Delhi District Court
Ramphal Chaudhary vs Mahender on 17 May, 2023
Page no. 1 of 5
THE COURT OF CIVIL JUDGE-01: SOUTH WEST
DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: CSSCJ/ 671/22
CNR NO. DLSW030011882022
IN THE MATTER OF :
Ramphal Chaudhary
S/o. Lt Sh. Chatter Singh
R/o. RZ-08, Gopal Nagar, Ph-2,
Surkhpur Road, Najafgarh,
New Delhi-43. ............... Plaintiff
Versus
Mahender
S/o. Lt Sh. Nathu Ram
R/o. VPO Dheendhwa,
Near Kalpvrikhs Hospital, Ganesh Colony,
Teshil Pilani, Distt. Jhunjhunu,
Rajasthan-333031
Also at: House No. 234, Pkt.-1,
Delhi Police Quarter, Sec-16-B, Ground Floor,
Dwarka, New Delhi-110078. ........... Defendant
Date of filing : 23.05.2022
Date of Institution : 24.05.2022
Date of pronouncing judgment : 17.05.2023
SUIT FOR RECOVERY OF MONEY
EX-PARTE JUDGMENT
1.Plaintiff has filed present suit for recovery of money of Rs. 2,00,000/- against the defendant. It is the case of plaintiff that defendant was family friend of the plaintiff. The defendant took total loan amount of Rs. 2,50,000/- on various occasions between Feb 2016 to Nov 2016 for the purpose of running of Mother Dairy booth at Delhi Police Society. The defendant promised that the defendant will return the complete amount to the plaintiff by April- May, 2017. But the defendant failed to pay the above said loan ASHISH Digitally signed by Ramphal vs. Chaudhary Vs.Mahender KUMAR ASHISH KUMAR MEENA Civil Suit No. 671/22 Date: 2023.05.17 15:27:03 +05'30' MEENA Page no. 2 of 5 amount on the promise date.
2. It is submitted that after two weeks when the plaintiff asked the defendant to return the said loan amount, he started making excuses and avoiding the plaintiff. It is also averred that when the plaintiff became doubtful about the promise of defendant due to his previous behavior. Therefore, he asked the defendant to execute at least some cheque regarding the said debt. Then Defendant agreed and issued two cheques of total amount of Rs. 2,00,000/- out of total amount of Rs 2,50000/- i.e. Cheque bearing no. 776679 of Amount Rs. 50,000/- and Cheque bearing no. 247656 of Amount Rs. 1,50,000/- on request of plaintiff on 04/07/2017 and 05/7/2017 drawn on bank SBI, Sec-3, Dwarka New Delhi and the plaintiff deposited the Cheque bearing no. 776679 of Amount Rs. 50,000/- and cheque bearing no. 247656 of Amount Rs. 1,50,000/- drawn on HDFC Bank, Thana Road, Najafgarh New Delhi-43 and the defendant promised that he will return the remaining amount of Rs. 50,000/- in cash or any other mode of transactions in this regard after that the defendant never came in the knowledge of the plaintiff of the abovesaid loan amount and, so also defendant never issued the cheque for remaining amount of Rs 50,000/- to plaintiff. It is further averred that the above said cheques on presentation, returned back unpaid by the banker of the plaintiff and got dishonoured due to insufficient funds vide memo dt. 10.7.2017.
3. It is further averred that in the month of April-May 2017, plaintiff called defendant several times over phone but the defendant did not response to his calls neither called back to plaintiff. Despite several attempts over phone the defendant never responds to plaintiff's call nor come to plaintiff to return back the Digitally signed debt money. Consequently, the present suit is instituted. ASHISH byKUMAR ASHISH MEENA Civil Suit No. 671/22 Ramphal vs. Chaudhary Vs.Mahender KUMAR Date:
2023.05.17 MEENA 15:27:09 +05'30' Page no. 3 of 5
4. Hence, plaintiff is seeking the relief of recovery of Rs. 2,00,000/- against the defendant along with pendentelite and future interest at 24% per annum. Plaintiff is also seeking a decree of damages of Rs. 50,000/- against the defendant.
5. Summons of the suit were served upon the defendant via WhatsApp on 01.12.2022 and by way of publication on 12.1.2023. The right of defence was struck off and the defendant proceeded ex-parte on 24.03.2023.
6. The plaintiff only examined one witness on his behalf i.e., the proprietor of plaintiff who stepped into the witness box and examined himself as PW1. In his testimony, PW1 tendered his evidence by way of affidavit being Ex.PW1/1 and he reiterated the contents of the plaint and also relied on 1) Certified copy of cheques and returning memos are collectively Ex.PW1/A(colly).
2) Certified copy of pro-note is Ex.PW1/B (colly) (OSR). 3) Copy of Aadhar card is Ex.PW1/C (OSR).
7. No Cross examination was done as the defendant had already been proceeded ex parte. PE was closed on 21.04.2023 and ex-parte final arguments were heard.
8. During the Ex-parte arguments, Ld. Counsel for plaintiff adverted to Certified copy of cheques and returning memos, certified copy of pro-note and copy of Aadhar card. He further submitted that the defendant was served, but he chose not to defend the suit.
9. Ld. Counsel for plaintiff argued that the suit of the plaintiff should be decreed as the testimony of PW1 remains uncontroverted along with the corroborative evidence on the record.
Digitally signed10. Heard. Perused. Considered. ASHISH byKUMAR ASHISH MEENA Civil Suit No. 671/22 KUMAR Date:
Ramphal vs. Chaudhary Vs.Mahender 2023.05.17 MEENA 15:27:16 +05'30' Page no. 4 of 5
11. The plaintiff has sufficiently discharged the burden of proof placed upon him by virtue of Section 101 Indian Evidence Act, 1872. The PW1 has testified in the affidavit of evidence that the defendant took loan from plaintiff with promise to re-pay the same for the purpose of running milk booth. On persistent request, defendant issued cheque in question to plaintiff. The cheque was presented before concerned bank for encashment but the same returned dishonored with the report "insufficient funds". The plaintiff has proved oral testimony through documentary corroborative evidence by relying upon Ex. PW 1/A to Ex PW 1/C.
12. The testimony of PW1 has remained uncontroverted. Reference can be placed upon the Judgement of Hon'ble High Court of Delhi in M/s. Eco Lab I.MC.N vs. Eco Labs Ltd., 2011(185) DLT 664, wherein it was held that if the defendant has failed to cross-examine the plaintiff, the evidence of plaintiff is to be presumed to be correct. In view of the fact that the testimony of PW1 has remained unrebutted, his testimony on oath is accepted as correct. There is no reason to disbelieve the same.
13. In any case, since the defendant had not appeared despite service and also chose not to file WS, it can be safely presumed that he has no defence to offer. The suit of the plaintiff is well within the limitation as the same was filed on 23.05.2022. The plaintiff has availed the benefit of directions given in case of "In Re: Cognizance for Extension of Limitation (Suo Motu Writ Petition (C) NO. 3 OF 2020, Miscellaneous Application No. 665 OF 2021 and Miscellaneous Application No. 21 OF 2022), wherein Hon'ble Supreme Court has held that "II. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have ASHISH Digitally by ASHISH signed KUMAR MEENA Civil Suit No. 671/22 Ramphal vs. Chaudhary Vs.Mahender KUMAR Date:
2023.05.17 MEENA 15:27:24 +05'30' Page no. 5 of 5 a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply."
14. In view of the same, limitation to file present has expired on 10.07.2020, however, plaintiff as per above mentioned directions has instituted the suit on 23.05.2022 i.e within 90 days 01.03.2022.
Therefore, present suit is well-within limitation.
15. The suit of the plaintiff is therefore decreed in the favour of the plaintiff and against the defendant, the Defendant is directed to pay Rs 2,00,000/- to the plaintiff with the interest @ 6 % p.a. from the date of filing of the suit till the date of actual realization of the decreetal amount.
16. Costs of the suit are also awarded in favour of the plaintiff.
17. Decree sheet be prepared accordingly.
18. File be consigned to Record Room after compliance with due formalities.
ASHISH Digitally signed by ASHISH Announced in the open court on 17.05.2023. KUMAR KUMAR MEENA Date: 2023.05.17 MEENA 15:27:30 +05'30' (Ashish Kumar Meena) Civil Judge-01(SW) Dwarka Courts, New Delhi 17.05.2023 It is certified that the present judgment runs into five pages ASHISH Digitally signed by and each page bear my signature. ASHISH KUMAR MEENA KUMAR Date: 2023.05.17 MEENA 15:27:37 +05'30' (Ashish Kumar Meena) Civil Judge-01(SW) Dwarka Courts, New Delhi 17.05.2023 Civil Suit No. 671/22 Ramphal vs. Chaudhary Vs.Mahender