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[Cites 3, Cited by 0]

Delhi District Court

Ram Avadh vs Sh. Raju on 4 February, 2016

 IN THE COURT OF SHRI SANDEEP GARG : ADMINISTRATIVE 
    CIVIL JUDGE­ CUM­ ADDITIONAL RENT CONTROLLER 
                   (CENTRAL) : DELHI


Suit No. : 55/2014
Unique ID No : 02401C0615462014

In the matter of:­

    Ram Avadh,
    S/o Sh. Sati Ram,
    R/o H.No. 201, Road No.4, 
    Sangam Vihar, Jharauda,
    Delhi­110084.                                 ....Plaintiff 
                                 Versus
1.  Sh. Raju,
     R/o B­976, Shastri Nagar,
     Delhi.W/o Sh. Ravinder Garg,
2.  Smt. Sarita,
     W/o Sh. Raju,
     R/o B­976, Shastri Nagar,
     Delhi.
     Also at :­
     State Bank of India,
     (04041) PBB, 11 Sansad Marg, 
     New Delhi.                                 .....Defendants

 Date of Institution            : 03.12.2014
 Date of order when reserved    : 23.01.2016
 Date of order when announced   : 04.02.2016 


Suit No. 55/2014                                              1/28
 JUDGMENT :

1. The present suit for recovery of Rs. 1,00,000/­ (Rupees One Lac Only) alongwith pendente lite and future interest @ 18% per annum from the date of filing of the suit till realization and costs has been filed by the plaintiff against the defendant.

2. It is the case of the plaintiff that the defendants are known to him and they were on visiting terms with each other for long time. The defendants had approached and requested the plaintiff in the first week of May, 2013 for a loan of Rs. 1,00,000/­ for the marriage of their niece and the plaintiff had given a friendly loan of Rs. 1,00,000/­ on 19.05.2013. The defendants assured the plaintiff to repay the same within a period of five months.

3. Upon expiry of the stipulated period, the defendants had issued four cheques on different times to the plaintiff i.e. cheques bearing no. 357985 dated 17.09.2013 for Rs. 10,000/­; no. 357984 dated 21.10.2013 for Rs. 28,000/­, no. 425662 for Rs. 10,000/­ and no. 425142 for Rs. 3,000/­ assuring that the aforesaid cheques would be Suit No. 55/2014 2/28 duly encashed on their presentation. Cheque no. 425142 was issued by Rawal Industries and the defendants had given that cheque stating that the defendants had to take money from that company and if the plaintiff would present the cheque, it will be encashed.

4. Upon presentation of three cheques bearing no. 357985, 357984 and 425662 for their encashment with the banker i.e. Dena Bank, Wazirpur, Delhi, they got dishonoured and cheque bearing no. 425142 has not been presented as the same would also have been dishonoured. The plaintiff appraised the defendants about factum of the cheques having got dishonoured, but the defendants always kept on gaining time on one pretext or another and kept on assuring the plaintiff that they will make the payment very soon. However, the defendants failed to pay the amount and rather, they started abusing and misbehaving with the plaintiff. They threatened the plaintiff that they will not pay the amount and asked the plaintiff to do whatever he could do.

5. The plaintiff made several requests to the defendants, but despite that, the defendants have not repaid the aforesaid amount of friendly loan to the plaintiff. The plaintiff issued a demand legal Suit No. 55/2014 3/28 notice dated 01.10.2014 to the defendants, but to no avail. The defendants are liable to pay amount of Rs. 1,00,000/­ which includes the amount of cheques i.e. Rs. 51,000/­ alongwith pendente lite and future interest @ 18% per annum.

6. The defendants filed their written statement wherein they have denied the averments made by the plaintiff. It is averred that the plaintiff has not come to the court with clean hands. The averments made in the plaint are self contradictory which belies the story of the plaintiff, hence the suit is not maintainable. Raju is nick name of the defendant no.1 whereas his official name is Khushal Singh. The defendant no.1 infact is known by his official name in the locality and is residing on rent.

7. The plaintiff and defendant no.1 are known to each other. The defendant no.1 and plaintiff entered into oral relations whereby defendant no.1 used to take loan from the plaintiff from time to time. It is averred that loan transaction between plaintiff and defendant no.1 was not confined to one time alone. Defendant no.1 took loan of Rs. 28,000/­ in cash and the same has already been repaid with interest, in cash in the presence of a witness. The plaintiff has become a cheat Suit No. 55/2014 4/28 and has breached the trust of defendant no.1 by depositing the cheques issued to him. There is no amount due from the defendants.

8. The plaintiff is having and acting on a grudge that the defendant no.1 no longer takes/further took loan from the plaintiff on interest and had sourced the same from another source. Therefore, plaintiff who was having the cheques of the defendants in hand, has misused them. He has filed the present suit to force defendant no.1 to take loan from him. The said cheques, except that of Rawal Industries, were kept with the plaintiff as security against the loan taken and to be taken from time to time which the plaintiff has misused. The said loan is first and last taken from the plaintiff.

9. The demand notice itself is belated, although it is denied that the same was served upon the defendants. The plaintiff has failed to explain as to how an amount of Rs. 1 lac is made out on the alleged amount of Rs. 51,000/­ plus interest @ 18% per annum for less than two years.

10. Replication to the written statement of the defendants, has Suit No. 55/2014 5/28 been filed by the plaintiff wherein he has denied the averments made by the defendants and he has reaffirmed his stance, as averred in the plaint. It has been averred by the plaintiff that the present suit is maintainable. There are no contradictions in the averments made by the plaintiff. The defendants have admitted in para no.04 of their reply on merits in the written statement by averring that "the said loan is first and last taken from the plaintiff".

11. As a matter of fact, the averments made in the written statement are contradictory as the defendants have averred in para no. 03 of their reply on merits in the written statement that "defendant no. 1 and plaintiff entered into oral relation of taking loan from the plaintiff from time to time and not one time only". The amount which defendants owe to the plaintiff is actually Rs. 1 lac and the interest thereupon which includes the amount of Rs. 51,000/­ on account of cheques.

12. Vide order dated 23.04.2015, on the basis of pleadings of the parties, following issues were framed:­

i) Whether the plaintiff is entitled to a decree for a sum of Rs. 1 lac alongwith pendente lite and future interest @ 18% per annum, as Suit No. 55/2014 6/28 prayed for? OPP.

ii) Whether defendant no.1 took a loan of Rs. 28,000/­ in cash which has been repaid alongwith interest? OPD.

iii) Relief.

13. In order to substantiate his case, the plaintiff himself deposed as PW­1. PW­1 deposed on the lines of averments made in the plaint.

14. Thereafter, matter was fixed for defendant's evidence and in order to substantiate their case, defendants examined defendant no. 1 as DW­1 and Smt. Gurbachan Kaur as DW­2. DW­1 Sh. Raju @ Khushal Singh deposed on the lines of averments made in the written statement. DW­2 Smt. Gurbachan Kaur deposed that defendant no.1 had taken a loan of Rs. 28,000/­ with interest @ 6% per month from the plaintiff in the year, 2013 which was repaid by him in cash in her presence during the period between May, 2013 to July, 2013.

15. The court has heard Ld. Counsel for parties and has perused the record with their able assistance.

Suit No. 55/2014 7/28

16. It has been contended by Ld. Counsel for plaintiff that the version of defendants is falsified by the fact that interest of Rs. 28,000/­ does not amount to Rs. 23,000/­. Admittedly, the defendants had handed over cheques worth Rs. 51,000/­ to the plaintiff for encashment. No one will issue cheques for a higher amount than his/her liability. Therefore, the entire version of defendants is falsified in view of the evidence available on record.

17. Secondly, as per DW­1 Sh. Raju @ Khushal Singh and DW­2 Smt. Gurbachan Kaur, the loan amount was repaid alongwith interest during the period between May, 2013 to July, 2013. Had it been correct, the cheques would not have been subsequently issued in the months of September, 2013, October, 2013, March,2014 and April, 2014. No one will issue cheques after he/she has already discharged his/her liability.

18. Thirdly, it has been admitted by DW­1 Sh. Raju @ Khushal Singh during his cross­examination that he had written the dates and amounts on all the three cheques issued by him in his own Suit No. 55/2014 8/28 handwriting and that he had handed over all these three cheques to the plaintiff. The version of defendants is falsified by the fact that cheques as security cannot be issued after discharge of liability, therefore, plaintiff has been successful in establishing his case and defence of the defendants is liable to be rejected.

19. Fourthly, it has been contended on behalf of plaintiff that on one hand, the defendants have stated that they used to take loan from the plaintiff from time to time and the loan transaction in respect of Rs. 28,000/­ was not the only transaction. However, on the other hand, in para no.06 of affidavit, Ex. DW­1/A, it has been stated by DW­1 Sh. Raju @ Khushal Singh that the loan transaction of Rs. 28,000/­ was the only loan transaction with the plaintiff. This impeaches credibility of defendant no.1 and exposes falsity of defence of the defendants.

20. Fifthly, DW­1 Sh. Raju @ Khushal Singh has admitted during his cross­examination that he does not have any written proof of repayment of the loan amount. On one hand, it has been stated by DW­1 Sh. Raju @ Khushal Singh in para no.06 of his affidavit, Ex. Suit No. 55/2014 9/28 DW­1/A that cheque of Rs. 10,000/­ was issued against interest and cheque of Rs. 3,000/­ was given on account of penalty whereas, on the other hand, the defence of the defendants is that they had repaid the entire loan amount of Rs. 28,000/­ alongwith interest in cash. These material contradictions in the defence of the defendants establish falsity of the version of the defendants and impeaches their credibility.

21. Sixthly, the cheques were issued by the defendants towards discharge of their liability partially and they had assured the plaintiff to repay the balance amount in due course. However, the defendants failed to get the cheques encashed and repay the loan amount due to which the plaintiff was constrained to issue legal notice, Ex. PW­1/9 which was served upon the defendants through registered A.D. Post, Ex. PW­1/10 and filed the present suit.

22. Per contra, it has been emphatically contended by Ld. Counsel for defendants that a perusal of cross­examination of PW­1 Sh. Ram Avadh shows that the plaintiff was not in a sound financial condition so as to be able to advance Rs. 1 lac to the defendants. It has been stated by the plaintiff during his cross­examination that he Suit No. 55/2014 10/28 used to deposit Rs. 4,000­5,000/­ in the account of somebody else and he cannot produce any proof of said bank account. He deposed that he had paid Rs. 1 lac to the defendants after drawing the said amount from a committee. However, he cannot produce any proof of drawing Rs. 1 lac from a committee. He cannot adduce any oral testimony pertaining to the said transaction.

23. There are material contradictions in the statement of PW­1/plaintiff wherein the plaintiff has deposed that the defendants issued cheque of Rs. 28,000/­ in the first instance and when the said cheque got dishonoured, the defendants issued another cheque of Rs. 10,000/­ whereas as a matter of fact, cheque of Rs. 10,000/­ was issued on 17.09.2013 i.e. prior to cheque of Rs. 28,000/­ which was issued on 21.10.2013. This impeaches credibility of testimony of the plaintiff.

24. It is improbable and incredible that a person will give loan without interest. He admitted that the defendants did not invite him for attending the wedding of their niece. He admitted that he cannot produce any witness pertaining to the transactions between him and Suit No. 55/2014 11/28 the defendants. Therefore, the defendants have been successful in establishing that the claim of the plaintiff is false and defendants have already repaid the entire loan amount with interest. The suit deserves to be dismissed.

25. Issue wise findings are as follows:­ ISSUE NO. 1 :­ Whether the plaintiff is entitled to a decree for a sum of Rs. 1 lac alongwith pendente lite and future interest @ 18% per annum, as prayed for? OPP.

ISSUE NO.2:­ Whether defendant no.1 took a loan of Rs. 28,000/­ in cash which has been repaid alongwith interest? OPD.

26. Both the issues are interconnected and therefore, both the issues are taken up together. The onus to prove issue no.1 was on the plaintiff and in order to discharge his onus, the plaintiff deposed that copy of his Election I.D. Card is Ex. PW­1/1. The defendants are acquainted with him and they were having visiting terms with each Suit No. 55/2014 12/28 other for long time. The defendants had approached and requested him in the first week of May, 2013 for a loan of Rs. 1,00,000/­ for the marriage of their niece and he had given a friendly loan of Rs. 1,00,000/­ on 19.05.2013.

27. The defendants assured him to repay the same within a period of five months. Upon expiry of five months, the defendants had issued four cheques on different times to him i.e. cheques bearing no. 357985 dated 17.09.2013 for Rs. 10,000/­; no. 357984 dated 21.10.2013 for Rs. 28,000/­, no. 425662 for Rs. 10,000/­ and no. 425142 for Rs. 3,000/­ assuring that the aforesaid cheques would be duly encashed on their presentation.

28. Cheque No.357985 and returning memo dated 06.12.2013; no. 357984 and returning memo dated 16.01.2015; no. 425662 and returning memo dated 06.06.2014 are Ex. PW­1/2 to Ex. PW­1/7. Cheque no. 425142, Ex. PW­1/8 was of Rawal Industries and the defendants have given that cheque stating that they had to take money from that company and if he will present the cheque, then the money will come in his account. Upon presentation of three cheques bearing Suit No. 55/2014 13/28 no. 357985, 357984 and 425662 for their encashment with the banker i.e. Dena Bank, Wazirpur, Delhi, they got dishonoured and cheque bearing no.425142 has not been presented as the same would also have got dishonoured.

29. He appraised the defendants about factum of the cheques, but the defendants always kept on gaining time on one pretext or other assuring that they will make the payment very soon, but did not pay the amount. Rather, the defendants started abusing and misbehaving with him and have threatened him that they will not pay the amount and asked him to do whatever he could do.

30. He made several requests to the defendants, but despite that, the defendants have not repaid the aforesaid amount of friendly loan to him. He issued demand legal notice dated 01.10.2014 to the defendants, but to no avail. Copy of legal notice dated 01.10.2014 is Ex. PW­1/9 and copy of postal receipts are Ex. PW­1/10 (Colly). The defendants are liable to pay amount of Rs. 1,00,000/­ which includes the amount of cheques i.e. Rs. 51,000/­ alongwith pendente lite and future interest @ 18% per annum.

Suit No. 55/2014 14/28

31. During his cross­examination, PW­1 stated that he is a gardener in a hospital at ISBT. He has not brought any proof regarding his employment with the hospital. He does not have any proof of the same which he can produce. At present, he is drawing Rs. 12,000­14,000/­ p.m. which includes overtime payment. He cannot bring any proof pertaining to the said salary. In 2013, he was doing the work pertaining to cutting of oil seals etc. in a factory at Greater Noida. He cannot bring any proof pertaining to the same.

32. In the year 2013, he used to earn Rs. 9,000/­ p.m. He cannot bring any proof of the said earning. At present, and even in the year 2013, he has family of four persons including him, his wife and two children. His wife also works in a factory and his children are getting education. At present, his wife earns Rs. 6,000/­ and in the year 2013, she was earning Rs. 4,000/­ p.m. He cannot bring any proof of what his wife is/was earning.

33. His household expenses are approximately Rs. 7,000/­ at present and even in the year 2013, his expenses were the same. He deposited the savings in the committee. He cannot bring any proof Suit No. 55/2014 15/28 regarding deposit of his savings in the committee. Whenever he used to withdraw money from the committee, he used to deposit that amount in the bank. He used to deposit 4,000­5,000/­ rupees in the bank at certain intervals. Rest of the amount, he used to spent on the house and for taking care of his parents. He used to deposit Rs. 4,000­5,000/­ in somebody's else's bank account. He cannot bring any proof of the said bank account.

34. He paid Rs. 1 lac to the defendants after withdrawing the same from a committee. He cannot bring any proof of withdrawing Rs. 1 lac from committee. He cannot adduce any oral testimony pertaining to the said transaction. He paid Rs. 1 lac in cash to the defendants as lump sum. He generally does not give any loan to any person. He gave the loan to the defendants because defendant no.1 was his friend. Defendants did not invite him or his family to attend the alleged marriage of their niece.

35. He denied that he gave loan to the defendants on any interest. He denied that he had advanced loan of only Rs. 28,000/­ to the defendants. He denied that a cheque of Rs. 10,000/­ was given to Suit No. 55/2014 16/28 him on account of payment of interest. He denied that cheque of Rs. 3,000/­ was given towards penalty. Defendants paid Rs. 28,000/­ as a part payment towards the loan extended to him. Thereafter, when the cheque of Rs. 28,000/­ bounced, he went to the defendants and they gave him a cheque of Rs. 10,000/­ as stated above to be deposited instead of cheque of Rs. 28,000/­.

36. He does not remember as to whether cheque of Rs. 10,000/­ was issued prior to cheque of Rs. 28,000/­ or not. The cheque of Rs. 10,000/­ issued by one Rawal Industries was given to him by the defendants and he cannot bring the witness from Rawal Industries to prove his claim. He did not inquire about issuance of that cheque from Rawal Industries. He has not asked for any relief pertaining to the interest. It is the relief of the amount he has prayed which he gave to the defendants i.e. Rs. 1 lac.

37. He denied that he had advanced a loan of Rs. 28,000/­ to the defendants which they have repaid in cash. He denied that he has filed the present suit against the defendants because the defendants were trying to take loan from other persons. He did not consult any Suit No. 55/2014 17/28 Govt. officials or any advocate before extending the loan of Rs. 1 lac in cash. He does not have any license of money lending.

38. He denied that the cheque of Rawal Industries had not been given to him by the defendants. He admitted that he has not filed any proof of service of legal notice upon the defendants. He denied that para no. 7 of his affidavit is wrong. He cannot bring any witness pertaining to the all transactions which took place between him and the defendants.

39. DW­1 Sh. Raju @ Khushal Singh proved his affidavit, Ex. DW­1/A. He deposed that the allegations in the plaint are self contradictory which belies the story of the plaintiff, hence the suit is not maintainable. In his para no.09 of his plaint, the plaintiff has prayed for recovery of Rs. 51,000/­ with interest @ 18% per annum (of last 1 ½ years) which allegedly amounts to Rs. 1 lac and not for Rs. 1 lac with or without interest. Thus, the plaintiff is not sure of what amount of loan he gave to him and what relief he is praying for.

40. The suit of the plaintiff is not maintainable in law as the plaintiff is not having any license to lend the money under the Money Suit No. 55/2014 18/28 Lending Act with or without interest. He is not his relative either, but just was a casual friend and that is why admittedly, he did not invite the plaintiff on the alleged marriage of his niece, though no loan was taken on the pretext of marriage of his niece. Any single transaction above Rs. 20,000/­ in cash is barred under Income Tax Laws, hence the loan transaction between the parties is barred.

41. The plaintiff knew him by his nick name only and not by his official name and the plaintiff filed amended memo of parties on 04.04.2015 after written statement was filed by him and his wife which shows that there was no nearness between the parties as claimed by the plaintiff. He and plaintiff used to enter into oral transactions of taking loan from the plaintiff from time to time and not one time only.

42. He/they took loan of Rs. 28,000/­ in cash and the same has been returned with interest, in cash in the presence of a witness, Ms. Gurbachan Kaur. The plaintiff has become a cheat and has breached his trust by depositing the cheques. There is no amount due from the defendants. The plaintiff is nurturing and acting on the grudge that he Suit No. 55/2014 19/28 no longer takes/further took loan from the plaintiff on exorbitant interest and had sourced the same from another source. Therefore, plaintiff, who was having his cheques in hand, preferred this suit to force him to take loan from him on exorbitant interest.

43. The said cheque of Rs. 28,000/­ except that of Rawal Industries was kept with the plaintiff as security against the loan taken and to be taken from time to time which the plaintiff has misused. Cheque of Rs. 10,000/­ was issued on account of interest on loan and Rs. 3,000/­ is the penalty amount. The said loan is first and last transaction with the plaintiff. He denied the service of legal notice of the plaintiff upon him and defendant no.2. The notice itself is belated. The plaintiff has failed to explain as to how amount of Rs. 1 lac is made out on the alleged amount of Rs. 51,000/­ plus interest @ 18% per annum for less than two years.

44. It is not clear in the context of the plaintiff as to why the plaintiff seeks relief of Rs. 1 lac without pendente lite interest. The plaintiff's testimony is contradictory as he has stated that cheque of Rs. 10,000/­ was given after dishonour of cheque of Rs. 28,000/­. The Suit No. 55/2014 20/28 plaintiff has not been able to prove his capacity of earning and saving in bank or through committees. He could not have lend huge amount of Rs. 1 lac in cash in lump sum. Taking money from committees from an unauthorized organizer in cash of more than Rs. 20,000/­ is an unlawful act.

45. During cross­examination, DW­1 admitted that the plaintiff is his casual friend for the last six years. He had taken a loan of Rs. 28,000/­ from the plaintiff. He does not have any documentary proof for taking such loan. He denied that he had taken a loan of Rs. 1 lac from the plaintiff. He had taken loan in the year 2013, but he does not know the exact date. He has repaid the loan amount in May to July, 2013. He admitted that he has not mentioned the date and month of repayment of the loan amount in his affidavit, Ex. DW­1/A.

46. He denied that he has not mentioned the dates of repayment of the loan in his affidavit as he has not refunded the loan amount. He admitted that he had given three cheques of amount of Rs. 28,000/­ dated 21.10.2013; Rs.10,000/­ dated 17.09.2013 as well as cheque of Rs. 3,000/­ dated 30.04.2014 to the plaintiff. He wrote Suit No. 55/2014 21/28 the above mentioned dates and amounts on the cheques in his handwriting. The cheques were given as security. He denied that he had given the said cheques, which were signed by defendant no.2 towards partial repayment of his loan amount.

47. He denied that the cheque issued by Rawal Industries had been given by him to the plaintiff. He admitted that the abovesaid three cheques have been dishonoured. He gave the cheques of Rs. 10,000/­ and Rs. 3,000/­ on account of interest on the loan amount which was 6% per month. He admitted that he had received the legal notice, Ex. PW­1/9 dated 01.10.2014. He admitted that he did not give any reply to the said notice. He denied that he did not give the reply to the notice because he has to repay Rs. 1 lac to the plaintiff.

48. He admitted that he does not have any written proof of repayment of the loan amount. He admitted that he has not mentioned the name of witness in the written statement before whom he repaid the loan amount. He denied that the name of the witness as mentioned in the affidavit is false.

Suit No. 55/2014 22/28

49. DW­2 Smt. Gurbachan Kaur deposed that Sh. Raju @ Khushal Singh, defendant no.1 had taken a loan of Rs. 28,000/­ from Sh. Ram Avadh in 2013 @ 6% per month interest. Thereafter, during May to July, 2013, Sh. Khushal Singh repaid the loan amount of Rs. 28,000/­ and interest of Rs. 10,000/­ to the plaintiff in her presence in cash. Her identity proof is Ex. DW­2/1.

50. During cross­examination, DW­2 stated that she does not know the exact date of loan transaction between the parties, but it was somewhere in January 2013. Defendant no.1 repaid the entire amount in 6­7 installment. She does not know the exact dates of transaction. She denied that there was a transaction of loan amount of Rs. 1 lac between the parties. She denied that the loan was not taken in her presence and that is why she is not able to tell the exact dates.

51. She knows about one cheque only which defendant no.1 gave to the plaintiff, but she does not know amount of the said cheque. Defendant no.1 did not take any receipt in lieu of money paid to the plaintiff. There was no written proof regarding loan transaction between the parties. The transactions of loan taken took place in the Suit No. 55/2014 23/28 factory. Address of the factory is 86 A, Nursery Garden, Khyala, Delhi. The said factory was closed in the year, 2014.

52. There were about three workers working in the said factory i.e. herself, the plaintiff and one Sh. Shyamlal who is now dead. The loan transaction took place in the said factory in her presence and Sh. Shayamlal. She denied that the said transaction did not take place either in her presence, or in the said factory. She cannot say as to for what reason defendant no.1 took the loan from plaintiff. She does not know as to whether defendant no.1 took the loan because of marriage of his niece. She admitted that she has come as a witness on asking of the defendant no.1.

53. The court is of the considered view that admittedly, the defendants had handed over cheques worth Rs. 48,000/­ to the plaintiff for encashment. No one will issue cheques for a amount higher than his/her liability. The version of defendants is falsified by the fact that interest @ 6% per month on an amount of Rs. 28,000/­ for a period of about five months does not comes out to be Rs. 20,000/­. As per DW­1 Sh. Raju @ Khushal Singh and DW­2 Smt. Suit No. 55/2014 24/28 Gurbachan Kaur, the loan amount was repaid alongwith interest during the period between May, 2013 to July, 2013. Had it been correct, the cheques would not have been subsequently issued in the months of September, 2013, October, 2013, March,2014 and April, 2014. No one will issue cheques after he/she has already discharged his/her liability.

54. It has been admitted by DW­1 Sh. Raju @ Khushal Singh during his cross­examination that he had written the dates and amounts on all the three cheques issued by defendant no.2 in his own handwriting and that he had handed over all these three cheques to the plaintiff. The version of defendants seems to be incorrect as ordinarily, cheques as security will not be issued after discharge of liability. On one hand, the defendants have stated that they used to take loan from the plaintiff from time to time and the loan transaction in respect of Rs. 28,000/­ was not the only transaction. However, on the other hand, in para no.06 of affidavit, Ex. DW­1/A, it has been stated by DW­1 Sh. Raju @ Khushal Singh that the loan transaction of Rs. 28,000/­ was the only loan transaction with the plaintiff. This casts serious doubts on credibility of defendant no.1. Suit No. 55/2014 25/28

55. DW­1 Sh. Raju @ Khushal Singh has admitted during his cross­examination that he does not have any written proof of repayment of the loan amount. On one hand, it has been stated by DW­1 Sh. Raju @ Khushal Singh in para no.06 of his affidavit, Ex. DW­1/A that cheque of Rs. 10,000/­ was issued against interest and cheque of Rs. 3,000/­ was given on account of penalty whereas, on the other hand, the defence of the defendants is that they had repaid the entire loan amount of Rs. 28,000/­ alongwith interest in cash. During his cross­examination, defendant no.1 has also denied having given cheque of Rs. 3,000/­ to the plaintiff. These material contradictions in the defence of the defendants expose falsity of their version.

56. As per Section 118 of the Negotiable Instruments Act, 1881, there is a presumption that every cheque was made or drawn for consideration. The defendants have failed to rebut this presumption and they have failed to establish that three cheques were issued by them as security. However, the plaintiff has also failed to establish that he had advanced loan of Rs. 1 lac to the defendants. He has only been able to establish that the three cheques for a total sum of Rs. Suit No. 55/2014 26/28 48,000/­ were issued by the defendants for consideration i.e. for repayment of friendly loan advanced by him.

57. Although, the friendly loan was given without interest, but the duration of the loan was only five months. The defendants defaulted in repayment of the loan within the stipulated period and therefore, they are liable to pay interest @ 18% per annum in terms of Section 80 of the Negotiable Instruments Act. Therefore, the court holds that the plaintiff has been partly successful in establishing that he had advanced a friendly loan to the defendants in the year, 2013 and the defendants had issued three cheques for consideration, totaling a sum of Rs. 48,000/­ in his favour which got dishonoured. Issue No.1 is accordingly, answered partly in favour of plaintiff and against the defendants. Issue No.2 is decided against the defendants and in favour of the plaintiff.

ISSUE NO.3:­ Relief.

58. In view of the findings recorded on issues no.1 and 2, the suit of plaintiff is partly decreed for a sum of Rs. 48,000/­ alongwith Suit No. 55/2014 27/28 interest @ 18% per annum w.e.f. September, 2013 till the date of realization of the decreetal amount. Claim of the plaintiff with regard to the remaining amount is rejected. Proportionate costs are also awarded in favour of the plaintiff. Decree­sheet be drawn accordingly.

File be consigned to Record Room. 

Announced in the open court                   (SANDEEP GARG)
on 04.02.2016                             Administrative   Civil   Judge­cum­
                                       Additional Rent Controller (Central)
                                                      Delhi/04.02.2016




Suit No. 55/2014                                                               28/28
                                                                Suit No. 55/2014

04.02.2016

Present  : None.

Vide separate judgment of even date, the suit of plaintiff is partly decreed for a sum of Rs. 48,000/­ alongwith interest @ 18% per annum w.e.f. September, 2013 till the date of realization of the decreetal amount. Claim of the plaintiff with regard to the remaining amount is rejected. Proportionate costs are also awarded in favour of the plaintiff. Decree­sheet be drawn accordingly.

File be consigned to Record Room.

(Sandeep Garg) ACJ­cum­ARC (Central) Delhi/04.02.2016 Suit No. 55/2014 29/28