Delhi District Court
Sh. Murari Lal Bansal vs Sh. Chottey Lal on 30 July, 2018
IN THE COURT OF SH. GAJENDER SINGH NAGAR,
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
CS19/15 (Old), 97048/16 (New)
In the matter of:
Sh. Murari Lal Bansal,
S/o Late Sh. Ram Ji Lal Bansal,
R/o 6/9, Maharam Mohalla,
Shahdara, Delhi. ....Plaintiff
Versus
Sh. Chottey Lal,
S/o Sh. Kishan Lal,
R/o 232, Nehru Market,
Badarpur, Delhi.
Office at:
Chottey Lal,
C/o Sh. Rajesh Gupta,
74, Mehrauli Road,
Badarpur, Delhi. .....Defendant
Date of Institution : 11.04.2007
Date of order when reserved : 26.07.2018
Date of order when announced : 30.07.2018
J U D G M E N T :
1. Vide this judgment, the undersigned shall decide the
CS97048/16 1/17
present suit for recovery of Rs. 97,264/ (Rupees Ninety Seven
Thousand Two Hundred Sixty Four Only) alongwith pendentelite and
future interest @ 24% per annum. Initially, the present suit was filed
Under Order 37 CPC which was later on treated as ordinary suit for
recovery vide order dated 03.02.2015 passed by Ld. Appellate Court.
2. The brief facts of the case narrated in the suit are that the
plaintiff is the sole proprietor of M/s Murari Lal Gopal Kishan,
running the business of Kirana merchants and commission agent. The
plaintiff had supplied the goods to the defendant from time to time
through various bills of different amounts total amounting to Rs.
97,264/. The defendant had also issued a cheque for the same. The
plaintiff again supplied the Kirana material to the defendant for a total
amounting to Rs. 1,50,210/ with interest. The defendant offered the
plaintiff an advance amount of account payee cheque for a sum of Rs.
97,264/ and another cheque of Rs. 1,50,210/ in respect of the
payment of the aforesaid bills. However, the cheque for Rs. 97,264/
was dishonoured on presentation, thereupon the plaintiff informed the
defendant who told him to present the same again and when the
plaintiff once again presented the said cheque, the same was again
dishonoured. Thereafter, the defendant avoided the plaintiff. On both
the occasions, the cheque was returned dishonoured due to insufficient
funds. Thereafter, the plaintiff sent a legal notice dated 30.11.2004 to
the defendant, but he neither replied to the said notice, nor paid the
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aforesaid amount, hence the plaintiff filed the present suit and has
prayed that a decree for a sum of Rs. 97,264/ be passed in his favour
and against the defendant alongwith pendentelite and future interest @
24% per annum from the date of institution of the suit till realization
of the amount.
3. Summons were served upon the defendant and leave to
defend was filed by the defendant which was dismissed vide order
dated 26.07.2012. The concerned order dated 26.07.2012 was set
aside by Ld. Appellate Court vide order dated 03.02.2015 and the
defendant was permitted to file his written statement. Thereafter,
written statement was filed by the defendant.
4. In the written statement, it is stated by the defendant that he
is running a departmental store at Badarpur, Delhi and the plaintiff is a
commission agent, who had dealings with the defendant and the
relationship between them were cordial. It is further stated that due to
opening of several shops in the area, the defendant had reduced the
purchase of material from the plaintiff and ultimately stopped
purchasing the material from the plaintiff. The plaintiff came to his
house and forced him to take a policy in the name of his son and
finally the defendant had taken a policy in the name of his son and the
defendant used to give cash to the agent as told by the plaintiff for
remitting the insurance amount. On 13.02.2004 the plaintiff asked the
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defendant to give him blank cheque for the entire premium and in
good faith the defendant gave the plaintiff a blank signed cheque, but
the defendant received no reply from the plaintiff and he returned the
said cheque by saying that he could not deposit the same as the dues
are of two years and he needs two different blank cheques and
therefore, the defendant had given the plaintiff two blank cheques on
the assurance of the plaintiff that he would deposit the same.
However, the plaintiff did not respond to the defendant thereafter. The
defendant was shocked to know when he was informed by his bank
that the aforesaid cheques were dishonoured. Thereafter, the
defendant contacted the plaintiff over telephone, but the plaintiff
threatened and abused him by saying that he would file false cases
against him and asked him to pay Rs. 2,50,000/ or to face dire
consequences. Thereafter, the defendant filed a complaint to the
police regarding the same and later on, the plaintiff had settled the
disputes with the defendant, the plaintiff had withdrawn the other case,
but thereafter the plaintiff filed the present suit as well as another
complaint case U/s 138 N.I. Act.
5. No replication to the written statement was filed by
plaintiff.
6. Vide order dated 23.04.2015, on the basis of pleadings of
the parties, following issues were framed:
CS97048/16 4/17
i) Whether the plaintiff is entitled to decree for a sum of Rs.
97,268/ alongwith pendentelite and future interest @ 24% per annum,
as prayed for? OPP
ii) Whether the defendant had handed over two blank cheques
for LIC premium to the plaintiff? OPD
iii) Relief.
7. In support of his case, the plaintiff examined himself as
PW1.
8. PW1 has deposed almost on the same lines as averred in
the plaint. He proved certain bills issued by him to the defendant as
Ex. PW1/1 to Ex. PW1/5; cheque for a sum of Rs. 97,264/ as Ex.
PW1/6; memo dated 05.11.2004 as Ex. PW1/7; memo dated
17.11.2004 as Ex. PW1/8; copy of legal notice dated 30.11.2004,
registered slips, UPC slips and duly received returned A.D. Card as
Ex. PW1/9 to Ex. PW1/15. In his crossexamination, it is stated by
him that the defendant never purchased the kirana goods from his
residence at 6/9, Maharam Mohalla, Shahdara, Delhi. It is stated by
him that he has not filed on record the bills issued by the persons from
whom he purchased the goods for further supplying to the defendant.
It is stated that he has not filed his entire bahikhata on record. It is
stated that he has not brought the original bill book from which bills in
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question, Ex. PW1/1 to Ex. PW1/5 were issued. It is stated by him
that in the year, 2004 23 clients used to visit his shop daily. He could
not tell after how many days of alleged sales of goods to the
defendant, the cheque in question was issued. It is voluntarily stated
by him that it may be issued 2, 3 or 7 days after the alleged sale. It is
again stated by him that the cheque in question might have been issued
before the purchase of the alleged goods. He could not tell the name
of the shop from where he used to get the kirana goods for selling the
same to the defendant. It is accepted by him that the case U/s 138 N.I.
Act filed by him has been dismissed in default. It is stated by him that
he has not filed on record any sales tax return. It is stated that he has
not filed on record any transport receipt of alleged transaction.
9. No other witness has been examined on behalf of plaintiff
and plaintiff's evidence stands closed.
10. DW1 has deposed almost on the same lines as averred in
the written statement. He proved original receipt of goods which were
purchased by the plaintiff as Ex. DW1/A; LIC premium receipt dated
20.10.2001 as Ex. DW1/B; cheque bearing no. 192556 dated
24.02.2004 as Ex. DW1/C; original police complaint dated
18.11.2004 as Ex. DW1/D; stop payment cheque complaint to banker
dated 16.11.2004 as Ex. DW1/E; original passbook of defence of
Central Bank of India as Ex. DW1/F; criminal complaint on behalf of
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defendant is marked as MarkA. In his crossexamination, it is
accepted by him that the plaintiff is not an LIC agent. It is accepted
by him that the plaintiff has filed an another case having same title
against him for a sum of Rs. 1,25,000/ approx. It is also accepted by
him that he has made payment to the plaintiff in the said case and the
said case has been settled, copy of said settlement is marked as Mark
DW1/PX. It is stated by him that he has settled the other matter as
plaintiff has stopped his goods in the market and due to intervention of
the Pradhan of the market he has to settle the matter. It is stated by
him that he has not received the legal notice dated 30.11.2004.
However, he could not tell if any of his family member had received
the said notice. It is stated by him that he has withdrawn the criminal
complaint made by him against the plaintiff due to settlement. It is
accepted by him that the said settlement was in respect of the other
case only.
11. DW2 was a bank official who did not brought relevant
record and was never crossexamined.
12. DW3 Ct. Satish stated that the complaint dated 18.11.2004
made by the defendant has been destroyed by the order of DCP.
13. DW4 Sh. Santosh Ram, Assistant Manager, Central Bank
of India filed on record copy of complaint dated 16.11.2004 lodged by
CS97048/16 7/17
the defendant in their bank. He exhibited account statement of the
defendant as Ex. DW4/A (Colly). It is stated by him that he has not
brought the statement with regard to cheque bearing no. 192557 and
192558. It is stated that since the cheques were not honoured, they are
not featured in the statement of account.
14. No other witness has been examined on behalf of defendant
and defendant's evidence stands closed.
15. The undersigned has heard the arguments and perused the
record.
16. The issue wise findings are as follows:
ISSUES NO. 1 and 2:
1. Whether the plaintiff is entitled to decree for a sum of Rs.
97,268/ alongwith pendentelite and future interest @ 24% per
annum, as prayed for? OPP
2. Whether the defendant had handed over two blank
cheques for LIC premium to the plaintiff? OPD
17. It is submitted by the PW1 that to discharge the liability
towards good supplied to defendant, the defendant had issued the
cheque in question to him. Since the cheque in question is bearing
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name of the plaintiff as payee and signatures on the cheque are
admitted by the defendant to be his own, hence, prima facie it is
proved that cheque was issued to the plaintiff, consequently
presumption U/s 118 (a) & 139 of NI Act would arise in favour of the
plaintiff.
18. At this stage, let us go through the relevant provisions of
law. There is a presumption in favour of the plaintiff U/s 118 (a)
Negotiable Instruments Act that until the contrary is proved, it will
be presumed that every negotiable instrument was drawn for
consideration and every such instrument when it has been accepted,
endorsed, negotiated or transferred was accepted, endorsed, negotiated
or transferred for consideration.
19. Further Section 139 of the Negotiable Instruments Act,
1881 provides that it shall be presumed until the contrary is proved
that the holder of the cheque received the cheque of the nature referred
in the Section 138 for the discharge in whole or in part of his debt or
liability.
20. Now it will have to be examined whether the defendant has
rebutted the presumption as contemplated by Section 118 (b) and
Section 139 of Negotiable Instruments Act.
CS97048/16 9/17
21. It has been observed by the Hon'ble High Court of Delhi in
V.S. Yadav Vs. Reena, 172 (2010) DLT 561 that the offence U/s 138
NI Act is a technical offence and the complainant is only supposed to
prove that the cheques issued by the respondent were dishonored, his
statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent / defendant to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence. It was further observed that in order to rebut the presumption U/s 139 of the NI Act, the respondent, by cogent evidence, has to prove the circumstance under which the cheques were issued. It was for the respondent to prove if no loan was taken why he did not write a letter to the plaintiff for return of the cheques. Unless the respondent had proved that he acted like a normal businessman/ prudent person entering into a contract he could not have rebutted the presumption U/s 139 NI Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be returned and still cheques were not returned he would have served a notice as plaintiff. Further such cogent evidence can be the cross examination of the plaintiff or his witnesses (as held in Birender Singh Vs. State (NCT of Delhi) 2008(1)JCC (NI) 15).
CS97048/16 10/1722. It is held by the Apex Court in Krishan Janardan Bhat Vs. Dattatrey G. Hegde, 2008 that it is for the Court to do a balancing act between the statutory presumption arising in favour of the plaintiff on one side and the material produced by the defendant to rebut such presumption on the other side with the view to ascertain the truth. The following points shows that the defence of the defendant is false:
a) In the present matter, the defendant has taken a plea that he had given cheques to the plaintiff for payment of the premium of LIC Policy of his son. Admittedly, the plaintiff is not an LIC agent. It is claimed that a close friend of the plaintiff was LIC agent and the cheques were handed over to the plaintiff to be further transmitted to that friend for payment of the LIC premium. However, any such LIC agent has not been called as a witness to prove, if he was the friend of the plaintiff, or he was the agent in the LIC Policy of the son of the defendant. Surprisingly, even the name of any such LIC agent who was the friend of the plaintiff has not been mentioned anywhere in the written statement, or evidence of the defendant. Nondisclosing the name and particulars of the said LIC agent who is very important to prove the defence of the defendant makes the defence of the defendant improbable.
b) It was not at all difficult to call a witness from LIC to CS97048/16 11/17 apprise about the name of the LIC agent and his particulars, however defendant did not even try to call any such witness to prove his own defence.
c) In the present matter plaintiff is the payee as well as holder of the cheque in question and there is presumption U/s 118 (g) of Negotiable Instrument Act, that the holder of a negotiable instrument is a holder in due course. Admittedly, there used to be commercial transaction between the plaintiff and the defendant. Thus, the plaintiff is having lawful possession of the cheque issued by the defendant, but the defendant never cared to examine the person for whose purpose the cheque in question was issued.
d) It is to be noted that the defendant has issued two cheques to the plaintiff, however it is claimed by him that the said two cheques were towards the payment of two years premium of LIC Policy. Though the defendant had called the witnesses from police and bank to prove that after dishonour of the cheque he made complaint against the plaintiff, but he did not call any witness from the LIC to prove that his premium for two years was outstanding. Thus, the defendant has taken frivolous defences and that is why never tried to establish the same.
e) It is to be noted that in respect of those two cheques two CS97048/16 12/17 separate set of civil and criminal cases were filed, it is interesting to note that the defendant has settled the case in respect of the other cheque and has made payment qua the same. Though it is claimed by him that he has to settle the matter as plaintiff has stopped his goods in the market and the Pradhan of the market intervene to get the matter settled. It is not the contention of the defendant that any coercion was played on him. He has not made any complaint regarding stopping of his goods in the market.
f) It is to be noted that defendant is taking inconsistent stands as earlier he has claimed in his evidence and written statement that item sold by the plaintiff were easily available in Badarpur market, hence he started purchasing goods from there instead of plaintiff due to which plaintiff got annoyed and misused his cheques. However, later on it is stated by him that he was still purchasing the goods from the market (Khari Baoli) where the said goods were allegedly stopped by the plaintiff to compel him to compromise. These inconsistent stands shows that defence of the defendant is not reliable.
g) The defendant never got the payment of the cheque in question stopped. The alleged letter written by the defendant to his bank was written afterwards as the cheque in question was dishonoured twice, first on 02.11.2004 and again on 17.11.2004 and on both the occasions it was dishonoured due to the reasons "Funds CS97048/16 13/17 Insufficient" and not due to the reason "Payment Stopped". It is to be noted that immediately after second dishonour of the cheque plaintiff sent a legal notice to the defendant at his correct address, though it is stated by the defendant that he did not receive the legal notice, however he did not deny the possibility of the same being received by any of his family member. Apparently, the returned A.D. Card is bearing signatures of Sh. Nikhil Goel i.e. the son of the defendant. However, the said legal notice was never replied. Apparently the defences raised by the defendant are afterthought.
23. Thus, the bald plea of the defendant having not been substantiated by any cogent, convincing and clear evidence would not be sufficient to rebut the presumption of law. The presumption U/s 118 & 139 of NI Act are mandatory presumptions in favour of the plaintiff and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by the defendant is reasonable. It must further be shown that the explanation is a true one. The task of the defendant is not as simple as for rebutting the statutory presumption he must place such material which can inspire confidence of the Court to believe the case of the defendant then that of the plaintiff who is in possession of the dishonored cheques issued by none else but the defendant himself (reliance placed on Attar Singh Wadhwa v. NCT of Delhi, Delhi High Court 23.12.2009). A fact is CS97048/16 14/17 said to be proved when its existence is directly established or when upon the material before it Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. In the present matter it has been established that the defence taken by the defendant is a false one. Since the defendant has failed to rebut the presumption this Court cannot ask the plaintiff to prove the liability of the defendant by positive evidence as the presumption is living and existing. It has been argued by Ld. Defence Counsel that the bills filed by the plaintiff are in quick succession despite there were gaps of more than 12 days in the purchase which shows that the bills are fabricated. This contention of the defence counsel is of no value as when the legal presumption is in favour of the plaintiff U/s 118 & 139 NI Act he is not required to prove his case independently otherwise there would be no use of the presumption in his favour. The presumptions will live, exists and survive and shall end only when the contrary is proved by the defendant, that is, the cheque was not issued for consideration and in discharge of any debt or liability. In the present case, the defendant has failed to prove his defence that the cheque was issued for payment of premium of LIC Policy, hence he failed to rebut the presumption.
24. It has been held by the Hon'ble Supreme Court in Rangappa Vs Mohan 2010TLPRE0300 (A Three Judges Bench CS97048/16 15/17 Judgment):
We are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct.
25. Thus, from the abovestated discussion it is clear that the defendant has failed to rebut the presumptions U/s 118 (b) and 139 of Negotiable Instruments Act. Further when the legal presumption is in favour of the plaintiff U/s 118 & 139 NI Act he is not required to prove his case independently otherwise there would be no use of the presumption in his favour. The presumptions will live, exists and survive and shall end only when the contrary is proved by the defendant, that is, the cheque was not issued for consideration and in discharge of any debt or liability.
26. Considering the entire evidence on record, it stands duly proved that the cheque in question which is Ex. PW1/6 was issued and drawn in discharge of legal liability of the defendant and for consideration. The suit of the plaintiff is within limitation and cause of action has arisen within territorial jurisdiction of this Court. Issues CS97048/16 16/17 no.1 & 2 are decided in favour of the plaintiff and against the defendant, except qua rate of interest.
27. ISSUE NO.3: Relief.
28. In view of the findings recorded on issues no.1 & 2, the Court holds that the plaintiff has proved his case and is entitled to a decree for recovery of Rs. 97,264/ alongwith pendentelite and future interest @ 12% per annum from the date of filing of the suit till the date of its realization. Costs are also awarded in favour of the plaintiff. Decree sheet be drawn accordingly.
File be consigned to Record Room.
GAJENDER Digitally signed by
GAJENDER SINGH NAGAR
SINGH Date: 2018.07.31 12:18:02
NAGAR +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 30.07.2018 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi/30.07.2018
(This judgment contains 17 pages in total)
CS97048/16 17/17
CS97048/2016
30.07.2018
Present: None.
Vide separate judgment of even date, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for a sum of Rs. 97,264/ alongwith pendentelite and future interest @ 12% per annum from the date of filing of the suit till the date of its realization. Costs are also awarded in favour of the plaintiff. Decree sheet be drawn accordingly.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central), Delhi/30.07.2018 CS97048/16 18/17