Delhi District Court
Shri Arun Kumar vs Smt. Rohini Sharma on 9 July, 2009
IN THE COURT OF SH.T.S. KASHYAP , ADDL.DISTT. JUDGE ,
DELHI
SUIT NO:38/03/C
SHRI ARUN KUMAR
S/O SHRI KASHMIRI LAL
R/O D12/11 , MODEL TOWN,
DELHI110 009 PLAINTIFF
VS.
SMT. ROHINI SHARMA
D/O SHRI RUDRA DUTT GAUTAM,
R/O IA161, NIT ., FARIDABAD DEFEDANT
DATE OF PRESENATION OF SUIT : 12.09.2003
DATE OF ARGUMENTS : 08.07.2009
DATE OF DECISION : 09.07.2009
SUIT FOR RECOVERY OF RS. 15,30,500/
J U D G M E N T
The suit has been filed by plaintiff Sh. Arun Kumar
against Smt. Rohini Sharma , defendant for recovery of Rs.15,30,500/
alongwith cost and interest @ 18% per annum pendent elite as well as
future till realisation.
2 Briefly stated the facts of the case as contained in the
plaint are that the defendant approached the plaintiff for a personal
loan of Rs.10 lacs and created an equitable mortgage of her property
bearing No.IA161, NIT Faridabad by deposit of title deed with the
plaintiff as collateral security and also executed a written Tehrir /
Contd.2/
2
receipt dated 3.3.2000 at Delhi according to which she had undertaken
to return the amount within 45 days failing which the defendant gave
the plaintiff right to sell the mortgage property and to realise the dues
and get the property mutated in his name. However, it is alleged that
the defendant has failed to repay the loan amount as undertaken
within the stipulated period of 45 days and has been postponing the
return of loan on one or the other pretext and, therefore, plaintiff is
now entitled for money decree and to realise the suit amount by sale of
property. The plaintiff had also sent a legal notice dated 25.1.2003
which was received back with refusal report and, therefore, the
plaintiff has also claimed interest @ 18% per annum w.e.f. 3.3.2000
till 31.1.2003 Rs.5,25,000/ alongwith legal charges Rs.5500/ total
amount Rs. 15,30,500/.
3 Defendant contested the suit by filing a written statement
taking preliminary objection that this court has no territorial
jurisdiction; that the plaintiff has filed a false and frivolous suit which
is not maintainable as the defendant has not taken any loan ; that the
suit is based on mortgage property but the defendant has not filed any
mortgage deed and the alleged written Tehrir is fabricated and
manipulated by the plaintiff who has no cause of action to file the
present . On merits, also the defendant has denied having taken any
loan from the plaintiff and has alleged that written Tehrir is fabricated
and manipulated and the question of relinquishment of any right by
the defendant in the property does not arise . It has been claimed that
Contd.3/
3
the defendant has not received any alleged notice , nor refused to
receive the same and the question of repayment of the loan does not
arise.
4 The plaintiff has also filed a replication controverting the
pleas taken in the written statement and reiterating the facts as stated
in the plaint.
5 On pleadings of the parties following issues arose and were
framed:
1 Whether the Delhi court has jurisdiction to entertain
and try this suit ?OPP
2 Whether the written Tehrir is fabricated and manipulated
by the plaintiff?OPD
3 Whether the plaintiff is entitled to the suit amount as
claimed ?OPP
4 Whether the plaintiff is also entitled for interest as
claimed?OPP
5 Relief.
6 No other issues arose or pressed. The plaintiff appeared in
the witness box as PW1 and tendered his affidavit Ex.PW 1/A
corroborating the facts and documentary evidence Ex.PW 1/1 to
Ex.PW1/6. He was also cross examined by ld. counsel for the
defendant and plaintiff's evidence was closed by ld. counsel in
affirmative. However, the defendant has not led any evidence despite
sufficient opportunities and, therefore, defendant's evidence was
closed.
Contd.4/
4
7 I have heard the arguments from ld. counsel for the plaintiff but
no one has appeared on behalf of the defendant to address the
arguments. My findings on the issues are as under :
I S S U E N O : 1
8 Onus to prove this issue was on the plaintiff who has
testified that on 3.3.2000 Smt. Rohini Sharma , defendant had
approached the plaintiff at his Model Town , Delhi address for
personal loan of Rs.10 lacs and created an equitable mortgage of her
property by deposit of original title deeds of the said property as
collateral security and she had undertaken to refund loan amount
within 45 days but she failed to refund the amount and the legal notice
sent to the defendant was received back with refusal report . He has
proved original Tehrir/receipt Ex.PW 1/1 , legal notice Ex.PW1/2 ,
the postal receipt Ex.PW 1/3, UPC and postal receipt Ex.PW ¼ and
Ex.PW 1/5 and returned registered envelope Ex.PW 1/6 with the
postal endorsement "refused". In the cross examination PW 1 has
admitted that the defendant took loan amount in connection with
construction of her property in which she was staying and she is
owner thereof. He has denied the suggestion that he has not given
loan of Rs.10 lacs to the defendant. He has fairly admitted that certain
lines on the documents bear /cutting which does not bear any initial.
She has explained that whatever cutting appears on the document
Ex.PW 1/1 it pertains to the time of payment of money . He also admits
that the address of the witness and the defendant are of Faridabad. He
has denied the suggestion that the document was executed at
Contd.5/
5
Faridabad, he has also denied the suggestion that the document was
already signed or that it was forged by him. Ld. counsel for the
defendant in the cross examination submitted that the affidavit Ex.PW
1/A filed by witness PW1 contains encircled portion Mark X on first
page of the affidavit which is beyond pleading as this fact was not
pleaded in the plaint. However, a perusal of the plaint reads " In this
connection , the defendant also executed a written Tehrir on 3.3.2000
at Delhi according to which the defendant was to return the amount
within 45 days..." which clearly shows that the part cause of action
occurred at Delhi . The witness has denied the suggestion that the
defendant never met him and visited his house . It is pertinent to
mention that ld. counsel for the defendant admitted the document
Ex.PW 1/1 on behalf of the defendant. According to ld. counsel for the
plaintiff since the part cause of action arose at Delhi and in terms of
Section 20 ( c ) CPC, the Court at Delhi has jurisdiction to entertain
and try the suit. Even though no one has appeared on behalf of the
defendant to address the argument but in the written statement
reference has been made to authority reported as AIR 1964 Madras
527 and Bombay L.R. 825 . However, this suit is only for recovery of
money and, therefore, with due respect these authorities are not
applicable on the facts and circumstances of this case. Since the
plaintiff has categorically claimed that the defendant had executed the
document Ex.PW 1/1 dated 3.3.2000 at Delhi . Therefore, the part
cause of action arose at Delhi . Therefore, the Court at Delhi has
jurisdiction to entertain and try the suit. The issue is decided in
Contd.6/
6
favour of the plaintiff and against the defendant.
I S S U E N O : 2
9 Onus to prove this issue was on the defendant but the
defendant has not led any evidence . On the contrary, ld. counsel for
the defendant on behalf of the defendant admitted the document
Ex.PW 1/1 on 10.7.2007. Therefore , the defendant has failed to prove
that the document was fabricated and manipulated. The issue is
accordingly decided in favour of the plaintiff and against the
defendant.
I S S U E N O : 4
10 Onus to prove this issue was on the plaintiff who has
testified that the defendant had taken loan of Rs.10 lacs from the
plaintiff and executed the document Ex.PW 1/1 dated 3.3.2000 at
Delhi but the defendant failed to repay the loan amount within
stipulated 45 days, even after legal notice Ex.PW1/2. The legal notice
Ex.PW 1/2 was sent to the defendant at her correct address through
UPC and registered AD post and, therefore, the endorsement of the
Postman 'REFUSED' by the defendant has to be treated correct and
the defendant is deemed to have been served with the legal notice and
she has failed to repay the loan amount. Therefore, the plaintiff is
entitled for recovery of the amount alongwith cost and legal notice
charges. The issue is accordingly decided in favour of the plaintiff and
against the defendant,
Contd.6/
7
I S S U E N O : 5
11 Onus to prove this issue was on the plaintiff who has
claimed interest @18% per annum w.e.f. 3.3.2000 . However , in my
considered view , the plaintiff cannot claim interest for the period of
45 days allowed as per Ex.PW 1/1 . Notice Ex.PW 1/2 was sent on
15.1.2003and the refusal endorsement by the Postman on the legal notice is dated 25.1.2003 and, therefore, in my considered view the plaintiff can charge interest only from 25.1.2003 , because the endorsement on Ex.PW 1/1 does not specify any interest payable on the loan. However, since the amount was paid by the plaintiff as loan to the defendant repayable with certain time but the defendant has failed to repay the same, therefore , claim of interest @ 18% per annum is reasonable. The same is accordingly allowed but with effect from 25.1.2003 . Issue is accordingly decided in favour of the plaintiff and against the defendant.
RELIEF 12 In view of my finding on the above issues , the plaintiff is entitled for recovery of Rs. 10 lacs along with cost and interest @18% per annum w.e.f. 25.1.2003 pendent elite as well as future till realisation . Decree sheet be drawn accordingly. Case file be consigned to RR.
ANNOUNCED IN OPEN COURT ( T. S. KASHYAP ) 9.7.2009 ADDL.DISTRICT JUDGE CENTRAL18 SUIT NO: 38/03 9.7.2009 PRESENT: NONE.
Vide separate order dictated to the steno, the suit of the plaintiff has been decreed against the defendant for recovery of Rs.10 lacs along with cost and interest @ 18% per annum w.e.f. 25.1.2003 pendent elite as well as future till realisation. Decree sheet be drawn accordingly . Case file be consigned to RR.
( T. S. KASHYAP ) 9.7.2009 ADDL.DISTRICT JUDGE CENTRAL18