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[Cites 2, Cited by 0]

Delhi District Court

Dalbir Singh Gusain vs Mubarak Ali on 21 October, 2023

                 IN THE COURT OF SH. SONU AGNIHOTRI
              ADDITIONAL DISTRICT JUDGE­07, SOUTH EAST,
                       SAKET COURTS, NEW DELHI

Civil Suit No. 11714/2016
CNR No.: DLSE01­009024­2016

DALBIR SINGH GUSAIN
S/o. Late Sh. Nain Singh
R/o. H. No. H­7B, SFS Flats,
Saket, New Delhi­110086.
                                                         .......... Plaintiff
                                      Versus

MUBARAK ALI
S/o. Haji Rahimuddin
Prop. M/s. Haji Properties
R/o. I­64, Batla House,
Jamia Nagar, Delhi­110041.
                                                       ......... Defendant

    SUIT FOR RECOVERY OF Rs.25,00,000/­(RUPEES TWENTY FIVE
      LAKHS ONLY) ALONGWITH PENDENTE­LITE AND FUTURE
                         INTEREST


               Date of institution             :   21.11.2016
               Date when judgment reserved     :   20.09.2023
               Date of Judgment                :   21.10.2023




CS No. 11714/16                                             Page No. 1 of 30
Dalbir Singh Gusain Vs. Mubarak Ali
                                       JUDGMENT

1. Vide this judgment, I shall dispose of present suit filed by plaintiff against defendant for recovery of Rs.25,00,000/­ alongwith pendente­lite and future interest.

2. The case of plaintiff in brief as averred in plaint is as under:

3. It is stated that plaintiff is a businessman by profession and defendant was an old acquaintance of plaintiff. Both plaintiff and defendant were having business dealings since last more than 8 years. It is stated that defendant was in the business of property dealing under name and style of M/s. Haji Properties, a sole proprietorship concern. Defendant has been purchasing land in NCR region and he used to sell plots to buyers after carving out the same.

4. It is stated that defendant was in need of finance to purchase large tracts of land and that he approached plaintiff and his friend Mr. Jarnail Singh in February 2009 with request for loan of Rs.61,00,000/­ in connection with purchase of land in village Kakrola Khaspur, Tehsil Dadri, District Gautam Budh Nagar, U.P. Defendant promised to return the loan amount with 2% monthly interest or a share in profit as and when plots of land are sold. Since plaintiff was having financial resources and keeping in view long friendly relations with defendant, he agreed to extend financial help to defendant on the promise of interest or profit in the sale of plots.

5. It is stated that plaintiff and Mr. Jarnail Singh paid Rs.61,00,000/­ to defendant from February 2009 to May 2009. It is stated CS No. 11714/16 Page No. 2 of 30 Dalbir Singh Gusain Vs. Mubarak Ali that defendant had returned Rs.30,00,000/­ upto 05.01.2013 on which date defendant promised to return the balance amount along with interest (share in profit) accrued on total amount of Rs.61,00,000/­ within 2 months. However, defendant failed to return entire principal amount and interest as promised. Defendant made part payment of principal amount upto November 2013 in installments and against balance amount and interest/profit, defendant handed over a cheque in partial discharge of his liability as principal and partial share in profit.

6. It is stated that defendant had handed over two cheques on 05.01.2013, one to plaintiff and another to Mr. Jarnail Singh. It is stated that defendant handed over a cheque bearing No. 003948 for a sum of Rs.25,00,000/­ dated 25.11.2013 drawn on SBI, Zakir Nagar, New Delhi in partial discharge of his liability towards amount of interest (or profit) on 25.10.2013 but on 24.11.2013, defendant requested plaintiff not to present the said cheque for encashment and assured that entire balance amount along with interest/profit will be repaid by defendant within period of one month.

7. It is stated that defendant repaid principal amount by 30.11.2013 but defendant failed to make payment of balance amount and interest/profit as agreed upon. It is stated that plaintiff approached defendant in second week of February 2014 to make payment qua interest/profit, as agreed between parties. It is stated that defendant told plaintiff to present aforesaid cheque in case payment is not made upto 20.02.2014.

CS No. 11714/16 Page No. 3 of 30

Dalbir Singh Gusain Vs. Mubarak Ali

8. It is stated that since defendant failed to make payment as promised, plaintiff presented cheque bearing No. 003948 dated 25.11.2013 for encashment on 24.02.2014 but the same was returned unpaid vide return memo dated 26.02.2014 with remarks 'funds insufficient'.

9. It is stated that plaintiff got served legal notice dated 05.03.2014 to defendant whereby plaintiff requested defendant to discharge his liability qua interest/profit but instead of making payment, defendant sent reply dated 20.03.2014 wherein it was alleged that defendant has already paid Rs.61,00,000/­. It is stated that it is evident from the reply itself that only sum of Rs. 19,50,000/­ were paid by defendant after acknowledging liability of Rs. 31,00,000/­ against principal amount of Rs. 61,00,000/­ on 05.01.2013. It is stated that as defendant failed to make payment towards bounced cheque, plaintiff was left with no other option except to institute complaint U/sec 138 of N. I. Act which complaint was disposed of by Court of Ld. MM by holding that defendant (accused therein) has been able to rebut presumption and plaintiff has failed to prove his case to the hilt.

10. It is stated that defendant admittedly returned amount of Rs. 30,00,000/­ on 05.01.2013 including amount of Rs. 9 lacs paid by defendant on the said date. It is stated that defendant thereafter, in various installments made payment of Rs. 19,50,000/­ and claimed that payment of Rs. 11,50,000/­ was made to Mr. Jarnail Singh but did not produce Mr. Jarnail Singh to prove alleged payment nor any receipt or acknowledgment of the said amount.

CS No. 11714/16 Page No. 4 of 30

Dalbir Singh Gusain Vs. Mubarak Ali

11. It is stated that defendant utilized hard earned money of plaintiff for more than 04 years and earned huge profits by selling plots carved on land purchased from funds of plaintiff and therefore he is liable to make payment of cheque amount issued by him in partial discharge of his liability towards principal amount and interest / profit accrued on the investment.

12. It is stated that as defendant has failed to pay balance amount of plaintiff for considerable time, hence, present suit.

13. It is prayed to pass a decree for sum of Rs.25,00,000/­ in favour of plaintiff and against defendant alongwith pendente­lite and future interest @ 24%.

14. Summons of the suit were directed to be issued to defendant vide order dated 21.11.2016.

15. Defendant after service of summons of the suit put up his appearance and filed written statement.

16. In written statement filed by defendant, defendant took certain preliminary objections. It is stated that suit filed by plaintiff is liable to be dismissed as same is without cause of action. It is stated that present suit is gross abuse of process of law as plaintiff has suppressed material facts from this court and approached this court with false allegations and therefore, present suit is liable to be dismissed.

17. It is stated that plaintiff has forged valuable security i.e. cheque bearing No. 003948 by adding "2" and "1" in date column and thereby made date to be 25.11.2013 and this fact is also corroborated from fact that CS No. 11714/16 Page No. 5 of 30 Dalbir Singh Gusain Vs. Mubarak Ali other two cheques i.e. 003946 and 003947 both dated 05.01.2013 have been encashed on their presentation. It is stated that payments were made subsequently to plaintiff vide cheque No. 003952, 003951, 003953, 003958 etc. It is stated that thus, facts and circumstances clearly shows that plaintiff is guilty of perjury and liable to be prosecuted.

18. It is stated that plaintiff deliberately concealed fact that he has filed complaint U/sec 138 of N. I. Act against defendant in relation to alleged cheque No. 003948 dated 25.11.2013 for an amount of Rs.25,00,000/­. It is stated that Ld. MM, Saket Courts vide order dated 08.09.2016 dismissed complaint of plaintiff and held that "Also, prima facie from bare perusal of cheque in question Ex.CW­1/1, it is apparent that "1" has been later inserted in front of "1" in date column and thereby making date "25.11.23". Thus the case of complainant is shrouded with suspicious circumstances and version of complainant does not seem to be reliable." Thus, suit filed by plaintiff merits rejection.

19. It is stated that from averments made in plaint, it is clear that plaintiff has already received amount of Rs.61,00,000/­ as agreed to be paid by defendant. It is stated that suit is based on alleged agreement to pay interest or profits accrued on principal amount which claim is based on flimsy ground. Plaintiff filed agreement dated 05.01.2013 wherein it has not been mentioned that defendant shall pay interest or profit over and above as allegedly claimed by plaintiff and thus, suit is not maintainable and liable to be dismissed.

CS No. 11714/16 Page No. 6 of 30

Dalbir Singh Gusain Vs. Mubarak Ali

20. It is stated that present suit is bad for non joinder of parties. It is stated that as per plaintiff, he alongwith Jarnail Singh had to receive Rs.61,00,000/­ alongwith interest @ 2% per month but present suit has only been filed by Dalbir Singh without impleading Jarnail Singh as party to present suit. Even in the receipt, name of plaintiff and Jarnail Singh is mentioned and thus, suit is bad for mis­joinder/non joinder of necessary party and is liable to be dismissed.

21. It is stated that plaintiff in present suit has claimed that he alongwith Jarnail Singh had to receive Rs.61,00,000/­. Plaintiff in present suit failed to give amount on which he is claiming interest and on what basis, he ascertained profit or interest of Rs.25,00,000/­. In absence of material particulars, present suit merits rejection.

22. It is stated that plaintiff deliberately concealed factum of reply dated 20.03.2014 to legal notice dated 05.03.2014 sent by plaintiff. Plaintiff deliberately did not file reply though same was exhibited in proceedings under Section 138 of N. I. Act.

23. It is stated that cheque was given as security to plaintiff and plaintiff assured defendant that he would not present same without consent of defendant. It is stated that after clearing entire dues, when defendant asked plaintiff for cheque, he told defendant that cheque got destroyed/washed while washing clothes. Defendant without doubting on intention of plaintiff did not ask plaintiff to give in writing and thus, suit is bad in law and liable to be rejected.

CS No. 11714/16 Page No. 7 of 30

Dalbir Singh Gusain Vs. Mubarak Ali

24. On reply on merits, it is admitted that defendant is dealing in business of property in Delhi and NCR region but it is denied that plaintiff and defendant were doing business together or had business dealings. It is denied that it was ever agreed between parties that defendant shall return amount with interest @ 2% p. a. or even agreed to pay share in profits as and when plots were sold. It is stated that allegations in this regard are totally false, baseless and have no iota of truth.

25. It is stated that sum of Rs.61,00,000/­ was given as loan which has been repaid by defendant as is evident from averments made in the plaint. Defendant has already paid entire amount to plaintiff as well as Jarnail Singh in installments. It is denied that any cheque of profit was given to plaintiff as alleged in para under reply.

26. It is stated that defendant agreed to pay the amount in installments and paid entire amount by 30.11.2013. There was no agreement or understanding between parties whereby defendant agreed to pay interest or profit accrued on principal amount as alleged by plaintiff. It is denied that defendant in partial discharge of liability towards interest or profit handed over cheque bearing No. 003948 dated 25.11.2013 for sum of Rs.25,00,000/­ drawn on State Bank of India, Zakir Nagar Branch, Delhi. The cheque is creation of forgery. Defendant neither issued any cheque on 25.11.2013 nor issued any cheque dated 25.11.2013. Plaintiff changed the date by prefixing '2' before the digit '5' filed and changed month from January to November. The said aspect is clear from the fact that defendant paid amount from same account and in October, defendant gave cheque CS No. 11714/16 Page No. 8 of 30 Dalbir Singh Gusain Vs. Mubarak Ali No. 003970 to plaintiff and it is highly unbelievable that cheque of Rs.25,00,000/­ was handed over to plaintiff on 25.10.2013.

27. It is denied that defendant asked plaintiff to present cheque in February­2014. Allegations are totally false, baseless, imaginary and have no iota of truth. However, it is a matter of record that defendant had already made payment of Rs.61,00,000/­ in terms of document dated 05.01.2023 which is also admitted by plaintiff in plaint.

28. It is denied that cheque was issued for consideration as plaintiff had received entire amount. Cheque of Rs.25,00,000/­ was given as security to ensure payment of balance amount of Rs.30,00,000/­ as on 05.01.2023. Admittedly, plaintiff received entire amount and when cheque was demanded back by defendant, it was told by plaintiff that cheque got destroyed/washed while washing clothes and therefore, cheque was not returned to defendant by plaintiff. Plaintiff thereafter misused cheque and filed complaint case U/sec 138 of N. I. Act (Ld. MM therein held that cheque bearing No. 003948 has been forged/tempered by plaintiff) and when he did not succeed in his ill motive then he filed present case.

29. Receipt of legal notice dated 05.03.2014 has been admitted by defendant. It is stated that plaintiff did not file reply dated 20.03.2014 given to the said notice which fact speaks volume that how plaintiff has misled this Court.

30. It is stated that defendant paid entire principal amount and therefore, plaintiff is not claiming any amount towards principal amount and thus plaintiff accepts that on 05.01.2013, defendant agreed to pay balance CS No. 11714/16 Page No. 9 of 30 Dalbir Singh Gusain Vs. Mubarak Ali amount of Rs.31,00,000/­ which was already been paid by defendant. There is no liability of defendant to pay interest or profit as alleged. It is stated that complaint filed by plaintiff under Section 138 N.I. Act has been dismissed by Court of Ld. MM.

31. It is stated that claim of plaintiff in suit is not of balance of principal amount but that of interest. It was incumbent upon plaintiff to produce Jarnail Singh before Ld. MM which he failed to do which suggests only that plaintiff was aware of fact that amount of Rs.11,50,000/­ has been paid in cash to Jarnail Singh and if the said amount was not paid to Jarnail Singh, he would have filed a case against defendant. In absence of any such case, it is clear that sum of Rs.31,00,000/­ was paid by defendant to plaintiff and Jarnail Singh as undertaken on 05.01.2013.

32. It is prayed to dismiss suit filed by plaintiff with exemplary costs.

33. Replication to written statement of defendant was filed by plaintiff wherein plaintiff denied contents of preliminary objections taken by defendant. It is stated that cause of action is writ large from plaint. Suit deserves to be decreed with cost and interest as prayed for in plaint.

34. It is submitted that suit is seeking recovery of money due and payable by defendant which defendant has failed, neglected and refused to repay despite admitting receiving money from plaintiff and his friend. Suit deserves to be decreed with costs and interest.

35. It is stated that cheque in question was issued/ handed over by defendant with all particulars filled. It is denied that plaintiff has forged CS No. 11714/16 Page No. 10 of 30 Dalbir Singh Gusain Vs. Mubarak Ali cheque bearing No. 003948 by adding '2' and '1' in the date column thereby making it 25.11.2013. It is stated that merely because other two cheques i.e. 003946 and 003947 both dated 05.01.2013 have been encashed on their presentation does not make it improbable that cheque No. 003948 was issued in October­2013 (on 25.10.2013). In fact cheque No. 003946 and 003947 were encashed on 05.01.2013 on which date defendant acknowledged balance principal amount in writing. However, cheque in question is nowhere mentioned in acknowledgement to have been issued on said date as security. Total frivolous plea has been raised to evade liability. It is not denied that payments were made subsequently by issuance of cheques but cheque in question was neither issued as security nor the circumstances show that plaintiff committed any perjury. On the contrary, own documents of defendant make it abundantly clear that cheque was neither issued as security on 05.01.2013 nor there has been any forgery or alteration in cheque in question.

36. It is stated that plaintiff in para No. 8 and 9 of plaint has clearly averred that complaint U/sec 138 of N. I. Act was filed against defendant and that defendant has been acquitted by court of Ms. Preeti Parewa, Ld. MM, South, Delhi. Observations of Ld. MM in judgment acquitting defendant are under challenge in appeal (Cr. A. No. 276/2017) filed by plaintiff before Hon'ble High Court of Delhi which has been admitted and listed for hearing in due course vide order dated 07.03.2017. Suit filed by plaintiff is correct and deserves to be decreed with costs.

CS No. 11714/16 Page No. 11 of 30

Dalbir Singh Gusain Vs. Mubarak Ali

37. It is stated that in para No. 10 of plaint, plaintiff has categorically stated that after 05.01.2013, defendant made payment of Rs.19,50,000/­ to plaintiff and Jarnail Singh. Plaintiff has disputed payment of Rs.11,50,000/­ which is alleged to have been made in cash to Jarnail Singh. It is an admitted fact that defendant had utilized money lent by plaintiff and Jarnail Singh for purchase of large tracts of land and sold the said land after carving plots thereupon. Defendant though made huge profits by selling plots but failed to pay any interest or share in profits for using money of plaintiff and Jarnail Singh for more than 4 years. It is beyond imagination that a person would lend such huge sum of money for such a long duration without any expectation or agreement for repayment of same alongwith interest or profit. It is not denied that plaintiff filed agreement dated 05.01.2013 wherein it is not mentioned that defendant shall pay interest or profit over and above but it is equally true that it is also not mentioned in the said agreement that cheque in question is being issued, let alone issued as security though it is being claimed by defendant that cheque in question was issued on 05.01.2013.

38. It is stated that suit has been filed by proper party and that there is no requirement of impleading Jarnail Singh as party to present suit. Since cheque in question was issued in favour of plaintiff only, as such, there was no need for dragging Jarnail Singh as party to present case. Receipt and use of Rs.61,00,000/­ has been admitted by defendant. Suit of plaintiff is correct and parties proper for just adjudication of suit have already been impleaded.

CS No. 11714/16 Page No. 12 of 30

Dalbir Singh Gusain Vs. Mubarak Ali

39. It is stated that reply dated 20.03.2014 was sent by defendant to notice dated 05.03.2014 issued on behalf of plaintiff.

40. It is denied that cheque in question was given as security. It is stated that cheque in question was issued towards partial discharge of liability and same was presented as per assurance of defendant that cheque can be presented if defendant failed to make payment by 20.02.2014. Neither cheque was ever demanded back by defendant nor defendant raised any objection after presentation and dishonour of cheque. However, after service of notice dated 05.03.2014, defendant for first time in his reply took frivolous plea that cheque was issued as security on 05.01.2013 when agreement dated 05.01.2013 was executed but strangely said cheque finds no mention in agreement dated 05.01.2013.

41. On reply on merits, it is stated that on one hand in reply dated 20.03.2014, defendant is claiming that there were dealings between plaintiff and defendant and on the other hand, it is averred that plaintiff and defendant were not doing business together or had no business dealings.

42. It is stated that at the time of borrowing money/taking loan, defendant orally agreed to repay amount either alongwith interest @ 2% p. a. or give share in profit made on sale of plots.

43. It is stated that defendant had only repaid part of loan amount and in partial discharge of liability towards balance principal amount and interest /profit, defendant issued cheque in question. It is denied that defendant paid entire amount to plaintiff as well as Jarnail Singh in installments. It is stated that plaintiff in para No. 10 of plaint has CS No. 11714/16 Page No. 13 of 30 Dalbir Singh Gusain Vs. Mubarak Ali categorically disputed repayment of entire principal amount.

44. It is stated that defendant had agreed to repay principal and interest / profit with balance loan amount in installments within two months but failed to do so even as per own admission of defendant in reply dated dated 20.03.2014 given to notice of plaintiff and last payment made by defendant was released by banker of defendant on 27.12.2013 and as such, it does not lie in mouth of defendant to claim that entire amount was paid by 30.11.2013. It is stated that defendant at time of taking loan had orally agreed to repay amount alongwith interest or share in profit made on sale of plots. It is stated that it is beyond imagination that person would lend Rs.61,00,000/­ for more than 4 years without any expectation of increment in amount that too to a stranger as is being imputed by defendant in written statement. It is denied that cheque is creation of forgery and had there been any truth in assertion of defendant, some remedial action should have been taken by defendant. Neither there is any forgery nor there is any material alteration in cheque in question. Merely issuance of subsequent cheque leaf from cheque book does not make cheque in question forged and fabricated nor there is any bar on issuance of cheques from in between cheque books rather same shows that defendant never intended to repay entire principal amount alongwith interest or share in profit and defendant only intended to evade liability by letting time for recovery lapse.

45. It is denied that entire payment has been made by defendant or that the same has been admitted by plaintiff in plaint. It is stated that it is CS No. 11714/16 Page No. 14 of 30 Dalbir Singh Gusain Vs. Mubarak Ali averred in the plaint that entire payment has not been made either in respect of principal amount and interest or share in profits made on sale of land purchased using money lent by plaintiff and Jarnail Singh.

46. It is submitted that cheque was issued in partial discharge of liability towards repayment of principal amount and interest accrued thereupon. It is denied that entire amount has been repaid or that cheque in question was given as security to ensure balance amount of Rs.30,00,000/­ on 05.01.2023. It is stated that on 05.01.2023 after adjusting amount already received, Rs.31,00,000/­ was balance against principal amount and since entire amount alongwith interest or share in profits earned upon sale of land purchased using money of plaintiff was not paid as assured by defendant, plaintiff presented cheque in question. Defendant never demanded cheque in question back as same was issued in partial discharge of liability and even after presentation and dishonour of cheque, no steps were taken by defendant which shows that cheque in question was in fact issued against liability. Defendant with malafide intention has roped in frivolous and concocted story about cheque stated to have been destroyed while washing clothes. It is denied that present suit has been filed after dismissal of complaint filed by plaintiff. However, it is submitted complaint case was dismissed on basis of conjecture and surmises and appeal against order of dismissal is already pending adjudication before Hon'ble High Court of Delhi. It is stated that court of Ld. MM passed judgment ignoring positive evidence on record and drawing adverse inference believing words of defendant as gospel truth without any CS No. 11714/16 Page No. 15 of 30 Dalbir Singh Gusain Vs. Mubarak Ali evidence being led by defendant to prove plea of alteration in cheque.

47. It is stated that in entire plaint, plaintiff has nowhere averred that entire principal amount has been paid but on the contrary, plaintiff has disputed receipt of entire principal amount. Defendant is not even sure of what was the principal amount outstanding as on 05.01.2023 as in para No. 6, same is being claimed to be Rs.30,00,000/­ whereas in para No. 8, same is stated to be Rs.31,00,000/­. It is stated that still defendant is liable to make payment of suit amount alongwith interest on entire principal amount subject to adjustment of amount admitted to have been paid.

48. It is stated that since defendant was claiming discharge of entire liability, it was duty of defendant to produce Jarnail Singh to prove his plea. However, Ld. MM wrongly held that plaintiff should have produced Jarnail Singh. It is stated that no part of said amount was received by plaintiff and it is for Jarnail Singh to institute a suit or not. It is stated that there is no false and baseless allegation leveled by plaintiff rather it is defendant who instead of proving pleas taken by him is claiming that plaintiff should produce witness in support of plea raised by defendant.

49. It is prayed to decree suit filed by plaintiff in terms of the prayer made in the plaint in the interest of justice.

50. On the basis of the aforesaid pleadings of the parties, the following issues were framed on 06.09.2017 :­

1. Whether the plaintiff forged cheque No.003948 by adding '2' and '1' in the date column to the date written 05.01.2013 making it 25.11.2013? OPD CS No. 11714/16 Page No. 16 of 30 Dalbir Singh Gusain Vs. Mubarak Ali

2. Whether the suit is bad for non­joinder of Jarnail Singh? OPD

3. Whether the plaintiff is entitled for recovery of Rs.25,00,000/­ from defendant? OPP

4. Whether the plaintiff is entitled for any interest? If so, at what rate and for which period? OPP

5. Relief.

51. In order to prove his case, plaintiff examined himself as PW­1 who exhibited his affidavit of evidence vide Ex.PW1/A. In his deposition, PW1 relied upon and exhibited following documents:­ S.No. Description of Document Exhibit/Mark 1 Copy of acknowledgment dated Mark A (later on 05.01.2023 exhibited as Ex.PW1/D1 in cross­ examination of PW1) 2 Certified copy of cheque bearing No. Ex.PW1/2 and 003948 dated 25.11.2013 along with Ex.PW1/3 certified copy of cheque return memo dated 26.02.2014 3 Certified copy of legal notice dated Ex.PW1/4 and 05.03.2014 along with certified copy Ex.PW1/5 of postal receipt 4 Certified copy of courier receipt Ex.PW1/6 5 Copy of reply dated 20.03.2014 Ex.PW1/7 CS No. 11714/16 Page No. 17 of 30 Dalbir Singh Gusain Vs. Mubarak Ali

52. Plaintiff further examined PW­2 Ms. Malika Srivastava, Judicial Assistant, Delhi High Court who corroborated Ex.PW­1/2 to Ex.PW­1/7 and further exhibited certified copy of judgment in CC No. 693A/2016 vide Ex.PW­2/1.

53. In order to prove his defence, defendant examined himself as DW­1 who exhibited his affidavit of evidence vide Ex.PW­1/A. In his deposition including his cross examination, DW1 relied upon and exhibited following documents:­ S.No. Description of Document Exhibit/Mark

1. Copy of reply dated 20.03.2014 Already Ex.PW1/7

2. Certified copy of bank statement of Ex.DW1/2 account No. 00000030920446183

3. Agreement /undertaking dated Ex. PW­1/D1 (in 05.01.2013 cross­examination of DW1)

54. Defendant further examined Mr. Siddharth as DW­2 who exhibited his ID card vide Ex.DW­2/A and statement of account of defendant vide Ex.DW­2/B.

55. I have heard final arguments addressed by counsel for plaintiff and perused the record including written synopsis and submissions and judgments filed on behalf of defendant.

56. My issue­wise findings are as below:­ ISSUE No. 1

1. Whether the plaintiff forged cheque No.003948 by CS No. 11714/16 Page No. 18 of 30 Dalbir Singh Gusain Vs. Mubarak Ali adding '2' and '1' in the date column to the date written 05.01.2013 making it 25.11.2013? OPD

57. Burden of proving this issue was on defendant.

58. Statement of account of defendant for financial year 2012­2013 and financial year 2013­2014 has been proved on record by defendant vide Ex. DW­2/B. As per this statement of account, cheque bearing No. 003948 was returned dishonoured on 25.02.2014. Perusal of statement of account of defendant Ex.DW­2/B further shows that two cheques bearing No. 003946 and 003947 i.e. immediately preceding cheque in question were debited to account of defendant on 05.01.2013. Cheques No. 003949 and 003950 i.e. numbered immediately after cheque in question were debited to account of defendant on 23.03.2013. Perusal of Ex. DW­2/B further shows that before cheque in question i.e. 003948 was presented by plaintiff in his account, cheques upto 003983 were already transacted in account of defendant.

59. As per evidence affidavit of plaintiff Ex. PW­1/A, cheque bearing No. 003948 was handed over by defendant to plaintiff on 25.10.2013 with date of 25.11.2013.

60. More than 30 Cheque numbers succeeding cheque in question i.e. 003948 were transacted / used by defendant prior to presentation of cheque in question by plaintiff.

61. Plaintiff in his cross examination admitted that he received principal amount vide cheques numbers 003951, 003952, 003953 and 003958 etc. CS No. 11714/16 Page No. 19 of 30 Dalbir Singh Gusain Vs. Mubarak Ali

62. Plaintiff in his cross examination further stated that he does not recollect that defendant gave him two cheques bearing No. 003946 and 003947 both dated 05.01.2013 for Rs. 4.5 lacs each. He stated that the cheques which were given might have been encashed. Defendant has proved payment of cheque No. 003946 and 003947 in account of plaintiff and Mr. Jarnail Singh vide Ex. DW­2/B on 05.01.2013.

63. Cheques immediately preceding cheque in question have been proved to be encashed in account of plaintiff and Mr. Jarnail Singh by defendant. Intervening payment through cheques succeeding cheque in question has been admitted by plaintiff in his cross examination as mentioned above. Howcome, it is possible that prior to presentation of cheque in question, cheques till 003983 were transacted in account of defendant (i.e. more than 30 cheques in succession after cheque in question).

64. Plaintiff vide Ex. PW­2/1 has proved certified copy of judgment dated 08.09.2016 in CC No. 693A/2016. This complaint was filed by plaintiff against defendant herein as an accused U/sec 138 of Negotiable Instruments Act. Defendant was acquitted vide this judgment pertaining to cheque in question. In this judgment, Ld. MM has observed in para No. 12 of the judgment that from bare perusal of cheque in question, it is apparent that "1" has been later inserted in front of "1" in the date column and thereby making the date "25.11.2013". Though this judgment of acquittal of defendant is admittedly challenged by plaintiff before Hon'ble High Court of Delhi but observation of Ld. MM regarding insertion of "1" in the date CS No. 11714/16 Page No. 20 of 30 Dalbir Singh Gusain Vs. Mubarak Ali column cannot be ignored.

65. Plaintiff in his cross examination has admitted to have received principal amount vide cheques bearing numbers 003951, 003952, 003953 and 003958. Cheque No. 003952 is for amount of Rs. 2,50,000/­, cheque No. 003953 is again for sum of Rs. 2,50,000/­ and cheque No. 003958 is for sum of Rs. 3,00,000/­.

66. As per Ex. PW­1/D1, total principal amount given to defendant was Rs. 61 lacs out of which Rs. 30 lacs were received back on 05.01.2013. Rest of amount of Rs. 31 lacs was promised to be given by defendant within two months from 05.01.2013. Cheque in question was for sum of Rs. 25 lacs whereas after 05.01.2013 till 13.06.2013, further amount of Rs. 8 lacs was received by plaintiff herein as per Ex. DW­2/B. Out of principal amount of Rs. 61 lacs, admittedly amount of Rs. 38 lacs was received by plaintiff till 13.06.2013 (Rs. 30 lacs + Rs. 2.5 lacs + Rs. 2.5 lacs + Rs. 3 lacs) and total liability of defendant for principal amount remained only Rs. 23 lacs. Howcome, cheque of Rs. 25 lacs was issued by defendant for discharge of his liability of Rs. 23 lacs is not clear.

67. Plaintiff in his cross examination admitted that in agreement dated 05.1.2013 Ex. PW­1/D1, there is no mention of interest and share of profit to be given by defendant. Plaintiff later on volunteered that cheque in question was issued for share in profit but it is nowhere brought on record by plaintiff as to how much percentage of share in profit was to be given to plaintiff by defendant out of total share of profit and how much profit did defendant actually had by taking and investing amount of Rs. 61 lacs from CS No. 11714/16 Page No. 21 of 30 Dalbir Singh Gusain Vs. Mubarak Ali plaintiff and Mr. Jarnail Singh has not been brought on record by plaintiff. Plaintiff in his cross examination has further stated that he does not know whether figures of Rs. 25,00,000/­ and amount written in words including date 05.01.2013 was written by Mr. Jarnail Singh. Plaintiff has not denied that Mr. Jarnail Singh did not write amount and date on cheque in question. Stand of plaintiff otherwise in his evidence affidavit is that it was defendant who handed over cheque of Rs. 25 lacs to him in partial discharge of his liability on 25.10.2013. Plaintiff has not even specified as to how much liability, defendant owed to him after payment of principal amount i.e. how much share out of profit was to be given to plaintiff by defendant or how much percent interest was to be paid by defendant to plaintiff and claim of plaintiff in these circumstances is otherwise quite vague.

68. In the circumstances as discussed above, I am of the view that defendant has been able to discharge his burden qua issue No. 1 beyond preponderance of probabilities and accordingly, it is held that cheque No. 003948 was forged. Hence, this issue is decided in favour of defendant and against plaintiff.

ISSUE No. 2

2. Whether the suit is bad for non­joinder of Jarnail Singh? OPD

69. Burden of proving this issue was on defendant.

70. As per Ex. PW­1/D1, principal amount of Rs. 61 lacs was given CS No. 11714/16 Page No. 22 of 30 Dalbir Singh Gusain Vs. Mubarak Ali by plaintiff and Mr. Jarnail Singh to defendant.

71. Plaintiff in his cross examination stated that he alongwtih Mr. Jarnail Singh and defendant purchased land at Gautam Budh Nagar, Noida. He stated that he and Mr. Jarnail Singh paid 50:50. He stated that they purchased 20 bighas of land. He stated that he and Mr. Jarnail Singh paid Rs. 61 lacs for purchase of land to land owners. Again said, amount of Rs. 61 lacs was paid to defendant who in turn paid to the land owners. He stated that documents were executed by land owners in his favour, defendant and Mr. Jarnail Singh. He volunteered that there may be other names also, but he does not recollect at this stage. He stated that defendant has paid /returned Rs. 61 lacs to him and Mr. Jarnail Singh. He stated that there was an oral agreement between him, Mr. Jarnail Singh and defendant regarding payment of interest or share of profit.

72. From what has been stated by plaintiff in his cross examination, it appears that complete truth has not been mentioned by plaintiff in plaint filed by him. Plaintiff has nowhere stated that land was purchased in his name also. There are stated to be some other names also but plaintiff did not recollect at this stage. There is no clarity as to how much share of profit or payment of interest was to be made by defendant to plaintiff and Mr. Jarnail Singh in the circumstances when some land was also admittedly purchased in name of plaintiff. When land was purchased in name of plaintiff himself, was it not for plaintiff to keep his own share of profits. It does not appear that plaintiff approached court with clean hands and it appears that various material facts were concealed from this court and in CS No. 11714/16 Page No. 23 of 30 Dalbir Singh Gusain Vs. Mubarak Ali this scenario, I am of the view that Mr. Jarnail Singh was necessary party to present suit. Hence, this issue is decided in favour of defendant and against plaintiff.

ISSUES No. 3 & 4

3. Whether the plaintiff is entitled for recovery of Rs.25,00,000/­ from defendant? OPP

4. Whether the plaintiff is entitled for any interest? If so, at what rate and for which period? OPP

73. Both issues are are being taken up together as they are inter connected and outcome of issue No. 4 is dependent upon issue No. 3. Burden of proving these issues was on plaintiff.

74. Plaintiff in his evidence affidavit Ex. PW­1/A deposed that defendant approached him and his friend Jarnail Singh in February­2009 and requested for loan of Rs. 61 lacs for purchase of land in Village Kakrola khaspur, Tehsil Dadri, Gautambudh Nagar, UP and promised to return the same with 2% monthly interest or a share in the profit as and when plots of land are sold. Plaintiff further deposed that out of actual amount, defendant repaid amount of Rs. 30 lacs to 05.01.2013 and promised to return balance amount alongwith amount of interest (share in profit) accrued on total amount of Rs. 61 lacs within two months. However, defendant failed to return entire principal amount as well as interest / profit as promised.

CS No. 11714/16 Page No. 24 of 30

Dalbir Singh Gusain Vs. Mubarak Ali Plaintiff further deposed that defendant on 25.10.2013 in partial discharge of his liability towards amount of interest (or profits) accrued on the principal amount invested by plaintiff handed over cheque in question for sum of Rs. 25 lacs towards partial discharge of his liability but which cheque ultimately was returned unpaid.

75. Whatever has been deposed by plaintiff is shrouded with circumstances which makes claim of plaintiff doubtful. As discussed earlier, more than 30 Cheque numbers succeeding cheque in question i.e. 003948 were transacted / used by defendant prior to presentation of cheque in question by plaintiff. Plaintiff in his cross examination stated that he does not recollect that defendant gave him two cheques bearing No. 003946 and 003947 both dated 05.01.2013 for Rs. 4.5 lacs each. He stated that the cheques which were given might have been encashed. Defendant has proved payment of cheques No. 003946 and 003947 on 05.01.2013 in account of plaintiff and Mr. Jarnail Singh vide Ex. DW­2/B. Cheques immediately preceding cheque in question have been proved to be encashed in account of plaintiff and Mr. Jarnail Singh by defendant. Intervening payment through cheques succeeding cheque in question has been admitted by plaintiff in his cross examination as discussed earlier in this judgment. How come, it is possible that prior to presentation of cheque in question, cheques till 003983 were transacted in account of defendant (i.e. more than 30 cheques in succession after cheque in question).

76. Plaintiff vide Ex. PW­2/1 has proved certified copy of judgment dated 08.09.2016 in CC No. 693A/2016. This complaint was filed by plaintiff CS No. 11714/16 Page No. 25 of 30 Dalbir Singh Gusain Vs. Mubarak Ali against defendant herein as an accused U/sec 138 of Negotiable Instruments Act. Defendant was acquitted vide this judgment pertaining to cheque in question. In this judgment, Ld. MM has observed in para No. 12 of the judgment that from bare perusal of cheque in question, it is apparent that "1" has been later inserted in front of "1" in the date column and thereby making the date "25.11.2013". Though this judgment of acquittal of defendant is admittedly challenged by plaintiff before Hon'ble High Court of Delhi but observation of Ld. MM regarding insertion of "1" in the date column cannot be ignored.

77. Plaintiff in his cross examination has admitted to have received principal amount vide cheques bearing numbers 003951, 003952, 003953 and 003958. Cheque No. 003952 is for amount of Rs. 2,50,000/­, cheque No. 003953 is again for sum of Rs.2,50,000/­ and cheque No. 003958 is for sum of Rs.3,00,000/­.

78. As per Ex. PW­1/D1, total principal amount given to defendant was Rs. 61 lacs out of which Rs. 30 lacs was received back on 05.01.2013. Rest of amount of Rs. 31 lacs was promised to be given by defendant within two months from 05.01.2013. Cheque in question was for sum of Rs. 25 lacs whereas after 05.01.2013 till 13.06.2013, further amount of Rs. 8 lacs was received by plaintiff herein as per Ex. DW­2/B. Out of principal amount of Rs. 61 lacs, admittedly amount of Rs. 38 lacs was received by plaintiff till 13.06.2013 (Rs. 30 lacs + Rs. 2.5 lacs + Rs. 2.5 lacs + Rs. 3 lacs) and total liability of defendant for principal amount remained only Rs. 23 lacs. How come, cheque of Rs. 25 lacs was issued by defendant for CS No. 11714/16 Page No. 26 of 30 Dalbir Singh Gusain Vs. Mubarak Ali discharge of his liability of Rs. 23 lacs is not clear.

79. Plaintiff in his cross examination admitted that in agreement dated 05.01.2013 Ex. PW­1/D1, there is no mention of interest and share of profit to be given by defendant. Plaintiff later on volunteered that cheque in question was issued for share in profit but it is nowhere brought on record by plaintiff as to how much percentage of share in profit was to be given to plaintiff by defendant out of total share of profit and how much profit did defendant actually earned by taking and investing amount of Rs. 61 lacs from plaintiff and Mr. Jarnail Singh. Plaintiff in his cross examination has further stated that he does not know whether figures of Rs. 25,00,000/­ and amount written in words including date 05.01.2013 was written by Mr. Jarnail Singh. Plaintiff has not denied that Mr. Jarnail Singh did not write amount and date on cheque in question. Stand of plaintiff otherwise in his evidence affidavit is that it was defendant who handed over cheque of Rs. 25 lacs to him in partial discharge of his liability on 25.10.2013.

80. Plaintiff in his cross examination stated that he alongwtih Mr. Jarnail Singh and defendant purchased land at Gautam Budh Nagar, Noida. He stated that he and Mr. Jarnail Singh paid 50:50. He stated that they purchased 20 bighas of land. He stated that he and Mr. Jarnail Singh paid Rs. 61 lacs for purchase of land to land owners. Again said, amount of Rs. 61 lacs was paid to defendant who in turn paid to the land owners. He stated that documents were executed by land owners in his favour, defendant and Mr. Jarnail Singh. He volunteered that there may be other names also, but he does not recollect at this stage. He stated that CS No. 11714/16 Page No. 27 of 30 Dalbir Singh Gusain Vs. Mubarak Ali defendant has paid /returned Rs. 61 lacs to him and Mr. Jarnail Singh. He stated that there was an oral agreement between him, Mr. Jarnail Singh and defendant regarding payment of interest or share of profit.

81. Plaintiff in his cross examination stated that he alongwith Jarnail Singh and defendant purchased land at Gautambudh Nagar, Noida. He stated that he and Jarnail Singh paid 50:50. He deposed that they purchased 20 bighas of land. He deposed that he and Jarnail Singh paid Rs. 61 lacs for purchase of land to land owners again said amount of Rs. 61 lacs was paid to defendant who in turn paid to the land owners. He deposed that documents were executed by land owners in his favour, defendant and Jarnail Singh.

82. From what has been stated by plaintiff in his cross examination, it appears that complete truth has not been mentioned by plaintiff in plaint filed by him. Plaintiff has nowhere stated that land was purchased in his name also. There is no clarity as to how much share of profit or payment of interest was to be made by defendant to plaintiff and Mr. Jarnail Singh in the circumstances when some land was also admittedly purchased in name of plaintiff. When land was purchased in name of plaintiff himself, was it not for plaintiff to keep his own share of profits. It does not appear that plaintiff approached court with clean hands and it appears that various material facts were concealed from this court.

83. Last but not the least is Ex. PW­1/D1 which has been filed on record by plaintiff himself. Ex. PW­1/D1 mentions exact liability of defendant and that plaintiff in his cross examination conducted on 08.05.2019 CS No. 11714/16 Page No. 28 of 30 Dalbir Singh Gusain Vs. Mubarak Ali admitted that defendant has paid / returned Rs. 61 lacs to him and Jarnail Singh.

84. When admittedly principal amount has been paid by defendant to plaintiff and Jarnail Singh and nothing could be brought on record by plaintiff regarding interest /share in profit aspect on the profit earned by defendant after sale of land allegedly purchased by defendant in the circumstances when as per cross examination of plaintiff, documents qua purchase of land were executed by land owners in his favour, defendant and Jarnail Singh, it becomes doubtful that defendant was under any liability to make payment of interest to plaintiff or share profits after sale of land when plaintiff could have earned money by sale of land in his name. From what has been deposed by plaintiff in his cross examination as discussed, one possibility arises that defendant was to make payment of principal amount and it was defendant who pooled in land for purchase in his favour, in favour of plaintiff and Jarnail Singh and that in lieu of amount given by plaintiff and Jarnail Singh, defendant was to select appropriate land at appropriate rate and make sure that land is transferred in names of plaintiff, Jarnail Singh and defendant himself. In these circumstances, I am of the view that plaintiff has failed to discharge burden qua issue No. 3 and accordingly, this issue is decided in favour of defendant and against plaintiff. As a result of decision of issue No. 3, issue No. 4 is accordingly decided in favour of defendant and against plaintiff.

RELIEF CS No. 11714/16 Page No. 29 of 30 Dalbir Singh Gusain Vs. Mubarak Ali

85. In view of my finding qua issues No. 3 and 4, I am of the view that suit filed by plaintiff is without merits and is accordingly dismissed. No order as to costs.

Decree­Sheet be prepared accordingly.

File be consigned to Record Room. 

Announced in open Court                     (Sonu Agnihotri)
today on 21.10.2023                    ADJ­07, South East District,
                                          Saket Courts/Delhi




CS No. 11714/16                                                  Page No. 30 of 30
Dalbir Singh Gusain Vs. Mubarak Ali