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Delhi District Court

M/S Shree Ram Palace vs Sh. Rakesh Kumar on 31 August, 2015

          IN THE COURT OF SH. GURVINDER PAL SINGH
           ADDITIONAL DISTRICT JUDGE­01 (CENTRAL)
                TIS HAZARI COURTS, DELHI


C.S. No. 08/2012
Unique I. D. No. 02401C0653922009

M/s Shree Ram Palace,
Shop No. 7, LSC Market,
Sheikh Sarai, Phase­II, New Delhi.
Through its proprietor
Sh. Surender Gupta.
                                                        ......Plaintiff
               Versus

Sh. Rakesh Kumar,
U­27/5 DLF Phase­III,
Gurgaon, Haryana.
                                                     .......Defendant

    SUIT U/O XXXVII CPC FOR RECOVERY OF RS. 20 LAKH

           Date of institution of suit       :   08.08.2007
           Date of conclusion of arguments   :   19.08.2015
           Date of pronouncement of judgment :   31.08.2015




CS­08/2012
Shree Ram Palace Vs. Rakesh Kumar                             Page 1 of 26
                                     JUDGMENT

1. The plaintiff has filed the present suit under Order XXXVII for recovery of Rs. 20 Lakhs with interest @ 18% per annum against the defendant. Adumbrated in brief the facts of the case of plaintiff are as follows. It has been averred that plaintiff is a proprietorship concern by the name of M/s Shree Ram Palace, engaged in business of sweets, bakery, namkeen, restaurant and specialist in the outdoor catering business and the suit had been filed through its proprietor Sh. Surender Gupta. Plaintiff is stated to be paying Income Tax and other Taxes to the government as per law. Defendant was known to plaintiff since defendant used to give catering jobs to plaintiff firm from his friends circle and also used to book various orders from other business establishments and in a span of time, defendant became very friendly and close to plaintiff. Defendant represented to the plaintiff that his wife namely, Ms. Ritu Kumari was engaged in the business of Boutique, further allured the plaintiff to invest some money so that the business of the wife of defendant can grow and defendant alongwith his wife can take some commercial property at some prime locality. Defendant further CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 2 of 26 represented to plaintiff that he was associated with few banks and was working as a recovery agent for said banks and further allured the plaintiff that defendant had the power to purchase the disputed properties after getting the loans cleared from bank and hence could sell the same at higher prices. Defendant further represented to plaintiff that it was a very lucrative business and allured the plaintiff to advance a friendly loan of Rs. 21 Lakhs on an interest of 2% per month sometimes in the month of July 2006 and assured and promised the plaintiff that he would return the same within two months. Initially, plaintiff was reluctant to extend the said friendly loan but when defendant started pursuing the plaintiff day and night and also allured the plaintiff that the defendant would give heavy discounts to the wife of plaintiff, if she desires to purchase the clothes from the Boutique of the wife of the defendant and also if plaintiff wants to take some loans from the bank, defendant will be helping the plaintiff in getting the same. Plaintiff categorically told the defendant that since it was difficult for the plaintiff to arrange such a huge amount but defendant persuaded the plaintiff to arrange said amount. Plaintiff agreed to extend to defendant a friendly loan of Rs. 21 Lakhs and in lieu thereof, defendant issued a cheque bearing no. 018066 CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 3 of 26 dated 11.09.2006, drawn on Punjab National Bank, Hari Nagar, Delhi. Defendant further assured and promised the plaintiff that since the cheque was of date 11.09.2006, till such time, the defendant would be able to arrange funds in his account and that the cheque issued in favour of plaintiff would not be dishonoured. On 10.09.2006, defendant requested the plaintiff for some time asking him to deposit the said cheque on 15.10.2006 assuring and promising that by that time he would definitely arrange for the funds and would not take further time. On 16.10.2006, on presentation of said cheque for encashment by plaintiff, it was dishonoured on 17.10.2006 with the remarks "Insufficient Funds" by United Bank of India, Soami Nagar Branch, Delhi, bankers of plaintiff. The fact of dishonour of cheque was brought to notice of defendant on phone and defendant promised plaintiff to wait for another two months as he was having financial crunch assuring plaintiff that since some sale of property deal is going on, hence, the defendant would be getting handsome amount as commission. Plaintiff again approached defendant on 15.12.2006 to take his money but defendant again stated that since his said deal had not matured and he was trying for another deal and assured plaintiff that he would be able to give the money by March 2007. CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 4 of 26 Similarly, defendant later on in March 2007, avoided to talk to plaintiff and even refused to meet him. On 25.06.2006, plaintiff with his son went to house of defendant, where defendant assured and promised to plaintiff to come and take money on 08.07.2007. When plaintiff went to house of defendant on 08.07.2007 after telephonic discussion, the defendant was initially reluctant to return the amount but after sometime flatly refused to plaintiff and threatened plaintiff to falsely implicate him, if he claimed said amount. Defendant cleverly exhausted the period meant for taking action under Section 138 N.I. Act, 1881. Plaintiff sent legal notice of demand dated 10.07.2007, which was received back with the report of "Refusal" by postal authorities. On 14.07.2007, defendant called plaintiff, requested time for meeting to amicably settle out the matter. Meeting took place on 15.07.2007 at 10.30 a.m. at the house of plaintiff, where defendant agreed to pay Rs. 1 Lakh in cash as part payment and to pay remaining amount of Rs. 20 Lakhs within a period of seven days. Since 23.07.2007, defendant avoided to meet plaintiff and on 30.07.2007 when plaintiff went to house of defendant in the morning, defendant refused to pay any sum and instead threatened plaintiff. Resultant was this suit. CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 5 of 26

2. Summons for appearance in prescribed form under Order XXXVII CPC were sent to defendant by my Ld. Predecessor and on 20.02.2008, the registered AD post sent to defendant was received back undelivered with the report "refused." Defendant was deemed served and since defendant had not entered appearance within 10 days of service on 09.02.2008, the suit was decreed under Order XXXVII (2) (3) of the Code of Civil Procedure against defendant for sum of Rs. 20 Lakhs with interest @ 9% per annum on 01.04.2008 by my Ld. Predecessor and decree was drawn accordingly.

3. Defendant moved application under Order XXXVII Rule 4 read with Order IX Rule 13 and Section 151 CPC, which was disposed of vide order dated 05.05.2010 by my Ld. Predecessor after hearing the parties and defendant was given opportunity to contest the case subject to deposit of entire decree amount in the shape of FDR in the name of the Court. Defendant filed CM(M) No. 724/10 in High Court of Delhi, which was decided vide order dated 17.03.2011 and defendant was granted leave to defend to contest the suit subject to deposit of Rs. 10 Lakh with this Court in the shape of FDR within 60 days thereof and CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 6 of 26 order dated 05.05.2010 of my Ld. Predecessor was so modified accordingly. Vide order dated 31.05.2011 in CM No. 9759/2011 in CM(M) 724/10, Hon'ble Mr. Justice Valmiki J. Mehta extended the time for six weeks from 31.05.2011 for deposit of aforesaid Rs. 10 Lakhs. Vide order dated 13.07.2011 of my Ld. Predecessor, the FDR of Rs. 10 Lakhs, deposited by defendant was taken on record. Subsequent thereto, defendant filed written statement.

4. In the filed written statement, defendant took preliminary objections viz., (i) suit was entirely misconceived, vexatious, frivolous, misconceived, incorrect and false to the knowledge of plaintiff and plaint did not disclose any cause of action; (ii) suit was contrary to true facts and circumstances of the business dealings and had been filed for unjust enrichment for the plaintiff at the cost of the defendant and was gross abuse of the process of law; (iii) plaintiff was guilty of suppresio veri and suggestio falsi and had not approached the Court with clean hands as plaintiff did not disclose the fact of issuance of new cheque on 30.05.2007 for Rs. 15 Lakh bearing No. 490508, drawn on Bank of India, Saket Branch, New Delhi in lieu of earlier cheque issued by defendant as CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 7 of 26 security, which formed subject matter of the present cheque; (iv) no valid/written agreement or contract had been executed between the parties and no details/document/receipt had been placed on record by the plaintiff; (v) plaintiff had failed to bring on record an iota of evidence to show that the amount of Rs. 21 Lakhs was ever given by him as a loan to defendant; (vi) plaintiff had deliberately undervalued the claim for his own ulterior motives and designs for Rs. 20 Lakhs in order to avoid the pecuniary jurisdiction of this Court and plaint itself was defective; (vii) the fact regarding payment of Rs. 1 Lakh by defendant to plaintiff was concocted and had been made by plaintiff in order to hoodwink this Court; (ix) plaint suffered from material defects and the same were not cured at the time of filing of the amended plaint. Defendant also averred that no valid/written agreement or contract was executed between parties. Plaintiff also did not place on record any details/documents/receipt with respect to payment of Rs. 1 Lakh to him in cash by defendant. Defendant stated that the submission of plaintiff regarding payment of Rs. 1 Lakh is concocted to undervalue the claim for avoiding the pecuniary jurisdiction of High Court of Delhi. Suit had been filed in the name of "M/s Shree Ram Palace" but plaintiff has failed to compliment the CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 8 of 26 allegations/averment with supportive documents. It is beyond comprehension as to why plaintiff waited for defendant for more than a year to return the money and not pursued his legal remedy under Negotiable Instrument Act, 1881. Defendant submitted that he was working as recovery agent for many banks alongwith a person namely, Sh. (Bhanu) Prakash Verma, who was his erstwhile partner with whom he was running a partnership firm under the name and style of Balaji Associates. Defendant and his partner would help certain banks settle their disputes with the defaulters, borrowers whose property was mortgaged with bank and would find perspective buyers for such disputed properties. These perspective buyers would pay the settlement amount to the banks and would get the mortgaged property released and would in turn purchase them. As a trade practice, defendant or his partner would often issue cheques in the nature of collateral security to the prospective buyers/financiers, who were required to pay some amount to banks as upfront money while the settlement amounts were still being worked out. Copy of the Empanelment letter dated 23.04.2007 and letter dated 21.07.2007 evidencing the assignment of work to the firm of defendant by the Bank of Maharashtra, was placed on record by defendant. Defendant CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 9 of 26 averred that plaintiff would often deal with him and the firm of defendant for the purchase of such mortgaged properties. The plaintiff was keen to purchase a property bearing No. G­27/6, Rajouri Garden, New Delhi, which was mortgaged with Punjab National Bank, Janpath Branch, New Delhi. Since, plaintiff was interested to purchase the said property and was required to submit the requisite money in the bank, on the request of plaintiff and as a matter of trade practice, the defendant issued the cheque in question dated 11.09.2006 bearing no. 018066 for Rs. 21 Lakhs, drawn on Punjab National Bank, Hari Nagar Branch, Delhi to the plaintiff only as a collateral security. Defendant submitted that said cheque being a collateral security was issued by him in good faith and was never to be encashed by him. Soon thereafter, the said deal fell through and when defendant asked to return the said cheque, plaintiff dishonestly told defendant that he had misplaced it. In March/April 2008, defendant suffered some losses on account of his ill health, then decided to withdraw from the business. Sh. Prakash Verma, partner of defendant, was inclined to stay in the business. Plaintiff was still involved in few deals with the firm, plaintiff decided to take another cheque of Rs. 15 Lakhs from Sh. Prakash Verma, erstwhile partner of defendant and issued CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 10 of 26 receipt dated 29.05.2007 stating that in lieu of the cheque issued by defendant, a cheque bearing no. 490508, drawn on Bank of India, Saket Branch, New Delhi, dated 30.05.2007 for an amount of Rs. 15 Lakhs had been issued by the then partner of defendant for continuance of business dealings and that he would further return the cheque which had been issued by defendant and would never utilize it for any purpose. Aforesaid cheque of Rs. 15 Lakhs was also issued as a collateral security and it reflects the conduct and practice of the plaintiff to be in habit to extract illegal money. Rest of the averments of the plaint have been specifically and categorically denied by defendant. Defendant outrightly denied of having taken any loan from plaintiff at any rate, much less @ 2% per month.

5. Plaintiff filed replication to the written statement of the defendants to controvert the contentions of the written statement and to reiterate the averments of the plaint. Plaintiff denied of receipt of any cheque of Rs. 15 Lakhs from Sh. Prakash Verma, partner of defendant or having issued receipt dated 29.05.2007 as alleged by defendant, terming such alleged receipt dated 29.05.2007 to be false, forged and fabricated CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 11 of 26 document.

6. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 16.01.2012 :­ ISSUES

1)Whether the plaintiff has suppressed material facts as per preliminary objection no. 'D' of the written statement and if so, what is its effect? OPD

2)Whether this court has no peculiar (to be read as pecuniary, being apparent typographical error) jurisdiction in view of preliminary objection no. 'G' of the written statement of defendant? OPD

3)Whether the plaintiff is entitled to recover a sum of Rs. 20 Lakhs from the defendant, as claimed in the suit? OPP

4)Whether the plaintiff is entitled to any interest, if so, at what rate and for which period? OPP CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 12 of 26

5)Relief(s)?

7. Sh. Surender Kumar Gupta, proprietor of plaintiff concern examined himself as PW­1 vide affidavit Ex PW­1/A. PW­1 relied upon documents i.e., (i) legal notice dated 10.07.2007 exhibited as Ex PW­1/1;

(ii) postal receipts exhibited as Ex PW­1/2 and 3; (iii) return envelope exhibited as Ex PW­1/4; (iv) dishonoured cheque dated 11.09.2006 issued by defendant exhibited as Ex PW­1/5; and (v) return memo dated 17.10.2006 exhibited as Ex PW­1/6. PW­1 was cross­examined.

8. Defendant examined himself as DW­1 vide affidavit Ex DW­1/A. DW­1 relied upon documents i.e., (i) copy of Empanelment letter dated 23.04.2007 and letter dated 21.07.2007 marked as Mark­A (colly); (ii) copy of letter dated 04.09.2006 of the legal department of Bank of Maharashtra marked as Mark­B (colly) and (iii) receipt dated 29.05.2007 exhibited as Ex DW­1/1. DW­1 was cross­examined.

9. I have heard arguments addressed by Sh. Pramod Kumar Sharma, Ld. counsel for plaintiff, Sh. Manoj Kumar, Ld. counsel for CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 13 of 26 defendant and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, written arguments filed on behalf of parties, relied precedents and have also examined the record of the case. Ld. Counsel for parties argued in terms of pleadings of the parties.

10. Ld. counsel for defendant has relied upon decision in following cases :­ (1) M/s K & K Health Care Pvt. Ltd. Vs. M/s Pehachan Advertising, RFA No. 202/2011, DHC, decided on 23.01.2012 by Hon'ble Mr. Justice Valmiki J. Mehta;

(2) GE Capital Services India Vs. May Flower Healthcare Pvt. Ltd. & Ors., CS (OS) 2859/2011, DHC decided on 31.08.2012 by Hon'ble Mr. Justice Valmiki J. Mehta; and (3) Nirmala W/o Ganapati Sindhe Vs. Shivaji S/o Ganapati Pol, 2008 (1) Kar LJ 360.

11. My issue wise findings are as under :­ CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 14 of 26 Findings on Issue No­(1) Whether the plaintiff has suppressed material facts as per preliminary objection no. 'D' of the written statement and if so, what is its effect? OPD In preliminary objection number­D of written statement of defendant, it has been averred that plaintiff has not disclosed the fact about issuance of new cheque on 30.05.2007 for sum of Rs. 15 Lakhs bearing no. 490508, drawn on Bank of India, Saket Branch, New Delhi in lieu of earlier cheque issued by defendant as security, which formed subject matter of the present cheque. In this back drop of the events, defendant has alleged that the plaintiff has misled the court by making false story for extracting hard money of defendant. In the replication, the plaintiff has categorically denied of having ever issued any cheque aforesaid of Rs. 15 Lakhs to defendant or having misled the Court. Plaintiff has also denied of execution/issuance of any receipt of date 29.05.2007 embodying averment of receipt of cheque of Rs. 15 Lakhs in lieu of cheque of Rs. 20 Lakhs in question. Plaintiff had stated in the replication that the said receipt dated 29.05.2007 was a false, forged or CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 15 of 26 fabricated document.

12. Despite afore elicited specific and clear averments of plaintiff in the replication, the said receipt dated 29.05.2007 Ex DW­1/1, which was exhibited in course of evidence of DW­1, was not confronted to plaintiff/PW­1 in the course of his cross­examination by defendant through counsel but was conspicuously withheld. Even no suggestion with respect to Ex DW­1/1 was given to PW­1 in course of his cross­ examination. In fact, no question with respect to Ex DW­1/1 or contents thereof was even asked from PW­1 in his cross­examination. No opinion of handwriting expert was obtained with respect to alleged signatures of plaintiff on Ex DW­1/1 nor any such handwriting expert witness was examined by defendant. In his cross­examination, DW­1 elicited that receipt Ex DW­1/1 was in his writing. No witness of execution of Ex DW­1/1, by plaintiff was cited nor examined in defendant evidence. In course of his cross­examination DW­1 even shifted stand when he asserted the fact that the cheque of Rs. 15 Lakhs in lieu of cheque of Rs. 21 Lakhs was issued by him, whereas at page­6 in the written statement, defendant/DW­1 had averred that said cheque of Rs. 15 Lakhs CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 16 of 26 was so issued by his erstwhile partner. In this fact of the matter, defendant has miserably failed to discharge his onus on this issue. Issue no­1 is decided against defendant and in favour of plaintiff accordingly.

Findings on Issue No­(2) Whether this court has no peculiar (to be read as pecuniary, being apparent typographical error) jurisdiction in view of preliminary objection no. 'G' of the written statement of defendant? OPD

13. In the preliminary objection number­G in the written statement, defendant averred of plaintiff having deliberately undervalued the claim and concocted story of payment of Rs. 1 Lakh by defendant to him. In evidence PW­1 vide affidavit Ex PW­1/A had asserted that on 15.07.2007, it was agreed by defendant at his house at 10.30 a.m. that defendant would pay Rs. 1 Lakh cash. Also in Ex PW­1/A, PW­1 asserted that said payment of Rs. 1 Lakh in cash was given to PW­1 at his house at K­18D, Sheikh Sarai, Phase­II, New Delhi. No suggestion contrary to aforesaid facts was given by Ld. Counsel for defendant to CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 17 of 26 PW­1 in his cross­examination, with respect to any such payment of Rs. 1 Lakh given by defendant to plaintiff, as elicited above. In this fact of the matter, defendant has miserably failed to discharge his onus on this issue. Issue no­2 is decided in favour of plaintiff and against the defendant accordingly.

Findings on Issue No­(3) Whether the plaintiff is entitled to recover a sum of Rs. 20 Lakhs from the defendant, as claimed in the suit? OPP

14. Entire tone and tenor of the plaint, when read as a whole, is of defendant having allured plaintiff to advance friendly loan of Rs. 21 Lakh on interest @ 2% per month in the month of July 2006 assuring and promising its return within two months. Plaintiff also asserted of his initial reluctance to advance such friendly loan but when defendant persuaded plaintiff day and night, only then he agreed to extend such friendly loan of Rs. 21 Lakhs. Plaint lacks mention of relevant material facts as to on which date, when and where and in presence of which witness(es) such friendly loan of Rs. 21 Lakhs was given by plaintiff to CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 18 of 26 defendant. In the course of deposition, PW­1 also did not whisper of these elicited relevant facts. In course of his cross­examination, PW­1 elicited that he knew defendant since 2004 as defendant used to come to his shop to purchase sweets etc. PW­1 further elicited of the fact that he never had any business dealing with defendant. PW­1 further deposed in cross­examination that the alleged loan of Rs. 21 Lakh was given out of the funds of his proprietorship concern after withdrawals from bank account and the money which was lying at the shop, regarding which he could produce the bank statements of his proprietorship concern with respect to the said bank account. PW­1 asserted that he was filing Income Tax Return since 2002 and had also filed the Income Tax Return for the relevant time when the loan was given. Also, PW­1 claimed that he had shown in his books of account, the amount of loan given to defendant and that he could produce the books of account of relevant period. When in cross­examination PW­1 claimed that he can produce such aforesaid books of accounts, then my Ld. Predecessor on 16.01.2013 directed PW­1 to bring the said books of accounts of relevant period depicting the loan amount given by him to defendant on the next date of hearing fixed for further cross­examination of PW­1, which is borne out CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 19 of 26 of deposition of date 16.01.2013 of PW­1. When PW­1 again entered the witness box on 13.08.2013, he simply took shelter behind the plea of having forgotten to bring relevant bank statements as well as the books of accounts which he was directed to produce. It would not be out of place to mention that though it is own case of plaintiff that he maintained his books of accounts, had shown advanced loan in question to defendant in his books of accounts and was an Income Tax Assessee, despite directions PW­1 has failed to produce the relevant books of accounts containing the entries of advancement of loan in question to defendant. Also, PW­1 has failed to bring the relevant bank statements which could depict the withdrawals of money from his bank account, so as to advance the loan in question to defendant. On 13.08.2013, when PW­1 entered into witness box again it was candid admission of PW­1 that his bank account was not having sufficient money to pay the loan amount of Rs. 21 Lakhs at the relevant time to defendant. PW­1 volunteered to submit on 13.08.2013 that loan was not paid from his bank but was paid in cash. Since, PW­1 failed to produce the books of accounts and the statement of his bank account despite directions to so produce in the course of his cross­examination, in accordance with illustration (g) of Section 114 of CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 20 of 26 the Indian Evidence Act, 1872, there is no other option, but to presume that had PW­1 produced said documents, they would have been unfavourable to PW­1/plaintiff, who withheld it.

15. PW­1 had also elicited in cross­examination that he never previously had any business dealing with defendant but knew defendant as defendant used to come to his shop to purchase sweets etc. It is difficult to fathom as to how would a shopkeeper owning sweet shop would lend a huge amount of Rs. 21 Lakhs to such a customer who simply used to purchase sweets from him and that too without any guarantee or mortgage of any property, simply on receiving a cheque, without being in the knowledge of financial credibility of the proposed debtor.

16. Para­5 of the plaint finds mention of the fact of plaintiff having gained knowledge of defendant to be associated with few banks, working as a recovery agent for said banks, having power to purchase the disputed properties after getting loans cleared from the bank and hence could sell the same at higher prices. In his written statement, it had been CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 21 of 26 the assertion of the defendant that he was working as a recovery agent for many banks alongwith Sh. (Bhanu) Prakash Verma in partnership in name and style of M/s Balaji Associates and would help certain banks settle their disputes with defaulters, borrowers, whose property was mortgaged with the bank and would find perspective buyers for such disputed properties; such perspective buyers would then pay the settled amount to banks and get released mortgaged property and would in turn purchase them. It is also the averment of the defendant that as a trade practice, defendant or his partner would often issue cheques in the nature of collateral security to the prospective buyers/financiers, who were required to pay some amount to banks as upfront money while the settlement amounts were still being worked out. Though, DW­1 in course of his examination has not been able to prove the photocopies of documents Mark­A (colly) and Mark­B (colly), but own assertion of plaintiff in para­5 in plaint strengthened the plea of defence put forth by defendant of having given the cheque in question as security to plaintiff. When plaintiff deposes in material contradiction to the source of the loan advanced i.e. whether it was the money withdrawn from the bank or otherwise and fails to produce bank statement showing withdrawal of CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 22 of 26 money as well as the books of account depicting any loan advanced or defendant shown as debtor therein, the plea in defence put forth gets strengthened.

17. Onus to prove this issue was on plaintiff. True that the negotiable instrument, the cheque Ex PW­1/5 was issued by defendant in favour of "Shree Ram Palace." Even, the plaintiff/PW­1 has failed to bring on record and prove any document to show himself to be proprietor of said concern "Shree Ram Palace." Section 118 of Negotiable Instruments Act, 1881 (in short NI Act) inter alia embodies the making of presumption that every negotiable instrument was made or drawn for consideration until the contrary is proved. There were no monetary transactions between plaintiff and defendant prior to delivery of cheque in question, as per plaintiff. Even, when the cheque was delivered by defendant to plaintiff and/or alleged loan was advanced in cash by plaintiff to defendant, no pronote for advancement of loan was executed inter se parties. The defendant elicited facts detailed herein before in cross­examination of PW­1 to disprove the possible lending of money by plaintiff to him (defendant) demonstrating financial inability of plaintiff. CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 23 of 26 On the other hand, plaintiff failed to prove his financial ability to lend such a huge amount of money i.e. Rs. 21 Lakhs to defendant having not produced/proved any supporting documents with respect to source for lending of such money to defendant. Presumption aforesaid under Section 118 of N.I. Act, available with plaintiff has been rebutted by defendant by preponderance of probabilities and elicited facts proved on record make probable the defence put forth of giving of cheque in question by defendant to plaintiff for security, as plaintiff has failed to prove by preponderance of probabilities, the loan advanced or source of such loan advanced with respect to which the claim of plaintiff is devoid of relevant material facts of date and/or place of such advancement of loan or witness(es) thereto. Reliance placed upon the case of Nirmala (supra). Even books of accounts containing entry of loan advanced by plaintiff to defendant in his ledger have neither been produced nor proved. Also, in terms of Section 269 SS of Income Tax Act, 1961, no transaction exceeding Rs. 20,000/­ in cash is to be done for advancement or of acceptance of loan by private parties. No document has been proved on record by plaintiff, by any cogent evidence, that alleged advanced loan was a friendly loan. In terms of Section 3 of The Punjab CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 24 of 26 Registration of Money Lender's Act, 1938 as adopted in NCT of Delhi, the suit of money lender is barred unless money lender is registered and holding a valid license in prescribed form. Reliance placed upon - (1) Shop named Kaloji Talusappa Ganga Vathi Vs. Khyanagouda & Ors., AIR 1970 SC 1420; (2) Daljit Kumar & Anr. Vs. Popal Dass, AIR 1981 Punjab & Haryana 211; (3) Gyanananda Sen Vs. Ranjit Kumar Das & Anr., AIR 2003 Orissa 166; (4) Jaswanti Devi & Ors. Vs. Sunil Mehra, AIR 2004 Himachal Pradesh 15; (5) Niranjan Singh Vs. Mohinder Singh, RSA No. 2551 of 1987 (O&M), High Court of Punjab & Haryana at Chandigarh, decided on 03.03.2010; and (6) Smt. Fula Devi Vs. Mangtu Maharaj & Ors., AIR 1969 Patna 294 (V 56 C 75) Full Bench. Plaintiff is not having license of money lender nor is a registered money lender and is accordingly not entitled to lend any money and such a suit by money lender is barred accordingly. Cumulative effect of entire above discussions is that plaintiff has failed to discharge his onus on this issue for being entitled for recovery of sum claimed from defendant. Issue no­3 is decided in favour of defendant and against plaintiff accordingly.

CS­08/2012
Shree Ram Palace Vs. Rakesh Kumar                              Page 25 of 26
                              Findings on Issue No­(4)


               Whether the plaintiff is entitled to any
               interest, if so, at what rate and for which
               period?                             OPP

18. Since, plaintiff is not entitled for recovery of sum, claimed, plaintiff is not entitled for any interest, whatsoever. Issue no­4 is decided in favour of defendant and against the plaintiff accordingly.

RELIEF

19. In view of my findings with respect to issues no­3 and 4, the suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.

Announced in open Court (GURVINDER PAL SINGH) on 31st Day of August, 2015. Addl. Distt. Judge­01 (Central) Tis Hazari Courts, Delhi.

(AD) CS­08/2012 Shree Ram Palace Vs. Rakesh Kumar Page 26 of 26