Delhi District Court
Shri Rakesh Arora vs Shri Khem Singh on 28 May, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 98/12
Unique ID No. 02401C0419832012
MEMO OF PARTIES
Shri Rakesh Arora
S/o Shri Charanjit Lal,
R/o A665, Shastri Nagar,
Delhi 110052
...........Plaintiff
VERSUS
Shri Khem Singh
S/o Shri Devi Singh
R/o B1694, Near Jalebi Chowk,
Shastri Nagar, Delhi 110052
..........Defendants
Date of institution of the Suit: 06.09.2012
Date on which judgment was reserved: 12.05.2014
Date of pronouncement of Judgment: 28.05.2014
SUIT FOR RECOVERY OF RS. 2,64,000/ (RS. TWO LACS SIXTY FOUR
THOUSAND ONLY)
JUDGMENT:
1. Plaintiff has filed the present suit for recovery of a sum of Rs. Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 1/13 2,64,000/ against the defendant.
2. The plaintiff's case is that there were friendly relations between the plaintiff and the defendant. Defendant used to visit the house of the plaintiff. On 19.04.2011, the defendant approached the plaintiff for a friendly loan for his domestic problem. Considering the relationship with the defendant the plaintiff provided a friendly loan of Rs. 2 Lakhs through cheque bearing no. 94680 dated 19.04.2011 drawn on ICICI Bank Ltd. Sadar Bazar, Delhi which was duly encashed on 21.04.2011 in the account of the defendant. The defendant had agreed to repay the loan amount along with the interest at the rate of 2% per annum to the plaintiff after one year. The defendant did not repay the loan amount along with the interest to the plaintiff after one year despite repeated requests and demand of the plaintiff.
3. The plaintiff got issued a legal demand notice dated 04.08.2012 vide registered post, AD on 06.08.2012 which was duly received by the defendant. Despite service of the legal notice the defendant neither complied with the notice nor sent any reply thereof. The plaintiff thus filed the present suit seeking recovery for a sum of Rs. 2,64,000/ i.e. the principal amount of Rs. 2 Lakhs along with interest from 21.04.2011 to 20.08.2012.
4. The defendant filed the written statement. Preliminary objections were taken. Defendant contended that the suit of the plaintiff was without any cause of action. The plaintiff had not approached the court with clean hands and Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 2/13 had suppressed material facts from the court. The present case was only filed by the plaintiff to extort the money from the defendant. The plaintiff along with his relatives had launched legal attacks against the defendant and his father namely Devi Singh. The plaintiff along with his brother sent two different legal notices for demand of money on false and frivolous ground through counsel Sh. R.P. Tomar. The family of the plaintiff consisted of Sh. Rajender Arora and Sh. Devi Dayal (younger brothers), Poonam Arora (wife of the plaintiff), Ms Kanchan (the sisterinlaw of the plaintiff), Deepak Sachdeva (brotherinlaw of the plaintiff) and certain relatives, friends, employees etc. i.e. Sh. Vinod Kumar, Sh. Mohit Kumar, Sh. Mohammad Irshad, Sh. Akhlaq Ahmad Khan. The defendant contended that the plaintiff concealed the fact that the father of the defendant had advanced loan to the plaintiff to some of the aforesaid relatives of the plaintiff i.e. Sh. Devi Dayal, Ms. Kanchan Arora, Sh. Vinod Kumar, Sh. Mohammad Irshad and Sh. Deepak Sachdeva on the guarantee of the plaintiff.
5. It was further contended by the defendant that the plaintiff and the said persons who actually obtained the loans on difference occasions from the father of the defendant had failed to reimburse the same and plaintiff was the guarantor to the said amounts and the said debtors were necessary parties therefore the suit was alleged to be bad for nonjoinder of necessary parties. The plaintiff had failed to disclose that the cheque in question was given by Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 3/13 the plaintiff just to have an entry in the account of defendant. The defendant contended that in fact the said amount was withdrawn from the account of the defendant and was returned on 23.04.2011 in the evening and it was for this reason that the plaintiff kept mum for a long period of 17 months. The defendant also alleged that the plaintiff had not explained anywhere either in the notice or the suit that he had not obtained any receipt or any other documents with regard to such a huge transaction of Rs. 2 Lakhs and in reality the said amount was duly received by the plaintiff as stated in the reply dated 07.09.2012 sent in response to the notice of the plaintiff.
6. In the reply on merits, the defendant denied approaching the plaintiff for a friendly loan and averred that the plaintiff had failed to mention in his suit that he transferred Rs. 2 Lakhs by way of cash. The plaintiff required cash amount and for that purpose he made a request to the defendant in that regard and the defendant sought to pay an amount of Rs. 2 Lakhs after making withdrawal from his account. The plaintiff took away the amount of Rs. 2 Lakhs from the defendant on 23.04.2011 and by that time the defendant had withdrawn the said amount of Rs. 2 Lakhs which had been handed over. Further, at no point of time interest was settled and the amount was returned immediately i.e. within two days from the date of credit of the cheque in question. It was also averred that the notice issued by the plaintiff was duly replied vide the reply dated 07.09.2012 before receipt of the summons of the Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 4/13 suit by the defendant. The claim of the plaintiff was thus denied.
7. Replication was filed by the plaintiff denying the contentions raised in the written statement. However, it was admitted that the defendant sent the reply to the legal notice but it was claimed that the same was sent after filing of the present suit. The averments made in the plaint were reiterated.
8. On 19.12.2012 the following issues were framed
1. Whether the suit is bad for nonjoinder of necessary parties? OPD
2. Whether the plaintiff is entitled for a decree of recovery of Rs. 2,64,000/ as sought in prayer clause (A)? OPP
3. Whether the plaintiff is entitled to interest, if yes, at what rate and for period?OPP
9. The plaintiff in evidence examined himself as PW1 and PW2 was the official witness from the bank namely Sh. Ramesh Banoth. Upon conclusion of trial final arguments were advanced by counsel for the parties.
10. I have heard the final arguments advanced by counsel for parties and perused the record.
11. My issue wisefindings are as follows.
Issue No. 1 Whether the suit is bad for nonjoinder of necessary parties? OPD
12. As per the defendant, the plaintiff & his relatives and/or his employees i.e. Devi Dayal, Kanchan Arora, Deepak Sachdeva, Mohd. Irshad were all Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 5/13 given loans by the father of the defendant on the guarantee of the plaintiff and they had failed to repay the amount to the father of the defendant therefore the suit was bad for nonjoinder of necessary parties. The Plaintiff/PW1 in cross examination admitted that Devi Dayal, Kanchan Arora and Deepak Sachdeva were his relatives but denied that he had any employee by the name of Mohd Irshad. In any case however, the fact of the matter is that the Plaintiff's present suit is one for recovery of amount against the defendant and not a suit for recovery by the father of the defendant against the alleged debtors. The alleged debtors of the father of the defendant are neither necessary nor even proper parties to the present suit which only concerns the plaintiff and the defendant. Whether or not the other relatives obtained a loan from the father of the defendant is altogether a separate controversy/dispute which is for the father of the defendant to raise by way of appropriate legal proceedings as per law if so advised, and is not at all relevant for the present dispute. This issue is thus decided against the defendant & in favour of the Plaintiff. Issues no. 2 and 3 Whether the plaintiff is entitled for a decree of recovery of Rs. 2,64,000/ as sought in prayer Clause A ? OPP and Whether the plaintiff is entitled to interest, if yes, at what rate and for what period? OPP.
13. The defendant does not deny the fact that the cheque dated 19.04.2011 was transferred in his account; indeed he admitted in his crossexamination the fact that the plaintiff got transferred as sum of Rs. 2 lakhs through cheques to Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 6/13 his account but his case was that the amount was deposited by the plaintiff just to show an entry in the account of the defendant though in crossexamination of the plaintiff the suggestion put to the plaintiff, which the plaintiff denied was that the said cheque was given to show an entry in the plaintiff's account.
14. Learned Counsel for the defendant stressed on the plaintiff's testimony in regard to his PAN card no. & photocopies of incometax returns; PW 1 deposed in crossexamination dated 04/05/2013 that he was not carrying his PAN car and IncomeTax returns and stated in his crossexamination on 06/07/2013 that his chartered accountant was not available but PW1 further deposed that he did not want to produce his PAN Card & IncomeTax returns in court. Counsel for the defendant thereafter put the follows question to the Plaintiff: "Q. I put it you that the reason that you are not producing your PAN Card and IncomeTax returns in court is because you have not actually given the loan to the defendant?"
To the aforesaid question the plaintiff responded as under "A. The payment was done by way of bank transactions Vol.I can produce the copy of the bank transactions."
15. Learned Counsel for the defendant argued that it was not just because the Chartered Accountant of the Plaintiff was not available that the plaintiff had not produced the Pan Card & IncomeTax returns but because the plaintiff was Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 7/13 himself not willing to produce the same in Court. He relied on AIR 1961 patna 158 titled Rangabati Vs. United Bank of India Ltd. wherein it was held that nonproduction of important documents and nonexamination of important witnesses by a party was a circumstance against the party.
16. The Hon'ble Patna High Court also relied on the judgment of Hon'ble Supreme Court in Hirala Vs. Badkulal AIR 1953 SC 225 (which has also been cited by the Counsel for defendant) wherein the observations of the Privy Council in Murugesan Pillai Vs. Gnana Sambandha Pandara Sannadhi AIR 1917 PC 6 were quoted and it was held by the Privy Council thus "A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, failing, accordingly to furnish to the Courts the best material for its decision. With regard to third parties this may be right enough; they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state to facts to withhold from the court the written evidence in their possession which would throw light upon the proposition."
17. The judgment of AIR 1960 Andhra Pradesh 101 titled 'Agurchand Bomraj Sowcar Vs. Deochand & Anr.' was also relied on for the similar Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 8/13 proposition. In the said case, which pertained to a suit for recovery of amount between parties who had dealings, with each other, where the plaintiff had produced his account statement but defendants though admitted they maintained the account statement had not produced the same, the question before the Hon'ble Andhra Pradesh High Court was whether an inference could be drawn against the party who did not produce its accounts, the Hon'ble Andhra Pradesh High Court held that the findings of the lower court that no adverse findings could be drawn against the defendants as the plaintiff did not summon or give the defendants notice to produce their accounts was held to be wrong. It was observed by the Hon'ble Andhra Pradesh High Court that Illustration (g) of Section 114 Evidence Act which provides that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, the expression used is 'may' and not 'shall' therefore, how the presumption should be applied depends upon the facts & circumstances of each case. The only condition necessary for an adverse inference is that the court must be satisfied that the evidence should be produced.
18. Learned Counsel for the defendant relying on the aforesaid judgments argued thus that the Plaintiff deliberately withheld the documents i.e. his IncomeTax returns & PAN Card therefore adverse inference should be drawn against the plaintiff.
Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 9/13
19. On the other hand, it was argued by Learned Counsel for Plaintiff that the PAN Card & IncomeTax returns were not in possession of the plaintiff, they were with his Chartered Accountant and even otherwise they were not relevant, if the defendant really thought they were relevant he could have given a notice U/o 12 R 8 CPC to the Plaintiff to produce the documents but he did not do so. It was also his argument that there was no plausible explanation offered by the defendant as to why the Plaintiff would choose to transfer the amount to the defendant's account only to make an entry.
20. In the present case, where the transaction of transfer of the amount to the defendant's account stands admitted and also proved through the bank official PW2 who brought the account statement not just of the Plaintiff but also of the defendant as Ex. PW2/1 (colly) showing that the amount was admittedly transferred by way of cheques the onus actually shifted on the defendant to prove that the amount had been returned to the plaintiff.
21. The judgments relied on by the defendant are of course, authorities on the point of nonproduction of material documents and witnesses, and drawing adverse inference but, as held in the judgment of AIR 1960 AP 101 (supra), the presumption is to be drawn depending on the facts & circumstances. It has to be seen if the defendant has been able to show cogent evidence, to prove the contention that the transferring of the amount by the plaintiff was only to show a mere entry in the books either of the plaintiff or defendant. Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 10/13
22. The defendant has examined himself in evidence as DW1 and his father as DW2. The defendant did not adduce any documentary evidence. The defendant's stand in the written statement is that he returned the amount on 23/04/11. In his crossexamination, the defendant admitted that the sum of Rs. 2 lakhs was received in his account through the plaintiff on 21/04/11 but denied that the plaintiff gave him the amount of Rs. 2 lakhs as loan. The defendant/ DW1 admitted in the crossexamination for the first time that between 21/04/11 to 23/04/11 he had withdrawn the sums of Rs. 2 lakhs from his ATM. The defendant immediately volunteered after admitting this that he had returned the said amount. The defendant admitted that he did not obtain any receiving in writing from the plaintiff regarding return of the said amount to the plaintiff.
23. Now, coming to the crossexamination of DW2, DW2 denied the suggestion that the amount of Rs. 2 lakhs taken by the defendant from the plaintiff on 21/04/11 was not returned to the plaintiff. His voluntary statement is what gave him away, when he deposed as follows: "Vol; the same was returned by the defendant on 23/04/11 in my presence in cash."
Neither in the written statement nor in the testimony of DW1 has it ever come that the amount of Rs. 2 lakhs was returned by the defendant in presence of father of defendant i.e., DW2 and it was only DW2 who deposed so in his crossexamination perhaps in a bid to make improvement in the defence of the defendant and in the process damaging it further. Had the Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 11/13 defendant showed any document like his account statement or his own IncomeTax returns or other documents of the like nature to show that in fact the amount was never taken as a loan and was only done to show an entry which defence as such in absence of cogent evidence does not seem credible at all, there could have been reason to draw adverse inference against the plaintiff. The defendant however, has not adduced any cogent evidence to establish his defence and infact the embellishments in the evidence of his witness DW2 bring out the further falsity in the defendant's defence.
24. A civil suit is decided on the basis of preponderance of probabilities. The Plaintiff has through his oral and documentary evidence established sufficiently that he advanced the amount of Rs. 2 lakhs as loan to the defendant for a period of 1 year to which stand the Plaintiff remained firm in his crossexamination. The Plaintiff admitted receiving reply to the legal notice from the defendant in the application and cross examination which he deposed he received late so it is not as if the plaintiff hid the fact of receipt of notice. The defendant has not established his defence. Plaintiff is entitled to relief of recovery of the principal amount of Rs. 2 Lakhs as sought. However, interest sought @ 24% per annum is exorbitant and as such the plaintiff has not led any cogent evidence to show that the rate of interest was fixed @ 24% per annum. Ends of justice would be met if the plaintiff is granted simple interest @ 8% per annum from the date of filing of the suit till realization of the Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 12/13 amount.
Issues no. 2 and 3 decided accordingly.
25. In view of the aforesaid issuewise discussion the suit of the plaintiff is decreed for the principal sum of Rs. 2 Lakhs along with simple interest thereon @ 8% per annum from the date of filing of the suit till realization of the amount. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 28.05.2014 Civil Judge - 10 (Central)
28.05.2014
Suit No. 98/12 Shri Rakesh Arora Vs. Shri Khem Singh 13/13