Delhi District Court
Anita Rani vs . Kalpana Shukla & Anr. on 31 March, 2023
Anita Rani vs. Kalpana Shukla & Anr.
In The Court of Sh. Sanatan Prasad,
Additional District Judge02, (East),
Karkardooma Courts, Delhi.
Suit No. 2567/2015
In the matter of :
Smt. Anita Rani,
P59, Pandav Nagar,
Mayur Vihar, Phase I,
Delhi - 110091. .....Plaintiff.
Versus
1. Kalpana Shukla
E61, Gaur Homes,
Govindpuram,
Ghaziabad (U.P)
2. Tarun Kumar Shukla
E61, Gaur Homes,
Govindpuram,
Ghaziabad (U.P) .....Defendants.
Date of Institution : 30.07.2015
Date of Reserving Order : 25.03.2023
Date of Decision : 31.03.2023
Page no. 1 Of 19
Anita Rani vs. Kalpana Shukla & Anr.
SUIT FOR RECOVERY OF MONEY AND RENDITION OF ACCOUNTS
Present: Sh. Mohd. Qamar Ali, Ld. Counsel for the plaintiff.
Sh. Mohd. Sharique Khan, Ld. Counsel for the defendants.
JUDGMENT
1.) The parties are related to each other and the plaintiff has claimed, herself, to be unmarried and even physically challenged lady, since childhood and employed with public sector, earning her livelihood, whereas, the defendant no.1 is said to be real sister and the defendant no.2, is her husband and brotherinlaw of the plaintiff, who purpotedly, adopted the second born son of the defendants, namely, Master Priyansh, Vide, Registered Adoption Deed, dated, 25.08.2007 but the adoption was never acted upon, inasmuch as, the custody of the minor was never handed over to the plaintiff, by the defendants, due to severe physical disability of the plaintiff impeding her ability for taking care for the child.
2.) The plaintiff claims to have entered into the loan agreement with the defendant no.1, dated 23.09.2011 and accordingly, advanced the loan of Rs.30,00,000/ to the defedants for setting of their business, enabling them to earn their livelihood and Rs.15,00,000/ was given, vide cheque no.530007, dated, 17.08.2011 and the balance amount of Rs.15,00,000/ is claimed to have been paid in cash, by the plaintiff by selling her ancestral jwellery and other savings with the further terms that the plaintiff would not interfere with the defendants' autonomy or the utilization of the said funds and daytoday running and conduct of the business was the sole responsibility of the defendants.
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3.) It is also, claimed that the agreement, dated, 23.09.2011 further revealed that the amount of Rs.30,00,000/ was advanced for securing the future of the adopted child with the further agreement that the 50% of the net earnings, minus expenses incurred, from the business was payable to the plaintiff, each month for the maintainance also care and benefit of the adopted son, living under the care of the defendants and balance 50% was to be retained by the defendants as their earnings from the business with further stipulation that if, the defendants decided against running the business then, they, were liable to return the amuont of Rs.30,00,000/ alongwith the profits earned thereon, while running the business.
4.) The plaintiff claims that the defendant no.2 had no employment, at the time of the agreement and therefore, the loan was one with a view to establish the defendants, providing them means for the betterment of their family. The plaintiff also claims that, although, the agreement was signed by the defendant no.1 but it was the defendant no.2, having had the expertise and knowhow to establish and run a business and as such there was further stipulation, of the agreement that the defendant no.2, having the such expertise was to leave his service and help in the conduct of the business alongwith his wife and though, the defendant no.2, not a signatory, as a party to the agreement but signing it as a witness, thus, evincing his complete awareness of the terms of the agreement, dated, 23.09.2011, and the defendants engaged in various businesses, from 2011 to 2012, they worked as agents of the 'Airtel', under the name and style of M/s. Balaji Enterprises and in 2013, they were engaged in the business of loan agents, assisting in the arrangements of car loans for HDFC/ Mahindra & Mahindra and ICICI.
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5.) The plaintiff further claims that the defendants, utterly, failed to honour their commitments and make payments to the plaintiff, who did not receive any income from the business ventures and despite routine persuasion and telephonic reminders by the plaintiff, whom, the defendant no.1, on or about 10.11.2014, informed that the defendant no.2 had joined employment and had left the business, despite the fact that he was primarily, in charge of establishing and conducting the business, though, on record, being conducted by the defendant no.1 and even he also impersonated the defendant no.1 by signing on her behalf in various outward correspondences, addressed to the various companies, for which the defendants were working as agents.
6.) The plaintiff also claims that on or about 15.11.2014, the defendant no.2 gave her some documents/ communications with regard to the conduct of the business and thereupon she was shocked to know that the defendants were striving to wind up the business, as far back, as in January, 2013, itself and being alarmed by the deception, the plaintiff came to know on an application under RTI, from the school of the minor child that as per their record, dated 08.04.2013, the defendant no.2 was shown to have been in service with one Akansha Automobiles, in clear violation and breach of the conditions of the loan agreement, dated, 23.09.2011 and the plaintiff has, been, kept in dark, by the defendants, as to the earnings from the business till date and no details/ accounts of the proceeds from the business, ever spent on the adopted child for his upkeep etc. was provided to the plaintiff, although, the plaintiff use to pay further sums of money, to the defendants on the ground of upkeep and maintainance of the adopted child and under these circumstances, the plaintiff served a legal notice, dated, 12.02.2015, to the Page no. 4 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
defendant alongwith a copy of the loan agreement, dated, 23.09.2011 to seek clarification, also accounts of the business conducted by the defendants from September, 2011, till then, as in the event of defendants stopping their business activities, the entire loan amount alongwith the profits earned, as above, was to be returned to the plaintiff but to no response despite the reminder, legal notice, dated, 11.03.2015 to the defendant no.2 and dt., 12.03.2015 to the defendant no.1, enclosing the previous notice, dated 12.02.2015, seeking a response within 15 days but the defendants failed and thus, the plaintiff cannot ascertain or quantify the accrued profits, earned, to her share, over and above the 'Principal Loan Amount' of Rs.30,00,000/, hence, the present suit alongwith interest @ 18% per annum, on the moneys' due and payable to the plaintiff, by the defendants, with costs.
7.) It further appears that there are certain allegations of cruelty and sexual harrasement, met to the plaintiff, at the merciless hand of the defendant no.2 and even the defendant no.1 being privy to that and also about lodging of FIR No.62/2015, by the plaintiff, at PS Pandav Nagar, Delhi U/S. 376/511/506, IPC, and pendency of criminal trial, thereupon.
8.) In the joint written statement, the defendants, in their preliminary objections, claim, the plaintiff, concealing the material facts and further the alleged agreement not enforceable under the law, moreover, the plaintiff not spending even a single penny for the upkeep of the adopted child and the loan, advanced, is claimed to have been a financial help for the maintenance of the adopted child and thus, not being a binding contract. Only the advancement of Rs.15,00,000/ is accepted under the loan agreement with the assurance by the plaintiff for making balance payment of Rs.15,00,000/, in case the business ran, smoothly but due to her interference, the business Page no. 5 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
as well as the personal and professional life of the defendant no.1, being adversely affected. The defendant no.2 further claims his nonassociation with the alleged loan agreement and it is pleaded that the plaintiff gave only Rs.15,00,000/ to her sister for taking care of her adopted son.
9.) On merits, the defendants have repeated the facts, as brought out, in above preliminary objections, besides, pleading that the plaintiff pressurized the defendant no.2 to resign from his job and his shifting to Delhi, only for the happiness and convenience of the plaintiff, who, kept interferring on each and every minor issue, also resulting to the disturbance in the life of the defendants. The defendants deny that the minor child was not in proper upkeep and good stead. They also claim that even other son of the defendants also gets good education.
10.) It is further, claimed that due to nondisbursal of other Rs.15,00,000/, the business could not flourish for financial crunch and the plaintiff had kept interferring, compelling the defendant no.2, shifting to some other place from Delhi, resultantly, the plaintiff started making threatening calls to the defendants with dire consequences and fed up with all these, the defendant sent a legal notice for the maintenance of the adopted son, on 06.01.2015, by post and also email and the FIR, is stated to be a counterblast to this. The other allegations of cruelty, etc, met to the plaintiff, are denied and defendant no. 2 pleads that it is the plaintiff, who filed a petition for cancellation of his bail, granted after two days only and the present suit is termed to be an outcome of the frustration of the plaintiff, calling for its dismissal by this Court.
11.) In the replication, the plaintiff has reiterated the averments, made in the plaint, while, denying, those made in the written statement and further pleads collusion between the defendants to mislead this Court and it is also, pleaded Page no. 6 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
that to safeguard her own interest and that of her sister, the agreement was made only in the name of her sister, though, the defendant no.2 was all along a witness to it and decretal of the suit is being prayed for.
12.) On the pleadings of the parties, the Court, Vide, its order, dated, 27.05.2017, had framed the following issues for trial:
a) Whether the plaintiff is entitled to rendition of accounts, as prayed for regarding the business conducted by the defendants using its money? OPP
b) Whether the plaintiff is entitled for the share of profit as per her entitlement under the agreement dt. 23.09.2011 on the money earned from the business conducted by them? OPP
c) Whether the plaintiff is entitled for a sum of Rs.30 lacs from the defendants under the agreement dt. 23.09.2011? OPP
d) Whether the plaintiff is also entitled for an interest on the said amount and if yes, at what rate and whether she is also entitled for any future interest, and if yes, at what rate? OPP
e) Whether the plaintiff is entitled for an interest @ 18% per annum on the sum due and payable to her as profits earned from the business conducted by them in terms of the accounts rendered by them and also future interest, if any? OPP
f) Whether the agreement on which the present suit is based is not a loan agreement? OPD
g) Relief.
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13.) In order to prove her case, the plaintiff has examined, herself as PW1 and proved her evidenciary affidavit, verified on 05.09.2017, as Ex.PW1/A, alongwith her signatures, at points 'A' and 'B', thereon, also relying on the documents, stated to be Ex.PW1/1 to Ex.PW1/4, in her such tendering, as mentioned in the Ex.PW1/A and it, now, appears that the document Ex.PW 1/1, is stated to be the 'Adoption Deed', dt., 25.08.2007, but the loan agreement, dt. 23.09.2011, has been, in fact, numbered as Ex. PW1/1. There is no original of the Adoption Deed, placed on record, though numbered as Ex.PW1/1, in Ex.PW1/A, in paragraph no.3, but infact, copy of the same is exhibited as Ex.PW1/4, on record, on 18.09.2017. Ex.PW1/3 is copy of the letter, dt. 11.03.2015, addressed to the defendant no. 2. Ex.PW 1/5 is the copies, (two pages) of the Bank Statement, whereas, the Mark A, was the earlier number, given to these copies of the Passbook, thus, de exhibited and now, numbered as Ex.PW1/5. Ex.PW1/4, though, mentioned as communications to Mahindra & Mahindra, ICICI and HDFC, but these copies are bearing different numbers, on record and thus, there is a hotchpotch of the documents and a copy of letter, dt., 12.02.2015, again, addressed to the defendant no. 2, bears the number as Ex.PW1/2, which is, again, issued by the plaintiff. There are two others 'Admitted' documents, including a postal receipt and again, copy of letter, dt., 12.03.2015. This is the exact position of the documentary evidence relied on by the plaintiff.
14.) In her crossexamination, the plaintiff has accepted that the adoption was continuing till date and she did not inititate any legal proceeding(s), to get it anulled, therefore, has to shoulder the responsibility of the upbringing of the minor, in reply to a question, she states that the defendants moved into a rented accommodation, in Mayur Vihar, prior to execution of Ex.PW1/1, i.e. Page no. 8 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
agreement dt. 23.09.2011. She also accepts that the elder son of the defendant used to assist her and the present suit was filed after registration of the FIR. She is not aware as to where the minor child was studying currently or about his monthly school fees or his gradings/ results etc. and is not able to say, if, the minor was studying in Vth Standard, at some Muradabad School, carrying, monthly fees of Rs.3200/. She also accepts that the act of sale of her jwellery etc, by the defendant no.2 was not so mentioned in her pleadings/ affidavit and it was for the first time, she mentioned this, before this Court and has volunteered to say that she did mention these facts in her testimony in the criminal trial, under abovesaid FIR. She further, accepts that her father was an Accountant in a private company and mother a housewife, having seven children as four sisters and three brothers, to her and they were born in a 50 sq. ft. house. She is not able to tell the present age of minor child and again, guesses his age to be 11 years and accepts not having any documentary evidence to show the maintenance of the adopted child, by her, though, living with his biological parents and further volunteers to say that all payment towards maintenance were made in cash and forgets to remember if, she had mentioned the facts of making such payments in Ex.PW1/A. She also did not meet the adopted child since 2013, nor paid any maintenance, again said, paid maintainance, till 2014, but forgets to remember, whether, she mentioned this fact of payment, till 2014, in Ex.PW1/A.
15.) The witness has denied a suggestion as wrong that Ex.PW1/1 was not a loan agreement or the prime essence of the alleged loan/ agreement was for the benefit of the minor child or she got the FIR no. 62/2015, registered, at PS Pandav Nagar, Delhi only to get back her money or only Rs.15,00,000/ was paid by her and not the other Rs.15,00,000/ and for this reason Page no. 9 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
Ex.PW1/1, i.e. agreement, dt., 23.09.2011, contains, the amount of Rs.30,00,000/, Written in handwriting and not typed or the defendant no.1 had assured her that she would receive Rs.15,00,000/ later on, therefore, the amount is handwritten, in good faith. She has volunteered to say that the amount was filled up by the defendant no. 2, in his own handwriting. She has denied a suggestion as wrong that she had been regularly interferring in the business of the defendants, against the terms of the loan agreement, as per the contents of Paras 15 and 16 of her plaint or the defendant could not conduct the business properly for the crunch of deficient, other Rs.15,00,000/ or the suit was a premature one as the minor is still not completing the age of 18 years or her suit was a false one alongwith a false affidavit and she was deposing falsely, in the matter. She has, however, volunteered to say that she received jwellery worth Rs.15,00,000/ and further, denied a suggestion as wrong that her father was not having any ancestral property or jwellery to provide all the siblings Rs.15,00,000/, as share, each, and plaintiff's evidence has been concluded thereupon.
16.) On the other hand, there is statement of the defendant no. 1, Smt. Kalpana Shukla, as examined DW2, and she has proved her evidentiary affidavit, verified on, 19.10.2022, as Ex.DW2/A, and her signatures, thereupon, at points 'A' & 'B', and in the hotchpotch of the documents and irregular numbering/ exhibition, thereof, there is a situation of untold misery, obtaining, in the numbering /exhibition of the documents, on record, however, this Court has taken sufficient care, while identifying the documents and taking them as proved/ notproved/ disproved, accordingly, and even has tried to addressed them as per their apparent tenor /(s). The DW2 has deposed, along the lines of the defence, put forward by the defendants and in Page no. 10 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
her affidavit, has stated that all the expenses of education and others, for the adopted child, have been borne by the defendants till date and they had to shift to the rented accommodation, in Delhi, @ rent of Rs.16,000/ per month. She has reiterated that the plaintiff gave only Rs.15 Lakhs and not Rs.30 Lakh, as claimed and the amount was given for the welfare and development of the minor child and the defendant signed the agreement Ex.PW1/1, i.e. loan agreement dt., 23.09.2011, due to blind trust reposed upon the plaintiff and the business did take a start but only for the sake of the minor child and she has also relied on Mark D, Ex.DW1/2, (Collectively 5 pages), which are some of the documents regarding education of the minor. Mark DW1/3 is relied on, which is the copy of the Legal Notice /email, sent to the plaintiff on 06.01.2015, asking regarding maintenance of the minor. Ex.DW1/4, is, now, also relied on, which, is the copy of the FIR.
17.) In her cross examination, she has accepted that she did not send any legal notice for payment of balance of Rs.15 Lakhs, nor her husband and has denied a suggestion as wrong that the notice was not so issued, as they had received Rs.30 Lakhs. She also accepts that the amount of Rs.30 Lakhs were written in the handwriting of his husband and further correction, at points C to D, in words were also written by her husband. She also accepts that the defendants had not challenged the Ex.PW1/1 (i.e. loan agreement, dt., 23.09.2011, Sic), in any court, nor sent any reply to the legal notice, by the plaintiff, or sent any legal notice to the plaintiff, regarding interference made by her or she gave any profit to the plaintiff, though, accepts that the business was started from the money given by the plaintiff under the loan agreement, dt., 23.09.2011, i.e. Ex.PW1/1, and was closed for the balance amount of Rs.15 lakhs, not being received. She also accepts that she was DSA of Airtel Page no. 11 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
but denies to be, that of Mahindra and Mahindra and feigns ignorance regarding that of ICICI Bank and further, denies her signatures, on Mark 'C', (Colly.) i.e. Correspondences, done between the defendant & these 'Concerns', she also does not remember the amount of security, deposited, at the time of taking DSA, of HDFC and accepts that no written rendition of accounts was given to the plaintiff but only verbally. She also accepts that her husband was supervising the business, run in the name and style of (M/s. Sic) Balaji Enterprises, operational for three years and further states that his husband was working in Rudrapur, at the salary of Rs.55,000/ per month and 50% profit, accrued from the business was supposed to be spend on the welfare of the minor and she had not given any money to plaintiff out of the business proceeds. She has denied a suggestion as wrong that she did not tell the plaintiff orally, about the closure of the business or the defendants were supposed to return all the money in the event of closure or she never gave the physical possession of the minor or M/s. Balaji Enterprises used to provide Car Loan to the customers or the plaintiff had given money to run the business smoothly, as the defendants were suffering financial crunchs or plaintiff paid (another Sic.) Rs.15 Lakhs, in cash, after selling her jewellary or his husband was terminated from his services or she was deposing falsely, in the matter. It is to be noted that there is a very interesting denial, of a suggestion as wrong, reading as under:
"It is wrong to suggest that the business was closed as the plaintiff did not pay the remaining Rs.15 Lakh as per Ex.PW1/1." (i.e. loan agreement, dt. 23.09.2011, Sic); She further, however, denies para no.3 of the Ex.PW 1/1, i.e. agreement, dt., 23.09.2011, while doing her admission /denial on 27.05.2017 and there is noting, on the second page of the Ex.PW1/1 (i.e. Page no. 12 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
loan agreement, dt. 23.09.2011, Sic), that the defendant no. 1 received only Rs.16.50 Lakhs.
18.) The defendant no. 2 has been examined as DW1 and has proved his evidentiary affidavit, verified on, 06.02.2018, as Ex.DW1/A and his signatures, thereupon at points 'A' and B and has also relied on Ex DW1/1 to 4 (which are not so numbered), and has deposed along the similar lines to boloster the defence of the defendants, in the matter, however, the witness deposed categorically that the amount stated in para no. 3 of the Ex.PW1/1 (i.e. loan agreement, dt., 23.09.2011, Sic), had been given solely for the purpose of welfare of the minor and he had given profits to the plaintiff, while volunteering to say to have paid the same in cash, as plaintiff being, a governent employee and accepts that there was no documentary evidence in this regard. He further volunteers to say that the agreement was between the plaintiff and defendant no. 1, therefore, he did not send any legal notice or reminder for balance payment of Rs.15 Lakhs. He also volunteers to say that Ex.PW1/1, (i.e. loan agreement, dt., 23.09.2011, Sic), was signed by him as a witness and further the amount was not given to him, though, for the welfare of the minor. The witness has denied a suggestion as wrong that the firm, M/s. Balaji Enterprises was also engaged in the business of giving car loan etc. or the amount had been given for the purpose of business, though, his wife started the business to honour Ex. PW1/1, (i.e. loan agreement, dt., 23.09.2011, Sic), but was not running the business as on 18.11.2019, yet, does not remember the exact date, month and year of closure, but, it was about 67 years ago. He further denies the suggestion as wrong that he was deposing falsely, with regard to these facts or had concocted the entire defence story or he was deliberately, telling lie that his wife did not receive Page no. 13 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
any cash payment from the plaintiff, in respect to Ex.PW1/1, (i.e. loan agreement, dt., 23.09.2011, Sic), or he sent a legal notice to the plaintiff merely, to avoid making payment to her, in this respect, or the plaintiff, on regular basis, used to make payment to the defendants for the maintenance of the minor or the amount was given for the business or the FIR was lodged on true facts and has volunteered to say regarding his acquittal.
19.) He, however, accepts that no money was returned to the plaintiff after the closure of the business, nor any written intimation was given to the plaintiff regarding closure and there is a significant departure from the testimony of DW1, as this DW accepts that only Rs.15 Lakhs were paid to the defendant no.1 and has denied a suggestion as wrong that Rs.30 Lakhs were paid as per the agreement and not mere Rs.15 Lakhs, and in this scenerio defendants have closed their evidence in the matter.
20.) I have heard final arguments by the Ld. Counsels for the parties further, written arguments submitted by the parties and also perused the entire material available on record and gone through the testimonies of the witnesses, as available on record, and it is in this scenerio of the case, that I have to render my categorical findings on the issues framed in the case, which go as under: Issue no. 1:
21.) This is an issue, to the effect, as to whether the plaintiff is entitled to rendition of accounts, as prayed for regarding the business conducted by the defendants using its money and burden of proof of this issue has been placed on the plaintiff and it appears that the plaintiff has miserably failed to bring this issue to home, in her favour, as she has clearly, stated, in her plaint that she is not aware of any profits earned by the defendants, who, on the other Page no. 14 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
hand, have altogether denied any earnings from the proposed venture, rather, they have claimed to have had run in losses and therefore, there is no point to order the defendants to render any accounts, in this regard when the very nature of the agreement, dt., 23.09.2011, is stoutly, denied by the defendants and even the Ld. Counsel for the plaintiff has not pressed this issue, in any manner, whatsoever and rather, did not touch upon this issue at all and not even in his written arguments, submitted, hence, this issue is decided in favour of the defendants and against the plaintiff accordingly, and it is held that the plaintiff is not entitled for any rendition of accounts regarding the business conducted by the defendants.
Issue no.2
22.) This is an issue, to the effect, as to whether the plaintiff is entitled for the share of profit, as per her entitlement, under the agreement, dt., 23.09.2011, on the money earned from the business conducted by them and again, burden of proof of this, is on the plaintiff, who, in view of my findings, just returned, on the issue no.1, as above, appears to have failed to bring home this issue in her favour and thus, the issue is almost merely, a repeatition of the issue no. 1 and the issue is, therefore, bound to be decided in favour of the defendants and against the plaintiff, for the reasons, already stated in details, while, dwelling on the issue no. 1, and thus, this issue stands decided accordingly, in favour of the defendants and against the plaintiff and it is held that the plaintiff is not entitled for any share of the profit, under the agreement, dt., 23.09.2011.
Issue no. 3.
23.) This is an issue, to the effect, as to whether the plaintiff is entitled for a sum of Rs.30 lacs from the defendants under the agreement, dt., 23.09.2011, Page no. 15 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
and again, burden of proof of this is on the plaintiff, who, appears to have succeeded in proving this issue, in her favour, but only against the defendant no. 1, inasmuch as, the defendant no. 2 is neither a party, nor signatory to the agreement, dt., 23.09.2011, inasmuch as there is a clear, cogent and unambiguous admission on the parts of the defendants that, they did receive Rs.15 Lakhs from the plaintiff and further in the agreement, dt., 23.09.2011 there is further admission, made that the defendant no. 1 received only Rs.16.50 Lakhs only. Sh. Sharique, has tried to argue the matter and his contention is that the agreement, in question, was not a loan agreement, at all, rather, it was an agreement, made by the plaintiff and the defendant no.1 for wellfare and upkeep of the minor child, having been adopted by the plaintiff from their biological parents, i.e. the defendants and moreover, the defendants suffered losses professionally as well as personally and as such, plaintiff is not entitled for return of even Rs.15 lakhs, alone, from the defendants, what to talk of the amount of 16.50 Lakhs or otherwise Rs.30 Lakhs, at all. He has also laid emphasis, on this aspect of the matter, in his written arguments. However, it is on record that the adoption, though, made through a registered instrument, was never put to effect and further, there is a formally stamped and duly written loan agreement, also duly proved and even the parties to the suit, do not deny its existence, as such, rather, the defendants contened its nature to be a different one, but the Ld. Counsel for the defendants, is not able to explain as to how the bar created/ applicable under Section 91 and 92, of the Indian Evidence Act, 1872, can be given a goby as Section 91, effectively excludes oral evidence, verying the terms of contract or a grant etc., when reduced to the form of a document then, no evidence can be given in proof of the terms of such contract, except the Page no. 16 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
document itself, or secondary evidence of its contents, in cases, wherever, admissible, under the Provisions, contained therein. Section 92 carves out certain exceptions, thereto, but circumscribed by the Provisions of Section 92 and even other conditions detailed in the exceptions and explanations, attached to Section 91, further, there are Provisos (1) to (6), attached and thus, the plaintiff appears to have successfully proved this issue in her favour and she becomes entitled for a sum of Rs.30 Lakhs from the defendant, no.1 only, as no liability can be fastened upon the defendant no. 2, at all under the agreement as he has all along maintained that the agreement was only for the welfare of the minors sustenance welfare under the agreement, dt., 23.09.2011 and thus, the issue is decided accordingly, in favour of the plaintiff and against the defendant no. 1.
Issue no. 4
24.) This is an issue, to the effect, as to whether the plaintiff is also entitled for an interest on the said amount and if yes, at what rate and whether she is also entitled for any future interest, and if yes, at what rate and and again, burden of proof of this is on the plaintiff, who, has also laid a claim for interest on the above amount. Ld. Counsel for the defendants has, forcefully, contended that even, at the first place, the plaintiff is not entitled for return of the money of Rs.30 Lakhs and if, the Court has found otherwise, then also, no interest can be allowed, keeping in view the peculiar nature of the case, relationship between the parties and their 'estrange' relations later on and he further submits that though, no evidence can be brought for variation regarding the terms of the written agreement, dt. 23.09.2011, but the Court can certainly hold that apart from the written terms, the defendants could lead relevant evidence regarding the true nature of the agreement, itself, and Page no. 17 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
considering the submissions, made by Ld. Counsels for the parties and all the materials available on record, I am of the view that the submissions made by the Ld. Counsel for the defendants has considerable force and this is not a fit case for award of any interest, on the amount of Rs.30 Lakhs, advanced by the plaintiff, to the defendant no.1, further there being no stipulation in this regard and therefore, neither the question of entitlement for interest on the above amount, nor any future interest, arises at all and as such, the issue goes against the plaintiff and in favour of the defendants and decided accordingly.
Issue no.5
25.) This is an issue, to the effect, as to whether the plaintiff is entitled for an interest @ 18% per annum on the sum due and payable to her as profits earned from the business conducted by them in terms of the accounts rendered by them and also future interest, if, any and burden of proof of this is on the plaintiff and it appears that the issue has become redundant, in view of my findings, just returned, on the issues no. 1, 2 & 4, as above, hence, the issue stands decided in favour of the defendants and against the plaintiff, accordingly.
Issue no.6.
26.) This is an issue, to the effect, as to whether agreement on which the present suit is based is not a loan agreement and burden of proof of this issue is on the defendants, who have filed their Written Statement, jointly, in the matter and they are signatories to the agreement, the plaintiff as well as the defendant no.1, as parties, whereas, the defendant no. 2 has signed the agreement as a witness. The defendants have admitted that the amount of Rs.30 Lakhs, was written/ inserted, in ink by the defendant no. 2 and they Page no. 18 Of 19 Anita Rani vs. Kalpana Shukla & Anr.
have failed to bring on record any material evidence, in derogation, to the agreement, dt., 23.09.2011, in terms of the Provisions of Section 9192 of the Indian Evidence Act, 1872 and as such, the defendants have miserably, failed to prove this issue in their favour and their only explanation, that the defendant no. 1, having blind trust and faith, in the plaintiff, just signed the agreement and the defendant no. 2, merely, witnessed the execution of the agreement, can not be countenanced upon by this Court, at all, especially, against the defendant no. 1, when the plaintiff has succeeded in proving the issue no. 3, in her favour, against the defendant no. 1, hence, this issue also goes in favour of the plaintiff and against the defendants and decided accordingly, by holding that the agreement, dt., 23.09.2011 is a loan agreement, in its true nature.
Relief:
27.) This is an issue of relief, and in view of my findings, returned on the issues no.1 to 6 as above, the Suit of the plaintiff is liable to be decreed for a sum of Rs.30 Lakhs against the defendant no. 1 only. I, therefore, hereby, decree the suit of the plaintiff for Rs.30 Lakhs only (Rupees Thirty Lakhs Only), against the defendant no. 1, only with no order as to costs. Plaintiff shall, however, be entitled for interest @ 6% per annum, from the date of this order and till the actual realization of the decretal amount. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Pronounced in the Open Court (Sanatan Prasad)
on 31st March, 2023 Addl. District Judge02 (East)
Karkardooma Courts/31.03.2023
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