Delhi District Court
Prateek Mehta vs Nainy Nayyar Malhan on 22 May, 2024
IN THE COURT OF VIKAS GARG, DISTRICT JUDGE-05
(EAST), KARKARDOOMA COURTS, DELHI.
Suit No. 323/2022
CNR No. DLET01-005960-2022
Prateek Mehta
S/o Shri Ashwani Mehta,
R/o. 6/273, Geeta Colony, Delhi-110031,
Off. 2/120, Geeta Colony, Delhi-110031
Also at:-
CH. No. E-606, Lawyers Chamber,
Karkardooma District Court, Delhi-110092 ...........Plaintiff
Versus
Nainy Nayyar Malhan,
W/o Sh. Umang Malhan,
D/o Late Sh. Vimal Nayyar,
R/o. G-108, Pocket-G, Sarita Vihar,
New Delhi-110076
Also at:
House No. 55, Upper Ground Floor,
Engineers Enclave, Pitampura,
New Delhi-110034 ...........Defendant
CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 1 of 39
VIKAS Digitally signed
by VIKAS GARG
Date: 2024.05.22
GARG 13:59:32 +0530
Date of Institution : 02.07.2022
Date of Final Arguments : 16.05.2024
Date of Decision : 22.05.2024
Final Decision : Decreed
SUIT FOR RECOVERY FOR A SUM OF RS. 7,85,145/-
(RUPEES SEVEN LACS EIGHTY FIVE THOUSAND ONE
HUNDRED FORTY FIVE ONLY) ALONG WITH
PENDENELITE AND FUTURE INTEREST.
JUDGMENT
1. By this judgment, the plaintiff's suit seeking the recovery of Rs. 7,85,145, along with pendente lite and future interest, shall be adjudicated.
CASE OF THE PLAINTIFF'S AS PER PLAINT Briefly, the essential facts required for a fair adjudication of the present suit, as presented in the plaint, are as follows:
2. It is averred by the plaintiff in the plaint that the plaintiff is practicing advocate in Hon'ble High Court and all District Courts of Delhi having his permanent place of residence at Geeta Colony, Delhi and having his Chamber at E-606, Lawyers Chamber, Karkardooma District Court, Delhi and office at Geeta Colony, Delhi. That the Plaintiff and the Defendant were on friendly terms since May-June, 2019 being in the same college and friends on social media. It is further averred that in the month of July, 2019, Defendant told the Plaintiff that her husband is CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 2 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 13:59:44 +0530 working in a Merchant Navy and is presently out of India and he will come back in the month of November-December, 2019. It is further averred that the Defendant also told the Plaintiff that at present she is facing financial hardship in day to day expenses and accordingly, the Defendant requested the Plaintiff for financial assistance for her day to day expenses. It is further averred that the Defendant also promised and assured the Plaintiff that she will repay back the amount to the Plaintiff when her husband will come back to India, in or around the month of November-December, 2019. It is further averred that on repeated and constant requests of the Defendant and keeping in view of the friendly relations, Plaintiff agreed to financially assist the Defendant and as per the request of the Defendant, from 18.07.2019 till 31.12.2019, Plaintiff advanced a sum of Rs. 3,60,341/- (Rupees Three Lacs Sixty Thousand Three Hundred and Forty One Only) to the Defendant via PAYTM transfer from his Paytm Account no. 9911886609 to the Paytm Account at 9811777706 of Defendant, on the pretext that the Defendant shall return back the said friendly loan amounts to the Plaintiff when her husband will return back to India. It is further averred that out of the total payment of Rs. 3,60,341/-, part payment amount of Rs.28,500/-, i.e. Rs. 8,500/- on 11.09.2019, Rs. 11,000/- on 18.08.2019, Rs. 9,000/- on 12.10.2019 has been transferred by the Plaintiff to the Defendant at the office of the Plaintiff at Geeta Colony, Delhi as the Defendant visited the office of the Plaintiff and requested for the same. It is further averred that on 27.09.2019, the Defendant has repaid an amount of Rs. 500/- to the Plaintiff and accordingly, an amount of Rs. 3,59,841/- is CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 3 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 13:59:58 +0530 outstanding payable due by the Defendant to the Plaintiff. It is further stated that besides this, on 21.08.2019, the Defendant requested the Plaintiff that her mobile handset is not working properly and the Defendant once again requested the Plaintiff for financially assisting for purchasing a new mobile handset (Samsung Galaxy Note 10+) via Credit Card so that the Defendant can pay the total amount in installments/E.M.I.'s to the Plaintiff. It is further averred that as per request of the Defendant and after lots of persuasions, the Plaintiff provided the financial assistance-loan in purchasing Samsung Galaxy Note 10+ mobile handset on 22.08.2019 worth Rs.79,999/- from Samsung Store, Rajouri Garden, New Delhi to the Defendant though credit card in E.M.I.'s. It is further averred that the Defendant assured the Plaintiff that the EMI's for the same shall be paid by the Defendant to the Plaintiff from the month of January, 2020. It is further averred that in the month of September, 2019 the Defendant once again requested the Plaintiff to get an Apple Macbook and Apple I-pad from the Plaintiff's Credit Card on E.M.I.'s and the Defendant also assured the Plaintiff that EMI's for the same shall be paid by her to the Plaintiff from the month of January, 2020. It is further averred that on 10.09.2019 as per request of the Defendant, the Plaintiff once again provided financial assistance-loan to the Defendant in purchasing an Apple Macbook and Apple I-pad from the Plaintiff's Credit Card on E.M.I.'s worth Rs. 1,12,900/- and Rs. 55,900/- respectively from Apple Store, Netaji Subhash Palace, New Delhi from his credit card. It is further averred that in the month of January, 2020 the Plaintiff contacted the Defendant and requested her to repay back CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 4 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:00:09 +0530 the aforesaid amount of Rs. 3,59,841/- (Three Lacs Fifty Nine Thousand Eight Hundred and Forty One Only) alongwith E.M.I.'s of aforesaid Mobile Handset, Apple Macbook and Apple I-pad. It is further averred that the Defendant started making lame excuses to the Plaintiff on the pretext and she told the Plaintiff that "I am in search of suitable job and I need some time to repay the above said loan and clear the E.M.I's." It is further averred that the Defendant promised the Plaintiff that she will make the repayment to the Plaintiff from the month of February, 2020. It is further averred that in February, 2020 the Plaintiff once again requested the Defendant to return the aforesaid loan amount of Rs. 6,08,640/- (Rupees Six Lacs Eight Thousand Six Hundred And Forty Only) towards friendly loan transferred by the Plaintiff to the Defendant alongwith E.M.I.'s of aforesaid Mobile Handset, Apple Macbook and I-pad, but the Defendant kept delaying the repayment on the one pretext or another. It is further averred that since 18.07.2019 till 31.12.2021, the Plaintiff has given friendly loan upto the tune of Rs. 6,08,640/- (Rupees Six Lacs Eight Thousand Six Hundred And Forty Only). It is further averred that it is clear that the Defendant has cheated the Plaintiff and the Defendant did not keep her promises of making repayment of the friendly loan of Rs. 6,08,640/- (Rupees Six Lacs Eight Thousand Six Hundred And Forty Only). It is further averred that from the conduct and behavior of the Defendant, it is established that the Defendant induced the Plaintiff to part away from his hard-earned money on the pretext of friendly relations, without having any intentions to return the borrowed amount of Rs. 6,08,640/- to the Plaintiff. It is further averred that the CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 5 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:00:20 +0530 Defendant is liable to repay the total loan amount of Rs. 6,08,640/- advanced by the Plaintiff on various occasions as stated above and to help and assist the Defendant in her financial hardship. It is averred that the Plaintiff has been constantly making phone calls to the Defendant for repayment of loan amount of Rs. 6,08,640/- (Rupees Six Lacs Eight Thousand Six Hundred And Forty Only) but the Defendant did not pay any heed to any of the requests made by the Plaintiff for repayment of balance amount. It is further averred that in the month of January, 2020 the Defendant failed to make the return the amount of Rs. 6,08,640/- to the Plaintiff. It is further averred that on 17.03.2020, the Plaintiff through his counsel sent a legal demand notice dated 16.03.2020 to the Defendant through Speed Post which has been refused to receive by mother of the defendant. It is further averred that mother of the Plaintiff called telephonically to the Plaintiff and she confirmed the fact of sending legal demand notice. It is further averred that however instead of making the repayment, the mother of the Defendant started giving false assurances on the one pretext or other. It is further averred that in March, 2022 the Plaintiff filed an application for Mediation and Conciliation before the Delhi High Court Mediation and Conciliation Centre (SAMADHAN) at Hon'ble High Court of Delhi, New Delhi. It is further averred tht accordingly, notice of the said application was duly served to the Defendant but the Defendant failed to join the said proceedings despite service of notice. It is further averred that now the Plaintiff is constrained to file the present recovery suit before this Hon'ble Court. It is further averred that now the Defendant is CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 6 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:00:31 +0530 liable to make the payment of Rs. 6,08,640/- along with pendente lite interest @ 12% p.a. and future interest at 18% p.a., as declared herein under:-
Principal Amount :Rs. 6,08,640/- Interest at 12% p.a. : Rs. 1,76,505/- from 01/01/2020 till 31/05/2022 Total :Rs. 7,85,145/-
(Rupees Seven Lacs Eighty Five Thousand One Hundred Forty Five only) Plaintiff prayed in the plaint to pass the decree in his favour in the following terms:
a) a decree for an amount of Rs. 7,85,145/- (Rupees Seven Lacs Eighty Five Thousand One Hundred Forty Five only) in favour of the Plaintiff against the Defendant; and
b) a decree of interest @ 18% p.a. towards pendente lite and future interest in favour of the Plaintiff against the Defendant from the filing of the present suit till its realization; and
c) cost of the litigation charges be also awarded in favour of the Plaintiff and against the Defendant; Or
d) any other or further relief(s), which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, may also be granted in favour of the Plaintiff and against the Defendant, in CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 7 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:00:44 +0530 the interest of justice.
3. Upon receiving the summons, the defendant appeared and filed her written statement.
CASE OF THE DEFENDANTS AS PER HER WRITTEN STATEMENT:-
Briefly, the essential facts required for a fair adjudication of the present suit, as presented in the written statement, are as follows:
4. In the preliminary objections & submissions, it is averred in the written statement that the instant suit filed by the Plaintiff is false, frivolous, misconceived and devoid of any merit both on facts and on propositions of Law. It is further submitted that the Plaintiff has not approached this Court with clean hands apart from concealing and distorting the material facts, hence the present suit is liable to be dismissed. It is further averred that the plaintiff for such unjust enrichment, ulterior motives and against the Principles of fair play and good faith has suppressed certain material facts qua the instant case and thus the instant suit is liable to be dismissed on this short ground alone. It is further stated that no cause of action has ever arisen in favour of the Plaintiff and against the Defendant, hence, the present suit is liable to be dismissed, it being without any cause of action. It is further stated that the defendant had never approached the plaintiff for any financial assistance, therefore the question of alleged liability to be discharged by the defendant does not arise at all. It is further averred that the plaintiff and defendant were/are known to each other since many years i.e. 2005-2006 as CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 8 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:00:54 +0530 plaintiff was a college friend of the defendant and plaintiff was also known to the family of the defendant and plaintiff also became very friendly & familiar to the family of the defendant and as such over a period of time, the plaintiff became a good friend of the defendant and the plaintiff had also been able to gain and gather enough trust and faith of the defendant & her family, however, the plaintiff being a good friend of the defendant took undue and unfair advantage of the fiduciary relationship enjoyed between them. It is further averred that in the year, 2017 the plaintiff represented that he was in dire need of some financial assistance for some time and had approached & requested the defendant to grant a friendly loan of Rs. 2,00,000/- (Rupees Two Lakhs Only) for 6-7 months. Upon request of the plaintiff, the defendant had agreed to do the same and as such amount of Rs.2,00,000/- (Rupees Two Lakhs Only) was given in cash by the defendant to the plaintiff as friendly loan, moreover, the plaintiff had also represented that the said loan was secured loan and would be returned. It is further averred that the plaintiff failed to honor his commitment as he did not return the said loan as promised by the plaintiff within the time. It is stated that the plaintiffs on each occasion and occurrence used to plead and request for more time, in return promising and reassuring the defendant of being repaid/returned next time and kept on pleading time for the repayment of the said aforesaid loan till December, 2017. It is averred that the plaintiff also promised that he would be paying damage/interest @ 9% per annum on the aforesaid loan for its intervening period. It is further averred that in the year 2018, the plaintiff again approached for further loan CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 9 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:01:06 +0530 of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) which was also given in cash by the defendant and believing in the assurance of the plaintiff of repayment of the loan along with damage/interest, the Defendant again extended the friendly loan of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) to the plaintiff and as such the defendant extended loan of Rs. 3,50,000/- in total to plaintiff. It is stated that the plaintiff on each occasion and occurrence used to plead and request for more time, in return promising and reassuring the defendant of being paid next time and kept on pleading time for the repayment of the said aforesaid loan till June, 2019 and after much persuasion the plaintiff started making repayment of the aforesaid loan through Paytm Transfer in bits & pieces from July, 2019 onwards and somehow repaid the aforesaid loan through Paytm Account Transfer by December, 2019 & the amount over & above of Rs. 3,50,000/- (Rupees Three Lakhs Fifty Thousand Only) paid through Paytm Account Transfer by the plaintiff was adjusted towards damage/interest on the said aforesaid loan and remaining interest was to be paid by the plaintiff to the defendant. It is further averred that the plaintiff also stressed on a fact during repayment of the said loan advanced by the defendant to the plaintiff that he was planning to apply for a loan in future for which he would require a respectable Cibil Score [The Credit Information Bureau (India) Limited] from the bank, which could positively fulfill his loan requirements. It is further averred that it was also agreed by the Plaintiff that he would repay all the loan amount back to the Defendant through Account Transfers as soon as possible. It is further averred that till date, the plaintiff has CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 10 of 39 Digitally signed by VIKAS VIKAS GARG Date: GARG 2024.05.22 14:01:20 +0530 only transferred the defendant approximately sum of Rs. 3,60,000/- (Rupees Three Lakhs Sixty Thousand Only) out of the total outstanding amount via Paytm Account Transfers, however, the plaintiff with malafide intention has misused the entry shown/reflected in Paytm Accounts, which was actually a repayment of advance loan extended by the defendant to the plaintiff and as on date it is plaintiff who owed damage/interest and is liable to be paid by him to the defendant. It is further averred that in the month of August, 2019 defendant wanted to purchase mobile, keeping in mind the fact that plaintiff asked her to let him know whenever she wants to purchase any product as he was having a credit card, plaintiff would purchase for her via online transfers, as he wanted to complete/increase his CIBIL Score of the Bank, by reflecting more and more online transactions on regular basis which would reflect in his account statement and thereafter, his CIBIL Score would automatically get increased and he would be able to avail loan facility in future. It is further averred that a mobile phone was to be purchased by the defendant by paying cash, but plaintiff insisted that it would be better to give the said cash directly to him and he will pay instead in her name from his credit card, therefore the plaintiff took the payment of the mobile phone in cash from defendant and he made the payment through his credit card through E.M.I in order to increase his CIBIL Score. It is further averred that it is most respectfully submitted that in the month of September 2019, when she wanted to purchase an Apple I-Pad and Apple MacBook, the plaintiff again insisted the defendant to let him purchase through his Credit Card through E.M.I's from bank to CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 11 of 39 Digitally signed by VIKAS VIKAS GARG Date:
GARG 2024.05.22
14:01:31
+0530
which the defendant denied but after constant requests by the plaintiff she agreed and gave the full cash payment for the said items to the plaintiff in front of the shopkeeper who can also be a witness for the same. It is further averred that in the month of January, 2020, certain personal disputes arose between the parties and it led to end of the friendly relationship enjoyed between them and in order to satisfy his alter ego and personal vendetta, the plaintiff misused all the entries of repayment of the loan advanced to the plaintiff by the defendant and entries of credit card against the cash payment made by the defendant against the purchase of aforesaid gadgets to the plaintiff and filed a present frivolous suit, despite the fact that it is the plaintiff who owes some money towards interest/damage against the advance loan to him which is yet to be paid by him to the defendant and as such the present suit is not only a sham and baseless, but also a great example of pot calling the kettle black. It is further averred that the defendant had not taken any alleged financial assistance and/or friendly loan from the plaintiff at any point of time. It is further averred that the defendant belong to a well off family as in the year, 2011 she is married to Mr. Umang Malhan, who is working in Merchant Navy as Officer (COFF) and she was never in any financial hardship at any point of time after her marriage and even before and as such, there is no cause of action in favor of the plaintiff against the defendant and the instant suit is barred as per Order 7 Rule 11 of the Code of Civil Procedure, 1908. It is further averred that the plaintiff is raising illogical and illegal claim against the defendant without any basis and foundation and as such in the light of above mentioned facts the instant suit is CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 12 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:01:41 +0530 liable to be dismissed on this short ground alone. It is further averred that the plaintiff has not come to this Hon'ble Court with clean hands and has suppressed the material facts. It is further averred that the plaintiff has approached this Hon'ble Court in gross misuse of the process of law and the court and the plaintiff has no locus standi to file the present suit, therefore the present suit is not maintainable and is bad in law and liable to the rejected. It is further averred that save and except what have been specifically admitted herein with regard to the Plaint, rest of the contents of the Plaint are not admitted and are denied by the Defendant.
While replying on merits in her written statement, defendant denied most of the averments of plaint and rebutted those averments by referring to averments made by her in above-said preliminary objections and submissions. She prayed for dismissal of the suit with costs.
REPLICATION:-
5. The plaintiff filed replication to the written statement of the defendant wherein he has denied the submissions of the defendant as contained in the written statement and has reaffirmed and reiterated the contents of the plaint.
6. On completion of pleadings following issues have been framed on 10.11.2022:
i). Whether the plaintiff is entitled to a decree for CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 13 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:01:50 +0530 an amount of Rs. 7,85,145/- (Rupees Seven lakhs eighty five thousand one hundred forty five only)? OPP
ii). Whether the plaintiff is entitled to any interest, if so at what rate? OPP
iii). Relief.
No other issues arose or pressed at that time.
Plaintiff Evidence:-
7. Plaintiff Sh. Prateek Mehta examined himself as PW-1 and tendered his affidavit Ex. PW1/A in his examination in chief, wherein contents of the plaint has been reiterated. He has also relied on the following documents-
(1) Copy of Adhar Card as Ex. PW-1/1.
(2) Payment schedule as Ex. PW-1/2.
(3) Paytm statement of plaintiff as Ex. PW-1/3. (4) Mobile Bill dated 22.08.2019 as Ex. PW-1/4. (5) Bills dated 10.09.2019 for Apple Mac Book and Apple-1-pad as Ex. PW-1/5 (colly).
(6) Payment of receipts dated 10.09.2019 as Ex PW-1/6 (OSR). (7) Legal Notice dated 16.03.2020 as Ex. PW-1/7. (8) Postal receipt as Ex. PW-1/8.
(9) Returned back envelope as Ex. PW-1/9. (10) C.D. and transcript of conversation between plaintiff and mother of defendant as Ex. PW-1/10 (colly). (11) Screenshots of Facebook Messenger chats as Ex. PW-1/11 (colly).
(12) Affidavit of plaintiff u/s 65B of Evidence Act as Ex. PW-
CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 14 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:01:59 +0530 1/B. During cross-examination, PW1 Prateek Mehta stated that he has been practicing advocate since 2010. He further stated that he has been filing income tax returns since 2010-2011 or 2021-2022. He admitted that he has not filed ITR return on record but he can bring the same, if asked to do so. On question from when he knows the defendant, he replied that he first talked to the defendant through Facebook messenger in the last week of May, 2019 as they were in the same college i.e. Amity Law School, Noida. He denied the suggestion that he knew the defendant much prior to the year 2019 i.e. since 2005-2006. He further stated that in the year 2019 the defendant was already married and the defendant told him that her husband was serving in the Merchant Navy. He admitted that the husband of the defendant was getting a handsome income/salary. He admitted that in the year 2006, he and the defendant were in the same college/Amity Law School. He voluntarily stated that when he joined the college/Amity Law School, the defendant left from there. He further stated that he never talked with the defendant at that time. He denied the suggestion that he knew the defendant since 2006 and over the period of time they became good friends. He further denied the suggestion that they were friends to each other. He further denied the suggestion that in the year 2017, he was in the dire need of money (Rs. Two lacs) and approached the defendant for the same and requested the defendant to grant him a loan of Rs. 2 lacs for 6/7 months. He further denied the suggestion that upon his request a loan of Rs. 2 lac was granted to him in cash by CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 15 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:02:10 +0530 the defendant. He further denied the suggestion that he assured the defendant that the said loan of Rs. 2 lacs was a secured loan and would be returned back on time as promised. He further denied the suggestion that he failed to repay the said loan till December, 2017. He further denied the suggestion that he promised to pay a damage/interest @ 9% per annum on the said loan for the intervening period. He further denied the suggestion that he was in need of financial assistance of Rs. 1.5 lacs. He further denied the suggestion that he approached the defendant for a loan of Rs. 1.5 lacs in the year 2018. He further denied the suggestion that keeping in mind the friendship and believing the assurance of the plaintiff, the defendant had again extended loan to him for Rs. 1.5 lacs despite failing to repay the previous loan. He further denied the suggestion that he failed to repay all the aforesaid loan by 2018. He admitted that from July, 2019, he had transferred the amount in bits and pieces into the paytm account of the defendant. He denied the suggestion that all the payment made through paytm transfer from his account to the paytm account of the defendant from July, 2019, is towards repayment of aforesaid loan of Rs. 3.5 lacs extended by defendant to him. He voluntarily stated that the funds transferred by him to the defendant is towards a friendly loan given by him to the defendant. He admitted that no written request was ever made by the defendant to him to extend the loan. He denied the suggestion that the defendant has never approached him for any kind of loan as claimed by him. He stated that he has transferred a total amount of around Rs.3,60,000/- in bits and pieces from his paytm account to the paytm account of the defendant. He denied the CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 16 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:02:20 +0530 suggestion that the amount of Rs.3,60,000/- transferred by him towards the repayment of the loan and over and above the amount of Rs.3.5 lacs is towards the damages and interest to be paid by him. He denied the suggestion that during the repayment of said loan he was planning to apply for the loan in future for which he would require a respectable CIBIL score from the bank which could fulfill his loan requirement. He further denied the suggestion that he had only paid a sum of Rs. 10,000/- as interest to the defendant and the remaining interest is to be paid by him to the defendant. He further denied the suggestion that as on date he owed damages/interest and is liable to pay the same to the defendant. On the question of when he is holding a credit card, he replied that he has held a credit card since 2016. On the question of how many credit cards he was using/holding at that time, he replied that he was having 3 to 4 credit cards from different banks. He admitted that he was using all the credit cards regularly. He further admitted that CIBIL score depends upon the purchase of products through credit cards and its timely payment. He denied the suggestion that in order to increase his CIBIL Score he used his credit card towards the product purchased in the name of the defendant. He admitted that he and defendant were good friends and they understood the problem of each other and they also used to share and discuss daily life. He admitted that in August 2019 the defendant told him that she wanted to purchase a mobile phone. When asked if it was true that, over the course of their friendship, he had offered to make purchases for the defendant using his credit card to improve his CIBIL score and suggested CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 17 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:02:30 +0530 that she should inform him whenever she wanted to buy something, PW-1 responded that this was incorrect. He elaborated that it was the defendant who had requested him to pay for purchases such as a mobile phone, laptop, and iPad, and she had never repaid the said amounts. He admitted that no written request made by the defendant to him in any form i.e. chat, message etc. to purchase the above-said products in the name of the defendant. He denied the suggestion that he had already received the full amount in cash from the defendant at the time of purchase of mobile, apple 1-pad, apple macbook etc. He denied the suggestion that he insisted the defendant use his credit card to purchase the product in the name of the defendant by taking cash against the same from the defendant. He denied the suggestion that the defendant is not liable to pay any amount as claimed by him. He denied the suggestion that it is he, who is liable to pay the interest/damages against the loan extended to him by the defendant. He denied the suggestion that Ex.PW1/10 and Ex.PW1/11 are forged and fabricated documents. He stated that he has not placed any scientific proof showing the sound in CD Ex.PW1/10 (colly) is of mother of the defendant. He denied the suggestion that all the documents submitted by him are forged and fabricated except the admitted documents by the defendant in admission-denial. He admitted that Ex.PW1/3 is merely a computer generated copy not verified by the bank. He denied the suggestion that all claims of his are false and nothing is liable to be paid by the defendant to the plaintiff. He denied the suggestion that he is deposing falsely.
CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 18 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:02:42 +0530
PW-2: Sh. Ashutosh Bishnoi, AGM has been examined as PW-2 and he deposed that he has joined that service as AGM (Legal) in Paytm Payments Bank Ltd. on 10.01.2022. He further deposed that he has brought a copy of Board Resolution dt. 22.01.2022 executed by Paytm Bank in his favour. Same is Ex.PW2/1. He further deposed that he has also brought Paytm wallet statement as Ex.PW2/2 (colly., 24 pages) registered with mobile no. 9911886609 of plaintiff Prateek Mehta for the period from 01.07.2019 to 31.12.2019 alongwith certificate u/s 65-B of Indian Evidence Act as Ex.PW2/3.
During the cross-examination of PW-2, Sh. Ashutosh Bishnoi, when asked if he was aware of the contents of the resolution passed on January 22, 2022, he responded that it was a matter of record. Regarding his knowledge of Sachin Jain, he similarly stated that it was a matter of record and that the designation is mentioned in the documents. When questioned about his personal knowledge of the records he brought, he explained that bank officials do not have personal knowledge of transactions fetched from the bank's server, as these details are retrieved automatically without manual intervention. He was then asked if he could specify the nature of the transactions, to which he answered that the transaction details could be ascertained from the records submitted. After reviewing the record marked as Ex.PW2/2, the witness confirmed that the transactions were of a credit and debit nature.
Defendants' Evidence:-
8. The defendant no. 1 Ms. Nainy Nayyar Malhan has CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 19 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:02:51 +0530 examined herself as DW-1 and she tendered her affidavit Ex.
DW1/A in her examination in chief. She relied upon the documents i.e. copy of her account statement Mark-A and Copy of pay slip of her husband Mark-B. During her cross-examination, she stated that in the year 2017, she was working at Re-discover as General Manager. She admitted that whatever her salary was, it remitted directly into her bank account. She stated that she does not remember when she left the above said company. She further stated that she does not remember after how many years she left the above said company. She further stated that she does not remember whether she was working in the year 2019. She again stated that she was working as a freelancer for the makeup industry. She admitted that she has not placed on record any documents to show that she was working as a freelancer in the makeup industry. She voluntarily stated that no document is required for the makeup industry. She denied the suggestion that she is deposing falsely with regard to her above volunteered statement as no document is required for the makeup industry. She denied the suggestion that she was unemployed in the year 2019 and that is why she is not placed on record any documents to show that she was working or having any source of income. She admitted that she has not mentioned in her evidence affidavit any date and month of year 2017 of advancing the alleged friendly loan to the plaintiff. She stated that she has not obtained execution of any loan agreement, receipt, pro-note and any other documents of advancing friendly loan as stated in para no. 4 in her evidence affidavit. She further CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 20 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:03:03 +0530 stated that she cannot produce any documents to show advancing friendly loans as stated in para no. 4 in her evidence affidavit. She further stated that she has not issued any letter, notice to the plaintiff to recover the loan of Rs. 2 lacs. She denied the suggestion that she was not having any financial capacity to advance such a loan to the plaintiff. She further denied the suggestion that no such loan of Rs. 2 lacs was ever advanced to the plaintiff in the year 2017. She further denied the suggestion that the question of the repayment or any assurance does not arise at all. She stated that she has not obtained execution of any documents from the plaintiff regarding any alleged promise of payment of damages and interest at the rate of 9% per annum. She denied the suggestion that no such assurance was given by the plaintiff and that is why she has not obtained execution of any documents. She admitted that she has not mentioned in her affidavit any date and month of year 2018 of advancing another alleged friendly loan of Rs. 1.5 lacs to the plaintiff. She admitted that she has not obtained execution of any loan agreement, receipt, pro-note and any other documents of advancing friendly loan of Rs. 1.5 lacs as stated in her para no. 6 in her evidence affidavit. She stated that she cannot produce any documents to show advancing another friendly loan as stated in her para no. 6 in her evidence affidavit. She further stated that she has not issued any letter, notice to the plaintiff to recover the loan of Rs. 1.5 lacs. She denied the suggestion that she was not having any financial capacity to advance such a loan to the plaintiff. She denied the suggestion that no such loan of Rs. 1.5 lacs was ever advanced to the plaintiff in the year 2018. She denied the CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 21 of 39 Digitally signed VIKAS by VIKAS GARG Date: 2024.05.22 GARG 14:03:12 +0530 suggestion that the question of the repayment or any assurance does not arise at all.
She stated that she has not obtained execution of any documents from the plaintiff of any alleged promise of payment of above said loans. She denied the suggestion that no such re- assurance was given by the plaintiff and that is why no execution of the document has been obtained by her. She denied the suggestion that she had concocted a false story for the first time in the court after filing this case against plaintiff. She denied the suggestion that she had approached the plaintiff citing financial hardship bearing day to day expenses and asked for financial help as her husband was working in merchant Navy and mostly posted on high sea. She denied the suggestion that she assured the plaintiff that she will return the amounts advanced by the plaintiff on the return of her husband. She admitted that from 18.07.2019 till 31.12.2019, the plaintiff transferred a sum of Rs. 3,60,341/- to her via Paytm from his Paytm account no. 9911886609 to her Paytm account no. 9811777706. She voluntarily stated that it was repayment of a loan which was taken by the plaintiff from her. She denied the suggestion that the above said transferred amount was towards financial assistance provided by the plaintiff to her as loan. She denied the suggestion that the above said amount was not repayment of alleged loan and she is deposing falsely on this aspect. She denied the suggestion that the plaintiff never approached her for the loan. She denied the suggestion that no occasion arises whereby the plaintiff has expressed his desire for obtaining the loan. She admitted that she is an income tax payee. She replied that she CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 22 of 39 Digitally signed by VIKAS VIKAS GARG Date:
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does not know whether she has reflected the alleged loan advanced by her in the year 2017 and 2018 in her income tax return. She stated that she can produce her ITRs for the financial year 2016-2017 and 2017-2018. She again stated that she cannot produce the same. She denied the suggestion that she has chosen her above said ITR as if producing the said documents will be adverse to her defence. She admitted that she has not placed any statement of account to show the advancement of said loan and its repayment. She denied the suggestion that no such transaction exists and that is why she has not placed on record any statement of account. She admitted that she has not filed any complaint, suit, counter claim or served any notice regarding loan as stated by her in her evidence affidavit. She stated that she is not having any mobile chat regarding advancement and repayment of any loan as stated by her in her evidence affidavit. She denied the suggestion that she had approached the plaintiff on 21.08.2019. She denied the suggestion that her mobile handset is not working properly, she denied the suggestion that she requested financial assistance for purchasing a new mobile handset. She further denied the suggestion that she assured that she would pay the EMIs on behalf of the plaintiff. She further denied the suggestion that a Samsung mobile was purchased by the plaintiff through his credit card. She voluntarily stated that the payment was made through that credit card but at the same time, she has returned the money in cash immediately on the spot. She denied the suggestion that no such money was paid in cash to the plaintiff. She denied the suggestion that on 10.09.2019, she requested the plaintiff to purchase one apple I-pad and apple macbook for her CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 23 of 39 Digitally signed by VIKAS VIKAS GARG Date:
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on EMI through his credit card, EMIs worth Rs. 1,12,900/- and Rs. 55,900/-. She admitted that I-pad and apple macbook was used by her. She denied the suggestion that no cash payment was made by her to the plaintiff as stated by her in para no. 9 of her affidavit. She further denied the suggestion that 27.09.2019, she had only paid Rs. 500/- to the plaintiff as repayment of loans advanced by the plaintiff. She further stated that the address mentioned on legal notice Ex. PW-1/7 at point DX1 is her mother's residential address. She denied the suggestion that in March 2020, she was residing at her mother's house. She denied the suggestion that on learning the legal notice served by the plaintiff, her mother had called the plaintiff to settle the loan advanced by the plaintiff. She stated that she has not received any notice from the Mediation and conciliation center, Delhi High Court. She denied the suggestion that the plaintiff is entitled to recover a sum of Rs. 7,85,145/- as on the date of filing of the present suit. She further denied the suggestion that she cooked up a false story in her defence. She further denied the suggestion that she is also liable to pay interest @ 18 % per annum till its realization. She further denied the suggestion that she is deposing falsely.
Sh. Umang Malhan has been examined as DW-2 and he tendered his affidavit as DW-2/A in his examination in chief. He relied upon the documents i.e. his salary slips of November 2018, July 2019, August 2020, September 2020 & October 2020 as Ex. DW-2/1 and Certificate u/s 65-B of Indian Evidence Act, 1872 as Ex. DW-2/2.
CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 24 of 39
Digitally
signed by
VIKAS VIKAS GARG
Date:
GARG 2024.05.22
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+0530
In an evidential affidavit he deposed that the plaintiff has filed a false and frivolous suit against his wife as his wife was never in need of financial help at the relevant point of time. He further stated that he has been working in Merchant Navy since 2003 and at present he is Captain in Merchant Navy. He further deposed that he has been drawing a handsome salary. He further stated that he married Nainy Malhan in the year 2011. He further stated that he is very capable of taking care of all the needs of his wife Nainy Malhan since the day of their marriage, moreover, his wife Nainy Malhan was self-capable to take care of her well- being as well.
He deposed that he knows that the plaintiff, being a good friend of his wife, took undue and unfair advantage of the fiduciary relationship enjoyed between them. He further deposed that he also knows that in the year 2017, the plaintiff has taken a loan of Rs. 2,00,000/- in cash from his wife for 6-7 months. He further deposed that the plaintiff failed to honor his commitment as he did not return the said loan as promised by the plaintiff within the time and plaintiff also promised that he would be paying damage/interest @ 9% per annum on the aforesaid loan for its intervening period. He further deposed that in the year 2018, the plaintiff again approached his wife for a further loan of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) which was also given in cash by his wife and believing in the assurance of the plaintiff of repayment of the loan along with damage/interest, his wife again extended the friendly loan of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) to the plaintiff and as such his wife extended loan of Rs. 3,50,000/- in total to plaintiff CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 25 of 39 Digitally signed by VIKAS VIKAS Date:
GARG GARG 2024.05.22 14:03:48 +0530 and after much persuasion the plaintiff started making repayment of the aforesaid loan through Paytm Transfer in bits & pieces from July, 2019 onwards and somehow repaid the aforesaid loan through Paytm Account Transfer by December, 2019 & the amount over & above of Rs. 3,50,000/- (Rupees Three Lakhs Fifty Thousand Only) paid through Paytm Account Transfer by the plaintiff was adjusted towards damage/interest on the said aforesaid loan and remaining interest was to be paid by the plaintiff to his wife. He further deposed that the plaintiff with malafide intention has misused the entry shown/reflected in Paytm Accounts, which was actually a repayment of advance loan extended by his wife to the plaintiff and as on date it is plaintiff who owed damaged/interest, which is liable to be paid by him to his wife. He further deposed that he came to know from his wife that the plaintiff wanted to complete/increase his CIBIL Score of the Bank, by reflecting more and more online transactions on regular basis which would reflect in his account statement and thereafter, his CIBIL Score would automatically get increased and he would be able to avail loan facility in future and therefore, the plaintiff insisted his wife that it would be better to give the cash directly to him and he will pay instead in her name from his credit card, therefore the plaintiff took the payment of the mobile phone in cash from his wife and he made the payment through his credit card through E.M.I in order to increase his CIBIL Score. He further deposed that when his wife wanted to purchase an Apple I-Pad and Apple MacBook, the plaintiff again insisted his wife to let him purchase through his Credit Card through E.M.I's from bank to which his wife denied CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 26 of 39 Digitally signed by VIKAS VIKAS GARG Date:
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but after constant requests by the plaintiff his wife agreed and gave the full cash payment for the said items to the plaintiff in front of the shopkeeper who can also be a witness for the same. He further deposed that the present suit filed by the plaintiff against his wife is frivolous in nature, therefore in no manner, his wife is liable to pay any alleged amount and interest claimed by the plaintiff. his wife had never approached the plaintiff for any financial assistance, therefore the question of alleged liability to be discharged by his wife does not arise at all. During his cross-examination, he stated that his wife, Nainy Nayyar Malhan, was a freelancer and on and off, she keeps on working as per assignment. He further stated that She is working in the field of slimming, beauty and skin products and treatment. He stated that he does not remember if his wife was working or not in the year 2018-19. He replied that he does not know if his wife was filing ITR or not in the year 2018-19. DW-2 was asked whether his wife had any financial capacity to advance any loan, particularly a cash loan, to the plaintiff. He responded by stating that he is a captain in the Merchant Navy and that his salary slips have been filed as evidence. He further explained that he has been paying monthly maintenance to his wife for the last five years. He further stated that her wife has the capacity to lend a loan either by cash or online. He emphasized his ability to provide any necessary assistance to his wife to the best of his capacity.
At that point, the witness was confronted with paragraphs 3 and 5 of the affidavit marked as Ex. DW2/A. CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 27 of 39 Digitally signed by VIKAS VIKAS Date:
GARG GARG 2024.05.22 14:04:04 +0530 He was then asked if he had falsely deposed in his affidavit Ex. DW2/A since he had no proof of any such cash loan being advanced by his wife to the plaintiff. DW-2 replied that he had deposed to the best of his knowledge, explaining that the plaintiff was a good friend of his wife at the time, and the cash loan was given in good faith and friendship, which he believes was unfairly taken advantage of by the plaintiff.
He stated that he does not have any proof of such a cash loan as stated by the para no. 3 of my affidavit Ex. DW2/A. He voluntarily stated that cash flow transactions were in friendship and utmost faith does not require any proof.
He denied the suggestion that no cash loan was paid by his wife to the plaintiff at any point of time and that is the reason, he has no proof regarding the same. When he was asked whether he wanted to say anything about the fact that her wife did not disclose any cash in hand in her ITR in the year 2018-19, he replied that he has no knowledge of her filing of ITR in the year 2018-19. He further stated that he does not remember exactly his sailing tenure during the year 2018, 2019 and 2020. He also stated that he does not remember exactly whether he was on shore or sailing when money was given by the plaintiff to his wife.
At that stage, the witness was confronted with para no. 7 of affidavit Ex. DW2/A and the question has been asked about what he wants to say on the fact that there is no witness to the so- called cash transactions as alleged by him in para 7 in his affidavit Ex. DW2/A. On that he replied yes and stated that there is no witness. He further stated that the address mentioned in his CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 28 of 39 Digitally signed by VIKAS VIKAS GARG Date: GARG 2024.05.22 14:04:11 +0530 affidavit Ex. DW2/A is his correct address and he shifted here two years back and prior to this address, he was residing along with his wife at G-108, Pocket -G, Sarita Vihar, Delhi.
He denied the suggestion that he is deposing falsely in para no. 3, 4, 5 and 7 to the extent that his wife had advanced a cash loan to the plaintiff and that is why, there is no document / proof or witness to that effect. He denied the suggestion that his wife is liable to pay the suit amount alongwith interest to the plaintiff. He further denied the suggestion that he has concocted the false story at the instance of his wife. He further denied the suggestion that he had no personal knowledge. He further denied the suggestion that the plaintiff had advanced a friendly loan to his wife on 18.07.2019 till 31.12.2019 at the request of his wife. He further denied the suggestion that he is deposing falsely.
9. I have diligently listened to the differing arguments presented by both parties, carefully examining each perspective, and thoroughly reviewed the case records to gain a comprehensive understanding of the matter at hand.
10. The plaintiff argued in line with his plaint and referred to various documents presented in his evidence. He contended that he has proven the payment of the loan through Paytm entries. No document has been filed by the defendant to prove repayment of the alleged loan by her. He further argued that the defendant's contention regarding the CIBIL score is baseless. According to the CIBIL score, there must be timely repayment of credit card dues, and in the present case, the EMIs have not been paid on time. He also pointed out that the Samsung mobile, Apple CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 29 of 39 Digitally signed by VIKAS VIKAS GARG Date:
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MacBook, and Apple iPad were purchased in the name of the defendant and her brother, so no advantage of the CIBIL score was to be gained by the plaintiff.
The plaintiff further argued that he has filed a CD along with the transcription of the conversation between the plaintiff and the defendant's mother. He emphasized that the defendant has not examined her mother to deny this conversation and that these chats have been undisputed. He also relied on WhatsApp chats, stating that from these chats, it can be easily inferred that the first time the plaintiff conversed was on 29th May 2019. The learned counsel for the defendant rebutted the plaintiff's arguments, aligning his rebuttal with the assertions in the written statement. He relied on Section 114 of the Indian Evidence Act, arguing that the nature of transactions through Paytm does not conclusively indicate that payments were made in advance of a loan. He contended that, under Section 114 of the IEA, it can be presumed that these transactions were made in repayment of a loan. According to him, loans are typically advanced in lump- sum amounts and repayments are generally made in parts. The defendant's counsel further argued that it has been proven that the defendant and her husband are financially sound, with no need for the defendant to take a loan from the plaintiff. Instead, she is capable of advancing a loan to the plaintiff. He pointed out that the plaintiff himself admitted during cross-examination that making payments through a credit card increases the CIBIL score. Additionally, he noted that there was no written agreement regarding the loan and no mention of it in the WhatsApp chats. The defendant's counsel also argued that the conversation with CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 30 of 39 Digitally signed by VIKAS VIKAS GARG Date:
GARG 2024.05.22
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the defendant's mother was not established and that the plaintiff's case is doubtful. He emphasized that no notice or counterclaim has ever been filed by the defendant because she has already received a substantial amount.
The learned counsel for the defendant argues that there is no documented evidence indicating that the defendant ever made a formal request for the alleged loan from the plaintiff. The plaintiff contends that even there exists no tangible evidence to support the claim that the plaintiff formally requested a loan from the defendant.
Issue Wise Finding:
11. Given that all the issues in this case are closely intertwined and interdependent, they will be considered and resolved together to provide a thorough and unified analysis.
Payment of Loan of Rs. 3,60,341/-
It is admitted by the defendant that she has received the money amounting to Rs. 3,60,341 through paytm from the plaintiff but she stated that said amount was the repayment of a friendly loan advanced by her to the plaintiff in the year 2017 and 2018.
The principle of burden of proof generally states that the party who asserts a fact bears the responsibility of proving it, not the party who denies it. This is encapsulated in the Latin maxim "ei incumbit probatio qui dicit, non qui negat".
In this case, the plaintiff has already substantiated his claim through evidence, including the defendant's admission, that he CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 31 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:04:39 +0530 paid Rs. 3,60,341 via Paytm to the defendant on various occasions. The defendant, on the other hand, contends that she had loaned money to the plaintiff, and thus, the onus of proof now rests on her.
The plaintiff has specified the dates on which he made several partial payments to the defendant. However, the defendant has neither affirmed nor provided proof of those dates when she allegedly loaned money to the plaintiff. The plaintiff has demonstrated that each partial payment was made, but the defendant has not confirmed or proven whether she made the alleged loan payment in a lump sum or in installments. She merely stated that she paid Rs. 2 lakh in 2017 and Rs. 1.5 lakh in cash in 2018, even without specifying any month.
The plaintiff asserts that payments were made to the defendant upon her request to cover her daily expenses. Yet, the defendant has not made any such claims about the purpose for which the plaintiff obtained the alleged loan.
The defendant has admitted to receiving payments through Paytm. In the absence of direct evidence of the defendant's payment to the plaintiff, it becomes incumbent on the defendant to demonstrate her financial capacity. She has not provided specific evidence in this regard. During cross-examination, she stated that she was employed as a General Manager at Re- discover in 2017 and that her salary was directly deposited into her bank account. She also mentioned working as a freelancer in the makeup industry in 2019. However, these statements are insufficient to establish her financial capacity to repay the alleged CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 32 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:04:48 +0530 loan, as it is not proven how much she earned from that job.
No bank statement from 2017 or earlier has been submitted on behalf of the defendant. Interestingly, a bank statement (Mark A) for the period from 01.05.2019 to 01.02.2021 has been filed by the defendant, but it has not been proved. Moreover, this statement is irrelevant according to the defendant's own version, as she claims to have made payments in 2017 and 2018. If the defendant could file a bank statement for the period from 01.05.2019 to 01.02.2021, then a statement for the relevant period of 2017 and 2018 or earlier could have been filed, but the defendant has not done so for reasons best known to her.
The evidence establishes that the husband is financially stable. However, neither the defendant nor her husband (referred to as DW-2) have made any assertions that DW-2 has made any payments to the defendant (DW-1) in this regard. During the cross-examination, DW-2 made a statement asserting that he has been consistently providing financial maintenance to his wife. He further claimed that this regular financial support has enabled his wife to have the capacity to advance a loan. However, this assertion alone does not sufficiently establish the defendant's financial capability to prove the loan. The statement lacks specific details that are crucial to proving the defendant's financial capacity. For instance, it does not disclose the exact amount of maintenance that has been paid regularly. Furthermore, it does not provide any information about the savings accumulated by the defendant from this maintenance. Without these details, it remains unclear how the regular CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 33 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:04:57 +0530 maintenance payments have contributed to the defendant's ability to advance the loan. Therefore, the statement, as it stands, is insufficient to prove the defendant's financial capacity to advance the loan.
The defendant has not submitted any calculation sheet that would detail the interest that was or is due, and what outstanding balance remains on the plaintiff. It is alleged that there is still interest to be paid by the plaintiff to the defendant. The defendant has not demonstrated that she has ever demanded the return of her remaining amount. She has not claimed to have ever sent any notice to the plaintiff demanding the return of her remaining amount.
The plaintiff has pleaded that a legal notice was sent to the defendant. It is also an accepted fact that the defendant has never filed a suit or any counterclaim for the recovery of the remaining amount of the alleged loan from the plaintiff. The defendant has not provided any plausible reasons for not doing so.
During the argument, the defendant changed her position and stated that she has received a substantial amount, which is why no action has been taken. However, the defendant is still required to demonstrate the exact amount still owed to her by the plaintiff in order to substantiate her case.
Learned counsel for the defendant invoked Section 114 of the Indian Evidence Act, arguing that the court can presume the loan was advanced by the defendant and repaid by the plaintiff since the loan was given as a lump sum and repaid in installments.
CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 34 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:05:06 +0530 However, I find no substance in this argument. Firstly, the defendant's evidence does not specify that the loan was given as a lump sum. Secondly, it is not a rule that a loan must be paid in a lump sum and repaid in installments. Additionally, the plaintiff provided the loan without any interest, even though it was not a commercial loan. Commercial loans, including those from banks, can be advanced in various stages/installments.
Based on the balance of probabilities, it has been established that the plaintiff successfully proved the payment of a loan amounting to Rs. 3,60,341 to the defendant.
Payment of Gadgets (Samsung mobile, Apple MacBook and Apple I-pad) It is admitted that payments of Rs. 79,999/- for a Samsung mobile, Rs. 1,12,900/- for an Apple MacBook, and Rs. 55,900/- for an Apple iPad were made using the plaintiff's credit card. According to the plaintiff, these amounts were not reimbursed by the defendant.
As previously discussed under the section concerning the Rs. 3,60,341/- loan, the principle of Ei incumbit probatio, qui dicit, non qui negat (the burden of proof lies on the one who asserts, not on the one who denies) applies here as well. The use of the plaintiff's credit card for these payments is established, placing the onus on the defendant to prove that she repaid these amounts in cash.
The defendant claims in her evidential affidavit (paragraph 9) that she made full cash payments for the Apple iPad and Apple MacBook to the plaintiff in the presence of the shopkeeper, who CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 35 of 39 Digitally signed VIKAS byDate:VIKAS GARG GARG 2024.05.22 14:05:14 +0530 can be witness to the same. However, no such shopkeeper has been brought forward as a witness. Furthermore, the defendant has not provided any specific evidence to substantiate her claim of cash payments. There is no evidence of her financial capacity or source of the cash amounting to Rs. 2,48,799/-, which, like the loan transactions from 2019 (as discussed above under heading of Payment of Loan of Rs. 3,60,341/-), lacks supporting proof such as bank statements .
The defendant also argued that the plaintiff insisted on using his credit card to improve his CIBIL score for future loan applications. The plaintiff countered that a CIBIL score increases with timely repayment of credit card EMIs, which he failed to do. Although it is admitted that the items were purchased on EMI via credit cards, neither party has provided evidence regarding whether the EMIs were paid on time.
Thus, the defendant has not satisfactorily demonstrated that the payments were made in cash, nor has she provided evidence to support her claim of financial capability to make such payments.
Considering the balance of probabilities, the plaintiff has successfully demonstrated that the payments for the aforementioned gadgets were made by him. In contrast, the defendant has failed to meet the onus of proof required to establish that she repaid these amounts in cash to the plaintiff.
Pre-litigation Interest CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 36 of 39 Digitally signed VIKAS by VIKAS GARG Date: GARG 2024.05.22 14:05:25 +0530
Plaintiff has claimed interest at rate of 12% p.a for period from 1/01/2020 till 31/05/2022. In the legal notice Ex. PW1/7 plaintiff stated in second last paragraph in following words:
"I, therefore, call upon you addressee to pay my client an amount of Rs. 6,08,640/- (Rupees Six Lacs Eight Thousand Six Hundred And Forty Only) within 7 days of receipt of this demand notice, failing which my client shall be constrained to file a civil recovery suit against you in competent court of law holding you liable for all consequences, which you please note."
As per the postal receipt affixed on envelope Ex. PW1/9, the notice was sent on 17.03.2020. The endorsement dated 20.03.2020 on the notice indicates that the post was returned due to the receiver's non-availability despite repeated delivery attempts.
Regardless of whether the notice was served, the present date for calculations should be counted as seven days after 20.03.2020, which is 27.03.2020.
The plaintiff has claimed interest at a rate of 12% per annum. However, given that the present transaction is non-commercial and represents a friendly loan extended by the plaintiff without interest, an interest rate of 9% per annum is deemed sufficient under the circumstances.
Therefore, the plaintiff is entitled to pre-litigation simple interest at a rate of 9% per annum for the period from 28.03.2020 to 01.07.2022, (as the date of filing the suit is 02.07.2022).
CS no. 323/2017 Prateek Mehta Vs. Nainy Nayyar Malhan Page no. 37 of 39 Digitally signed by VIKAS VIKAS Date:
GARG GARG 14:05:34 2024.05.22 +0530 Pendente lite and future interest The plaintiff has claimed pendente lite and future interest at a rate of 18% per annum. However, as previously discussed, the plaintiff extended a friendly loan to the defendant without any interest. Given the nature of the loan, a pendente lite simple interest rate of 9% per annum is deemed appropriate for the period from 02.07.2022 to 22.05.2024 (the date of the decision of the suit).
Furthermore, the plaintiff is entitled to future simple interest on the amount owed at a rate of 6% per annum until the said amount is realized.
Relief:
In view of the above discussion, the plaintiff is held to be entitled an amount of Rs. 6,08,640/- along with pre-litigation simple interest at a rate of 9% per annum for the period from 28.03.2020 to 01.07.2022. Plaintiff is also held to be entitled for pendente lite simple interest at rate of 9% per annum for the period from
02.07.2022 to 22.05.2024.
The plaintiff is also held to be entitled to future simple interest on that amount at a rate of 6% per annum until the said amount is realized.
Conclusion:
12. The suit of plaintiff is hereby decreed in following terms:
a) Plaintiff is held to be entitled to recover Rs.
6,08,640/- along with pre-litigation simple interest at a rate of 9% per annum for the period from 28.03.2020 to 01.07.2022 from the defendant.
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b) Plaintiff is also held to be entitled for pendente lite simple interest at the rate of 9% per annum for the period from 02.07.2022 to 22.05.2024 on that amount.
c) The plaintiff is also held to be entitled to future simple interest on that amount at rate of 6% per annum until the said amount is realized.
d) Plaintiff is also held to be entitled to the costs of the suit.
13. Decree sheet be prepared accordingly.
14. File be consigned to record room after due compliance.
Digitally signed by Pronounced in the open court VIKAS VIKAS GARG Date:
on 22.05.2024 GARG 2024.05.22
14:05:51
+0530
(Vikas Garg)
Addl. District Judge-05 /EAST),
KKD, Delhi/22.05.2024.
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