Delhi District Court
Sh.Ashgar Ali vs Sh.Rohit Kumar Kaushal on 4 November, 2019
IN THE COURT OF SH. ARUN KUMAR GARG:
ADMINISTRATIVE CIVIL JUDGE cum COMMERCIAL
CIVIL JUDGE cum ADDITIONAL RENT CONTROLLER:
SOUTH WEST DISTRICT : DWARKA COURTS :
NEW DELHI
C.S. No: 439118/16
IN THE MATTER OF
Sh.Ashgar Ali
S/o Sh.Abdul Rahim
R/o C/o Omparkash Yadav
H. No.915, Street No.11,
Beer Bazar, Kapashera, Delhi 37 .....Plaintiff
Versus
Sh.Rohit Kumar Kaushal
Director of Om Sai Fabricators
AtE286287, Narayan Vihar,
New Delhi ...... Defendant
Date of filing : 02.07.2013
Date of Institution : 03.07.2013
Date of pronouncing judgment : 04.11.2019
SUIT FOR RECOVERY OF RS.2,15,000/
JUDGMENT
1 By this judgment, I will dispose off the present suit of plaintiff for recovery of Rs.2,15,000/ filed on 02.07.2013. CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 1 of 16 2 Brief case of the plaintiff, as per plaint, is that he was working as Tailor Master with defendant. Defendant has persuaded the plaintiff to get an auto financed and requested the plaintiff to contribute a sum of Rs.2,15,000/. Plaintiff has accordingly made the payment of Rs.2,15,000/ to the defendant in four installments of Rs.1,00,000/, Rs.60,000/ Rs.30,000/ and Rs.25,000/ each on 26.06.2011, 12.07.2011, 01.01.2012 and 25.06.2012 respectively without any receipt. However, according to him, defendant had handed over one slip in his own handwriting recording some of the said payments. 3 Subsequently, according to him, defendant had handed over a forged document of Canara Bank to assure the plaintiff that the sum of Rs.2,15,000/ paid by plaintiff had already been deposited by him with Canara bank and Canara Bank will grant the auto loan in the name of plaintiff and defendant. After coming to know about the forgery of the said document being forged and fabricated, plaintiff made several requests to the defendant to return the sum of Rs.2,15,000/, however, defendant has failed to refund the aforesaid amount to the plaintiff despite repeated requests and reminders and despite CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 2 of 16 service of legal notice dated 24.01.2013. Plaintiff was thus constrained to file the present suit for recovery of Rs.2,15,000/ from the defendant.
4 The aforesaid suit was disposed off by Ld. Predecessor of this court vide an exparte judgment dated 01.06.2015 and an ex parte decree in the sum of Rs.2,15,000/ was passed in favour of plaintiff and against the defendant alongwith pendentelite and future interest @6% per annum. Subsequently, the plaintiff has filed an application for execution of the aforesaid decree wherein the defendant appeared and moved an application u/o 9 Rule 13 CPC for setting aside the exparte decree. Vide order dated 22.08.2019, passed in Misc. SCJ No.151/2019, decree dated 01.06.2015 passed in the present suit was set aside subject to cost of Rs.10,000/ to be paid by defendant to plaintiff and also subject to deposition of principal decreetal amount by defendant in the name of court. Defendant has paid the aforesaid cost and has also placed on record an FDR of Rs.2,15,000/ in the name of this court on 05.09.2019. 5 On same day, defendant has filed his written statement to the suit of plaintiff, wherein, he has raised several objections to the CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 3 of 16 maintainability of the present suit including the objections in terms of Section 3 and 4 of Punjab Registration of Money Lenders Act, 1938 and Section 269 SS of Income Tax Act. He has also raised objection to the maintainability of the present suit in terms of Section 23 of Indian Contract Act. According to defendant, the suit of plaintiff is without any cause of action, in as much as, no transaction had ever taken place between the plaintiff and defendant nor the plaintiff had ever been employed by the defendant. Defendant has thus prayed for dismissal of the present suit of plaintiff with exemplary cost. 6 Rejoinder to the written statement of defendant was thereafter filed on behalf of plaintiff on 11.09.2019 wherein he has once again reiterated the plea taken by him in his plaint and has denied the contrary averments made by defendant in his written statement.
7 Thereafter, on the basis of pleadings of parties, following issues were settled by this Court vide order dated 11.09.2019:
1.Whether the plaintiff had made a payment of Rs 2,15,000/ to the defendant i.e. a sum of Rs 1,00,000/ on 26.06.11, Rs.60,000/ on 12.07.11 and Rs 30,000/ on CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 4 of 16 01.01.12 and Rs.25,000/ on 25.06.12 for getting an Auto financed? OPP.
2.Whether the acknowledgment regarding receipt of the aforesaid payment by the defendant filed by plaintiff alongwith the plaint is forged and fabricated? OPD.
3.Whether defendant is liable to return the aforesaid amount of Rs 2,15,000/ to the plaintiff? OPP
4.Whether the alleged transaction between the parties is hit by the provisions of Section 23 of The Indian Contract Act, 1872 consideration for the aforesaid transaction being unlawful? OPD.
5.Whether plaintiff is entitled to any interest, if so, at what rate and for what period? OPP
6.Relief.
8 Plaintiff has thereafter examined himself as PW1 i.e. the sole witness in support of his case and has tendered his evidence by way of affidavit Ex.PW1/1 alongwith following documents:
1.Ex.PW1/1: Copy of document acknowledging the receipt of Rs.1,44,900/ which has allegedly been issued by defendant
2.Ex.PW1/2: Transcript of conversation on phone between the plaintiff and defendant CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 5 of 16
3.Ex.PW1/3 (Colly): Original CD of recording of conversation between the parties alongwith certificate u/s 65B of Indian Evidence Act
4.Mark A: Copy of document allegedly issued by Canara Bank regarding approval of auto loan 9 PW1 was duly cross examined by counsel for defendant and during his cross examination, he has produced the day book register allegedly maintained by Supervisor of defendant which is Ex.PW1/4 (Colly). He has also produced the photocopies of two more documents which, according to him, were shown by defendant to plaintiff alleging the same having been issued by Canara bank which are Mark B (Colly). No other witness was examined on behalf of plaintiff and PE was closed vide order dated 01.10.2019.
10 It was submitted by counsel for defendant that defendant does not wish to lead any evidence in support of his plea taken by him in his written statement and hence, on the aforesaid submission of counsel for defendant, DE was closed on the same day. Final arguments were thereafter heard on behalf of both the parties on 22.10.2019.
CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 6 of 16 11 It is submitted by counsel for plaintiff that plaintiff has been able to prove his case by way of his uncontroverted testimony which is duly corroborated by documents tendered by him during his evidence. He submits that plaintiff is an illiterate person who was working as a tailor with defendant and at his advise, he had given the sum of Rs.2,15,000/ to the defendant on various dates for purchase of auto which was to be financed by bank in the name of defendant. However, according to him, no loan was sanctioned by bank as assured by defendant and according to him, plaintiff was constrained to file the police complaint against defendant and the present suit for recovery of aforesaid amount.
12 He submits that receipt of Rs.1,44,900/ executed by defendant in favour of plaintiff is already Ex.PW1/1 whereas the recorded conversation between the parties substantiating the plea taken by plaintiff in support of his plaint is Ex.PW1/3. He submits that on merits, there is no defence on the part of defendant in his written statement, nor the defendant has lead any evidence in support of his case. He submits that entire written statement of the defendant is full of evasive denials which amounts to CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 7 of 16 admission on the part of defendant of the case of plaintiff as per plaint. He submits that evidence of plaintiff cannot be considered to be beyond pleadings, in as much as, he has merely responded to queries put up to him and it is not mandatory that every fact proved by plaintiff should form part of his pleadings. He has thus prayed for decree of present suit in favour of plaintiff and against the defendant.
13 On the other hand, it is submitted by counsel for defendant that plaintiff has utterly failed to prove his case as pleaded in the plaint. In fact, according to him, plaintiff has not only pleaded his ignorance about the pleadings but also about the averments made by him in his evidence by way of affidavit. A bare perusal of para no.5 of the plaint and its comparison with deposition, according to him, shows that there are major contradictions in the testimony of plaintiff. He submits that the entire evidence of plaintiff regarding different payments allegedly made by him to defendant on different dates is thus clearly beyond pleadings. 14 He submits that plaintiff has failed to prove the payment of Rs.2,15,000/ allegedly made by him to defendant, in as much as, he has neither produced any receipt nor any agreement CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 8 of 16 between the parties in writing in this regard. The only placard Ex.PW1/1, relied upon by plaintiff, according to him, cannot be considered to be a proof of aforesaid payments, in as much as, plaintiff has failed to prove the aforesaid documents to be in the handwriting or under the signatures of defendant. He submits that court may compare alleged signatures of defendant on document Ex.PW1/1 with his admitted signatures. Even the amounts allegedly paid by plaintiff to defendant as per plaint as well as his evidence are not matching with the document Ex.PW1/1.
15 He submits that plaintiff, though, filed the day book Ex.PW1/4 during his cross examination, however, has failed to prove as to how the same has come in possession of plaintiff. He submits that plaintiff has failed to prove his source of funds for the alleged payment of Rs.2,15,000/ by him to defendant. Even CD Ex.PW1/3, according to counsel for defendant, has not been duly proved by plaintiff, in as much as, certificate u/s 65 B of Indian Evidence Act, has not been exhibited and plaintiff has failed to prove the device wherein the said conversation was CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 9 of 16 allegedly recorded by him before the court. He has thus prayed for dismissal of the present suit of plaintiff with heavy cost. 16 I have heard the submissions made on behalf of both the parties and have carefully perused the record of the present case. My issuewise findings, on the basis of material available on record, in the light of submissions made on behalf of the parties, are as follows : Issue No.1: Whether the plaintiff had made a payment of Rs.2,15,000/ to the defendant i.e. a sum of Rs. 1,00,000/ on 26.06.11, Rs.60,000/ on 12.07.11 and Rs 30,000/ on 01.01.12 and Rs.25,000/ on 25.06.12 for getting an Auto financed? OPP 17 Onus to prove the aforesaid was upon the plaintiff. As per the averments made in the plaint, plaintiff has made a payment of Rs. 2,15,000/ to the defendant in four installments of Rs. 1,00,000/, Rs. 60,000/, Rs. 30,000/ & Rs 25,000/ on 26.06.2011, 12.07.2011, 01.01.2012 & 25.06.12 respectively for getting an auto financed. In support of his aforesaid averments, he has relied upon the slip Ex.PW1/1 which, according to him, is not only in the handwriting but also under the signatures of defendant.
CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 10 of 16 18 During his examination in chief dated 01.10.2019, plaintiff has contradicted himself by alleging that around 20.06.2011, he had made a payment of Rs. 59,000/ to the defendant and within a day or two, another payment of Rs 35,900/ was made by him to the defendant. A sum of Rs. 5,000/ , according to him, was also deducted by defendant from the dues of plaintiff towards him. Further, a sum of Rs 60,000/, according to him, was given by him to the Supervisor of defendant on 12.07.2011 on telephonic instructions of defendant. Further, a sum of Rs. 30,000/ and Rs 25,000/ each, according to him, were given by him to the defendant on 12.01.2012 and 26.06.2012 respectively. The aforesaid plea taken by the plaintiff during his examination in chief dated 01.10.2019 is contrary to the plea taken by him in his plaint.
19 In fact, during his cross examination, plaintiff has pleaded ignorance about the contents of his plaint. Though, in support of his plea regarding payment of Rs. 2,15,000/ to the defendant, he has relied upon the slip Ex.PW1/1, however, plaintiff has failed to prove that same is either in the handwriting or under the signatures of defendant. The same does not record any CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 11 of 16 acknowledgement of receipt of any payment. Even otherwise, the aforesaid document at the best records acknowledgment of the receipt of Rs. 1,44,900/ only.
20 There is no document produced by the plaintiff in support of his plea that he has made the payment of Rs. 2,15,000/ to the defendant. Admittedly, there is no agreement in writing between the parties wherein the defendant had assured the plaintiff to get an auto financed on payment of Rs. 2,15,000/ by plaintiff to defendant. As has already been noted herein above, the plaintiff during his examination in chief has contradicted himself about the exact amount and dates of alleged payments, made by him to defendant from time to time. He has also failed to prove that document Ex. PW1/1 is either in the handwriting or under the signatures of defendant.
21 Plaintiff has even failed to prove his financial capacity to advance a sum of Rs. 2,15,000/ to the defendant. He has admitted during his cross examination that during the relevant period, he used to earn approximately a sum of Rs. 10,000/ per month. Though, he has alleged that his wife and children were also earning during the relevant period, however, he has failed CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 12 of 16 to produce any proof of the same. He has even failed to disclose the amount which was being earned by his family members. 22 Though, plaintiff has relied upon a recorded conversation between him and the defendant which, according to him, had taken place on 16.12.2012 and is in the form of CD Ex.PW1/3, transcript of which is Ex.PW1/2, however, in my considered opinion, plaintiff has failed to prove the said conversation by any primary evidence. Plaintiff has failed to produce the mobile phone in which the said conversation was recorded by him. Admittedly, the CD Ex.PW1/3, which is sought to be tendered by him in his evidence as Ex. PW1/3 (colly.) alongwith certificate U/s 65 B of Indian Evidence Act, was not prepared by him. He could not disclose the name and address of the person, who had allegedly prepared the aforesaid CD from the mobile phone of plaintiff. Though, as per the aforesaid certificate U/s 65 B of the Indian Evidence Act, plaintiff has lawful control over the mobile phone in which the said conversation was recorded, however, he has expressed his inability to produce the said mobile phone in the court. CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 13 of 16 23 Admittedly, neither the CD Ex.PW1/3 nor the transcript Ex.PW1/2 have been prepared by the plaintiff and the plaintiff has failed to examine any of the persons, who had allegedly prepared the said CD as well as the transcript. Thus, the said CD as well as transcript have not been duly proved by the plaintiff as per the applicable principles of law and hence, are liable to be ignored by the court.
24 Plaintiff has even failed to prove that he had ever been in the employment of defendant. Though, he has sought to place on record a register Ex. PW1/4 which, according to him, is a day book maintained by the Supervisor of defendant to prove his employment with the defendant, however, he has failed to explain as to how the same had come in the possession of the plaintiff. He has also failed to prove that the said day book had been maintained by the Supervisor of the defendant. Under the aforesaid circumstances, in my considered opinion, plaintiff has failed to discharge his onus to prove issue no.1 and that he had made the payment of Rs. 2,15,000/ to the defendant in four installments on different dates for getting an auto financed. Issue no.1 is ,thus, decided against the plaintiff. CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 14 of 16 Issue No.2: Whether the acknowledgment regarding receipt of the aforesaid payment by the defendant filed by plaintiff alongwith the plaint is forged and fabricated? OPD 25 Onus to prove the aforesaid was upon the defendant, however, defendant has failed to lead any evidence in support of his pleadings. Issue no.2 is, thus, decided against the defendant.
Issue No.3:Whether defendant is liable to return the aforesaid amount of Rs.2,15,000/ to the plaintiff? OPP 26 Onus to prove the aforesaid was upon the plaintiff. In view of my findings on issue no.1 hereinabove, since the plaintiff has failed to prove the payment of Rs. 2,15,000/ having been made by him to defendant and is entitled to return of the aforesaid amount by the defendant, issue no.3 is, decided against the plaintiff.
Issue No.4: Whether the alleged transaction between the parties is hit by the provisions of Section 23 of The Indian Contract Act, 1872 consideration for the aforesaid transaction being unlawful? OPD CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 15 of 16 27 Onus to prove the aforesaid issue was upon the defendant, however, defendant has failed to lead any evidence in support of his pleadings. Issue no.4 is. thus, decided against the defendant.
Issue No.5: Whether plaintiff is entitled to any interest, if so, at what rate and for what period? OPP 28 Onus to prove the aforesaid issue was upon the plaintiff. Since the plaintiff has failed to prove the liability of defendant to the extent of suit amount, there is no question of his entitlement to any interest on the suit amount. Issue no.5 is , thus, decided against the plaintiff.
Issue No.6: Relief 29 In view of my findings on issue nos.1 ,3 & 5 hereinabove, the suit of the plaintiff for recovery of Rs. 2,15,000/ against the defendant is hereby dismissed. Parties to bear their own costs. 30 Decree Sheet be prepared accordingly.
Announced in the open court on this 4th day of November 2019 This judgment consists of 16 signed pages (Arun Kumar Garg) ACJcumCCJcumARC(SW) Dwarka Courts, New Delhi CS No.439118/13 Ashgar Ali Vs. Rohit Kumar Kaushal Judgment dated 04.11.2019 Page 16 of 16