his own testimony and the testimony of PW-2 Sh. Devak Ram and PW-3 Sh. Om Prakash.
39. In his examination in chief and in cross examination, the plaintiff has stated that the defendant had signed and imposed his thumb impression at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 at Parliament Street, New Delhi. The said testimony of the plaintiff has been supported by PW-3 Sh. Om Prakash. In examination in Civil Suit No.137/10 :15: chief, as well as in cross examination, PW-3 Sh. Om Prakash has also stated that the defendant had signed the promissory note/affidavit dated 16.12.2008, Ex. PW1/1 at point X and Y in his presence at Parliament Street, New Delhi.
40. In addition to the aforesaid testimony of the plaintiff and PW-3 Sh. Om Prakash, the expert witness i.e. PW-2 Sh. Devak Ram has also testified that the signatures at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 are of the defendant.
41. In contrast to the aforesaid evidence led by the plaintiff on this issue, the defendant has brought on record his own testimony and the testimony of DW-4, Sh. Deshraj 1. During his examination in chief, the defendant has denied the execution of the promissory note/affidavit dated 16.12.2008, Ex. PW1/1 and stated that the plaintiff is a complete stranger. However, during cross-examination, the defendant has admitted that he knows PW-3, Sh. Om Prakash s/o of Late Sh. Bhale Ram. Also, the defendant has refused to admit or deny the thumb impressions at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
42. In his examination in chief and during cross- examination, DW-4, Sh. Deshraj has denied the notarization of the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 and stated that some impostor, who is misusing his name has 1 The record brought by DW-2 Sh. Siya Ram Gupta and the testimony of DW-3 Sh. Sunil Kumar does not relate to the execution of the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
Civil Suit No.137/10 :16:notarized the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
43. Upon sifting the aforesaid contrasting evidence led by the parties, I find that the overwhelming testimony of the plaintiff, PW-2, Sh. Devak Ram and PW-3, Sh. Om Prakash clinches the case of the plaintiff that the defendant had executed the promissory note/affidavit dated 16.12.2008, Ex.PW1/1. In my view, the mere denial by the defendant that he had not executed the promissory note/affidavit dated 16.12.2008, Ex. PW1/1 is not sufficient to rebut the aforesaid evidence led by the plaintiff, especially when the defendant has admitted that he knows PW-3, Sh. Om Praskah and refused to admit or deny the thumb impressions at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/11. Further, in my view the testimony of DW-4, Sh. Deshraj also does not salvage the case of the defendant because DW-4, Sh. Deshraj has only stated that he had not notarized the promissory note/affidavit dated 16.12.2008, Ex.PW1/1. This testimony of DW-4, Sh. Deshraj does not lead to the conclusion that the defendant had not executed the promissory note/affidavit dated 16.12.2008, Ex. PW1/1.
44. During final arguments, the Ld. Advocate for the defendant had submitted that this Court should not rely upon the testimony of PW-1 Sh. Birender Singh because his testimony to the effect that on 16.12.2008 he had signed the visitor's register of Punjab National Bank, Bhikaji Cama Place has been 1 Reference is craved to Illustration (h) of Section 114 of the Evidence Act, 1872 Civil Suit No.137/10 :17: found to be false, upon perusal of the visitor's register, Ex.DW3/2 (Pg. 1-71) produced by DW-3, Sh. Sunil Kumar. In respect of this contention, I find that the fact whether PW-1 Sh. Birender Singh had signed the visitor's register of Punjab National Bank, Bhikaji Cama Place on 16.12.2008 is neither a 'fact in issue' nor a 'relevant fact' for the purpose of deciding the claim raised by the plaintiff in the present suit. Thus, in my view, the entire testimony of PW-1 Sh. Birender Singh cannot be discarded merely on the ground that the testimony of PW-1 Sh. Birender Singh to the effect that on 16.12.2008 he had signed the visitor's register of Punjab National Bank, Bhikaji Cama Place has been found to be false. Also, in my view, the testimony of PW-1 Sh.Birender Singh regarding the execution of promissory note/affidavit dated 16.12.2008, Ex.PW1/1 cannot be discarded as it has been well corroborated by PW-2 Sh.Devak Ram and PW-3 Sh. Om Prakash.
45. In respect of the testimony of PW-2 Sh. Devak Ram, the Ld. Advocate for the defendant had relied upon the judgments cited in paragraph 30 of this Judgment and urged that this Court should form an independent opinion about the alleged signatures of the defendant at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1 and not blindly follow the opinion, Ex.PW2/1 of PW-2 Sh. Devak Ram. In respect of this contention, I find it expedient to refer to the opinion, Ex.PW2/1 of PW-2 Sh. Devak Ram. In the said opinion, PW-2 Sh. Devak Ram has concluded, 'There is no divergence observed between questioned and specimen signatures and the Civil Suit No.137/10 :18: aforesaid similarities in the writing habit are significant and sufficient and cannot be attributed to accidental coincidence and when considered collectively they lead me to the above said opinion.'
46. In order to justify the aforesaid conclusion, PW-2 Sh. Devak Ram has compared all the letters of the name of the defendant i.e. ' ' ' ' ' ' ' ' ' ' and stated, "the left ward nature of commencement of .......movement in the body part of ' ', nature and direction of the finish of its terminal stroke as observed in Q1, Q2 is also similarly observed in S19 and S33 with similar variations; ticked nature of commencing stroke of ' ' movement in the body stroke of ' ' and nature and direction of the finish of its terminal part as observed in questioned is also similarly observed in specimen at one or the other place; nature of commencement of ' ' nature of the eyelet of ' ' and manner of combining horizontal stroke with the vertical down ward stroke as observed in Q1 is also similarly observed in S3, S21, S33 as well as its other variety as observed in Q2 is also similarly observed in S11, S14, S28, S44 with similar variations;
peculiar manner of execution ' ' in two pen operation, formation of body part of ' ' and manner of execution of horizontal stroke of ' ' and its manner of combining with the down body staff resulting an eyelet in the upper part of vertical stroke nature and direction of its finish as observed in questioned is also similarly observed in S7, S8, S21 with similar variations; movement in the execution of ' ' nature of the eyelet of ' ' and manner of combining horizontal stroke with the vertical down staff resulting close eye-let in upper part of the vertical staff nature and direction Civil Suit No.137/10 :19: of its finish as observed in questioned is also similarly observed in specimen; movement in the execution of top scoring as observed in questioned is also similarly observed in specimen."
47. Upon analyzing the 67 specimen signatures of the defendant and the signatures of the defendant at point X and Y on the promissory note/affidavit dated 16.12.2008, Ex.PW1/1, in light of the aforesaid reasoning given by PW-2, Sh. Devak Ram, I find that the aforesaid conclusion drawn by PW-2, Sh. Devak Ram has sufficient foundation and there exits no reason to discredit the opinion, Ex.PW2/1 of PW-2 Sh. Devak Ram.
48. Thus, as a net result of the aforesaid discussion, the issue is decided in favour of the plaintiff and against the defendant. It is held that the defendant had executed the promissory note/affidavit dated 16.12.2008, Ex.PW1/1.
ISSUE NO. 249. In view of the finding on issue no. 1, this issue does not does not require any adjudication. However, in order to put a complete quietus to the case of the defendant, I find it expedient to state that the contention of the defendant that he had not taken any loan from the plaintiff because he could have taken a loan from Punjab National Bank, Delhi was found to be meritless because as per the record produced by DW-2 Sh. Siya Ram Gupta, the defendant has already availed four loans from the Punjab National Bank, Delhi and because there is no rule to Civil Suit No.137/10 :20: the effect that an employee of bank cannot take loans from outsiders.
50. Accordingly, in view of the finding on issue no.1, this issue is also decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to receive Rs. 58,330/- from the defendant.
ISSUE NO.3
51. The onus of proving this issue was on the plaintiff. By proving that the plaintiff is entitled to the suit amount, the plaintiff has established that he is entitled to interest. In the plaint, the plaintiff has claimed pendente-lite and future interest at the rate of 16% per annum. In my view, the claim of the plaintiff qua pendente-lite and future interest is excessive and in the present case, the ends of justice would be met, if the plaintiff is granted pendente-lite interest at the rate of 10% per annum and future interest at the rate of 6% per annum.
RELIEF
52. In view of the aforesaid findings, the suit of the plaintiff is decreed against the defendant for a sum of Rs. 58,330/- (Rupees Fifty Eight Thousand Three Hundred and Thirty Only) alongwith costs and pendente- lite interest at the rate of 10% per annum and future interest at the rate of 6% per annum.
Civil Suit No.137/10 :21:53. At the stage of final arguments, the defendant had filed an application under Section 340 of the Code of Criminal Procedure, 1973 for initiating criminal proceedings against the plaintiff, PW-2 Sh. Devak Ram and PW-3 Sh. Om Prakash under Sections 191, 192, 193, 195, 196, 199, 202, 203, 209, 211 and 120-B of the Indian Penal Code, 1860. In view of the aforesaid findings, the said application stands dismissed.
54. Before parting with this Judgment, I find it necessary to state that the documents filed by the plaintiff during the cross examination of the defendant, regarding another suit pending against the defendant in the Court of Sh. Rajesh Sharma, Addl. Civil Judge (Senior Division), Bahadurgarh, Haryana lend strong credence to the claim of the plaintiff that the defendant is a habitual defaulter in repaying his loans and has cheated many people in District Jhajjar, Haryana.
After preparation of the decree-sheet, the file shall be consigned to the Record Room.
Announced in the Open Court (Jay Thareja)
On 02.08.2011 Civil Judge-I, New Delhi District
New Delhi
Civil Suit No.137/10