Delhi District Court
Girish Kumar Gupta vs Joginder Singh on 21 May, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
DWARKA COURTS, DELHI
CS No: 03/11
Unique case ID No. 02405C0075132010
Girish Kumar Gupta
Prop. of Gupta and Sons,
A1718, Subhash Park,
Uttam Nagar,
New Delhi110059 .... Plaintiff
Versus
Joginder Singh
S/o Sh Raghubir singh
R/o H.No.5254,
Street Bharat Nagar, Pahar Ganj,
New Delhi.
Also through
Executive Engineer,
CPWD,Central Secteriate Divison,
Vayu Bhawan, New Delhi
Also At
Working as a Draftsman in
CPWD, Map Division,
MOII. Mamun, Pathankot ... Defendant
Date of Institution: 23.4.10
Date on which judgment was reserved: 21.5.2011
Date of pronouncing judgment: 21.5.2011.
GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 1 of 9
SUIT FOR RECOVERY OF RS.1,85,099/ UNDER ORDER XXXVII OF CODE OF
CIVIL PROCEDURE
J U D G M E N T
1. This is a suit under Order XXXVII of Code of Civil Procedure, 1908. The plaintiff has instituted the suit pleading that the defendant is the borrower of plaintiff who had availed personal loan of Rs. 1,25,000/. An agreement dated 13.06.2007 was executed between the plaintiff and the defendant. The loan was to be repaid in installments as per schedule to the agreement. The defendant defaulted in repayment of the entire loan in terms of the agreement. The plaintiff has instituted the present suit seeking recovery of a sum of Rs. 1,85,099/ as the balance sum, alongwith pendente lite and future interest at the rate of 24% per annum and costs.
2. Application for leave to defend has been filed on behalf of the defendant on the ground that the loan was repaid in full by the defendant and that the entries in the statement of account are incorrect.
3. The defence raised by the defendant does not inspire confidence. The assertion of the plaintiff that the defendant had borrowed a sum of Rs. 1,25,000/ is not in dispute. That the defendant had to repay the loan with interest in installments is also not in dispute. The execution of the loan agreement including the schedule of installments is also not disputed. The genuineness of demand promissory note and receipt is also not disputed by GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 2 of 9 the defendant. The only contention of the defendant is that he had repaid the said loan. Had the defendant repaid the loan, he would be in possession of receipts to reflect the payment. No such receipt has been placed on record. The defendant has not even pleaded that he is in possession of any such receipt. Had payment been made by the defendant, the plaintiff would have surely issued receipts. It is not the case of the defendant that he demanded receipts and they were denied by the plaintiff. It is the defendant who is required to place on record such receipts since onus is upon him to prove the said payment and since the receipts, if any, would have been in his possession alone. Oral evidence to prove such payment is not admissible when the payment is duly recorded by way of receipts, having regard to the provisions of Sections 59 and 91 of the Evidence Act, 1872. A bald statement that payment has been made is not sufficient to discharge this onus. Where the disbursement of the loan has been duly recorded in writing, the discharge of loan by repayment must also be proved by written documents. The defendant has however stated in his application for leave to defend that no such receipt was obtained. If that is so, the defendant cannot succeed in proving his defence and no useful purpose would be served by subjecting the case to trial.
In the case of Bank of Baroda Vs. M/s Kayenkay Agencies and Ors., AIR 2003 NOC 495 (Delhi), the Division Bench of Hon'ble High Court of Delhi refused to grant leave to defend a suit for recovery of dues based on overdraft facility. The defence raised by the defendant in that case was that the GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 3 of 9 purchase facility had not been availed by the defendant. Holding that the defendant had not produced any evidence to substantiate that defence, the application for leave to defend was rejected and the suit was decreed.
In case of Minerals Metals Trading Corporation Ltd. vs. Dimple Overseas Ltd., AIR 2001 Delhi 427, the Division Bench of Hon'ble High Court of Delhi rejected the application for leave to defend in a suit for recovery of sale price of goods supplied to the defendant. In that case, the defendant had sought leave to defend on the ground that the quality of goods supplied to him was deficient. It was held that the plea was an afterthought for avoiding payment. The suit was decreed.
In case of V. K. K. Nair vs. Mrs. Kanchan Kanwar, AIR 2005 Madras 186, the Hon'ble Madras High Court was dealing with a suit for recovery of money based on a promissory note. The defence of the defendant was that he had executed the promissory note not in favour of the plaintiff but somebody else and that he had already made the entire payment. The application for leave to defend was rejected on the ground that it was not supported by any material. The suit was decreed.
In the case of Delhi Book Store v. K. S. Subramaniam AIR 2006 Del 206, the Hon'ble High Court of Delhi declined leave to defend which was sought on the ground that the articles against which cheques were issued had never been supplied to the defendant. The Hon'ble High Court questioned as to why cheques were issued by the defendant if articles had not been supplied to him.
GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 4 of 9
4. The defendant is an educated person. He is expected to be aware that whenever he makes any payment, he is entitled to issuance of a receipt. Yet, according to the defendant, he did not insist on any receipt. The defendant is admittedly not in possession of any document to show that he had made payment of any sum of money which is not accounted for in the statement of account. It is difficult to believe that the defendant, who is professionally well placed and is expected to be vigilant, continued to make payment in cash without obtaining any receipt. The defendant has also not stated the exact sum of money paid by him and the dates on which he made the said payment. He had specified only the date of 14.10.2009 as the date of payment. This plea too is inconsistent. While in para no. 4, the defendant has stated that he lastly made payment on 14.10.2009, in para no. 9 of his application, he has stated that he made payment of "entire due installments of five on 14.10.2009 and closed his account". The defendant has failed to point out the entries in the statement of accounts filed by the plaintiff which are erroneous and those which are missing. Even if it is assumed that the defendant had made payment of Rs.38,335/ to the plaintiff on 14.10.2009, that would not discharge his entire loan liability and therefore no credence can be attached to the contention of the defendant that after making the said payment, he closed his account. The contentions of the defendant are contradictory.
In the case of Major Kuldeep Singh Jarg Retd. v. M/s Bax Global India Ltd 2008(4) A.D.(Delhi) 265, the Hon'ble High Court of Delhi held that a defendant GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 5 of 9 who raises inconsistent pleas is not entitled to leave to defend. It was observed as under:
"Noting the ipsidixit and ever changing stand of the petitioners with regard to claims pertaining to the fine imposed by HSIDC, damages caused by the respondent company to the plot and payment of outstanding electricity and water bills I find no meat in the defence of the petitioners that respondent company owed a sum to the petitioners on account of said three claims."
5. The defendant has denied having received legal notice dated 10.03.2010. This plea is controverted by the receipt of speed post filed with the plaint. Yet, even if it is assumed that the plea of the defendant that he has not received legal demand notice is correct, that does not advance his defence. Service of legal notice is not a prerequisite to the institution of the suit. The plaintiff is under no obligation to serve legal notice prior to instituting the suit. Even if it is assumed that the notice was not issued to the defendant, that does not permit the defendant to retract from his contractual liabilities.
6. The defendant has admittedly not replied to the legal notice dated 10.3.2010 . By the said notice the plaintiff had raised the demand mentioned in the plaint. Had the defendant repaid the loan he would surely have stated so in his reply to the notice. That would have been the natural reaction of service of notice. However, failing to reply to the notice indicates that the defendant had nothing to say in response thereto.
In the case of Ajab Singh Punia vs. Joginder Singh, AIR 2003 NOC 496 (Delhi), the Hon'ble High Court of Delhi observed that the legal demand notice GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 6 of 9 had been served upon the defendant and was not replied to. It was also noticed that a promissory note had been executed between the plaintiff and the defendant. The application for leave to defend was rejected.
In the case of M/s Mechalec Engineers and Manufacturers Vs. M/s Basic Equipment Corporation 1977 AIR SC 577, the Hon'ble Supreme Court held that leave to defend must not be granted if the defence set up is illusory, sham or practically moonshine.
In the case of Mrs. Raj Duggal v. Ramesh Kumar Bansal AIR 1990 SC 2218 it was held as follows :
"Leave is declined where the Court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences."
In the case of Santosh Kumar v. Bhai Mool Singh, AIR 1958 SC 321, it was held as under:
"It is always undesirable, and indeed impossible, to lay down hard and fast rules in matters that affect discretion. But it is necessary to understand the reason for a special procedure of this kind in order that the discretion may be properly exercised. The object is explained in Kesavan v. South India Bank Ltd., ILR (1950) Mad 251 : (AIR 1950 Mad 226) (K), and is examined in greater detail in Sundaram Chettiar v. Valli Ammal, (F), (supra) to which we have just referred. Taken by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of trade and commerce."
GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 7 of 9
7. Since the advancement of loan has not been assailed and the defendant has no material to establish that he had made payment of a sum of money that is not reflected in the statement of account, applying the principles enunciated in the aforesaid decisions, I find no force in the contentions of the defendant. A plea which is bound to fail should not be allowed to be raised as it would serve no purpose other than to protract litigation. The plea of the defendant is sham. The defendant has no substantial defence to raise and there are no triable issues in the case. The defendant is only trying to avoid the responsibility to repay the loan owed to the plaintiff which cannot be permitted. The application for leave to defend is hereby rejected.
8. The plaintiff is entitled to judgment and decree in his favour in accordance with Order 37 Rule 3 (6)(a) of Code of Civil Procedure, 1908.
9. I have gone through the contents of the plaint and also the documents filed in support thereof. The suit is within limitation and this Court is vested with territorial and precuniary jurisdiction to entertain the suit. Having perused the plaint and documents filed in support thereof, I am satisfied that the plaintiff has made out a case for recovery of the sum taken on loan by the defendant as well as presuit interest at the agreed rate. The plaintiff is entitled to recovery of a sum of Rs.1,85,099/.
10. The plaintiff has also prayed for pendente lite and future interest at the rate of 24% per annum. However, keeping in view the fact that loan was not granted for a commercial purpose and it was a "personal loan", ends of justice would GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 8 of 9 be met if the plaintiff is awarded pendente lite interest at the rate of 6% per annum from the date of institution of the suit till the date of decree. The plaintiff is also entitled to recovery of costs of suit from the defendant.
11. Hence, in terms of Order XXXVII of Code of Civil Procedure, 1908, the suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs. 1,85,099/ alongwith pendente lite interest at the rate of 6% per annum from the date of institution till the date of decree and also costs of the suit. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Ashish Aggarwal)
Civil JudgeI/Dwarka Courts
Delhi/21.05.2011
GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 9 of 9
Girish Kumar Gupta V. Joginder Singh
CS NO: 03/11
18.5.2011
Present: Proxy Counsel for plaintiff.
Proxy Counsel for defendant.
Counsels for parties are not available to address arguments in respect of the application for leave to defend. I do not wish to adjourn the case since the record reveals that the parties have been repeatedly seeking adjournment for this purpose for the last almost one year. Hence, orders are reserved. Put up for pronouncement of orders on 21.5.2011.
(Ashish Aggarwal)
Civil JudgeI/Dwarka Courts
Delhi/18.05.2011
GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 10 of 9
Girish Kumar Gupta V. Joginder Singh
CS NO: 03/11
21.5.2011
Present: Counsel for plaintiff.
Counsel for defendant.
Counsel for parties submit that they wish to address arguments. Arguments are heard. Put up for orders at 4 pm. Ashish Aggarwal) Civil JudgeI/Dwarka Courts Delhi/21.5.2011 File taken up again at 4 pm. Present: None.
By separate judgment, the application for leave to defend is rejected and the suit is decreed. Decree sheet shall be prepared. File be consigned to Record Room.
(Ashish Aggarwal)
Civil JudgeI/Dwarka Courts
Delhi/21.5.2011
GIRISH KUMAR VS. JOGINDER SINGH CS NO. 03/11 11 of 9