Delhi District Court
Arjun Dev Arya S/O Sh. Gelaram vs Smt. Raveti Devi on 9 April, 2018
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IN THE COURT OF SH. DEEPAK VATS, CIVIL JUDGE, DELHI
(WEST)2
SUIT NO. 611793/16
Unique Case ID No - 02401C0289622014
ARJUN DEV ARYA S/O SH. GELARAM
R/O 4/491 BHOLANATH NAGAR,
SHAHDRA, DELHI110032
........................PLAINTIFF
VERSUS
1. SMT. RAVETI DEVI
W/O LATE SH.PANI RAM
2. SH. SURENDER KUMAR
S/O LATE SH. PANI RAM
3. MS. MAMTA
D/O LATE SH.PANI RAM
4. MS. GEETA
D/O LATE SH. PANI RAM
ALL R/O QUARTER NO.D1, TOP FLOOR,
BLOCK NO.1, RAILWAY COLONY,
PUNJABI BAGH, NEW DELHI110026.
5. SH. NARENDER KUMAR
S/O LATE SH. PANI RAM
R/O QUARTER NO.D1,TOP FLOOR,
BLOCK NO.1, RAILWAY COLONY,
PUNJABI BAGH, NEW DELHI110026
Suit No.611793/16 Page No.1/11
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Also At:
Appearance Wireman C/o Sh. Yogesh Kumar,
Sr. Section Engineer, Power, Ajmeri Gate,
Delhi110006
....................DEFENDANTS
Suit filed on - 01.06.2015
Judgment Reserved on 09.04.2018
Date of decision - 09.04.2018
SUIT FOR RECOVERY OF Rs.2,65,000/ (Rupees Two Lakhs Sixty Five
Thousand only) ALONGWITH INTEREST
JUDGMENT: By this judgment I shall dispose off a suit for recovery of Rs.2,65,000// filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
Pleadings of the plaintiff :
1. The facts in brief relevant for the judgment, as per plaint, are that the plaintiff is a retired person from Railway and late Mr.Pani Ram was also the employee in Railway in his lifetime and very well known to the plaintiff. It is stated that Mr. Pani Ram approached the plaintiff in September 2011 for a loan of Rs.2,85,000/ for his personal and domestic needs and took the same on 30.09.2011 and Mr.Pani Ram promised to repay the loan amount of Rs.75,000/ in MayJune 2012 and to discharge his remaining liability of Rs.2,10,000/, Mr. Pani Ram issued as post dated cheque no.233247 dt.23.01.2013 of Rs.2,10,000/ Suit No.611793/16 Page No.2/11 3 drawn on Allahabad Bank, Baroda House, New Delhi in the name of the plaintiff and in this regard he also executed and signed a Receipt/Promissory note dt.30.09.2011. It is further stated that unfortunately Mr. Pani Ram expired on 19.06.2012 without repaying a single penny out of the abovesaid loan amount of Rs.2,85,000/.
It is further the case of the plaintiff that in the month of December, 2012, the plaintiff approached the defendants for repaying the said loan and also showed the receipts as well as cheque issued by late Sh.Pani Ram to the defendants as they received the beneficiary amount of late Mr.Pani Ram from his services as well as the defendants inherited the properties of Mr.Pani Ram. It is further claimed that defendant no.5 got his job on behalf of late Mr. Pani Ram.
It is further the case of the plaintiff that since January 2013, the plaintiff approached the defendants several times to repay the loan amount of Rs.2,85,000/ but the defendants kept on avoiding the same on one pretext or the other and finally on 28.03.2015, the defendant no.1 gave Rs.20,000/ as part payment and promised to repay the remaining amount within one month.
It is further the case of the plaintiff that on 28.04.2015, the plaintiff again approached the defendants and asked them to repay the remaining loan amount of Rs.2,65,000/ but the defendants straight away refused to pay even a singly penny to the plaintiff. It is further stated that defendants being the legal heirs of late Sh. Pani Ram are liable to clear all the debts and liabilities of Sh. Pani Ram.
It is further the case of plaintiff that defendants are liable to pay the interest @ 24% per annum w.e.f. 23.01.2013 (date of cheque) till the realization of loan amount. It is further averred that keeping in view the same, the plaintiff issued a legal notice dt.15.05.2015 upon the defendants asking them to clear the outstanding amount of Rs.2,65,000/alongwith interest @ 24% per annum, however, defendants did not reply the same.
Suit No.611793/16 Page No.3/11 4 Hence the present suit for recovery of an amount of Rs.2,65,000/ along with interest @ 24% per annum w.e.f. 23.01.2013 has been filed by the plaintiff against the defendants.
Pleadings of Defendants :
2. Subsequently, the WS was filed by defendants in which some preliminary objections were taken namely, the present suit is barred by Law of limitation, that present suit is liable to be dismissed in terms of Section 6 of Hindu Succession Act, as amended in 2005. It is further contended that present suit is filed with ulterior motive to extract money from the defendants.
In reply on merits, the defendant have denied all the averments made in the plaint, as false and frivolous and it has been prayed that the suit be dismissed with costs. It is further contended that plaintiff gave Rs.20,000/in cash for the expenditure in performing the last rites and rituals of the deceased Mr. Pani Ram and the defendant no.1 returned the said amount to the plaintiff in March 2015. It is further contended that the plaintiff deceitfully got the uneducated defendant no.1 signed on a document, wherein the liability of Rs.2,85,000/ has been admitted, stating that the same is only a receipt of Rs.20,000/ returned by defendant no.1 to the plaintiff. Thus it is contended that the present suit be dismissed with exemplary costs being devoid of any merits.
3. Replication has also been filed on behalf of plaintiff to the WS of defendants wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
4. From the pleadings of the parties the following issues were framed on 17.02.2016 :
1. Whether the suit is barred by period of limitation?OPD Suit No.611793/16 Page No.4/11 5
2. Whether the suit is liable to be dismissed as the same is hit by Section6 of Hindu Succession Act? OPD
3. Whether the plaintiff is entitled for the money decree as prayed for alongwith interest, if yes, then at what rate and for which period? OPP
4. Relief.
5. In order to prove his case, plaintiff got examined himself as PW1 who led his evidence by way of affidavit which is Ext. PW1/1A. Some documents were also exhibited by PW1 which are as under : The receipt is Ex.PW1/1, the cheque no.223247 is Ex.PW1/2, receipt issued to Raveti Devi/defendant no.1 is marked as Mark A, legal notice is Ex.PW1/4 and postal receipts are Ex.PW1/5.
PW1 was crossexamined by counsel for the defendants. PE was closed on 05.12.2016.
On the other hand, in order to prove their case, the defendants got examined defendant no.1 Smt. Raveti Devi and defendant no.2 Sh.Surender Kumar as D1W1 and D2W2 who led their evidence by way of affidavit which are Ex.D1W1/A and Ex.D2W2/A respectively. Some documents were also exhibited by D1W1 which are as under: The reply of legal notice dt.15.05.2015 vide reply notice dt.28.05.2015 alongwith speed post postal receipt are Ex.DW1/1 and Ex.DW1/2.
D2W2/defendant no.2 has relied upon the documents which are already Ex.DW1/1 and Ex.DW1/2.
Both the DWs were crossexamined by the counsel for the plaintiff.
Suit No.611793/16 Page No.5/11 6
6. The argument have been heard on behalf of parties and the record has been carefully perused. Now, I shall give my issuewise findings which are as under: First I shall take up the issue no.1
7. ISSUE NO.1 Whether the suit is barred by period of limitation? OPD The onus to prove this issue was upon the defendants. No evidence has been placed on record by the defendants to show that the present suit is barred by law of limitation. Moreover, a bare perusal of the receipt/promissory note i.e. Ex.PW1/1 through which the plaintiff lent the money to the deceased Sh. Pani Ram reveals that the same was executed on 30.09.2011 and a promise was made by the deceased Sh. Pani Ram to the effect that, the said loan shall be paid by 23.01.2013. The plaintiff has also placed on record the cheque I.e. Ex.PW1/2 dt.23.01.2017 issued by Sh. Pani Ram in favour of the plaintiff. In such circumstances, in the opinion of this court, Article 38 of Schedule appended to Limitation Act applies on the present case, which inter alia, provides that the suit for money, on a promissory note payable at a fixed time after date is to be filed within three years when the note falls due. In the present case as per the receipt/promissory note, the payment was to be made on or before 23.01.2013, as such the said document became due on 23.01.2013 and thus the suit could have been filed within three year thereafter. The present suit being filed on 02.06.2015, is well within the period of limitation. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
Now I shall take up issue no.2.
ISSUE No. 2 : Whether the suit is liable to be dismissed as the same is hit by Section6 of Hindu Succession Act? OPD Suit No.611793/16 Page No.6/11 7 The onus to prove this issue was upon the defendants. No evidence has been placed on record to prove the same. In the WS, it has not been mentioned as to under which SubSection of Section 6, Hindu Succession Act, the present case is not maintainable, however from the perusal of the WS it appears that the defendants have taken a stand that the loan being taken by the deceased Sh. Pani Ram, the defendants have no pious obligation to pay back the loan U/S 6 (4) of Hindu Succession Act. First of all, the pious obligation as mentioned U/S 6 (4) of Hindu Succession Act arises only in case of son, son's son and son's son's son and in the present case the defendant no.1 is wife of the deceased Sh. Pani Ram. Thus the Section 6 (4) of Hindu Succession Act does not apply in her case. Secondly, Section 6 of Hindu Succession Act provides for pious obligation of a son, son's son, son's, son's son for payment of any loan taken by his ascendant. Pious obligation provides for liability in the personal capacity of the son, son's son or son's son son out of his own assets. In the present case, the plaintiff has filed the suit against the defendants not in their personal capacity but as LRs of deceased Sh. Pani Ram who have inherited the property of the deceased. Thus, as such Section 6 of Hindu Succession Act so far it relates to pious obligation does not apply in the present case. Accordingly, the present issue is decided against the defendants and in favour of the plaintiff.
Now I shall take up issue no.3.
ISSUE NO.3:Whether the plaintiff is entitled for the money decree as prayed for alongwith interest, if yes, then at what rate and for which period? OPP The onus to prove this issue was upon the plaintiff.
In the present case, the plaintiff has placed on record Ex.PW1/1 i.e. receipt/promissory note whereby the deceased Sh. Pani Ram allegedly received the loan amount of Rs.2,85,000/ from the plaintiff. The plaintiff has also placed Suit No.611793/16 Page No.7/11 8 on record the cheque dt.23.01.2013, Ex.PW1/2, issued by the deceased Sh. Pani Ram in favour of the plaintiff, as a security for the loan. The plaintiff has also placed on record the document Mark A, which is receipt showing that the payment of Rs.20,000/ was made by defendant no.1 to the plaintiff in discharge of said loan of amount of Rs.2,85,000/. The document Mark A is the copy of the original, however, its execution has not been challenged by the defendants. It is stated on behalf of the defendants that the said document Mark A got executed by the defendants in favour of the plaintiff because of fraud committed by the latter, be that as it may, as the execution has been admitted, the same may be read in evidence.
As the document from which liability has arisen i.e. Ex.PW1/1 has been placed on record by the plaintiff which has been corroborated by Ex.PW1/2, the cheque given in security and document Mark A, the receipt of Rs.20,000/ given by defendant no.1 to the plaintiff. It may be stated that the plaintiff has discharged the initial onus lay upon him to prove that the loan was given by the plaintiff to deceased Sh. Pani Ram.
The version of the defendants is that the documents placed on record by the plaintiff are forged and fabricated. It is stated that the same were not prepared by deceased Sh.Pani Ram and his signatures have been forged. No document has been placed on record by the defendants to show that the original signatures of deceased Sh. Pani Ram were different from the ones which are shown in Ex.PW1/1 or Ex.PW1/2. Neither any other evidence has been placed on record to prove that the signatures are forged. Being the husband of the defendant no.1 and father of the other defendants, the defendants could have easily filed any document to show that the signatures of the deceased Sh. Pani Ram on documents Ex.PW1/1 and Ex.PW1/2 have been forged, though no such evidence has been placed on record. Also no complaint has been placed on record by the defendants against the plaintiff regarding the alleged forgery.
Suit No.611793/16 Page No.8/11 9 Further, regarding the cheque i.e. Ex.PW1/2, earlier the stand of the defendants was that the deceased Sh. Pani Ram did not have any account in the Allahabad Bank and thus it was stated that no such cheque could have been issued by the deceased Sh. Pani Ram. However, later on when an application was filed for summoning the witness from Allahabad Bank by the plaintiff, it was admitted, vide separate statement of counsel for the defendants, that the deceased Sh. Pani Ram indeed held an account in the Allahabad Bank. This casts a shadow of doubt n the defence taken by the defendants.
Furthermore, regarding the said cheque Ex.PW1/2 it has been stated that the same bears the date i.e. 23.01.2013 which was after the death of the deceased Sh. Pani Ram, thus it is claimed that said cheque is forged. Regarding this an explanation has been furnished on behalf of the plaintiff and it has been stated that the said cheque was handed over by the deceased Sh. Pani Ram to the plaintiff on the date of the execution of receipt/promissory note i.e. Ex.PW1/1 dt. 30.09.2011, as a security. In the crossexamination, the plaintiff has admitted that the contents of the said cheque and the date were filled by him, however, he maintained his stand that the said cheque was signed by the deceased Sh. Pani Ram. The liability in the present case has arisen from the receipt/promissory note Ex.PW1/1 and not from the cheque, as the cheque was issued only as a security and this stand has been maintained by the plaintiff throughout the trial. Thus, merely because the contents of the cheque and its date were filled by the plaintiff or that on the date mentioned in cheque, the deceased was not alive, no dent has been made in the case of the plaintiff. Moreover a complete silence has been maintained by the plaintiff regarding the fact as to how the said cheque landed in the hands of the plaintiff. The defendants alleging forgery were required to produce any evidence or any document to show as to how the said cheque came in the possession of the plaintiff. No complaint or missing report regarding the said cheque has been placed on record by the defendants.
Suit No.611793/16 Page No.9/11 10 Regarding the document Mark A which shows that the payment of Rs.20,000/ was made by the defendant no.1 in discharge of the loan given by the plaintiff to the deceased Sh. Pani Ram, it is stated by the defendants that the payment of Rs.20,000/ was made by defendant no.1 to the plaintiff because at the time of death of Sh. Pani Ram, the plaintiff paid an amount of Rs.20,000/ for funeral expenses as gesture of goodwill. It is further claimed that the payment of Rs.20,000/ was made on this account, however, the plaintiff fraudulently mentioned on document Mark A that the same was part payment of loan amount of Rs.2,85,000/ and it is further stated that the defendant no.1 being illiterate lady, fell in the trap of the plaintiff. The defendants have thus taken the defence of fraud against the plaintiff. No document has been placed on record by the defendants to prove the said fraud. Only two documents have been placed on record by the defendants to prove their case, one reply to the legal notice and second the postal receipt of said reply to legal notice. None of these documents are sufficient to prove the defence taken by the defendants. Moreover it is stated that the payment of Rs.20,000/ as funeral expenses was made in cash, however, receipt was taken in writing by the plaintiff. The same does not inspire any confidence, more so in view of fact that the content of documents Mark A state otherwise.
The cumulative effect of the above discussion is that though the defendants have taken the defence of fraud and forgery but, they failed to prove the same. The onus lay upon the defendants has not been discharged. Accordingly it is concluded that on the scale of prepondence of probabilities, the plaintiff has proved his case.
The plaintiff has also prayed for interest @ 24% per annum w.e.f. 23.01.2013 till the realization of the amount. But there is no such contract placed on record and, therefore, in my considered opinion, the rate of interest claimed by the plaintiff is found to be excessive and the plaintiff is entitled to receive interest Suit No.611793/16 Page No.10/11 11 @ 9% per annum from 23.01.2013 till date of decree. The present issue is decided in favour of the plaintiff and against the defendants.
8. ISSUE NO.4 RELIEF In view of the findings given on issues no.1 to 3, documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has proved the case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is decreed in favour of plaintiff and against the defendants and following reliefs are awarded to the plaintiff :
1. A money decree for a sum of Rs.2,65,000/ (Rupees Two Lac Sixty Five Thousand only) as principal amount alongwith interest @ 9% per annum from 23.01.2013 till the date of decree.
2. Costs of the suit.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities. DEEPAK Digitally signed by DEEPAK VATS VATS Date: 2018.04.09 15:14:16 +0530 (DEEPAK VATS) Civil Judge, Delhi (West)02 Announced in the open court on 09.04.2018 Suit No.611793/16 Page No.11/11