Delhi District Court
Sh. Hari Prakash Sharma vs Sh. Dinesh Kumar Tanwar on 27 February, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No.50215/2013
CNR No. SW010011012013
IN THE MATTER OF:
Sh. Hari Prakash Sharma
S/o Late Pt. Tuhi Ram
R/o CB-106, Ring Road
Naraina, New Delhi -28 ... Plaintiff
v.
Sh. Dinesh Kumar Tanwar
S/o Sh Jaipal Singh
R/o WZ-911/1, Ring Road
Naraina, New Delhi - 110028 ... Defendant
Date of institution of suit: 09.01.2013
Date of judgment reserved: 21.01.2023
Date of pronouncement of judgment: 27.02.2023
JUDGMENT
1. The plaintiff has preferred the present suit under Order XXXVII of the Code of Civil Procedure,1908 (hereinafter "CPC") for recovery of ₹3,60,000/- (Rupees Three lakh sixty thousand only) together with interest at the rate of 2% p.m calculated w.e.f 15.03.2011 to 15.10.2012 amounting to Rs.1,36,800/- (Rupees one lakh thirty six thousand eight hundred CS DJ ADJ No.50214/13 Page No. 1/12 only) and thus, for total recovery of ₹4,96,800/- (Rupees Four Lakhs ninety six thousand and eight hundred only) on the basis of promissory note(pronote), against the defendant.
2. Briefly stated, it is the case of the plaintiff that he and defendant are known to each other for long as both are resident of same village. It is further averred that defendant approached to plaintiff for a loan of Rs. 5,00,000/- due to business losses in his lucky draw scheme and was also in urgent need for construction of his building on interest @ 2% per month.
3. It is further stated that plaintiff did not have that much amount with him but he could not stop himself and he promised to advance the loan amount to the plaintiff at the offered rate of interest and accordingly, plaintiff arranged a sum of Rs. 3,60,000/- and informed the defendant and thereafter defendant came to his house and plaintiff handed over the amount to the defendant and in lieu of that defendant executed promissory note in favour of the plaintiff for a sum of Rs. 3,60,000/- carrying interest @ 2% per month promised to be repaid on demand.
4. It is further stated that on 17.10.2012 a legal demand notice was issued to the defendant for demanding sum of Rs.. 3,60,000/- alongwith interest at the rate of 2% through registered AD/ Courier and the same was served upon him but despite of receiving the aforesaid notice, defendant did not pay the amount of pronote and receipt to the plaintiff. Hence, the present suit.
5. The Ld. Predecessor of this Court allowed the leave to defend application filed by the defendant vide order dated 06.11.2015 subject to deposit of 50% of the principal amount by CS DJ ADJ No.50214/13 Page No. 2/12 way of FDR and on 08.02.2016 FDR of Rs. 1,80,000/- dated 03.02.2016 drawn on Punjab National Bank was filed by the defendant.
6. Thereafter, defendant filed his written statement wherein he has taken more or less the same grounds as taken in the application for leave to defend. It is the case of the defendant that he has never taken any money from the plaintiff due to loss in lottary business or construction of the house due to shortage of money as alleged by the plaintiff and he never signed any pronote or receipt in favour of the plaintiff and the same is forged and fabricated. The defendant denied his liability to pay the suit amount. The defendant however, admitted that he was doing the business of lucky draw scheme in the year 2000 and thereafter the said draw was closed by him due to personal reasons. It is contended by the defendant that he was having sufficient means to construct his house. It is the case of the defendant that the whole story was concocted by the plaintiff to extort money from the defendant. It is denied by the defendant that he ever approached the plaintiff for taking loan from the plaintiff and signed any promissory note or any receipt in favour of the plaintiff.
7. Thereafter plaintiff filed the replication to the written statement of the defendant and he denied the contentions raised by the defendant in the written statement and reiterated and reaffirmed the stand taken by him in the plaint.
CS DJ ADJ No.50214/13 Page No. 3/128. On the basis of the pleadings of the parties, the following issues were framed on 03.01.2017:-
(i) Whether plaintiff had paid a sum of Rs. 3,60,000/- to the defendant as loan? ... OPP
(ii) Whether pronote-cum-receipt dated 15.03.2011 was duly executed by the defendant in favour of plaintiff in respect of loan? ... OPP
(iii) Whether the plaintiff is entitled for decree of Rs. 4,96,800/-
alongwith interest @2% p.m against the defendant? ... OPP
(iv) Relief
9. In order to prove his case, plaintiff examined three witnesses.
10. On 17.07.2017 plaintiff tendered his evidence by way of affidavit - Ex. PW1/1. As per the Ex. PW1/1, the plaintiff proved the following documents:
(i) Promissory note - Ex.PW1/A,
(ii) Legal notice, postal receipt and courier receipt - Ex.PW1/B to Ex.
PW1/D, respectively.
(iii) Acknowledgment - Ex.PW1/E
11. Mr. Pradeep Kaushik and Mr. Naurang Lal Sharma tendered their evidence by way of affidavit Ex PWA and Ex PW3/A, respectively and reiterated the facts of plaint in toto and after cross- examination both were discharged.
CS DJ ADJ No.50214/13 Page No. 4/1212. Thereafter plaintiff's evidence was closed and case was fixed for defendant evidence.
13. In order to prove his case, defendant examined two witness.
14. On 21.03.2018 defendant appeared in the witness box and tendered his evidence by way of affidavit - Ex.DW1/A and reiterated the stand taken by him in the written statement.
15. Mr. Vijender Singh appeared in the witness box and tendered his evidence by way of affidavit Ex.DW2/A, he was examined, cross-examined and discharged.
Arguments
16. It is argued by the learned counsel for the plaintiff that the plaintiff has duly proved his case by proving the promissory note Ex.PW1/A by calling the attesting witness, namely, Pradeep Kaushik of the promissory note in the witness box. He further argued that the defendant failed to cause any dent in the case of the plaintiff and prays for decree of the suit as per the reliefs prayed for.
17. Per contra, the Ld. Counsel for the defendant argued that the plaintiff not only failed to prove the source of funds out of which he has paid the alleged loan amount to the defendant but also attesting witness to the promissory note also failed to prove the said note in his testimony and the ld. counsel further argued that there are glaring contradictions in the testimony of the plaintiff and the witness regarding the arrangement of Rs. 3,60,000/- by the plaintiff as in the plaint he has not mentioned CS DJ ADJ No.50214/13 Page No. 5/12 the source of funds and even from the cross examination of the plaintiff it stands proved that he was not having sufficient income to have a sum of Rs.3,60,000/- and prays for dismissal of the present suit with exemplary costs.
18. I have heard the arguments and have gone through the judicial file.
Issue-wise Finding :-
19. All the three issues are taken up and are being discussed together as they are inter connected and finding on one will have bearing on other.
ISSUE NOS. 1 TO 320. The onus to prove all the three issues was on the plaintiff.
FINDING
21. Coming to the point that whether the plaintiff proved the payment of Rs.3,60,000/- alleged to be paid to the defendant by him.
22. It is observed that the plaintiff in his plaint in paragraph No. 3 himself pleaded that he was not having that much amount with him and in paragraph No.5 it is averred that the plaintiff arranged Rs. 3,60,000/- and informed the defendant that money is ready. But on perusal of the evidence by way of affidavit Ex PW1/1, the plaintiff has not mentioned the fact that he was not having that much amount with him but straightaway he deposed that on 15.03.2011 he arranged a sum of Rs. 3,60,000/- and CS DJ ADJ No.50214/13 Page No. 6/12 informed the defendant. However, neither in the plaint nor in the evidence affidavit, the plaintiff has divulge the details about the source from which he has arranged Rs. 3,60,000/- .
23. On perusal of the cross examination, it is observed that the plaintiff has deposed that he is getting regular monthly pension and also have agricultural income and after monthly expenditure he used to save Rs. 3000/- to Rs. 4000/- per month. He further deposed that the loan amount was lying with him at his residence and he gave the same to the defendant in presence of his son (PW2) and apart from that one tenant was also present there (PW3).
24. As far as the promissory note is concerned plaintiff in his cross examination has deposed that the defendant executed the pronote in his favour when he took the money and the pronote was filled in his presence. He has not specifically deposed either in his examination in chief by way of affidavit that the alleged pronote was witnessed by his son or the tenant.
25. Whereas PW-2 i.e. Pradeep Kaushik, son of the plaintiff in his cross examination have deposed that when the loan amount was given to the plaintiff only he was present with his father at their house thus, there is contradiction in the stand of the plaintiff and PW-2 qua the presence of PW-3, the second attesting witness of the pronote, however, he supported the version of the plaintiff to the extent that the loan amount was not withdrawn from any bank and the same was available with his father. As far as promissory note was concerned in chief examination he deposed CS DJ ADJ No.50214/13 Page No. 7/12 that the promissory note was executed by the defendant in his presence and he signed at point 'A' but he deposed that the defendant had brought the already filled up promissory note thus, meaning thereby that the same was not filled in his presence. He has neither identified the signatures of the defendant nor of the PW-3.
26. PW-3 in his cross examination has deposed that when the loan amount was given to the defendant, he himself, son of the plaintiff, namely, Deepak were present in the house of the plaintiff. As far as promissory note is concerned, in chief examination he deposed that the promissory note was executed by the defendant in his presence and same bears his (PW-3) signature at point 'B' but he also neither identified the signatures of the defendant nor of the PW-2 on the promissory note. He also deposed that the defendant had brought already filled in promissory note.
27. At the outset, after going through the testimony of the plaintiff this Court is of the considered view that a person having monthly saving of Rs.3000/- to Rs.4000/- per month can never have the capacity to advanced a loan of Rs.3,60,000/-. Further, the plaintiff has neither placed on record the proof of monthly pension and agricultural income in his evidence nor called any witness to prove the same. Furthermore, on combined reading of the testimony of PW-1 to PW-3 there are glaring contradictions as PW-1 has deposed that the loan amount was advanced in presence of his son i.e. PW-2 Pradeep Kaushik and his tenant i.e. PW-3 CS DJ ADJ No.50214/13 Page No. 8/12 Naurang Lal Sharma and PW-1 further deposed that the promissory note was filled by the defendant in his presence but on the other hand PW-2 has deposed that only his father and he himself were present at the time of advancement of loan to the defendant and he has signed the promissory note at point 'A' which was already pre-filled when brought by the defendant and whereas the PW-3 deposed that apart from him and the plaintiff, son of the plaintiff, namely, Deepak was present and he has not deposed that PW-2 Pradeep Kaushik was present. He also deposed that the defendant brought the pre-filled promissory note.
28. As already observed neither the plaintiff nor PW-2 and PW- 3 have deposed that the defendant signed the promissory note in his presence nor they have identified the signatures of the defendant on promissory note. Thus, the primary requirement as envisaged by Section 67 of the Indian Evidence Act, 1872 has not been fulfilled by the plaintiff which provides as follows:-
67. Proof of signature and handwriting of a person alleged to have signed or written document produced-
if a 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 persons handwriting must be proved to be in his handwriting.
29. The Hon'ble High Court of Madhya Pradesh in L.S. Trading Company, Gwalior v. Manish Mishra (2010) 93 AIC 838 MP, while examining the scope of Section 67 of the Evidence CS DJ ADJ No.50214/13 Page No. 9/12 Act has held that the following are the modes for proving a document:
(a) by calling a person who signed or wrote a document;
(b) by calling a person in whose presence the documents are signed or written;
(c) by calling handwriting expert;
(d) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
(e) by comparing in Court, the disputed signatures or handwriting with some admitted signatures or writing;
(f) by the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person;
(g) A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant;
(h) by other circumstantial evidence.
30. However, plaintiff has not adopted any of the methods mentioned above to prove the signatures of the defendant on the promissory note. Therefore, once the signatures on the promissory notes were denied by the defendant on the ground that the same are forged and fabricated documents, the initial burden was upon the plaintiff to prove that the promissory notes bears the signature of the defendant and it is only thereafter, the onus to prove plea of forgery and fabrication could have shifted on the defendant. It is also relevant to mention that rather it is the defendant who filed an application to get his signatures examined for CFSL Rohini in order to prove that same are forged and CS DJ ADJ No.50214/13 Page No. 10/12 fabricated but the CFSL Rohini failed to give any satisfactory report after examining the disputed and admitted signatures of the defendant.
31. Further, the contradiction between the testimony of plaintiff vis- a- viz PW-2 and PW-3 also demolishes the case of the plaintiff as already discussed and pointed above.
32. Further, the plaintiff failed to create any contradiction or elucidate any favorable statement from the testimony of defendant who in his evidence by way of Ex. DW1/A he reiterated the stand taken by him in the written statement. In his cross examination he has deposed that he is an income tax assesses and have two building in Village Naraina. He is also the owner of WZ-165, Village Naraina consisting of 3-1/2 floors. and also owner of half portion of building No. WZ-911/1 Ring Road, Naraina and have given them on rent and receiving a total rent of Rs. 70,000/- to Rs. 80,000/- per month since 2010. He further deposed that WZ-165 was constructed in the year 2005 and 2-1/2 storey of WZ-911/1 was constructed in the year 1992. He further deposed that he built the WZ-165 out of the funds taken from his father. He denied all the suggestion with respect to taking of loan from the plaintiff for the construction of the house and repayment of the loan amount taken by him from other people etc.
33. Thus, in totality of the discussion and observations made above, after going through the relevant pleadings and evidence of the parties this Court is of the considered view that the plaintiff has miserably failed to prove his case by preponderance of CS DJ ADJ No.50214/13 Page No. 11/12 probabilities as not only the plaintiff himself and through the witnesses produced by him failed to prove the payment of Rs. 3,60,000/- to the plaintiff but also failed to prove the promissory note alleged to be executed by the defendant.
34. Accordingly, the issue Nos. 1 to 3 are decided against the plaintiff and in favour of the defendant.
35. Relief
36. On the basis of my finding on issue Nos. 1 to 3, the suit of the plaintiff is hereby dismissed with no orders as to costs.
37. The original FDR of Rs. 1,80,000/- placed on record by the defendant be returned to him after taking on record the certified copy of the same against acknowledgment. The concerned bank is hereby directed to release the FDR amount alongwith accrued interest upto date in favour of the defendant.
38. File be consigned to record room, after due compliance and necessary action, as per Rules. Digitally signed SACHIN by SACHIN JAIN JAIN Date: 2023.02.28 15:39:29 +0530 Pronounced in the open (Sachin Jain) Court on 27.02.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No.50214/13 Page No. 12/12