Delhi District Court
Raquib Ansari vs Udayveer Singh on 30 May, 2024
IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matter of
RCA DJ 18/23
CNR No. DLNE01-001737-2023
Raquib Ansari
S/o Rahis Ansari
Plot No. E-2, Laxmi Market, Sector-4A,
Bokaro Steel City,
Bokaro, Jharkand-827004 ..... Appellant
versus
Udayveer Singh
R/o House No. A-44, Street No. 2,
Rama Garden, East Karawal Nagar,
Delhi-110094 ..... Respondent
Date of institution : 06.07.2023
Reserved on : 17.05.2024
Date of Decision : 30.05.2024
JUDGMENT
1. The suit of the plaintiff for recovery of an amount of Rs.1,81,194/-
was dismissed by the Ld. Trial Court vide impugned judgment dated 24.04.2023 passed in civil suit no. 222/21. This is an appeal against the said order.
2. The defendant in the said suit was ex-parte and he did not appear before this court also despite service.
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3. For the sake of convenience, parties shall be referred to, in this judgment, by the nomenclature used before the Ld. Trial Court.
4. Plaintiff had taken a loan of Rs.1,75,000/- payable in 60 EMIs of Rs.3939/- each. The plaintiff and defendant were friends and they used to work together at a company located in Noida. In August 2018, defendant was in financial hardship and in order to help the defendant, plaintiff took the aforesaid loan at the instance of the defendant.
5. As per plaintiff, the said loan was taken from HDFC Bank on 17.08.2018 and a sum of Rs.1,72,731/- was credited to the plaintiff's account maintained with HDFC Bank. The said amount was thereafter, disbursed to the defendant in the manner described in para 8 of the plaint. While some money went directly into the account of the defendant, some of it was given to one Tanuj Sharma at the instance of the defendant.
6. It is the plaintiff's case that defendant had agreed and assured the plaintiff that the said 60 EMIs @ Rs.3939/- per month shall be paid by the defendant. Defendant, as per plaintiff, paid only 14 EMIs from September 2018 to October 2019 but stopped thereafter.
7. Thus, the plaintiff has sued the defendant for recovery of the remaining amount payable under the outstanding 46 EMIs @ Rs.3939/- per month which comes to Rs.1,81,194/- along with pendente lite and future interest @ 12% p.a.
8. As noted above, defendant did not enter appearance before the Ld. Trial Court and was proceeded ex-parte. Eventually, the plaintiff RCA DJ 18/23 Raquib Ansari vs. Udayveer Singh 2 of 10 stepped in the witness box as PW-1 and placed on record his affidavit in evidence Ex.PW1/1. He also relied upon the following documents :
S. No. Nature of Document Exhibit Number Remarks
1. Copy of aadhar of plaintiff. Mark A
2. Copy of account statement of Ex.PW1/B This document was defendant Udayveer Singh with relied upon by the HDFC Bank. plaintiff to show the account number, name and address of the defendant (see affidavit in evidence of plaintiff Ex.PW1/1 at para 3)
3. Copy of account statement of plaintiff Ex.PW1/C (colly.) This document is to be maintained with HDFC Bank. read with Ex.PW1/D (colly.) which was the certificate u/s 65-B of Indian Evidence Act, 1872 filed on 15.07.2021 by the plaintiff and as per the said certificate, this document is actually a scanned copy of the original which was downloaded by the plaintiff on his mobile phone from the mobile application of the concerned bank.
4. Chats between the plaintiff and the Ex.PW1/D It is to be noted that as defendant. per record it appears that two documents i.e. the present one and also a certificate u/s 65-B of Indian Evidence Act was given the same exhibit i.e. Ex.PW1/D and in order to avoid confusion, both the said documents shall be referred by their name in the body of this judgment.
5. Legal notice dated 23.12.2020 sent by Ex.PW1/E (colly.) counsel for plaintiff to defendant along with postal receipts/tracking report.
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9. Plaintiff was the sole witness before the Ld. Trial Court and eventually the suit of the plaintiff was dismissed vide impugned judgment. The primary reason which weighed with the Ld. Trial Court was that the bank statement Ex.PW1/B relied upon by the plaintiff was not proved by him by producing an appropriate certificate u/s 65-B of Indian Evidence Act. The Ld. Trial Court noted that the certificate relied upon by the plaintiff under the said provision was not as per requirements of the said provision. Thus, Ld. Trial Court dismissed the suit of the plaintiff.
10. The plaintiff has assailed the said judgment on the ground that the Ld. Trial Court had erred in not relying upon the certificate filed by the plaintiff on 15.07.2021. Ld. Counsel for the plaintiff argued that even otherwise, to rule out any deficiency in this regard an application for re-examining the plaintiff was moved which was caused to be withdrawn by the concerned court. Plaintiff submits that the case of the plaintiff should have been decreed considering that the entire evidence of the plaintiff has gone unrebutted and Ld. Trial Court adopted a hyper-technical approach while dismissing the suit.
11. I have given thoughtful consideration to the submissions made by the plaintiff and have also gone through the Trial Court record.
12. In my humble opinion, the Ld. Trial Court erred in dismissing the suit of the plaintiff. Firstly, the present suit of the plaintiff is based on the oral agreement between the plaintiff and the defendant RCA DJ 18/23 Raquib Ansari vs. Udayveer Singh 4 of 10 whereby the defendant assured the plaintiff to repay the loan taken by plaintiff at the instance of defendant. The Ld. Trial Court erred in not appreciating the oral testimony of the plaintiff/PW-1 in this regard. Plaintiff has categorically stated in his evidence Ex.PW1/A that he has taken a loan of Rs.1,75,000/- at the instance of the defendant and defendant had agreed to repay the same by way of 60 EMIs of Rs.3939/-. In fact, as per the oral evidence of the plaintiff, defendant paid 14 installments out of the said 60 installments. The Ld. Trial Court failed to appreciate that the plaintiff had, on that basis, sued the defendant for the remaining 46 installments @ Rs.3939/- per month i.e. for the claimed amount of Rs.1,81,194/-. There was no rebuttal to the said oral evidence of the plaintiff and thus, applying the principle of preponderance of probability, solely on the basis of the said oral testimony of the plaintiff, the suit of the plaintiff was liable to be decreed.
13. It is to be noted that the plaintiff had relied upon his bank statement Ex.PW1/C only to corroborate his oral testimony. By the said document, plaintiff wanted to corroborate his oral claim that he was disbursed an amount of Rs.1,72,731/- in his bank account (by the concerned bank which gave the loan to the plaintiff) and thereafter, he applied the said loan for the benefit of the defendant at his instance in the manner described in para 9 of his affidavit in evidence Ex.PW1/1. Now, while tendering his said affidavit he also filed a certificate u/s 65-B of the Indian Evidence Act in support of Ex.PW1/C. RCA DJ 18/23 Raquib Ansari vs. Udayveer Singh 5 of 10
14. A perusal of the aforesaid certificate would show that the plaintiff clearly stated that the documents mentioned in the said certificate are actually scanned copies of the original documents which were managed on a mobile phone under his control. In other words, plaintiff clearly stated in his certificate u/s 65-B Indian Evidence Act that the said documents are scanned documents. The Ld. Trial Court, while the plaintiff tendered his evidence before the Ld. Trial Court on 12.09.2022, had asked the plaintiff to explain the manner in which he inter alia got print-outs of Ex.PW1/C. In response thereto, plaintiff claimed that he had first downloaded the said document in his mobile phone and then transferred the said data to his e-mail and from the said e-mail took a print-out from a cybercafe.
15. The Ld. Trial Court noted that if the documents relied upon by the plaintiff including his bank statement Ex.PW1/C was a print-out, the same cannot be a scanned copy as claimed by him in his certificate u/s 65-B Indian Evidence Act Ex.PW1/D. It further noted that there are certain corrections/redactions made on the said document Ex.PW1/C for which no explanation was given. As per the Ld. Trial Court, therefore, Ex.PW1/C was not admissible in evidence which led to the dismissal of the case.
16. In my humble opinion, the Ld. Trial Court erred in not appreciating the fact that the said document was only relied upon as a corroborative piece of evidence and not as a primary evidence. The primary evidence was the oral testimony of the plaintiff as indicated above. Even if, Ex.PW1/C (colly.) is treated to be inadmissible in RCA DJ 18/23 Raquib Ansari vs. Udayveer Singh 6 of 10 evidence, still there is no discussion in the judgment as to why the Ld. Trial Court did not believe the oral testimony of the plaintiff as indicated above. In my humble opinion, once the defendant chose not to appear to question the plaintiff on his oral evidence, the said sole testimony of the plaintiff would tilt the scales in his favour to show that he had, on the assurance of defendant, taken a loan and thereafter, applied it in the manner indicated in para 9 of his evidence Ex.PW1/1. Thereafter, it has to be treated as correct that the defendant agreed to repay the said loan in 60 equal installments of Rs.3939/- and paid 14 of them. It was on that count only that the plaintiff has sued the defendant for the cumulative total of the remaining 46 installments @ Rs.3939/- which comes to Rs.1,81,194/-.
17. Even otherwise, in my humble opinion, the Ld. Trial Court wrongly disallowed Ex.PW1/C (colly.) as an inadmissible document. The said document is the bank statement of the plaintiff and was duly supported by certificate u/s 65-B of Indian Evidence Act filed on 15.07.2021 wherein the plaintiff has categorically stated that inter alia documents filed by him including the bank statement of the plaintiff are print-outs of scanned documents. Now when the Ld. Trial Court asked the plaintiff to explain how he took print-outs of the documents relied upon by him (while recording testimony of PW-1 on 12.09.2022), no specific document was put to him and he generally answered that he had downloaded the said documents in his mobile phone and eventually took a print-out of them at a cybercafe. Now, even a scanned document shall have to be printed RCA DJ 18/23 Raquib Ansari vs. Udayveer Singh 7 of 10 out on a piece of paper so that it can be filed in court in paper form. In other words, even a scanned document is essentially a print-out when printed on a paper. If that be the case, there appears to be no contradiction between the certificate filed u/s 65-B of Indian Evidence Act by the plaintiff on 15.07.2021 when compared to his testimony as aforesaid.
18. It is to be noted that plaintiff is a common citizen who is not well versed in the rigors of law or the legal requirements of Section 65-B of Indian Evidence Act. He has fairly stated in his certificate that the documents stated therein are scanned copies and some of them are print-outs. He also says that the said print-outs are accurate and there contents have not been altered. There is nothing on record to disbelieve the said fact stated by the plaintiff in his evidence and in fact, as noted above, this fact is not in contradiction to his statement made before the court while recording his evidence. Thus, in my humble opinion, the Ld. Trial Court erred in not relying upon the certificate filed by the plaintiff or discarding the same as not being in compliance of Section 65-B of Indian Evidence Act. The Ld. Trial Court placed much reliance on the fact that some particulars like e-mail/customer ID/account number of Ex.PW1/C were erased by the plaintiff and no explanation in this regard was given by him. As per record, the Ld. Ld. Trial Court never asked the plaintiff to explain the same and thus, in my humble opinion, the said finding of the Ld. Trial Court is incorrect. If the Ld. Trial Court never asked the plaintiff to explain the same, how could it return a finding that the plaintiff never explained the said redaction/erasing.
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19. Even otherwise, the particulars redacted/erased did not have any bearing on the purpose for which the said document was relied upon by the plaintiff. The plaintiff wants to show that Ex.PW1/C duly supports his claim qua the receipt of loan and its eventual disbursement to the defendant or his friend on 17.08.2018 and 18.08.2018 respectively. The redaction made qua any e-mail particulars or customer ID etc had no bearing on the aforesaid entries for which the said document was filed by the plaintiff. If that be the case, Ld. Trial Court fell in error in disallowing the certificate u/s 65-B of Indian Evidence Act and thereafter in not reading Ex.PW1/C i.e. account statement of plaintiff. In my humble opinion, the said document was admissible in evidence. If that be the case, the same can be read and bare perusal of the same further give credence to the case of the plaintiff that he actually took a loan of Rs.1,72,731/- on 17.08.2018 and thereafter paid different amounts to the defendant or his friend on 18.08.2018. Thus, in my humble opinion, there is overwhelming evidence in support of the case of the plaintiff and thus, his case was liable to decreed.
20. Thus, from whatever angle I may look at the case, the case of the plaintiff is clearly made out. That being the case, the impugned judgment and decree are not sustainable in law. Accordingly, it is held that plaintiff has been able to show that he is entitled to a decree of Rs.1,81,194/-. It is held accordingly. The impugned judgment and decree, to the contrary are set-aside.
21. The plaintiff has also prayed for pendente lite and future interest. As per record, the last installment for the loan would have been payable RCA DJ 18/23 Raquib Ansari vs. Udayveer Singh 9 of 10 on or about 17.08.2023. This is because, the loan taken by the plaintiff, on behalf of the defendant, as per him, was for a period of 60 months w.e.f. 17.08.2018. The entire payment of the loan amount would have been paid by the plaintiff by 17.08.2023. Thus, in my humble opinion, interest of justice shall be served in case plaintiff is awarded interest on the claim amount w.e.f. 17.08.2023. Accordingly, plaintiff is awarded simple interest on the claim amount w.e.f. 17.08.2023 @ 6% p.a. till realization.
22. Considering the facts of the case, costs throughout are also awarded to the plaintiff payable by the defendant. Let a decree sheet be prepared accordingly.
Announced in the Aashish Gupta
open Court on 30.05.2024 District Judge-01, North-East District,
Karkardooma Courts, Delhi
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