Delhi District Court
Sh. Raj Kumar vs Prakash Chand on 17 October, 2016
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Prabh Deep Kaur, DJS
Case No. 51509/16
Suit No. 558/2014
Unique ID no. DLSE030005342014
In the matter of :
Sh. Raj Kumar
S/o Sh. Surender Nath Pandey
R/o D416, Tajpur Pahari
Badarpur, New Delhi110044 ........ Plaintiff.
Vs
Prakash Chand
S/o Sh. Kailash Chand
R/o D799, Camp Society,
Tajpur Pahari, Badarpur,
New Delhi110044 .........Defendant.
Date of institution of Suit : 24.12.2014
Date on which order was reserved : 06.10.2016
Date of pronouncement of Order : 17.10.2016
JUDGMENT
Vide this judgment, the present suit has been disposed off. The plaintiff has filed the present suit with the following prayer:
"to pass a decree for a sum of Rs.1,07,107/ (Rupees One Lakh Seven Thousand One Hundred Seven Only) in favour of the plaintiff against the defendant, costs and pendentlite and future interest @ 18% p.a. from the date of institution of the suit till the realization of the decreetal amount, in the interest of justice."
1. Plaintiff's averments:
1.1. The defendant was in friendly term with the plaintiff.
The defendant borrowed of Rs.1,50,000/ (Rupees One Lakh Fifty Thousand Only) in the March, 2014 as a friendly Loan and the CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 defendant to discharge the liability signed and issued two cheques bearing No. 825583 of Rs.90,000/ dated 24.04.2014 and another cheque bearing No.825584 of Rs.60,000/ dated 29.04.2014, both drawn on Punjab National Bank, Badarpur, New Delhi. 1.2. The defendant intentionally put the date of cheque bearing no. 825583 of Rs.90,000/ as 24.04.2013 instead of 24.04.2014 and the plaintiff also did not noticed about the same and the plaintiff deposited the same in his bank ICICI, Lajpat Nagar Branch, New Delhi and same was returned unpaid on 25.04.2014 with remarks "The Cheque is Outdated".
1.3. The plaintiff contacted with the defendant and intimated about the matter and the defendant issued another bearer cheque of Rs.52,500/ (Rupees Fifty Two Thousand Five Hundred Only) vide cheque No. 825585 dated 01.05.2014 against previous Loan taken by the defendant from the plaintiff and same got encashed and the defendant issued to the plaintiff that another cheque of Rs.60,000/ (Rupees Sixty Thousand Only) would be encashed in Second Week of July, 2014 and thereafter the rest amount i.e. Rs.37,500/ will be paid to the plaintiff by the defendant. 1.4. Believing the defendant and his assurance the plaintiff presented the said Cheque of Rs.60,000/ to his Bankers i.e. ICICI Bank, Lajpat Nagar Branch, but the same was returned unpaid as dishonoured vide returned memo dated 11.07.2014 with remarks "Insufficient of Funds".
1.5. The plaintiff contacted the defendant and appraised CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 about the fate of the above said cheque issued by the defendant to the plaintiff but the defendant did not respond to the plaintiff and completely ignored which clearly shows dishonest and malafide intention of the defendant.
1.6. The balance of Rs.97,500/ was standing against the defendant on account of principal and various time, the plaintiff requested the defendant to make the payment of Rs.97,500/ excluding interest, however the defendant did not pay any hid to the matter despite repeated request by the plaintiff. Now a sum of Rs.1,07,107/ including up to date interest @ 18% p.a. i.e. (principal amount of Rs.97,500/ + interest @ 18% p.a. from 02.05.2014 to till date Rs.9,607/), thereupon is still due upon defendant towards the plaintiff to which the defendant is liable to pay to the plaintiff.
2. Defence of defendant no.1:
2.1. To be typed from file..................... 2.2. In the abovementioned 138 NI Act case, which is filed by the defendant against the plaintiff, prior to filing the said case, the defendant had served on the legal notice to the plaintiff through his advocate on 11.08.2014 describing the transaction and given 15 days time for payment/response, but the plaintiff did not reply the said legal notice within 15 days time and he also did not pointout his claim well within time. This is because, the plaintiff did not have any answer of said legal notice sent by the defendant. In fact, when the defendant, after filing the said 138 NI Act case, told to the plaintiff as the both are living in the same locality that "maine tumhare khilaph 138 ka CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 case file kar diya hai our tumhe jald hi court se summon mil jayenge aur ab mujhe court paise dilwayegi", then the danger alarm bell was rung in the mind of the plaintiff and thereafter he fabricated the false story and got sent a legal notice to the defendant which is received on 19.09.2014 by the advocate of the defendant. 2.3. As per the claim/story of the plaintiff, out of the two cheques in question, one cheque, bearing no.825583 of Rs.90,000/ was returned unpaid on 25.04.2014 and other cheque bearing no. 825584 of Rs.60,000/ was returned unpaid as dishonored on 11.07.2014. But the plaintiff did not take any action against the defendant. The defendant waited for action against the defendant for 5 months. In fact, the entire story is afterthought and false one and when the defendant filed 138 N.I. Act, case against the plaintiff only then, the plaintiff fabricated his false story in the present suit, hence the same is liable to be dismissed.
2.4. The plaintiff filed a civil suit against the defendant after paying courtfees, despite according the him he has with him, said bounced cheques and he would have cheaper remedy available u/s 138 N.I. Act.
2.5. The plaintiff concealed the material fact that the cheque of Rs.60,000/ bearing No. 825584, dated 29.04.2014 was presented by him and the same was bounced on 30.04.2014, due to not depositing the honorable fund/cash in the bank account by the defendant as the Aunty (Chachi) of the defendant was suddenly dead. 2.6. The plaintiff has friendly terms with the defendant as CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 both are living in the same locality.
2.7. On 24.04.2014 the plaintiff approached the defendant for a friendly loan of Rs.90,000/ as the plaintiff was in dire need of money. Accordingly the defendant issued him a cheque of Rs.90,000/ bearing No. 825583 dated 24.04.2014, the defendant did not know that the date of said cheque is inadvertently wrongly written as 24.04.2013 instead of 24.04.2014 and the same was also not informed by the plaintiff to the defendant. But thereafter on 29.04.2014 the plaintiff again approached the defendant and informed that the said given cheque was misplaced somewhere and now I need only Rs.60,000/ so that plaintiff requested then, for a loan of Rs.60,000/ only, believing on the plaintiff's words and in good faith, the defendant issued another cheque of Rs.60,000/ bearing No. 825584 dated 29.04.2014 to the plaintiff as friendly loan, but due to the death of defendant's aunty (Chachi) the defendant could not deposit some funds/cash to maintain the balance to honour the said cheque and the same got bounced and after knowing this fact by the plaintiff the defendant immediately deposit in his bank account, some cash available with him at that time and issued another (bearer) cheque of Rs.52500/ bearing No. 825585 dated 01.05.2014. This was a bearer cheque for easily and speedy withdrawal of cash/loan by the plaintiff from the defendant and the same was also encashed/withdrawn by the plaintiff. That on demand of earlier issued cheques in question, the plaintiff assured the defendant that one is misplaced and another is bounced and left over at his residence, and the plaintiff further stated the defendant that CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 Rs.90,000/ cheque was lost somewhere and he promised the defendant as and when the same would be found then both the cheque including the cheque of Rs.60000/ would be return back to the defendant and it was also promised by the plaintiff that No misuse of the same would be done against the defendant, on believing the same the defendant rest assured and given another bearer cheque of Rs.52500/ which was encashed/withdrawn by the plaintiff. But contrary the said cheques misuse was done by plaintiff against the defendant by filing the present suit only after filing criminal case u/s 138 NI Act on 15.09.2014 by the defendant against the plaintiff, having no option, only when the plaintiff refused to repay the borrowed loan of Rs.52,500/ and after giving 15 days time, in the legal notice dated 11.08.2014.
2.8. The plaintiff be asked on which date of March 2014,j the said alleged loan to be given to defendant and in discharge of said liability said two cheques of defendant, were taken by the plaintiff. 2.9. The cheques misuse was done by plaintiff against the defendant by filing the present suit only after filing a criminal case u/s 138 NI Act on 15.09.2014 by the defendant against the plaintiff, having no option, only when the plaintiff refused to repay the borrowed loan of Rs.52,500/ and after giving 15 days time, in the legal notice dated 11.08.2014. The defendant never taken any loan from the plaintiff as alleged.
3. Plaintiff has not filed replication.
4. On the basis of pleadings, following issues have been CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 framed vide order dated 24.08.2015:
1. Whether the plaintiff is entitled to a decree of recovery of money? If yes, what amount? OPP
2. Whether the plaintiff is entitled to interest ? If yes, at what rate ? OPP
3. Relief.
5. In PE, the plaintiff has examined himself as PW1 to prove his case. PW1 has tendered his evidence by way of affidavit. He has relied upon the following documents:
a) PNB cheque bearing no. 825583 of Rs.90,000/ dated 24.04.2013 is Ex.PW1/A;
b) PNB cheque bearing no. 825584 of Rs.60,000/ dated 29.04.2014 is Ex.PW1/B;
c) bank return memos are Ex.PW1/C & Ex.PW1/C1.
6. In DE, defendant has examined himself as DW1 to prove his defence. He relied upon following documents:
a) The photocopy of complaint u/s 138 NI Act case against the plaintiff is Ex. DW 1/1.
b) The copy of legal notice dated 11.08.14 is Ex. DW 1/2.
c) The copy of bank statement reflecting bouncing of cheque bearing no. 825584 for Rs.60,000/ dated 29.04.14 is Ex. DW 1/3.
d) Copy of PNB certificate of cash withdrawal of Rs.52,500/ is Ex. DW 1/4.
e) Copy of online complaint to the Commissioner of Police, Delhi dated 17.09.14 is mark A. CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13
f) The complaint made to SHO PS Badarpur, New Delhi dated 12.04.15 is Ex. DW 1/6.
7. Defendant has also summoned one witness from bank to prove the return memo which is Ex. DW 2/A. Both the witnesses were cross examined and DE was closed on 26.09.2016. Thereafter, matter was fixed for final arguments.
8. Arguments heard. Record perused.
ISSUEWISE FINDINGS
9. Issue no.1, 2 and 3: (1) Whether the plaintiff is entitled to recovery of money? If yes, what amount ? OPP
2. Whether the plaintiff is entitled to an interest ? If yes, at what rate ? OPP 9.1. The onus to prove these issues is upon the plaintiff. It is settled principle that in civil cases, the burden of proof is upon the plaintiff to prove his case and the case of plaintiff has to stand on its legs. The criteria of burden of proof is, 'preponderance of probabilities', in other words, Court has to consider out of two parties, whose version appears to be more probable to be true. 9.2. In the present case, as per plaintiff, he has given friendly loan of Rs.1,50,000/ to defendant in March, 2014 and in discharge of his legal liability to return the friendly loan, defendant has issued two cheques of Rs.90,000/ and 60,000/ respectively. The cheque of Rs.90,000/ got dishonoured and when plaintiff approached the defendant, he issued another cheque for Rs.52,500/ with undertaking that the previous cheque of Rs.60,000/ shall also be CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 encashed and remaining amount will be paid to the plaintiff. The cheque for Rs.52,500/ was encashed by the plaintiff but the cheque for Rs.60,000/ got dishonoured nor the remaining amount of Rs.37,500/ was paid by defendant, hence the suit for recovery.
9.3. On the other hand as per defendant the present suit is counter blast to the criminal complaint u/s 138 NI Act filed by defendant against plaintiff on 15.09.2014. Defendant served legal notice dated 11.08.2014 upon the plaintiff and on failure of plaintiff to reply the legal notice and to pay the money, defendant filed the criminal complaint. Thereafter, when plaintiff came to know about the said proceedings he sent a false reply dated 19.09.2014. As per defendant on 24.04.2014, defendant issued cheque of Rs.90,000/ for giving friendly loan to the plaintiff as requested by plaintiff but inadvertently he has written the wrong date and the cheque got dishonoured. Thereafter, plaintiff approached the defendant for loan of Rs.60,000/ only and defendant issued the cheque of Rs.60,000/ but due to demise of aunt of defendant, he could not deposit the amount in bank and cheque got dishonoured. Thereafter, at the request of plaintiff, third cheque for Rs.52,500/ dated 01.05.2014 was issued by the defendant towards friendly loan and the cheque was duly encashed by the plaintiff but plaintiff failed to return the loan and present suit has been filed only to harass the defendant.
9.4. Admittedly, defendant issued cheque bearing no. 8255 83 for Rs.90,000/ on 25.04.2014 which got dishonoured as the date CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 has been mentioned as 25.04.2013. Admittedly, defendant had also issued cheque for Rs.60,000/ dated 29.04.2014 which got dishonoured and cheque of Rs.52,500/ dated 01.05.2014 was issued by the defendant and was duly encashed by the plaintiff. Only dispute is that as per plaintiff he has given friendly loan of Rs.1,50,000/ to the defendant, while as per defendant he has given friendly loan of Rs.52,500/ to the plaintiff.
9.5. Now the initial burden of proof is upon the plaintiff to prove that he has given friendly loan of Rs.1,50,000/ to the defendant but apart from the oral testimony, plaintiff could not produce even a single material / record to show that he has actually given this loan to the defendant or even the plaintiff was in a financial capacity to pay such an amount to defendant. Further, during cross examination plaintiff has deposed that:
" I do not remember the date on which I had given an amount of Rs.1,50,000/ to the defendant. No independent witness was present at the time lending the abovesaid loan. The said loan has been given at the house of defendant. There are 57 members in the family of defendants residing there. I have given the abovesaid loan in one time............ I have given the abovesaid loan to the defendant from my savings. No agreement was executed at the time of giving loan to the defendant. No receipt against the loan was taken. I have given the abovesaid loan in cash."
9.6. Further, plaintiff has nowhere given the details on CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 which date, the cheques have been issued by the defendant or on which dated it has been handed over to the plaintiff. During cross examination plaintiff himself has admitted:
I do not remember the date on which I have taken two cheques of Rs.90,000/ and Rs.60,000/ from the defendant. The said cheques in question have been given by the defendant later on but I do not know the date.
The abovesaid cheques had been given the defendant on separate dates. The cheque of Rs.90,000/ was given first by the defendant and thereafter 45 days the cheque of Rs.60,000/ was given by the defendant. I could not take the abovesaid cheque simultaneously because defendant could not arrange the amount. I do not remember which cheque I have presented first in my bank............. I do not remember the cheque which I got first either of Rs.60,000/ or Rs.52,500/. I have presented the cheque of Rs.60,000/ twice for encashment in my bank. I do not remember whether I have mentioned this fact in my plaint or affidavit.............
Thus, clearly plaintiff has failed to give the particulars when the cheques have been issued by the defendant. Further, plaintiff has not mentioned in the plaint that he has presented the cheque of Rs.60,000/ twice for encashment.
9.7 Further, the plaintiff has admitted that he has filed the suit after filing of criminal complaint by the defendant as during cross CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13 examination, plaintiff has admitted that:
"It is correct that defendant has filed a case against me under Section 138 Ni Act for Rs.52,500/. It is correct that the defendant had filed a case under Section 138 NI Act of Rs.52,500/ prior to present case. It is correct that I have filed the present suit after receiving the summons from the Court of Ld. MM under Section 138 NI Act against me............ It is correct that the cheque of Rs.52,500/ has been given by the defendant after the bouncing of cheque of Rs.60,000/."
But plaintiff has not disclosed these facts in the plaint. Moreover, plaintiff has not filed the reply of legal notice on record. It appears that plaintiff has intentionally withold the material facts for the reasons best known to the plaintiff.
In view of above discussion, it is clear that the plaintiff has completely failed to prove his averments and he has not disclosed the complete facts to the Court.
In view thereof, issue no. 1 and 2 are decided in favour of defendant against the plaintiff.
10. As all the issues have been decided in favour of defendant against the plaintiff, the suit is liable to be dismissed. Parties to bear their own costs.
11. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance of legal formalities.
CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13Pronounced in the open Court (Prabh Deep Kaur) on this 17th day of October 2016 Civil Judge, South East Saket Courts, New Delhi CS No.558/2014 Raj Kumar Vs. Prakash Chand Page 13 of 13