Delhi District Court
Sh. Sunil Sharma vs Sh. Virender Kumar on 26 November, 2018
IN THE COURT OF ACJCCJARC, SHAHDARA, KARKARDOOMA
COURTS, DELHI
Presided By : Sh. Sudhir Kumar Sirohi, DJS
Civil Suit No: 726/2017
Sh. Sunil Sharma
S/o Sh. Joginder Pal Sharma,
R/o 7, Rashid Market, Street No. 1,
Patparganj Road, Delhi 110051 ... Plaintiff
Versus
Sh. Virender Kumar
S/o Sh. Moti Lal
R/o X/1707, Gali no. 17,
Rajgarh Colony, Gandhi Nagar, Delhi 110031 ... Defendant
SUIT FOR RECOVERY OF RS. 1,13,500 (RUPEES
TWO LACS ONLY) ALONGWITH PENDENTELITE
AND FUTURE INTEREST @ 18% PER ANNUM
ALONGWITH COST AND EXPENSES OF THE SUIT
FILED UNDER ORDER XXXVII OF CODE OF CIVIL
PROCEDURE, 1908
DATE OF INSTITUTION : 11.07.2017
DATE OF ARGUMENTS : 26.10.2018
DATE OF DECISION : 26.11.2018
ORDER
1. The plaintiff has filed the present suit against the defendant under the provisions of Order XXXVII of CPC seeking recovery of Rs. 1,13,500/ along with pendentelite and future interest @ 18% per annum alongwith cost and expenses of the suit.
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2. The case of the plaintiff as discernible from the plaint is that the plaintiff and the defendant had friendly relations and defendant was in personal need of Rs. 1 lakh and sought help for Rs. 1 lakh from the plaintiff for the period of four months. Plaintiff lent him Rs. 1 lakh vide a separate loan agreement which was prepared, executed and signed/thumb between the plaintiff and the defendant on 01.05.2016. In the said loan agreement, the defendant acknowledged the receipt of said loan amount of Rs. 1 lakh and also issued and handed over one post dated cheque bearing no. 124994 dated 01.09.2016 amounting to Rs. 1 lakh drawn on IDBI Bank, Krishna Nagar, Delhi 110051 to the plaintiff for repayment of said loan/legal debt of Rs. 1 lakh. It is further averred that that defendant was bound to repay the said loan on or before 01.09.2016 to the plaintiff and after the expiry of said period on 07.09.2016, the plaintiff requested the defendant to return the said loan amount but he stated that he was not having funds to repay the debt and requested the plaintiff to present the said cheque for encashment in last week of October, 2016 and the defendant further assured that plaintiff regarding encashment of the said cheque on presentation. The defendant also agreed to pay an interest @ 18 % p.a. on the aforesaid loan amount till the date of its realization. Accordingly after sometime, the plaintiff presented the said chequ for encashment with his banker namely, SBI, Jagatpuri Branch, Delhi, however the said cheque was returned unpaid/dishonored by the banker of the defendant vide bank memo dated 01.11.2016. Defendant was giving assurance for repayment of loan to the plaintiff on 08.05.2017 and 15.05.2017 with interest but defendant has not paid the payment and he did not honor his promise rather stopped picking up telephonic calls of the plaintiff. Lastly plaintiff Civil Suit No. 726/2017 Sunil Sharma Vs. Virender Kumar Page No. 2 of 5 served a legal/demand notice dated 30.05.2017 (posted on 31.05.2017) upon the defendant and requested him to clear the loan amount alongwith interest but of no use as defendant neither replied the same nor complied with so far. It is further averred that after receiving the said legal notice, the defendant made a call to plaintiff and threatened him of dire consequences. Hence. The plaintiff has field the present suit before the court under Order XXXVII.
3. After service of summons, defendant filed appearance within the limitation period and upon filing of summons for judgment application, defendant filed leave to defend. Leave to defend was filed by the defendant within the period of limitation submitting that there is no privity between the plaintiff and defendant and no notice of liability was given by the plaintiff to the defendant at any point of time. Defendant has further taken the defence that the plaintiff is trying to cheat the defendant by fabricating/forging the blank signed papers, blank signed estamp and black signed cheque bearing no. 124994 of the defendant. Defendant further alleged that the defendant purchased a shop situated on a ground floor of property bearing no. A 31, Gali no. 23, Old Govindpura, Delhi 31 from the real sister of plaintiff namely, Pallavi Sharma for the consideration amount of Rs. 2, 80, 000/ and at the purchase of said shop, Rs. 1 lakh was lacking and in this regard, the sister of plaintiff took one blank signed estamp, two blank papers and one signed cheque bearing no. 124994 from the defendant. Defendant also alleged that she has already paid Rs. 1 lakh to the sister of plaintiff but she did not return the blank signed e stamp, two blank papers and blank signed cheques of the defendants submitting that the same are not traceable and the said documents have been used by the plaintiff.
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4. Defendant has taken the defence that the amount of Rs. 1 lakh for the sale transaction of property no. A 31, Old Gobindpura was due fom defendant to the sister of plaintiff Ms. Pallavi Sharma, therefore she gave blank signed e stamp, two blank signed papers and blank signed cheque in question to Ms. Pallavi and further averred that even after paying Rs. 1 lakh to Ms. Pallavi. The abovesaid documents have not been returned by Ms. Pallavi.
5. Ld. counsel for the defendant has relied upon the judgment titled as "G. Pankajakshi Amma & Ors. Vs. Mathai Mathew (Dead) Through Lrs & Anr. V (2005) SLT 599, Supreme Court of India decided on 31.03.2004". The facts of the said case is different from the present case as the said case is with respect to Chit Funds Transaction in which many documents allegedly signed on the same date in the same handwriting and the ink and at the time of Chit Funds Transaction entered between the parties and the defence was that, at the time of Chit Funds Transaction, large number of blank documents were signed and they have been used against the executor but in the present case there is only one transaction between the parties and alleged loan agreement was also executed with cheque, therefore alleged single transaction of Rs. 1 lakh cannot be termed as illegal transaction.
6. Plaintiff has filed loan agreement and the defendant has admitted his signature but took defence that it was blank signed documents. Defendant also admitted his signature on the cheque bearing no. 124994 for the amount of Rs. 1 lakh and the said cheque on presentation was dishonored not because of insufficient funds rather because of "drawers Civil Suit No. 726/2017 Sunil Sharma Vs. Virender Kumar Page No. 4 of 5 signature differs". This shows that the defendant deliberately put his different signature on the cheque bearing no. 124994 besides this, when alleged cheque was not returned despite the payment of Rs. 1 lakh by defendant to Ms. Pallavi Sharma, the defendant has not stopped the payment of cheque neither filed any police complaint. Moreover no date has been mentioned by the defendant when the amount was returned by the defendant to Ms. Pallavi Sharma, therefore this shows that the defendant's defence is illusory and moonshine and does not raise a triable issue in light of Section 20 of Negotiable Instrument Act. Hence, the application for leave to defend of defendant is dismissed and as per mandate of Section Order XXXVII Rule 3 (6), the decree for the sum of Rs. 1 lakh is passed in favour of plaintiff and against the defendant.
7. In the prayer clause of the plaint, the plaintiff has claimed pendentelite and future interest @ 18% per annum. In my view, in the facts and circumstances of the present case, the ends of justice would be met, if the plaintiff is granted pendentelite interest at the rate of 18 % per annum as per Section 80 of Negotiable Instrument Act and future interest @ 6 % per annum as per Section 34 of CPC. Plaintiff is also entitled to cost of proceedings. After filing of deficient court fees if any, decreesheet be prepared by the Reader, file shall be consigned to the record room.
Announced in the Open Court (SUDHIR KUMAR SIROHI) today on 26.11.2018 ACJ/CCJ/ARC(Shahdara),KKD, Delhi SUDHIR Digitally signed by SUDHIR KUMAR SIROHI Location: Shahdara, KUMAR ACJ/ARC/CCJ KKD Courts, Delhi SIROHI Date: 2018.11.26 16:42:33 +0530 Civil Suit No. 726/2017 Sunil Sharma Vs. Virender Kumar Page No. 5 of 5