Delhi District Court
Shri Goverdhan Dass vs Shri Silender Singh on 9 May, 2022
THE COURT OF SH. ANKIT KARAN SINGH,
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. 1594/18
Date of Institution : 07.12.2018
Date of reservation of judgment : 09.05.2022
Date of pronouncement of Judgment : 09.05.2022
Shri Goverdhan Dass
S/o Sh. Ram Kishan
R/o VPO Daulatpur,
Najafgarh, New Delhi110043
.................Plaintiff
Vs.
Shri Silender Singh
S/o Sh. Chanden Singh
R/o A8, 2nd Floor, Gali No. 15
Sitapuri, Part - I,
New Delhi110045
..............Defendant
SUIT FOR RECOVERY
JUDGMENT
1. Brief facts of the present case as per plaint are that plaintiff has friendly relation with defendant. It is stated that defendant took a friendly loan of Rs. 3,00,000/ on 30.08.2013 and executed an affidavit/declaration in favour of plaintiff and undertook to pay the abovementioned loan amount within one year. It is further stated that the defendant had issued a post dated cheque according to his CS SCJ No. 1594/18 Goverdhan Dass Vs. Silender Singh 1/8 affidavit/declaration vide no. 128330 dated 29.07.2014 of Rs. 3,00,000/, Oriental Bank of Commerce, 29, Auchandi Road, Bawana, Delhi39. It is further stated that when the said cheque was presented by the plaintiff in his bank for encashment same was dishonored and said fact was duly apprised to the defendant. It is further stated that thereafter defendant gave another cheque no. 474298 dated 09.09.2015, Corporation Bank, Sonepat Branch (0793), Sonepat131001 in lieu of the previous cheque and the said cheque was also presented twice but the same is returned unpaid with remark "fund insufficient" vide its return memo dated 01.12.2015 and 08.12.2015. It is further stated that plaintiff tried to contact the defendant and visited him personally for the recovery the loan amount but all in vain. Thereafter plaintiff sent a legal notice dated 18.12.2015 to the defendant but of no avail. Hence the present suit has been filed by the plaintiff.
2. By way of present suit the plaintiff has prayed for the following reliefs :
(a) Decree in favour of plaintiff and against the defendant for the sum of Rs. 3,00,000/ alongwith interest @ 18 % from the date of filing of present suit till the date of actual realization of decretal amount.
(b) Award the cost of the suit. ( c) any other relief (s)
3. Written statement has been filed on behalf of defendant wherein it is stated that the suit of the plaintiff is barred by law of limitation as the alleged date of grant of loan is 30.08.2013, whereas the present suit has been filed on 05.12.2018 as there is neither any CS SCJ No. 1594/18 Goverdhan Dass Vs. Silender Singh 2/8 averment in respect of any part payment or acknowledgment of alleged loan. It is further contended that the plaintiff has not approached this court with clean hands as he has falsely stated in the plaint that defendant has executed affidavit/declaration dated 30.08.2013 in his favour.
4. It is denied that defendant took a loan of Rs. 3,00,000/ from plaintiff on 30.08.2013. It is specifically denied that a cheque bearing no. 128330, Dated 29.07.2014 for Rs. 3,00,000/ was issued in favour of plaintiff in discharge of any legally enforceable debt or liability. It is further denied that another cheque bearing no. 474298 dated 09.09.2015, was issued by the defendant in lieu of first one.
5. Prayer is made for dismissal of suit.
6. Replication has been filed by the plaintiff wherein the averments made in the plaint are reiterated and contentions raised in the W.S are denied.
7. Vide Order dated 29.04.2019, following issues were framed :
(1) Whether the plaintiff is entitled to decree of recovery of Rs. 3,00,000/ alongwith interest @ 18% per annum as prayed for ?
(2) Relief.
8. In order to prove his case plaintiff has examined himself as PW1 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 1/1 and has relied upon the following documents :
CS SCJ No. 1594/18 Goverdhan Dass Vs. Silender Singh 3/8
1. Certified copy of documents as annexed in Ex.PW1/A complaint under Section 130 of NI Act. (colly) (As mentioned in affidavit as Ex.PW1/A to Ex.PW1/H)
9. Besides himself plaintiff has also examined Sh. Somnath, as PW2 who has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/1.
10. Vide statement made by plaintiff on 27.02.2020, PE was closed and the matter was listed for DE.
11. Despite giving various opportunities to defendant, right to lead DE stands closed on 18.12.2021 and the matter was listed for final arguments.
12. I have heard final arguments advanced by counsel for parties and perused the record carefully.
13. It is submitted by the counsel for the defendant The affidavit/declaration dated 30th of September 2013 is invalid in view of admission of the plaintiff during his crossexamination that he signed it as deponent. It is further submitted that cheque bearing No. 128330 dated 29th of July 2014 has never been presented for encashment as there is no evidence in this regard. It is further submitted that there is no evidence on record that cheque bearing No. 474298 was issued in lieu of the above mentioned Cheque bearing No. 128330. It is further submitted that the present suit is for recovery of Rs. 3 lakhs only whereas a demand of Rs. 6 lakhs is made in para 6 of notice dated 18th of December 2015. It is further submitted that the present suit is barred CS SCJ No. 1594/18 Goverdhan Dass Vs. Silender Singh 4/8 by law of limitation as the loan was given on 30 th of September 2013 and suit was filed on 06.12.2018.
14. In the present case following issue was framed on 29.04.2019:
"1. Whether the plaintiff is entitled to decree of recovery of Rs 3,00,000/ along with interest @ 18% p.a. as prayed for ?
2. Relief."
15. Even though no specific issue was framed in respect of limitation, still this point goes to the root of the case. Counsel for the plaintiff has submitted that the present case is governed by Article 35 of limitation Act and time begins to run from the date of the bill or note. Counsel for the plaintiff has also relied upon the judgment of Hon'ble High Court of Delhi in Ajanta Raj Proteins Pvt Ltd. Vs Himanshu Foods Pvt. Ltd, 2018 (2) ADR 506, submitting that cause of action arose only when the cheque was dishonoured.
16. Counsel for the defendant has relied upon the judgment of Hon'ble Supreme Court in Jiwanlal Achariya vs Rameshwarlal Agarwalla, 1967 AIR 1124, submitting that for the purpose of sec 20 of the Limitation Act, the date of payment of the debt is the date when the postdated cheque was delivered to the creditor and not the date which the cheque bore not the date when it was cashed.
17. Even if we accept the submission of the counsel for the plaintiff that article 35 of limitation Act applies in the present case then the limitation period will begin from the date of the bill or cheque. The CS SCJ No. 1594/18 Goverdhan Dass Vs. Silender Singh 5/8 cheques are dated 29.07.2014 and 09.09.2015. Even if we take the date of issuance of second cheque into consideration then also the suit is barred by limitation as the present suit filed on 06122018. Not only that, even if we take the date of first presentment (i.e. 27.11.2015) of cheque and its return date (i.e. 01.12.2015), then also, the suit filed by the plaintiff on 06122018 is barred by limitation from date of its return.
18. Counsel for the plaintiff has not shown any authority with regard to the point that limitation period is to be reckoned from the date of second presentment return memo. Issue of limitation is a mixed question of fact and law. It was upon plaintiff to show that the present suit falls within the limitation period. Plaintiff has failed to show that the suit was filed within limitation period. The judgment of Hon'ble High Court of Delhi in Ajanta Raj Proteins Pvt Ltd. Vs Himanshu Foods Pvt. Ltd, 2018 (2) ADR 506, goes against the case of the plaintiff as even if we calculate the period of limitation from the date of dishonour of cheque for the first time still the case does not come within the period of limitation. In view of the above, this court finds that the suit filed by the plaintiff is barred by law of limitation.
19. Affidavit/declaration filed by the plaintiff bears the signature of plaintiff at the place of deponent instead of defendant in one place. No explanation has been given by the counsel for plaintiff why plaintiff signed at the place of deponent. This court does find merit in submission of the counsel for the defendant that Affidavit/declaration has superseded text over the signature of the parties.
CS SCJ No. 1594/18 Goverdhan Dass Vs. Silender Singh 6/8
20. Counsel for the defendant has also invited attention of this court to the fact that vide order dated 11.02.2020, defendant was acquitted in NIA proceedings initiated by the plaintiff regarding same cheque. This court cannot be guided by the judgment of Ld. MM in NIA proceedings. The burden of proof in civil proceedings is different from that of criminal proceedings. In Dr. N.G. Dastane vs Mrs. S. Dastane on 19 March, 1975, AIR 1975 SC 1534, (1975) 2 SCC 326, Hon'ble Supreme Court observed that:
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a factsituation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at CS SCJ No. 1594/18 Goverdhan Dass Vs. Silender Singh 7/8 the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subjectmatter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
21. In the present case, plaintiff has not been able to prove its case. This court has also found the present case to be barred by law of limitation. In view of the above findings and observations, the present suit stands dismissed.
No order as to costs.
File be consigned to record room after due compliance.
Digitally signed by ANKIT KARAN ANKIT KARAN SINGH
SINGH Date: 2022.05.10
18:18:18 +0530
Pronounced in the open court (Ankit Karan Singh)
today i.e. on 09.05.2022 Civil Judge01(West)/Delhi
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