Delhi District Court
R/O H.No.I345 vs Dr. Sukhan Singh ( Rmp) on 10 October, 2013
IN THE COURT OF SH. SUSHANT CHANGOTRA, CIVIL JUDGE6,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 861/12
Sh. R.K. Ahirawal
S/o Sh. K. Lal
R/o H.No.I345, Shiv Ram Park, Nangloi,
Delhi41 ....... Plaintiff
Versus
Dr. Sukhan Singh ( RMP)
S/o Sh. Abhay Singh
C/o Smt. Uma Rani
R/o F339, Nihal Vihar,
Nagloi, Delhi41 .......... Defendant
Date of filing of Suit : 02.06.2012
Date of decision : 10.10.2013
JUDGMENT
1. The brief facts of the case of plaintiff are that defendant had approached the plaintiff for taking a loan for a sum of Rs.26,000/ CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 1/11 for incurring expenditures for the treatment of his daughter. The defendant also stated that if the plaintiff helps him, then he will get the relief from the Prime Minister Relief Fund. The plaintiff accepted the request and advanced the said loan. At that time, the defendant assured the plaintiff that he will refund the amount.
2. Thereafter, the defendant again approached the plaintiff on 10.11.2009 for giving a loan of Rs.10,000/. He once again took the loan of Rs.5,000/ on 02.01.2011. Thus, the defendant took a loan of Rs.41,000/ out of which, he had refunded Rs.19,000/ He also gave a receipt acknowledging his liability to pay the amount of Rs.22,000/ to the plaintiff.
3. Thereafter, the plaintiff waited for the defendant to repay the loan, but defendant with the help of some anti social elements gave beatings to the plaintiff and threatened to kill him if he made a demand of loan. The plaintiff also gave complaint to the police. Till date no operation/treatment of the daughter of the defendant had taken place. CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 2/11 The plaintiff got a legal notice dated 14.11.2012 issued through his counsel but it was returned with the report of 'premises locked'. Thereafter, the plaintiff again issued reminder dated 24.12.2012 which was duly received by the defendant but the defendant did not pay the amount. Thus, the plaintiff prayed for decree of a sum of Rs.22,000/ along with interest @ 24% p.a. from the date of filing of the suit till the realization of the decreectal amount.
4. The defendant filed the WS and took preliminary objections. He pleaded that the plaintiff has concealed material facts. The defendant is not a doctor. Daughter of the defendant was suffering from heart disease. He had applied for some amount for her treatment in the Prime Minister Relief Fund. The defendant never took any loan from the plaintiff. The plaintiff represented himself to the chief editor of Allahabad Rashtriya Saptahike Samachar and assured the defendant that he could get the amount sanctioned from Prime Minister Relief Fund. He also took signatures of the defendant on CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 3/11 some applications on the pretext that they were to be forwarded to the office of Prime Minister. Plaintiff took a sum of Rs.35,000/ from the defendant as processing charges for sanctioning of the treatment amount.
5. Defendant had given some amount to the plaintiff for sanctioning of fund from Prime Minister Relief Fund. The defendant had firstly given Rs.5,000/ to the plaintiff and thereafter, he paid different amount on different occassions.
6. On merits, the defendant denied having taken any loan from the plaintiff as alleged. He also denied having received a notice as alleged. Defendant stated that her daughter died on 16.05.2011 at Safdarjang Hospital. He denied the remaining averments of the plaint and prayed that the suit be dismissed.
7. Thereafter, the plaintiff filed replication to the written statement of defendant and denied the averments of the written statement and reiterated the contents of the plaint. From the pleadings CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 4/11 of the parties, following issues were framed : (1) Whether plaintiff is entitled to recovery of sum as prayed for ?
OPP
(2) Whether plaintiff is entitled to interest as prayed for ? If so, at
what rate and for which period ? OPP
(3) Relief.
8. In order to prove his case, plaintiff appeared as PW1 and filed his evidence by way of affidavit as Ex.PW1/1 and proved the documents Ex.PW1/1 to Ex.PW1/4, Ex.PW1/6 to Ex.PW1/7 and Mark X. Thereafter, the plaintiff closed his PE on 26.02.2013.
9. On the other hand, defendant appeared as DW1 and tendered his affidavit as Ex.DW1/A and thereafter, the defendant also closed his DE on 09.09.2013.
10. I have heard the arguments advanced by the ld. counsels for the parties and gone through the record very carefully. My issue wise findings are as follows: CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 5/11 Issue No.1
11. The onus to prove this issue was on the plaintiff. The plaintiff has supported his case by way of affidavit tendered in examination in chief i.e. Ex.PW1/A. The plaintiff has also proved the receipt dt. 05.01.2011 as Ex.PW1/1, legal notice as Ex.PW1/2, its postal receipts as Ex.PW1/3 & Ex.PW1/4 respectively. It is the case of the plaintiff that documents were not executed at the time of giving loan on various dates. The plaintiff has proved the receipt Ex.PW1/1 vide which, the defendant admitted the existence of his liabilities of Rs.22,000/ towards the plaintiff. Thus, the plaintiff discharged the initial onus to prove this issue and the onus to prove that no such amount was paid shifted on the defendant.
12. The defendant has denied the execution of this receipt by saying that the plaintiff had taken his blank signatures on the papers on the pretext of moving applications for release of fund from Prime Minister Relief Fund. The defendant in his evidence, deposed that he CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 6/11 had not taken any loan from the plaintiff and rather the plaintiff had issued a receipt dated 31.01.2011 acknowledging that he is liable to pay a sum of Rs.35,000/. The defendant also placed heavy reliance on the document Ex.PW1/D1 dated 31.01.2011 executed by the plaintiff. As per this document, the plaintiff had acknowledged the fact that he is liable to pay Rs.35,000/ to the defendant.
13. The plaintiff in his cross examination admitted that the said receipt i.e. Ex.PW1/D1 is written under his hand. However, he gave the explanation that he had executed the receipt under pressure as the defendant along with 30/40 persons had threatened him. However, plaintiff has not made any such averment in his plaint that the defendant had taken the receipt from him by exerting pressure. Plaintiff has also not proved any complaint given to the police in this regard. Any prudent person will immediately give complaint to the police or at least he will not shy away from making the necessary averments to this effect in his plaint. Hence, the explanation of CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 7/11 plaintiff seems to be a farce. It appears that plaintiff had given this explanation just in order to wriggle out of the effect of the receipt Ex. PW1/D1.
14. Further, it is necessary to note that in the cross examination of DW1, no suggestion has been given to him that the aforesaid receipt was given by the plaintiff under coercion or pressure. In "Traders Syndicate Vs. Union of India" AIR 1983 Calcutta 337 it has been held that, " when no crossexamination is preferred to the witness on the point of dispute as stated in examination in chief, then the court can hold that defendant accepted plaintiffs case on the point of entirety. No dispute can be raised in the arguments." The aforesaid proposition has been reiterated in M/S. Chunni Lal Dwarka Nath vs Hartford Fire Insurance Co Ltd AIR 1958 Punjab 440 wherein it has been held that, " a party should put to each of his opponents witnesses CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 8/11 so much of his case as concerning that particular witness. If no such questions are put the courts presume that witnesses account has been accepted". Thus, the fact that the plaintiff had executed a receipt acknowledging his liability to pay Rs.35,000/ to the defendant is deemed to have been admitted by the plaintiff.
15. Hence, the defendant has proved that the plaintiff had executed the receipt Ex. PW1/D1 on 31.01.2011. In such circumstances, when the plaintiff himself had acknowledged the liability to pay Rs.35,000/ to the defendant on 31.01.2011, there could not have been an opportunity for the defendant to execute a receipt for a sum of Rs.22,000/. Once the plaintiff himself was under obligation to pay Rs.35,000/ to the defendant, there could not have been any occasion for the plaintiff to take loan from the defendant. Hence, the defendant has successfully discharged the onus which had shifted upon him to the preponderance of probability. Hence, in view of aforesaid discussion, plaintiff has failed to prove that the defendant owes Rs. CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 9/11 22,000/ to him. Thus, this issue is decided against the plaintiff. Issue No.2
16. The onus to prove this issue was on the plaintiff. Since in issue no. 1, it has already been held that the plaintiff has failed to prove that the defendant is under obligation to pay any amount to him, therefore, the plaintiff has also failed to prove that he is entitled for interest. Hence, this issue decided against the plaintiff. Relief.
17. In view of findings given on the above noted issues, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared. The file be consigned to record room after due compliance.
Pronounced in open court (Sushant Changotra)
on 10.10.2013 Civil Judge06 (West),Delhi.
CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 10/11
CS No 861/12
10.10.2013
Present: Sh. Hitesh Kumar, Counsel for plaintiff (from
DLSA).
Sh. Ajay Bansal, counsel for defendant (From
DLSA)
Remaining arguments heard. Put up for orders at 04:00 P.M. (Sushant Changotra) Civil Judge06 (West), Delhi 10.10.2013 At 04:00 P.M. Present: Sh. Hitesh Kumar, Counsel for plaintiff (from DLSA).
Sh. Ajay Bansal, counsel for defendant (From DLSA) Vide separate judgment of even date, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared. The file be consigned to record room after due compliance.
(Sushant Changotra) Civil Judge06 (West), Delhi 10.10.2013 CS No. 861/12 R.K. Ahirwal VS. Dr. Sukhan Singh 11/11