Delhi District Court
Dashrath Prasad Sah vs . Tara Chand Gupta on 5 February, 2020
Dashrath Prasad Sah Vs. Tara Chand Gupta
CS No. 794/17
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 794/17
CNR No. DLSW010102772017
In the matter of :
Shri Dasharath Prasad Sah
S/o Shri Dina Nath Prasad Sah
R/o H. No. 586 & 587, MSBlock
Ranaji Enclave, Najafgarh,
New Delhi110043. ... Plaintiff
Versus
Shri Tara Chand Gupta
S/o Shri Ram Babu Gupta
R/o Shri Balaji Apartment,
H.No. 63 & 64A, 1st Floor,
Bhagwati Garden Extn.,
Jain Road, Uttam Nagar,
New Delhi110059. ...Defendant
Date of Institution of suit : 28.08.2017
Date on which judgment was pronounced : 05.02.2020
: JUDGMENT :
1.Plaintiff Shri Dashrath Prasad Sah has filed suit under Order XXXVII CPC for recovery of Rs. 14,76,000/ along with interest.
Page 1 /5 DOD: 05.02.2020 Dashrath Prasad Sah Vs. Tara Chand Gupta CS No. 794/17
2. Plaintiff's case averred in the plaint is that defendant being known having friendly relations with the plaintiff had requested him for financial assistance and friendly loan of Rs.5,00,000/ which included Rs.2,00,000/ in cash and Rs.3,00,000/ through cheque No. 000005 dated 23.08.2013 was advanced to defendant against written loan agreement and acknowledgement duly signed by defendant and his partner Shri Ravi Shekhar Sinha by assuring to return the amount up to 21.04.2014.
3. Another sum of Rs.1,00,000/ was thereafter paid to defendant on 14.10.2013 and cheque No. 000084 dated 16.10.2013 was issued by defendant for returning the amount.
4. It is averred that defendant thereafter requested for further loan of Rs.3,00,000/ which was acceded by plaintiff and Rs.2,50,000/ was paid through cheque No. 000016 and Rs.50,000/ paid in cash and another loan agreement was executed between plaintiff and defendant on 22.04.2014.
5. Defendant, in pursuance of aforesaid loan agreements, issued cheque No. 049376 for Rs.5,00,000/ and cheque No. 000085 for Rs.3,00,000/ by assuring that the cheques would be encashed and thereafter executed another friendly loan agreement on 11.01.2015 by assuring to return the loan amount by 10.04.2015.
6. Both cheques for Rs.5,00,000/ and Rs.3,00,000/ respectively were presented but returned unpaid vide returning memo dated 01.01.2016 and 05.01.2016 with remarks 'Funds Insufficient' and legal notice dated 25.01.2016 calling upon defendant to pay the cheque Page 2 /5 DOD: 05.02.2020 Dashrath Prasad Sah Vs. Tara Chand Gupta CS No. 794/17 amount within 15 days of receipt of notice was neither replied nor complied despite service effected upon one of the address.
7. Plaintiff left with no efficacious remedy filed two criminal complaints under Section 138 of N.I. Act which are pending in the court of Ld. M.M (NI Act), Dwarka Courts, Delhi followed by suit under Order XXXVII CPC for recovery of Rs.14,76,000/ which includes Rs.9,00,000/ as principal amount and Rs.5,26,000/ as interest @ 24% per annum.
8. Summons for appearance in prescribed Form No. 4 Appendix B CPC issued to defendant Shri Tara Chand for refused by his wife on 07.11.2017 and 19.08.2018 and original cheque No.000084 dated 16.12.2013 for Rs.1,00,000/ along with returning memo was filed by plaintiff on 28.01.2019.
9. Since plaintiff's suit under Order XXXVII CPC has been filed on the basis of (i) cheque No. 047376 dated 25.12.2015 for Rs.5,00,000/; (ii) cheque No. 000085 dated 25.12.2015 for Rs.3,00,000/ and (iii) cheque No. 000084 dated 16.12.2013 for Rs.1,00,000/ whereas balance Rs.5,76,000/ is claimed as interest @ 24% per annum without any covenant in loan agreements dated 22.08.2013; 22.02.2014 and 11.01.2015 so plaintiff's suit has been treated as ordinary suit for recovery vide order dated 01.05.2019 and fresh summons for settlement of issues was directed to be issued to defendant Shri Tara Chand.
10. Summons issued to defendant was again refused by his wife Smt. Anupama on 24.05.2019 and defendant who was deemed to be served through refusal has been proceeded exparte on 23.09.2019.
11. Plaintiff Shri Dashrath Prasad Sah has examined himself as Page 3 /5 DOD: 05.02.2020 Dashrath Prasad Sah Vs. Tara Chand Gupta CS No. 794/17 PW1 by tendering his affidavit Ex.PW1/A in evidence and relied upon following documents:
i. Copy of Loan Agreement dated 22.08.2013 Mark P1; ii. Copy of Loan Agreement dated 22.02.2014 Mark P2; iii. Attested copy of cheque No. 047376 Ex.PW1/3; iv. Attested copy of cheque No. 000085 Ex.PW1/4; v. Copy of Loan Agreement dated 11.01.2015 Mark P3; vi. Original cheque returning memo dated 01.01.2016 Ex.PW1/6; vii. Original cheque returning memo dated 05.01.2016 Ex.PW1/7; viii. Copy of Legal Notice dated 25.01.2016 Mark P4; ix. Attested copy of postal receipts Ex.PW1/9 (colly); x. Copy of tracking report Mark P5
12. Advocate Shri Manoj Yadav and Shri Kuldeep Yadav for plaintiff have addressed their submissions by adverting to plaint, testimony of plaintiff (PW1) and documents referred in evidence.
13. Averments and testimony of plaintiff has remained uncontroverted as defendant Shri Tara Chand Gupta has failed to contest the suit despite deemed service through his wife Smt. Anupama.
14. Defendant having availed loan facility and issued cheque No.047376 and 000085 for repayment of loan amount which are mentioned in loan agreement dated 22.08.2013; 22.02.2014 and 11.01.2015 is therefore liable to pay the cheque amount.
15. Plaintiff, however, is not entitled to recover Rs.1,00,000/ on the basis of cheque No. 000084 dated 16.12.2013 which was returned with remarks 'instrument outdated' as plaintiff's relief for recovery of Page 4 /5 DOD: 05.02.2020 Dashrath Prasad Sah Vs. Tara Chand Gupta CS No. 794/17 Rs.1,00,000/ on the basis of cheque No. 000084 is barred by limitation.
16. RELIEF: Plaintiff's suit is therefore decreed for a sum of Rs.8,00,000/ along with pendente lite interest @ 10% per annum and future interest @ 6% per annum together with cost of the suit.
17. Decree sheet be prepared accordingly.
18. File be consigned to record room. Digitally signed TARUN by TARUN YOGESH YOGESH Date: 2020.02.07 13:27:53 +0530 Announced in the open Court (Tarun Yogesh) On 05.02.2020 ADJ03/South West Dwarka /New Delhi Page 5 /5 DOD: 05.02.2020