Delhi District Court
Sh. Pramod Kumar vs Sh. Narender Singh on 7 May, 2022
IN THE COURT OF
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS
NEW DELHI
Civil Suit No. 2007/2014 (5152007/2014)
In the matter of:
Sh. Pramod Kumar,
S/o Sh. Daya Chand
R/o C77, Mohan Garden,
Near Shiv Mandir, Nawada,
New Delhi
.....Plaintiff
Versus
Sh. Narender Singh
S/o Sh. Ajeet Singh
R/o RZ19A, Bajaj Enclave Extension,
Kakrola, (Opposite NIST) New Delhi
....Defendant
Appearance:
(i) Sh. Rajeshwar Dagar, Advocate Ld counsel for plaintiff
(ii) Sh. Kumaresan Advocate Ld counsel for the defendant.
Date of filing of the Suit : 04.07.2014
Date of final arguments : 26.04.2022
Date of judgment : 07.05.2022
SUIT UNDER ORDER XXXVII CPC SEEKING RECOVERY OF ₹
14,00,000/ (RUPEES FOURTEEN LAKHS) ALONG WITH
PENDENTILITE INTEREST @ 24 % P.A
CS No.2007/2014 (5152007/2014)
Pramod Kumar v. Narender Singh
Page No.1 of 16
JUDGMENT
1. Vide this judgment I shall dispose of the application moved by the defendant under Order XXXVII Rule 3(5) CPC seeking grant of the leave to contest the present suit.
2. The brief facts of the suit relevant for disposal of the present application are as under :
i) That the plaintiff and the defendant are known to each other and are having friendly relations for the last thirty years The defendant was in dire need of money for his business and approached plaintiff for the financial help of ₹ 14,00,000/ in the month of July 2011. The plaintiff agreed to give him the friendly loan of ₹ 14,00,000/ keeping in view the relationship between plaintiff and defendant.
ii) That defendant has received the friendly loan of ₹ 14,00,000/ (Rupees Fourteen lakhs only) on 23.07.2011 from the plaintiff through cheque bearing no. 629905 for ₹ 6,00,000/ (Six lakhs only) dt.
23.07.2011 drawn on Punjab National Bank, Dwarka, New Delhi and other postdated cheque bearing no. 629907 dated 01.08.2011 for ₹ 8,00,000/ (Eight lakhs only) drawn on Punjab National Bank, Dwarka, New Delhi respectively. That defendant also duly executed a Receipt/promissory note on 02.08.2011 in favour of plaintiff in the presence of two witness after receiving the friendly loan of ₹ 14,00,000/.
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iii) That the above said cheques were duly encashed by defendant and defendant promised to return the said friendly loan amount of ₹ 14,00,000/ (₹ Fourteen lakhs Only) on or before 28.12.2013 to plaintiff.
iv) That plaintiff after 28.12.2013 approached defendant on many occasions for return of the said amount of ₹ 14,00,000/ as per his promise, but defendant did not return said friendly loan amount and tried to linger on the matter on one pretext or other.
v) That the plaintiff sent the legal demand notice dated 18.04.2014 to defendant to return the friendly loan amount i.e. ₹ 14,00,000/ (₹ Fourteen lakhs Only), alongwith interest till date.
vi) That defendant is using the above said amount for his own purpose causing wrongful loss to plaintiff, hence defendant is also liable to pay interest @ 24% p.a. on the said amount to plaintiff.
vii) That defendant used the abovesaid friendly loan amount for his own purposes and thereby caused wrongful gain to him and wrongful loss to the plaintiff since the defendant has withheld the legitimate legal dues of plaintiff without any reason and justification hence the defendant are also liable to pay interest upon the aforesaid loan amount @ 24% per annum. Thus, defendant is liable to pay a sum of ₹ 14,00,000/ (fourteen lakhs only) alongwith interest with effect from 28.12.2013 till the filing of this suit. The defendant is further liable to pay pendent lite CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.3 of 16 and future interest upon the aforesaid loan amount @ 24% per annum from the filing of the present suit till the date of its realization.
viii) That the present suit of the plaintiff is based upon the receipt/promissory note executed on 02.08.2011 executed by the defendant in favour of the plaintiff, which was duly acknowledged and confirmed by the plaintiff. Thus, the present suit of the plaintiff is liable to be treated under the Summary procedure under Order XXXVII of the Code of Civil Procedure.
3. After filing of the suit, summons for appearance were issued to the defendant and in response to the same, the defendant filed his "appearance". Thereafter, plaintiff moved an application for issuance of 'summons for judgment' and the said application was allowed and 'summons for judgment' were accordingly issued to defendant and in response of the same, present application seeking unconditional leave to defend the present suit has been filed by the defendant.
4. In the application seeking leave to defend, defendant has averred that suit is not at all maintainable in the eye of law leave alone the right to contest, however, at this stage the defendant is filing the present application. There are several/various triable issues involved in the present suit which can be proved by defendant only after leading evidence. Following are the triable issues in the present suit :
i) That the present case is nothing but a back stabbing was done by plaintiff, who is friend of defendant and defendant having great faith on CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.4 of 16 him and used to believe him with closed eyes. This fact can only be proved after leading evidence.
ii) That the present case has been filed by the plaintiff on the basis of receipt/promissory note, the receipt/promissory note dated 02.08.2011 clearly shows that the receipt/promissory note was not valid at the time of filling of the suit. The present case is based on the alleged promissory note which is not valid in the eye of law.
iii) That the alleged transaction as mentioned in the suit has not been shown by the plaintiff in his Income Tax Return (ITR). Even if, we presume, for the sake of arguments, that the said alleged transaction as mentioned in the present suit has taken place. The said alleged transaction has not been shown by the plaintiff in the ITR, therefore, any such transaction is illegal transaction and cannot be supported by law.
iv) That the signatures on the promissory note is not of the defendant. The defendant has filed the complaint against the plaintiff for forging defendant's signatures on the Recipt/promissory note before the Delhi Police as soon as the defendant received the notice of the present suit. The fact of forging the signatures of defendant by plaintiff can be proved after leading evidence, which can only be possible if the present application is allowed and defendant be allowed to defend this summary suit.
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v) That since the receipt/promissory note has been typed much after the alleged date of execution of the said document and veracity of this document can be tested easily by ascertaining the age of the ink, which can be done only if the present application is allowed.
vi) That the detailed affidavit of plaintiff has not been filed along with the plaint, which is a mandatory requirement to bring any claim under the purview of Order XXXVII. Hence, the present case does not come under Order XXXVII and can only be treated as ordinary recovery suit.
vii) That the stamp paper on which the alleged promissory note is printed has not been purchased by the defendant and a bare perusal of the stamp paper will also show that the same would have been purchased after the date of the alleged date of execution of receipt/promissory note. This can only be proved and verified for the just conclusion of the case through evidence, and therefore, the application seeking leave to defend be allowed.
viii) That the defendant never signed any such promissory note so the witnesses could never be any attesting witness to the said receipt/promissory note. The forgery/cheating committed by plaintiff and the witnesses can only be proved by leading evidence hence this application be allowed.
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ix) That the defendant with one of his friend had met witness no. 2 i.e. Sh. Kapil to the receipt/promissory note and the said witness no. 2 had accepted that no such transaction as alleged in the receipt/promissory note had taken place in the presence of the said witness, therefore, to prove this fact the evidence is required in the present matter and defendant is entitled to unconditional leave to defend the present suit.
x) A bare perusal of the promissory note depicts that the sum of ₹ 14,00,000/ has been received by defendant in the presence of the two witnesses namely Mr Kishan and Mr Kapil Dev but the bank transaction affixed by plaintiff itself shows that some transaction of ₹ 14 Lakhs had definitely taken place in the month of June and July, 2011 whereby the defendant had taken out the money from the bank of plaintiff and returned to him, whereas the present receipt/promissory note shows that the alleged transaction has taken place in the presence of two witnesses on 02.08.2011.
xi) That plaintiff and defendant were old friends and plaintiff use to hand over the cheques (duly mentioning the name of the defendant) to defendant and defendant used to take out the money from bank of plaintiff. Defendant use to return the said money taken out by defendant to plaintiff. These type of transactions have been done by the defendant on several occasions. One Mr. Veer Singh, who was one of the partner with plaintiff and defendant in the property business, also used to CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.7 of 16 execute similar transactions from the bank of plaintiff. This Mr. Veer Singh will depose before the court that amount that was taken out by defendant from bank of the plaintiff, was returned by defendant to plaintiff. This fact can only be proved after leading the evidence. That the signature as affixed below the driving license attached along with the suit plaint is not that of the defendant. This fact can only be proved after leading the evidence.
5. Reply to this application has been filed wherein the contents of plaint are reiterated and interalia submitted that present application under reply is nothing but sheer abuse of the process of law in as much as a bare perusal of the documents filed with the plaint would clearly establish that the present application is sham one. The defendant is not entitled for any conditional or unconditional leave to defend the present summary suit.
6. It is submitted that the present suit has been filed by the plaintiff on the basis of promissory note duly signed and executed by the defendant and the same is duly acknowledged and confirmed by defendant. The plaintiff is entitled to a sum of ₹ 14 Lakhs from defendant. The Defendant is further liable to pay future as well as pendent lite interest @ 24% per annum on the said amount of ₹ 14 Lakhs from the date of filing of the present suit till its realisation.
7. That the defendant has attempted to somehow dispute the above fact only on the basis of bare allegations, without any iota of CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.8 of 16 evidence, the said allegations cannot act as a defence against the legitimate and genuine claim of plaintiff. The leave to defend application filed by the defendant discloses no triable issues, as required to grant leave to defend. Moreover, the plaintiff has made the payments through cheque and more particularly the defendant in clause 2 (vi) of the present application has admitted the execution of the document and the defendant in clause 2 (xi) is admitting to have taken out the money from the bank of plaintiff in the month of June and July, 2011, which payment was made to defendant through cheque. The defendant has tried to take contradictory stands, hence, the suit of the plaintiff may be decreed on this ground only.
8. That the defendant has not disclosed any substantial defence in his application seeking leave to defend and all the defence taken by the defendant in his application are frivolous and vexatious. Hence, the present application of defendant may be dismissed at the threshold. The defendant has not disclosed/attached his bank account details wherein he received the amount from plaintiff, which itself indicates the malafide intention of the defendant. The allegations of defendant are purely baseless, just to drag the matter, and did not discloses any triable issues. Moreover, no documentary evidence has been filed along with the leave to defend, therefore the suit of the plaint must be decreed at the threshold.
9. It is further submitted that the defendant was in dire need of money for his business and approached the plaintiff for the financial help CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.9 of 16 of ₹ 14,00,000/ in the month of July 2011. The plaintiff agreed to give him the friendly loan of ₹ 14,00,000/ and the defendant has received the friendly loan of ₹ 14,00,000/ (Rupees Fourteen lakhs only) on 23.07.2011 from the plaintiff through cheques as detailed in the plaint. The above said loan amount has been given through cheque by plaintiff to defendant, and defendant has not placed on record any documentary proof to show that defendant has returned the friendly loan amount to plaintiff. That defendant is a habitual offender and has a history of cheating and deceiving people by one way or the other. As per the knowledge of the plaintiff, one more complaint under Section 138 of N.I. Act has been filed against the defendant by one Sh. Ram Singh which is pending before the concerned court. In support of his contentions, counsel for the plaintiff has relied upon Sri Balaji Finance v. Suraj Prakash MANU/DE/0761/2014.
10. I have heard the counsel for the parties and with their assistance and have gone through the record.
11. The object for which the provisions of Order XXXVII of Code of Civil Procedure were brought on the Statute Book was to dispose off certain cases of the nature mentioned therein, in a summary manner, so as to save the precious judicial time. No doubt, while adhering to the object for which this provision was brought on the Statute Book, regard is to be had to the probable defence sought to be raised by the defendant and in case the same is found to be reasonable, raising certain disputed questions of facts, which can be ascertained CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.10 of 16 only during the course of trial, application for "leave to defend" should be allowed.
12. Keeping in mind the above mentioned object and before adverting to the rival arguments advanced, it would be appropriate to know the proposition of law for granting leave to defend, as laid down by the Hon'ble Supreme Court in the celebrated judgment, reported as AIR 2016 SC 5321 titled as "IDBI Trusteeship Services Limited v. Hubtown Limited. In the said case Hon'ble Supreme Court, while considering the summary provisions of Order XXXVII CPC, as well as the earlier precedents on this aspect, more particularly laid down in "Mechelec Engineers & Manufacturers v. Basi Equipment Corpn. 1976(4) SCC 687", which till date was holding fort, superseded the observations laid down earlier in "Mechelec Case (Supra)". Hon'ble Apex Court in "IDBI's Case (Supra)" had culled certain guiding principles to be observed while considering the application seeking "leave to defend". The said guiding principles are reproduced as under:
(i) If the defendant satisfies the court that he has a substantial defence, that is a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit;
(ii) If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign the judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
(iii) The question whether the defence raises a triable issue or not has to be ascertained by the court from the pleadings before it and the CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.11 of 16 affidavits of parties and it is not open to it to call for evidence at that stage.
(iv) Even if, the defendant raises triable issues, if a doubt is left with the trial judge about the defendant's good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
(v) If the defendant raises a defence which is plausible but improbable, the trial judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
(vi) If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith. XXX
(viii) If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.
13. It may be noted that the present summary suit was filed and thereafter, the matter was sent to mediation centre and vide order dated 30.06.2015, the matter was 'settled' and as per clause no. 5 of the mediation settlement, in case defendant fails to pay the balance sum of ₹ 10,00,000/ as agreed, the settlement dated 30.06.2015 shall become null and void. Thereafter, an application under Section 151 CPC was CS No.2007/2014 (5152007/2014) Pramod Kumar v. Narender Singh Page No.12 of 16 filed by defendant for reopening/restoring the present suit was moved. Thereafter, on 01.02.2020 defendant made a statement that he is willing to forego his claim of ₹ 4,00,000/, which was paid on 30.06.2015, as per Clause no. 2 of the mediation settlement. The defendant further submitted that he will withdraw his suit bearing no. 82/2018 titled as Narender Singh v. Pramod Kumar & Ors. In view of the same the application of the defendant under Section 151 CPC was disposed off on 01.02.2020.
14. An application under Section 152 was also filed on behalf of the plaintiff for making the decree in the present suit, wherein in para no.8 it has been averred that as per the conjoint reading of Rule 23 and 25 of Delhi High Court Rules 2004, when an agreement is reached between the parties, Mediator/Conciliator may obtain signature of the parties or their constituted attorney and on the receipt of any settlement, if the court is satisfied with regard to the settlement, it "shall" pass "a decree" in accordance with the terms thereof. However, this court could not passed a decree inadvertently, therefore, the said application was moved for passing the decree in the summary suit in terms of the settlement order dated 30.06.2015. It was provided that in the said order, that, in casem of nonpayment of ₹ 10,00,000/ this settlement will become void, therefore, no decree in terms of this application can be passed and, therefore, this application is dismissed. However, this is a summary suit and application seeking leave to defend was already filed, which has been disposed off, through this order.
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15. With the above said principles of law, I would like to advert to the facts of the present case. The sum and substance of the case of the plaintiff is that plaintiff has filed this summary suit with the pleadings that defendant availed a loan of ₹ 14 lakhs from plaintiff through cheques of ₹ 6 lakhs and ₹ 18 lakhs and the said cheques were duly encashed. Thereafter, defendant executed a promissory note dated 02.08.2011 in token of the receipt of said friendly loan of ₹ 14 lakhs undertaking to return the said loan of ₹ 14 lakhs to plaintiff on or before 28.12.2013. First of all, it may be noted that plaintiff has challenged the order dated 01.02.2022 which is pending before Hon'ble High Court of Delhi. The application moved by the plaintiff under section 152 CPC for preparation of the decree in terms of the mediation order dated 04.06.2012 has been dismissed and application under section 151 CPC moved by defendant was disposed off. The defence put forth by defendant is as under :
(i) That the plaintiff has not shown the alleged transaction in his income tax return.
(ii) The promissory note has been typed much after the alleged date of execution of the said document, therefore, age of the ink of the said document is to be ascertained as to whether the said promissory note has been forged and fabricated.
(iii) The stamp paper on which promissory note is written has been purchased after the date of execution of the promissory note.
(iv) The defendant has taken out the money from the bank of plaintiff in the month of June and July 2011 and returned to plaintiff, whereas, the promissory note has allegedly executed on 02.08.2011 in the presence of two witnesses namely Kishan and Kapil Dev, which fact raised the doubt regarding the authenticity of the promissory note.
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16. So far as the defence of the defendant that the amount got deposited by the plaintiff in the account of defendant was taken out by defendant and returned to plaintiff is concerned, this defence has no legs to stand upon in as much as a person of ordinary prudence will not take the cheque and deposit in his account and, thereafter, withdrawn the amount detailed in the said cheque from his account and will return the said amount to the drawer/plaintiff.
17. Even if, for the sake of arguments, this defence is presumed to be raising some good defence, however, this defence is further weakened by the act of execution of the promissory note by defendant in favour of plaintiff in the month of August 2016, in as much as after withdrawal of money as alleged from the bank account of plaintiff in June/July 2016, and allegedly having returned the same to plaintiff in cash, the defendant, thereafter, would not have certainly signed the promissory noted on 02.08.2011.
18. As far as the defence of defendant, that the promissory note is executed on 02.08.2011, therefore the suit is time barred is concerned, this fact is not supported by the documentary evidence in as much as the promissory note is dated 02.08.2011 and the present suit has been filed within the prescribed period of three years for filing the suit for recovery of money. Other defence regarding the mode and manner of execution of the promissory note is devoid of merits in as much as the stamp paper on which this promissory note is written was purchased on 03.03.2011 and it was executed on 02.08.2011, therefore, it can't be stated to be forged one.
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19. From the above said discussions, it can be safely concluded that defendant is neither entitled for conditional leave to defend nor found entitled to unconditional leave to defend the present suit in as much as the defence put forth by the defendant is only a moon shine and cannot be said to be a good defence in the eyes of law.
20. In view thereof, the application under Order XXXVII Rule 3(5) CPC is found frivolous and deserves to be dismissed and is accordingly dismissed. The suit of the plaintiff is decreed for the suit amount along with interest @ 6% interest.
21. In view thereof, the suit of plaintiff is "decreed" as follows :
a) Decree in the sum of ₹14,00,000/ (Rupees Fourteen Lakhs Only) alongwith pendente lite and future interest @ 6% p.a. is passed in favour of the plaintiff and against the defendant from the date of filing of suit till its realization.
b) Plaintiff is also entitled to cost.
Decree Sheet be drawn accordingly.
File be consigned to the Record Room.
Digitally
signed by
VIJAY VIJAY KUMAR
Announced in the open court on DAHIYA
KUMAR Date:
07th Day of May, 2022 DAHIYA 2022.05.24
10:16:00
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS, NEW DELHI.
CS No.2007/2014 (5152007/2014)
Pramod Kumar v. Narender Singh
Page No.16 of 16