Delhi District Court
Sh. Suresh Kumar Goel vs Sh. Tarun Kumar Nagpal on 23 January, 2019
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Suit No. : 1852/08 (Old); 94567/16 (New)
In the matter of:
Sh. Suresh Kumar Goel,
S/o Sh. S.K. Goel,
R/o D48, Rana Pratap Road,
Adarsh Nagar Extension,
Delhi110033. ....Plaintiff
Versus
Sh. Tarun Kumar Nagpal,
S/o Late Sh. Sain Dass Nagpal,
R/o D17, Rajan Babu Road,
Adarsh Nagar, Delhi110033. .....Defendant
Date of Institution : 22.01.2008
Date of order when reserved : 22.01.2019
Date of order when announced : 23.01.2019
JUDGMENT:
1. Vide this judgment, the undersigned shall decide the Suit No. 94567/16 1/24 present suit for recovery of Rs. 1,50,000/ (Rupees One Lac Fifty Thousand Only) alongwith pendentelite and future interest @ 24% per annum and costs, under Order XXXVII of Code of Civil Procedure filed by the plaintiff against the defendant.
2. The brief facts of the case narrated in the suit are that the plaintiff and the defendant are known to each other as they were having family terms with each other. The defendant took a loan of Rs. 1,50,000/ in two installments of Rs. 50,000/ and Rs. 1,00,000/ upon the execution of receipts in this regard. The defendant in the month of August, 2005 for repayment of the said loan amount also issued two post dated cheques bearing no. 975782 and 975796, both dated 07.11.2005 for Rs. 50,000/ and Rs. 1,00,000/, respectively in favour of the plaintiff which were drawn on Punjab National Bank, New Subzi Mandi, Azadpur, Delhi. However, the said cheques on presentation with the banker were dishonoured for insufficiency of funds vide returning memo on 11.11.2005. The plaintiff also sent a legal notice dated 17.11.2005 to the defendant vide registered A.D. and UPC, but the defendant failed to pay the aforesaid amount despite receiving of the said notice. Thereafter, the plaintiff filed a complaint U/s 138 Negotiable Instrument Act (hereinafter referred as N.I. Act) in the Court of Sh. Manish Gupta, Ld. MM, Rohini Courts, Delhi wherein the plaintiff has filed all the original documents. The plaintiff has also filed the present suit as the defendant has failed to clear Suit No. 94567/16 2/24 outstanding loan amount to the plaintiff.
3. Summons were served upon the defendant. He appeared and filed application for leave to defend and after hearing arguments, the application for leave to defend was dismissed vide order dated 18.09.2012 and the suit was decreed, however the said order was set aside by Ld. Appellate Court vide order dated 09.03.2015 and the matter was sent back for trial. Thereafter, written statement was filed by the defendant.
4. In the written statement, it is stated by the defendant that the present suit of the plaintiff is barred by limitation and is based on false and forged document. It is stated that the plaintiff has taken the cheques in question on the pretext that the goods were supplied as regard to the specs and lenses, but the said deal could not be matured, however instead of returning those cheques, the plaintiff filled up the cheques in question and presented in the bank for extorting the money from the defendant. The cheques were handed over in the mid of year, 2004 for supply of goods, but since the deal could not take place the cheques in question were not more than a waste paper. It is stated that the plaintiff once issued a letter dated 07.03.2005 to the defendant wherein a reference has been made as regards to the cheque in question which all the more shows that the cheques were already lying with him and in no probability were issued on 07.11.2005. It is stated Suit No. 94567/16 3/24 that the defendant after receipt of letter dated 07.03.2005 approached the plaintiff and sought an explanation as regard to the same upon which the plaintiff assured the defendant that the said letter was send inadvertently and promised to return the cheque at the earliest. On persistent demand of the defendant, it is stated by the plaintiff that the cheques were lost. The defendant was also shocked to know about the presentation of the cheques in the bank. It is admitted by the defendant that the cheques in question were got dishonoured because of "fund insufficient".
5. Replication to the written statement of defendant was filed by the plaintiff. The plaintiff has denied the allegations of the defendant and has reiterated the same facts as averred in the plaint.
6. Vide order dated 24.04.2015, on the basis of pleadings of the parties, following issues were framed:
i) Whether the plaintiff is entitled to a decree for a sum of Rs. 1,50,000/ alongwith interest w.e.f. August, 2005 @ 24% per annum till the date of its realization, as prayed for? OPP.
ii) Whether suit is barred by limitation? OPD.
iii) Whether suit is not valued as per law? OPD.
iv) Relief.
Suit No. 94567/16 4/24
7. In order to substantiate his case, the plaintiff has examined himself as PW1 and Sh. Mahesh Sharma, Branch Head, Punjab National Bank, Adarsh Nagar, Delhi as PW2.
8. In rebuttal, the defendant has examined himself as DW1.
9. PW1 Sh. Suresh Kumar Goel has deposed almost on the same lines as averred in the plaint. He proved certified copies of cheques bearing no. 975782 and 975796, respectively which are Ex. PW1/1 and Ex. PW1/2; certified copy of acknowledgment receipt dated 07.11.2005 is Ex. PW1/3; certified copy of Bank Memo of dishonoured cheques is Ex. PW1/4; certified copy of legal notice dated 17.11.2005 is Ex. PW1/5 and postal receipt, U.P.C. and A.D. Card are Ex. PW1/6; Ex. PW1/7 and Ex. PW1/8, respectively. In his crossexamination, it is stated by the witness that he is doing business of brokerage/ Commission Agent related to cereals at Naya Bazar. It is stated that in the year, 2005 he was doing the business of hosiery. It is stated that he used to maintain the books of accounts of his hosiery business in the year, 2005. He could not tell when he was started the business of hosiery and when the same was closed. It is accepted by him that he has not filed books of accounts related to year, 2005. It is stated that he used to pay income tax in the year, 2005. It is accepted by him that he has not shown the alleged friendly loan in Suit No. 94567/16 5/24 his books of accounts of hosiery business. It is stated by him that he was not doing the business of import of goggles and lenses. It is stated by him that he had mentioned about the receipt in his affidavit, however the same has not been filed on record. It is voluntarily stated by him that the same was misplaced and if found in future he would place the same on record. It is stated by him that the defendant had handed over the cheques in question to him first time in the month of August, 2005. A letter dated 07.03.2005 has been shown to this witness which was denied by him and it is stated by him that he has never sent that letter to the defendant. The letter was marked as MarkA. It is again stated by him that he had never sent any letter at any point of time in the month of March, 2005 to the defendant as regards to the cheques in question, or otherwise. This witness was confronted with an envelope upon which he admitted his handwriting at point encircle 'A'. The envelope is Ex. PW1/D1. It is stated by him that he had given the alleged loan in the beginning of year, 2005, however, he could not tell the exact month and date. He denied that the cheques in question were given as security qua supply of imported specs. It is stated by him that he is not doing the business of money lending. It is stated by him that notice, Ex. PW1/5 was sent upon his instance. It is stated that he also exhibited the document, Ex. PW1/3 which is an acknowledgment qua presentation of the cheques in the bank with the banker and it is not the confirmation of the loan. It is Suit No. 94567/16 6/24 stated by him that he was crossexamined in the case filed by him U/s 138 N.I. Act pending before the concerned Court.
10. PW2 Sh. Mahesh Sharma stated that he could not brought the record as the same belongs to the year, 2003. He exhibited a list, Ex. PW2/1 submitting that the relevant record has been weeded out by the bank.
11. No other plaintiff's witness was examined and plaintiff's evidence was closed.
12. In rebuttal, DW1 Sh. Tarun Kumar Nagpal has deposed that he has given two cheques to the plaintiff as security amount towards supply of the goods i.e. gogals, however the transaction could not take place and the said cheques remained nothing, but more than a piece of paper. It is stated that though he asked the plaintiff to return the said cheques, but the same was not returned by the plaintiff on lame excuses. The defendant had faith in plaintiff. It is stated that the plaintiff sidelined the friendly relationship between the parties and has filled up the cheques, however the cheques were never presented and a memo has been obtained. It is stated that the cheques were never hit in the bank account of the defendant, but the plaintiff has come forward with the plea that since the cheques stand dishonoured, a liability has arisen upon the defendant. The defendant has exhibited Suit No. 94567/16 7/24 his statement of account as Ex. DW1/1. It is stated that the plaintiff sent a letter dated 07.03.2005 to the defendant and the lifafa (envelope) which was containing the said letter was duly filled up by the plaintiff. The said letter is Ex. DW1/2 and the lifafa (envelope) is Ex. DW1/3 (already exhibited as Ex. PW1/D1). It is stated that in this letter, the plaintiff had stated that he would present the cheques of the defendant in the account for encashment. It is stated that the defendant raised objections qua that letter and the plaintiff had promised to the defendant to return the cheques very soon, despite that the plaintiff has not only filed the present suit, but also filed a criminal complaint U/s 138 N.I. Act. It is stated that there is no liability on the part of the defendant towards any such alleged loan. He exhibited certified copy of the statement given by the plaintiff in criminal complaint as Ex. DW1/4. In his crossexamination, it is stated by him that he was doing the business under the name and style of M/s Shivam Sun Gogals at 5456, Gandhi Market, Sadar Bazar, Delhi. It is stated that the said firm was the partnership firm and the name of the other partner was Sh. Sunil Kumar. It is stated that no bank account has been opened in the name of the said firm. It is accepted by him that Ex. DW1/1 i.e. his statement of account/ passbook does not show even a single commercial transaction done by him. It is accepted by him that Ex. DW1/1 belongs to his saving bank account. It is accepted by him that he has not placed on record even a single Suit No. 94567/16 8/24 document relating to the business transaction done with the plaintiff. He could not produce registration of any document i.e. Sales Tax, Excise, Import, Export Registration and Shop Act with respect to running of the business in the name of M/s Shivam Sun Gogals. It is accepted by him that since 2005 onwards he has not sent even a single notice to the plaintiff to return the cheques in question. It is accepted by him that he has not filed any Civil Suit to declare the cheques in question as null and void. It is accepted by him that Ex. DW1/2 (letter dated 07.03.2005) does not bear the handwriting, or signature of the plaintiff. It is accepted by him that Ex. DW1/3 does not bear any date, month, or year. This witness admitted certified copy of previous statement which was recorded in the criminal case, which is Ex. DW 1/P1. It is denied by him that in his statement, U/s 313 Cr.P.C. he had admitted his legal liabilities towards the issuance of the cheques. The certified copy of statement U/s 313 Cr.P.C. in the previous criminal case is Ex. DW1/P2. It is accepted by him that he has not lodged any police complaint against the plaintiff for not returning the cheques in question. It is stated by him that the plaintiff was running hosiery business in the year, 2004 alongwith his brother at Pahari Dheeraj, Sadar Bazar, Delhi. It is stated that the plaintiff was also doing his personal business i.e. Import. It is accepted by him that he has received legal notice, Ex. PW1/5. It is accepted by him that he has not replied the same. It is accepted by him that in Ex. PW1/1 and Suit No. 94567/16 9/24 Ex. PW1/2 (the cheques in question) the amount in the words and figures is in his handwriting. It is stated by him that he has two more bank accounts apart from the bank account qua which statement of account has been filed. It is stated that all his bank accounts are saving accounts.
13. No other defendant's witness was examined and defendant's evidence was closed.
14. The Court has heard both the parties and has perused the record as well as written arguments filed on behalf of parties.
15. Ld. Counsel for defendant has relied upon judgments delivered in cases titled as J. Devaiah Vs. Nagappa & Ors., AIR 1965 Mysore 102 (V 52 C 30) and A.E.G. Carapiet Vs. A.Y. Derderian, AIR 1961 Calcutta 359 (V 48 C 74).
16. The issue wise findings are as follows: ISSUES NO. 2 :
(ii) Whether suit is barred by limitation? OPD.
17. This is a mixed question of law and fact. The onus to Suit No. 94567/16 10/24 prove this issue was upon the defendant, however no evidence has been led by the defendant to prove this issue. The present suit was instituted on 22.01.2008. In the present matter, it is alleged by the plaintiff that in the starting of 2005 he gave the alleged loan to the defendant, however he could not tell the exact date, or month. Per contra, it is contended by the defendant at first place that the cheques in question were given to the plaintiff in mid of year, 2004 and at another i.e. in his crossexamination, it is stated by him that the cheques in question were issued in February, 2005. Thus, in the present matter, the exact date of giving the loan has not been mentioned, however, if this loan was given after 22.01.2005, than the present suit is within limitation being instituted on 22.01.2008. Further, even if, the alleged loan was given in the year, 2005, but prior to 22.01.2005 still the present suit is within limitation in view of the provisions of Section 19 of the Indian Limitation Act, as due to unconditional acceptance of the cheques towards repayment of loan the limitation for filing the suit for recovery has been extended. It is further to be noted that infact this issue is not even pressed by the defendant during crossexamination, or arguments. With these observations, this issue is decided in favour of the plaintiff and against the defendant.
Suit No. 94567/16 11/24
ISSUES NO. 3 :
(iii) Whether suit is not valued as per law? OPD.
18. This is a mixed question of law and fact. The onus to prove this issue was upon the defendant, however no evidence has been led by the defendant to prove this issue. In the present matter, the plaintiff has prayed for money decree of Rs. 1,50,000/ alongwith pendentelite and future interest. As per the Court Fees Act, Court Fees of Rs. 3,808/ is to be filed on the recovery suit of Rs. 1,50,000/, however in the present suit, the plaintiff has filed Court Fees of Rs. 3,812/, hence it is held that the present suit has been properly valued as per law, by the plaintiff. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUES NO. 1 :
(i) Whether the plaintiff is entitled to a decree for a sum of Rs. 1,50,000/ alongwith interest w.e.f. August, 2005 @ 24% per annum till the date of its realization, as prayed for? OPP.
19. It is deposed by PW1 that at the request of the defendant he gave a friendly loan of Rs. 1,50,000/ to him. To discharge the said loan, the defendant had issued two cheques in question to him. Since the cheques in question are bearing name of the plaintiff as payee and Suit No. 94567/16 12/24 signatures on the cheques are admitted by the defendant to be his own. It is also accepted by the defendant that he has written the name of payee as well as amount in words and figures in the cheques, hence, it is proved that cheques were issued to the plaintiff, consequently presumption U/s 118 (a) of N.I. Act would arise in favour of the plaintiff. The contention of Ld. Defence Counsel that presumption U/s 118 of Negotiable Instruments Act cannot be raised in civil matters is not tenable, Section 118 N.I. Act lays down special rule of evidence applicable to Negotiable Instrument. The presumption is one of law and thereunder a Court shall presume that the instrument was endorsed for consideration. The contention of Ld. Defence Counsel is misplaced in view of the fact that a criminal complaint U/s 138 N.I. Act can only be filed in respect of 'cheques', while the presumption U/s 118 N.I. Act are in respect of all the negotiable instruments. It is to be noted that there are other negotiable instruments as well, apart from cheque only, for e.g. promissory note/ bill of exchange. Thus, it is hereby held that presumption U/s 118 N.I. Act is applicable to civil matters as well.
20. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the plaintiff U/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for Suit No. 94567/16 13/24 consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
21. Now it will have to be examined whether the defendant has rebutted the presumption as contemplated by Section 118 (b) of Negotiable Instruments Act.
22. In a case on the basis of negotiable instrument, for e.g. cheque the plaintiff is only supposed to prove that the cheques issued by the defendant were dishonored, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the defendant to show the circumstances under which the cheques came to be issued and this could be proved by the defendant only by way of evidence and not by leading no evidence. By virtue of clause (a) of Section 118 N.I. Act Court is obliged to presume that the negotiable instrument was made for consideration until the contrary is proved. Initial burden lies on the defendant to prove the nonexistence of consideration which would lead the Court to believe the nonexistence of consideration either by direct evidence, or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful, or illegal; Mallavarupu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm, 2008 (7) SCC Suit No. 94567/16 14/24 655: 2008 (8) SCR 1210.
23. In order to rebut the presumption, the defendant, by cogent evidence, has to prove the circumstance under which the cheques were issued. It was for the defendant to prove if no loan was taken why he did not write a letter to the plaintiff for return of the cheques. Unless the defendant had proved that he acted like a normal businessman/ prudent person entering into a contract he could not have rebutted the presumption U/s 118 N.I. Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be returned and still cheques were not returned he would have served a notice as plaintiff.
24. Similarly in the present case it was for the defendant to prove why he did not write a letter to the plaintiff for return of the cheques in question. Unless the defendant had proved that he acted like a normal businessman/ prudent person entering into a transaction he could not have rebutted the presumption U/s 118 N.I. Act. It was for the defendant to have protested and asked the plaintiff to return the cheques and if still cheques were not returned he would have served a notice as plaintiff.
25. Therefore, after the establishment of the fact that the Suit No. 94567/16 15/24 cheques were issued by the defendant and specific statement of the plaintiff as stated above regarding liability of the defendant the burden to rebut the presumption shifted to the defendant. It is established principle of law that presumption of law as raised U/s 118 of the N.I. Act can be rebutted only by cogent evidence.
26. It is held by the Apex Court in Krishan Janardan Bhat Vs. Dattatrey G. Hegde, 2008 that it is for the Court to do a balancing act between the statutory presumption arising in favour of the plaintiff on one side and the material produced by the defendant to rebut such presumption on the other side with the view to ascertain the truth. In the present matter, the following facts shows that the defence of the defendant that cheques in question were given as security for future supply of goods is not a true one:
a) It is admitted fact that amount in words and figures in the cheques was filled by the defendant, thus the defendant was very much aware about the exact amount qua which he has issued the cheques, however he could not explain how this amount was calculated i.e. how much articles at which price were supposed to be supplied by the plaintiff to the defendant for which cheques in question were issued. The defendant could not show any document of placing any order qua supply of goods on the plaintiff. Infact the Suit No. 94567/16 16/24 defendant could not prove if the plaintiff was ever working as supplier of gogals, specs, lens of gogals. On the other hand, the plaintiff has stated that he used to work in the hosiery business with his brother and he was also working as agent of cereals in Naya Bazar. Infact it is admitted by the defendant that the plaintiff was running hosiery business in the year, 2004 with his brother. It is also to be noted that the cheques in question are of the personal saving bank account of the defendant and not of any current account of any business being run by the defendant in partnership, or otherwise. It is admitted by the defendant that statement of account of his personal saving bank account i.e. Ex. DW1/1 is not showing any commercial transaction being done from that account. It is highly improbable that a person would issue cheques of his personal account for the supply of the goods for his business. In these circumstances, it can be safely held that the defendant could not show that the plaintiff was running any business of supply of gogals, specs, lens of gogals, the defendant could also not prove for supply of how many articles at what price the cheques were issued. Thus, the defendant has failed to prove the circumstances under which the cheques in question were issued.
Apparently the defence of the defendant is a false one.
b) In the present matter, the defendant is taking shifting stands as in his written statement he has again and again stated that the cheques in question were given in mid of year, 2004, however in his Suit No. 94567/16 17/24 crossexamination, it is stated by him that the cheques in question were issued by him in February, 2005. In his written statement, it was stated by the defendant that he did not receive the legal notice dated 17.11.2005, Ex. PW1/5 sent by the plaintiff, however in his cross examination, it is admitted by him that he received the said legal demand notice. Thus, the defendant is not at all a reliable witness. These shifting stands raises a clear doubt on the version of the defendant. A person cannot rebut the statutory presumption of law by taking shifting stands.
c) It is accepted by the defendant that he received the legal notice dated 17.11.2005 Ex. PW1/5 sent by the plaintiff, however, it is submitted by him that he could not reply the same. Non reply of the legal notice shows that the defendant had nothing to say against the legal notice. It shows that he had no objection regarding presentation of the cheques for encashment (reliance being placed on Rangappa Vs. Mohan, 2010TLPRE0300 and Iftikar Alam Vs. Naved Hasan, 2012 (1) LRC 172 Delhi).
d) Admittedly, the name of payee and amount on cheques were filled up by the defendant, thus the defendant was fully aware that he has issued two cheques, total amounting to Rs. 1,50,000/ in favour of the plaintiff allegedly for supply of goods, however despite Suit No. 94567/16 18/24 nonsupply of the goods the defendant did not got the payment of the cheques in question stopped which clearly suggest that the defence taken by the defendant is an afterthought. Why the defendant kept silent and did not got the payment of the cheques stopped, or why not he had written a letter to the plaintiff stopping him from misusing his cheques. He has not taken any other legal remedy against the plaintiff.
e) It is alleged by the defendant that in the month of March, 2005 he received a letter from the plaintiff wherein the plaintiff threatened him of presenting the cheques in question for encashment. Though the defendant could not prove that letter as the typed letter is not bearing signatures of any person, further the envelope, Ex. DW 1/3 which is claimed to be containing that letter and is also bearing admitted handwriting of the plaintiff is not bearing any date, thus it cannot be presumed that the said envelope was containing the said letter dated 07.03.2005. Thus, the defendant has failed to prove receipt of any such letter sent by the plaintiff. The conduct of the defendant in not taking any action to stop the payment of said two cheques even after receiving the alleged letter dated 07.03.2005, shows only two things, either any such letter was not received by the defendant, or he was liable to pay in respect of cheques in question due to which he had not taken any action to prevent misuse of the same.
Suit No. 94567/16 19/24f) The defendant has also taken a glaring shifting stand in the present matter as in his written statement it was admitted by him that the cheques in question were presented in his account and the same were dishonoured due to the reason "Funds Insufficient". The plaintiff also proved this fact by proving on record dishonour memo as Ex. PW1/4 original of which was filed in the criminal case, the memo is on the printed paper of Punjab National Bank. The same is also bearing due stamp of Punjab National Bank alongwith signatures of an authorized official. However, when the plaintiff called witness from the bank, the witness could not brought the relevant record qua dishonour of cheques, as the same being old and weeded out. Thereafter, the defendant concocted a story that the cheques were never presented in his bank, he deposed on these lines in his affidavit, further to support his contention it is stated by the defendant that his statement of account is not showing the presentation of cheques in his account. Further, no penalty was deducted from his account for dishonur of cheques. This contention is of no avail to the defendant as he has himself admitted in his written statement qua presentation and dishonour of cheques in his account, same was his stand in the previous criminal case between the parties. It is to be noted that both the plaintiff and the defendant were having accounts in same branch of Punjab National Bank, apparently since the cheques were presented in the accounts in the same branch, hence the entry was not reflected in the account of the parties. Furthermore, there was no mandate for Suit No. 94567/16 20/24 stopping payment of the cheques, hence there was nothing precluding the plaintiff from presenting the cheques. Further, there was no benefit of the plaintiff in not presenting the cheques, or to got a forged memo issued as in any case there was no sufficient funds in the account of the defendant to honour the cheques. In these circumstances, the undersigned is of the considered view on the basis of matters before it that a prudent man ought, under the circumstances of this case would act upon the supposition that the cheques were presented in the bank and were dishonoured.
27. Though in the present matter alleged loan of Rs. 1,50,000/ was given in cash, there is no written agreement regarding that loan and the plaintiff could not prove the source from where he arranged the sum of Rs. 1,50,000/, he has also not shown the loan in his income tax return, but presumption U/s 118 of N.I. Act is a mandatory presumption in favour of the plaintiff and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by the defendant is reasonable. It must further be shown that the explanation is a true one. The task of the defendant is not as simple as for rebutting the statutory presumption he must place such material which can inspire confidence of the Court to believe the case of the defendant then that of the plaintiff who is in possession of the dishonored cheques issued by none else, but the defendant himself Suit No. 94567/16 21/24 (reliance placed on Attar Singh Wadhwa v. NCT of Delhi, Delhi High Court 23.12.2009). A fact is said to be proved when its existence is directly established or when upon the material before it Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. In the present matter, on the basis of abovestated discussion it can be safely held that the defence of the defendant is not a true one, as the same is inconsistent. Thus, the defendant failed to rebut the presumption U/s 118 N.I. Act. In the present matter, it has been established that the defence taken by the defendant is a false one. Since the defendant has failed to rebut the presumption this Court cannot ask the plaintiff to prove the liability of the defendant by positive evidence as the presumption is living and existing.
28. The contention of the defence that the counsel for the plaintiff has given suggestion that the cheques were given as security, hence it is infact admitted by the plaintiff that the cheques were not towards payment, is not tenable as the crossexamination has to be read in its entirety, apparently the suggestions given by plaintiff's counsel are not happily worded, however from perusal of the entire crossexamination of the defendant in the present matter as well as in the previous criminal case shows that the plaintiff has always contended that the cheques were issued towards repayment of the personal loan of Rs. 1,50,000/.
Suit No. 94567/16 22/2429. Thus, from the abovestated discussion, it is clear that the defendant has failed to rebut the presumption U/s 118 (b) of Negotiable Instruments Act.
30. Considering the entire evidence on record, it stands duly proved that the cheques in question which are Ex. PW1/1 and Ex. PW1/2 were issued and drawn in discharge of legal liability of the defendant and for consideration. It is held that the defendant is liable to pay a sum of Rs. 1,50,000/ to the plaintiff towards the payment of the alleged loan.
31. With these observations, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.4: Relief.
32. In view of the findings recorded on issue no.1, the Court holds that the plaintiff has proved his case and is entitled to a decree for recovery of Rs. 1,50,000/ alongwith pendentelite and future interest @ 9% per annum from the date of filing of the suit i.e. 22.01.2008 till the date of its realization. Costs are also awarded in Suit No. 94567/16 23/24 favour of the plaintiff. Decree sheet be drawn accordingly.
File be consigned to Record Room.
GAJENDER Digitally
GAJENDER
signed by
SINGH SINGH NAGAR
Date: 2019.01.23
NAGAR 14:40:31 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 23.01.2019 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi/23.01.2019
(This judgment contains 24 pages in total)
Suit No. 94567/16 24/24
CS94567/16
23.01.2019
Present : None.
Vide separate judgment of even date, the plaintiff is entitled to a decree for recovery of Rs. 1,50,000/ alongwith pendentelite and future interest @ 9% per annum from the date of filing of the suit i.e. 22.01.2008 till the date of its realization. Costs are also awarded in favour of the plaintiff. Decree sheet be drawn accordingly.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/23.01.2019 Suit No. 94567/16 25/24