Delhi District Court
Dowarka Nath Lohtia vs Manmohan Gupta on 24 February, 2021
IN THE COURT OF SH. PRASHANT SHARMA:
ADDITIONAL DISTRICT JUDGE05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
Civ DJ No. 609908/16
In the matter of :
Dowarka Nath Lohtia
S/o Late Sh. Yog Raj Lohtia
R/o A2/5, Pankha Road, Janak Puri
New Delhi 110058.
.......... Plaintiff
Vs.
Manmohan Gupta
S/o Late Sh. Lal Chand Gupta
R/o H. No. 171, Block F.I.U.
First Floor, Pitampura
Delhi 110088.
Also At :
KNB/18, Gali No. 10
Anand Parbat Indl. Area
Anand Parbat, New Delhi 110005.
.......... Defendant
SUIT FOR RECOVERY OF RS. 17,30,000/
Date of institution : 29.11.2011
Judgement Reserved on : 03.02.2021
Date of Decision : 24.02.2021
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 1 / 16
JUDGEMENT
1. Plaintiff namely Dowarka Nath Lohtia filed the present suit for recovery of Rs. 17,30,000/ against defendant namely Manmohan Gupta, alleging the following facts : "That plaintiff who is doing the business of CRC/HRC Sheets alongwith his brother at Anand Parbat, had advanced Rs. 35,00,000/ to defendant as loan, on the demand of defendant. The said loan was advanced in two installments i.e. Rs. 20,00,000/ on 12.04.2011 and Rs. 15,00,000/ on 15.04.2011. Defendant had demanded the loan of Rs. 40,00,000/ from plaintiff and Rs. 40,00,000/ from brother of plaintiff. Considering the fact that defendant was customer of brother of plaintiff, plaintiff had advanced a loan of Rs.
35,00,000/ in aforesaid manner to defendant.
In response to the same, defendant had issued a cheque of Rs. 20,00,000/ bearing no.
099165 by putting date 20.06.2011 and had also issued two promissory notes of Rs.
15,00,000/ dated 15.04.2011 in favour of plaintiff. The aforesaid cheque was dishonoured when plaintiff presented the same in his bank and consequently plaintiff filed a Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 2 / 16 complaint case U/Sec. 138 N.I. Act, which is pending adjudication before competent court.
Despite various assurances, defendant did not clear the aforesaid cheque amount and the amounts mentioned in the promissory notes.
Consequently, plaintiff issued legal notice dated 13.09.2011 calling upon defendant to clear those amounts. Despite receiving the same, defendant did not pay the amounts mentioned in the promissory notes. Hence, plaintiff moved the court in which, he prayed that a decree of Rs. 15,00,000/ alongwith interest of Rs. 2,30,000/ be passed in favour of plaintiff and against defendant. It is also prayed that future interest @ 24% per annum be also awarded to plaintiff, from filing of the suit till its realization."
2. Defendant filed Written Statement in which, he claimed that suit filed by plaintiff was frivolous. He took the preliminary objections viz., that suit was not properly valued as per law, that suit lacked cause of action, that all the allegations made in the plaint were false, that suit has not been properly valued for the purpose of court fees and jurisdiction, that plaintiff had concealed the material facts from the court and that suit was bad for nonjoinder of necessary parties. He explained that in criminal complaint U/Sec. 138 NI Act filed by plaintiff, Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 3 / 16 plaintiff never stated that he had paid Rs. 35,00,000/ to defendant and plaintiff never referred to promissory notes in the said complaint. Further, defendant denied the fact that he had received Rs. 20,00,000/ and Rs. 15,00,000/ on 12.04.2011 and 15.04.2011 respectively, from plaintiff. He explained that he never executed pronotes in question in favour of plaintiff. That defendant was an employee of M/s. Durga Enterprises, which was a sole proprietorship firm. That defendant had signed blank pronotes and put thumb impression on blank promotes under only instruction of Late Sh. Jagmohan Gupta who was sole proprietor of M/s. Durga Enterprises Firm. So, as per defendant, pro notes in question were not executed in ordinary course of business. Coupled with the same, he pointed that ink and writing in the said pro notes and cheque, were different, which indicated that those documents were not executed by defendant. He also stated that he had signed the cheque in question and had delivered it to Late Jagmohan Gupta. As such, defendant was not aware about any transaction done by M/s. Durga Enterprises. He filed copy of PAN Card of Late Jagmohan Gupta, copy of request letter duly signed by Late Sh. Jagmohan Cupta, Copy of letter issued to sole proprietor of M/s. Durga Enterprises by Cholamandalam DBS Finance Limited, Copy of letter issued to sole proprietor of M/s. Durga Enterprises by IndiaBulls, Copy of acknowledgement issued by DVAT Department from 2006 and 2007, Copy of audit reports, copy of income tax computation form dated 24.05.2011 and copy of challan for deposit of tax under central sales tax act. He pointed out that there was discrepancy in the dates of cheque in question as mentioned in this suit which is '20.06.2011' and Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 4 / 16 one mentioned in criminal complaint wherein, it was mentioned as '28.05.2011'. Said discrepancy indicated falsity in the case of plaintiff. Further, as per defendant, plaintiff had received promissory notes in question from Late Sh. Jagmohan Gupta as sole proprietor of M/s. Durga Enterprises and not from defendant. As such, defendant denied the fact that he had worked with plaintiff or had any transaction with plaintiff. Infact, defendant claimed that he had no knowledge about the business of plaintiff. He pointed out that plaintiff very smoothly had not mentioned the name of his brother and the business in the plaint in order to mislead the court. Further, he pointed that plaintiff had not produced his source of income based on which he had allegedly given the loan amount to defendant. Further, loan amount so claimed, did not carry any interest and without interest, it cannot be said to be the loan amount. He also pointed out that facts as mentioned in the plaint were different from the facts mentioned in the application U/O 38 Rule 5 R/w Sec. 151 CPC alongwith present suit, filed by plaintiff. He also claimed that facts mentioned in 'para 3, 4 & 9' of the plaintiff, indicated different versions of plaintiff which made the case of plaintiff false. As per him, plaintiff had sent legal notice to defendant on wrong address, therefore, said notice was never received by defendant. In the background of said objections, defendant prayed for dismissal of the suit. Coupled with the same, on merits, defendant denied the version of plaintiff by referring the aforesaid preliminary objections. Same are not repeated here for the sake of brevity.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 5 / 163. Plaintiff filed Rejoinder to the Written Statement denying the version of defendant and reiterated his case, as mentioned in the plaint. Same are not repeated here for sake of brevity.
4. After completion of pleadings, following issues were settled :
i) Whether the plaintiff is entitled to recover a sum of Rs.17,30,000/ with pendentellite and future interest @ 24% per annum from the defendants as prayed ? OPP.
ii) Relief.
5. Matter was then fixed for plaintiff's evidence.
6. Plaintiff examined himself as PW1 and tendered in evidence his affidavit Ex.PW1/A and reiterated the contents of plaint, which are not repeated here for the sake of brevity. He relied upon the documents viz., Ex.PW1/1 Promissory Note, Ex.PW1/2 Legal Notice dated 13.09.2011, Ex.PW1/3 Postal Receipts (colly), Ex.PW1/4 Courier Receipt and Ex.PW1/5 Returned Envelope.
7. Plaintiff also examined Nathu Singh Bareth as PW2 who tendered in evidence his affidavit Ex.PW2/A. He deposed that defendant had received Rs. 35,00,000/ from plaintiff as mentioned in the plaint in his presence. He also testified that promissory notes in question were signed by defendant in his presence.
8. Both the said witnesses were crossexamined at length.
Thereafter, plaintiff's evidence was closed and matter was fixed for defendant's evidence.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 6 / 169. Defendant examined himself as DW1 and tendered in evidence his affidavit Ex.DW1/A and reiterated the contents of Written Statement, which are not repeated here for the sake of brevity. He relied upon the documents viz., Ex.D1/A Copy of criminal complaint filed by plaintiff, Ex.D1/B Copy of Pan Card of Late Sh. Jagmohan Gupta, Sole Proprietor of M/s. Durga Enterprises, Ex.D1/C Copy of request letter signed by Late Sh. Jagmohan Gupta, Ex.D1/D Copy of letter issued to Sole Proprietor of M/s. Durga Enterprises, Ex.D1/E Copy of letter issued to Sole Proprietor of M/s. Durga Enterprises, Ex.D1/F Copy of acknowledgement issued by DVAT department from 2006 to 2007, Ex.D1/G Copy of DVAT mentioning TIN No. 07120110986, Ex.D1/H Copy of Audit Reports and Ex.D1/I Copy of Income Tax Computation Form dated 24.05.2011 issued by Income Tax Officer and Challan for depositing of tax under Central Sales Tax Act.
10. DW2 Mahavir Singh, UDC, Trade & Tax Department, was examined as summoned witness, who brought on record copy of Dealer Profile alongwith circular Ex.DW2/A.
11. DW2 Lalit Kumar Tiwari, AR of IndiaBulls Housing Finance was examined by defendant as summoned witness who brought on record the documents related to M/s. Durga Enterprises Ex.DW2/A.
12. DW3 Bhagirath, Senior Tax Assistant, Income Tax Department was examined also as a summoned witness. He brought on record the details of PAN Card bearing no. AAHRG9235A, which was marked as Ex.DW3/A. Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 7 / 16
13. DW3 Atul Kumar, Assistant Manager, Union Bank of India, East Patel Nagar, Delhi, was examined as a summoned witness who brought on record the document i.e. certified copy of account of opening form Ex.DW3/A and certified copy of GPA dated 15.09.2005 filed with bank Ex.DW3/B.
14. Lastly, Ghanshyam Dass, Income Tax Officer from Income Tax Department, was examined and deposed that his department was not able to retrieve the documents sought by defendant. He also deposed that requisite documents can be summoned from other wards of income tax office. Therefore, he was discharged.
15. Thereafter, defendant's evidence was closed and matter was fixed for final arguments.
16. After hearing final arguments, matter was reserved for pronouncement of judgement.
17. Since, plaintiff had moved the court, so as per Sec. 101 Indian Evidence Act, plaintiff had the onus to have proved his case based on preponderance of probabilities. It was plaintiff who had claimed that he had advanced Rs. 35,00,000/ to defendant as loan by paying Rs.20,00,000/ on 12.04.2011 and Rs. 15,00,000/ on 15.04.2011. Defendant had denied the receiving of said amounts. So, plaintiff should have proved the fact that he had advanced the said amounts to defendant.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 8 / 1618. Plaintiff as such did not place on record the source from where he had arranged the said loan amount, which he allegedly paid to defendant. He did not file any statement of account of his bank for the relevant period showing the fact that he had that much amount in his account for advancing it to defendant. Nonfiling of details regarding source from where plaintiff had arranged the loan amount of Rs.35,00,000/, improbablized the case of plaintiff.
19. Plaintiff had claimed that he was doing the business with his brother at the time when he had advanced the loan to defendant. In his testimony, he admitted that he had not filed any document for proving the fact that he was doing the business with his brother at the relevant time when he had advanced the said loan to defendant. Absence of details of said business improbablized the case of plaintiff.
20. Plaintiff did not file the service tax and income tax return of his business for the period when he had allegedly advanced the loan in question to defendant. Nonfiling of those documents further improbablized the case of plaintiff.
21. Plaintiff had deposed in his crossexamination that he had given loan amount to defendant in cash. He did not explain precisely from where he had arranged that much amount, in his evidence. Infact, as per Income Tax Act, plaintiff had to inform income tax authority about the said advancement of the loan to defendant as it was made above Rs.2,00,000/. Further, plaintiff did not file any document in his evidence for showing that he had informed income tax authority about the advancement of that much big amount to defendant.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 9 / 1622. Plaintiff stated in his testimony that he had arranged the said loan amount of Rs. 35,00,000/ was arranged from the sale of property and stocks. In the same breath, he admitted that he had not filed any document regarding sale of said property and stocks, in his evidence. Nonfiling of any such document improbablized the testimony of plaintiff. Infact, plaintiff deposed that there was an agreement of Rs. 1.2 Crore for sale of property but plaintiff did not specify the details of said transaction and details of said property which was sold. It improbablized the testimony of plaintiff.
23. In addition to aforesaid aspect, I find that plaintiff had deposed in his crossexamination that promissory note Ex.PW1/1 was filled by a person accompanying defendant but he did not name that person. Further, plaintiff did not remember as to whether he had mentioned the details of promissory note in his criminal complaint U/Sec. 138 NI Act, or not ? He did not remember the address where he had sent the legal notice to defendant. He also did not know as to whether said notice was served upon defendant or not ? Plaintiff did not remember the dates when defendant approached him for advancement of loan amount and did not remember as to who had issued the cheque in question. Absence of knowledge with regard to aforesaid facts, did not help the cause of plaintiff. Aforesaid facts were relevant facts which plaintiff should have answered with clarity. Since, plaintiff did not do so, therefore, his testimony did not inspire the confidence of this court.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 10 / 1624. Fact of the matter remains that plaintiff did not prove the fact that he had Rs. 35,00,000/ with him, which he had allegedly advanced to defendant on 12.04.2011 and 15.04.2011. Therefore, testimony of plaintiff is discarded by me being untrustworthy and unreliable.
25. This brings me to the testimony of PW2 Nathu Singh Bareth. This witness simply deposed in his examinationinchief that loan of Rs.35,00,000/ was advanced by plaintiff to defendant in his presence and that promissory notes were signed by defendant in his presence.
26. PW2 deposed that he was friend of plaintiff and that plaintiff was doing the business of CRC/HRC Sheets at Anand Parbat with his brother in addition to his own personal work. In his crossexamination, this witness deposed that he had no knowledge about the business of plaintiff. Said deposition contradicted his own version as mentioned in his examinationinchief. This witness categorically deposed that he did not know the work of plaintiff. I failed to understand as to why he had deposed in his examinationinchief that plaintiff was doing the business of CRC/HRC Sheets alongwith his brother, when he did not know the nature of work of plaintiff. Infact, this witness deposed that he had no knowledge as to whether plaintiff was working in association with anybody. That deposition further contradicted his examinationinchief where had deposed that plaintiff was doing the business with his brother. This witness as such, did not explain as to how he had deposed in his examinationinchief that he knew the business of plaintiff and the fact that plaintiff was doing the business with his brother. Said contradiction did not make his testimony reliable.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 11 / 1627. Further, PW2 in his crossexamination deposed that defendant had asked plaintiff to arrange for Rs. 35,00,000/ and not more than that. That deposition again contradicted the case of plaintiff as plaintiff's version was that defendant had demanded Rs. 40,00,000/ from him.
28. Further, PW2 did not know the source of income of plaintiff from where he had arranged Rs. 35,00,000/ which he allegedly had given to defendant. This witness had claimed that he had witnessed the execution of promissory notes and receipt Ex.PW1/1 but did not remember the interest which was mentioned in the said documents. It created the doubt as ordinarily a person signing a document as a witness would go through the contents of said documents and would know as to what is written in the said document. PW2, though had signed the promissory note Ex.PW1/1 (colly) but did not now the interest amount payable by defendant which created doubt regarding the due execution of those documents.
29. Further, I find that signatures of PW2 as mentioned in his evidence did not match his signatures as mentioned in the receipt Ex.PW1/1. Further, his signatures did not match the signatures, he had made on promissory note dated 15.04.2011 - Ex.PW1/1 (colly). In addition to that, PW2 admitted in his crossexamination that his hand writing is not written on the said promissory notes. Infact, this witness deposed that his signatures were procured before him and Verma Ji, whom he was referring in his testimony. The said deposition Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 12 / 16 contradicted him. Further, his mismatched signatures did not indicate that receipt and promissory note Ex.PW1/1 (colly) were executed in ordinary course of business. This conclusion does not help the cause of plaintiff.
30. Lastly, I found that receipt of Rs. 7,00,000/ and promissory note of Rs.8,00,000/ were filled with different ink and the signatures of executants and witnesses details were filled with different ink. Same can be seen from bare naked eyes. Plaintiff did not explain as to why different ink were used in the said promissory notes. It probablized the defence of defendant that those promissory notices were not executed in ordinary course of business.
31. Testimony of plaintiff's witnesses did not inspire the confidence of this Court and I discarded it being untrustworthy in nature.
32. In addition to aforesaid reasoning, I find that plaintiff had relied upon receipt of Rs. 7,00,000/ and promissory note of Rs. 8,00,000/ Ex.PW1/1 (colly). Plaintiff did not explain as to why "receipt" was executed instead of "promissory note". Those receipt and promissory note were dated 15.04.2011. On the receipt, no interest amount payable by defendant, was mentioned whereas in the promissory note, interest @ 18% per annum from 15.04.2011 till the date of payment, was mentioned. Plaintiff did not explain as to why, there was absence of interest amount in the receipt and presence of interest amount in the promissory note.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 13 / 1633. Further, said receipt and promissory note which plaintiff had referred as Ex.PW1/1 (colly), did not mention as to why those different documents were executed by defendant. In other words, those receipt and promissory note did not refer the alleged loan amount received by defendant. It created doubt regarding the due execution of those documents. Plaintiff failed to prove his case based on preponderance of probabilities. Testimonies of plaintiff witnesses did not inspire the confidence of this Court. I discarded it being untrustworthy in nature.
34. As against the aforesaid case of plaintiff, defendant had examined himself as DW1. He claimed in his affidavit Ex.DW1/A that case of plaintiff was false and that in criminal complaint U/Sec. 138 NI Act, plaintiff never claimed that he had paid Rs. 35,00,000/ to defendant. As per him, his signatures were taken by plaintiff on blank pronote which were misused by plaintiff in the shape of filing of present suit. He highlighted that different inks were used in the said pronote indicating falsity of the same. As per him, cheque in question was issued by M/s. Durga Enterprises which was sole proprietorship firm of Late Sh. Jagmohan Gupta. Defendant was working as an employee in the said firm and had signed blank cheque to Late Sh. Jagmohan Gupta. He claimed his want of knowledge regarding transaction between M/s. Durga Enterprises and plaintiff. So, plaintiff had wrongly addressed him as proprietor of M/s. Durga Enterprises in the criminal complaint case.
35. In his crossexamination, he stuck to his aforesaid version. He refuted the case of plaintiff, put to him by way of suggestions. No fact was culled out from his testimony by plaintiff, to the effect that he had Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 14 / 16 received loan from plaintiff as stated in the plaint. The aforesaid shortcomings of plaintiff's case were not put to him, for seeking his explanation. No explanation was given to this witness regarding the doubts in due execution of pronote, while crossexamining him, as he had alleged in his examinationinchief. Therefore, his testimony did not help the cause of plaintiff. It probablized his defence.
36. Defendant examined DW2 Mahavir Singh who placed on record the document related to M/s. Durga Enterprises bearing TIN No. 07120110986. The record pertaining to M/s. Durga Enterprises was not furnished by him and circular Ex.DW2/A issued by his department asking the concerned officer to search the file of said concern, was not relevant. More so where, he deposed that he had no knowledge about the proprietorship of M/s. Durga Enterprises.
37. Similarly, DW3 Bhagirath, who was summoned witness, had to furnish PAN card details bearing No. AAHRG9235A. In his testimony, he deposed that no such PAN card exists and therefore, his testimony was inconsequential.
38. DW3 Atul Kumar, had brought documents, but he was not able to prove the proprietorship of M/s. Durga Enterprises and therefore, his testimony was inconsequential.
39. For similar reasons, testimony of Sh. Ghanshyam Dass, was inconsequential as he failed to furnish the summoned record from his department.
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 15 / 1640. The net result is that, plaintiff failed to prove his case based on preponderance of probabilities. Shortcomings in the case of defendant, if any, did not help the cause of plaintiff.
41. In view of the aforesaid appreciation and conclusion, plaintiff failed to prove its case. Suit stands dismissed. No order as to cost. DecreeSheet be prepared, accordingly.
Announced in the open Court [PRASHANT SHARMA]
Dated : 24.02.2021 ADJ05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Dowarka Nath Lohtia Vs. Manmohan Gupta Page No. 16 / 16