Delhi District Court
Bhagwat Swaroop vs Tejpal And Ors on 18 December, 2023
IN THE COURT OF SANJEEV KUMAR MALHOTRA
DISTRICT JUDGE (COMMERCIAL COURT):
NORTH EAST: KARKARDOOMA COURTS: DELHI
CS 52/2021
CNR No.DLNE01-000993-2021
Sh. Bhagwat Swaroop
S/o Sh. Jaswant Singh
R/o H. No. J80, Street no.4,
4 Pusta, Kartar Nagar, Bhajanpura
North-East, Delhi ....... Plaintiff
Vs
1. Sh. Tejpal
S/o Sh. Jaswant Singh
(Defendant no.1 has been deleted from the array of parties
after his death vide order dated 23.08.2022)
2. Sh. Shiv Kumar
S/o Sh. Tejpal
Both R/o A-3/1130, Baba Shyam Giri Marg,
Near Tikona Mandir, South Gamri
Delhi-110053
Mbl. no.7289931005
Landline No.01122946116
2. Sh. Hari Singh (Nephew)
S/o Sh. Munshi Lal
R/o A-255, Gali no.23,
Near Radha Krishan Mandir,
South Gamri, Delhi-110053 ...... Defendants
Date of Institution : 23.02.2021
Date of Arguments : 13.12.2023
Date of Judgment : 18.12.2023
JUDGMENT
1. This is suit for recovery of Rs.6,00,000/- alongwith pendentlite and future interest @ 18 % per annum under CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 1 of 11 Order XXXVII Rule 2 CPC. However, Ld. Predecessor has treated the present suit as an ordinary suit for recovery. It is relevant to note over here that the present suit was transferred by Ld. Principal District & Sessions Judge, North-East to the Commercial Court in pursuance of order no.60/DHC/G-I/VIE2(a)/2019 dated 05.12.2019.
2. In brief, the facts of case as made out in the plaint are that the plaintiff was government employee and retired from MTNL. Plaintiff and defendant no.1 are known to each other having friendly relations and also visiting terms with each other. It is stated that defendants are running a committee and on 25.12.2017, they approached the plaintiff and told that they are in dire need of money for extending their committee and requested him for extending financial help to the tune of Rs.2,00,000/-. They assured the plaintiff that they will return the friendly loan within the stipulated period alongwith 18 % interest and Tejpal i.e. defendant no.1 also signed on a Promissory Note and receipt.
3. It is averred that on 25th May, 2018, defendants again approached the plaintiff and told that defendant has need of Rs.2,00,000/- to invest in committee and assured the plaintiff to return the personal loan amounts collectively and Shiv Kumar i.e. defendant no.2 also signed on Promissory Note and receipt. Thereafter, in the month of April, 2019, defendants again approached the plaintiff for urgent need of Rs.2,00,000/- to repay the committee member and again assured the plaintiff to return all the CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 2 of 11 personal loans amount collectively alongwith interest, but the plaintiff was not ready to give such amount due to earlier failures. It is further averred that on 23 rd April, 2019, defendants again approached the plaintiff for urgent need of amount and on believing the assurance and friendly relations and also the visiting terms with each other, plaintiff arranged the said amount from his own resources and paid it to the defendants. It is stated that defendants assured the plaintiff to return the same on or before stipulated period or as and when demanded by the plaintiff and a Promissory Note and receipt was also signed by defendant no.3 Hari Singh in this regard.
4. It is stated that after the expiry of stipulated period, plaintiff tried to contact the defendant several times, but defendant deliberately avoided his phone calls and also avoided to meet him on one or another pretext. It is further averred that thereafter, defendant lodged a complaint against plaintiff in PS New Usmanpur having DD no.36B dated 24.07.2019 to pressurize the plaintiff for not demanding his money back. Thereafter, plaintiff send a legal notice dated 10.12.2020 to the defendant calling upon to pay the balance amount of Rs.6,00,000/- with interest @ 18 % per annum from the date of due till its recovery, which was served upon the defendants on 23.12.2020 and they sent frivolous reply dated 26.12.2020 having baseless averments and concocted story. Hence, the present suit.
5. Defendants contested the present suit by filing detailed written statement while taking preliminary CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 3 of 11 objections that the suit of plaintiff is not maintainable under Order 7 Rule 11 r/w Section 151 CPC; defendants have not signed any document as cash receipt and promissory note filed by the plaintiff with case file and the same are bearing false, forged and fabricated signature of defendants; the plaintiff has filed the present suit with malafide intention to harass, humiliate, demoralize and pressurize the defendants to give money to the plaintiff; the suit of plaintiff is liable to be dismissed against defendant no.1 on the ground of limitation because the plaintiff has filed the present suit against receipt dated 25.12.2017 and also due to deficiency of court fees. It is further submitted that suit of plaintiff is not maintainable in present form because recovery of money suit can be filed separate against every defendants as per provision of law; the suit of plaintiff is also liable to be dismissed as he filed case against the defendants to legalized the illegal work of committee.
On merits, the contents of the plaint have been denied as wrong, frivolous and false. It is submitted that plaintiff is unsocial person of the locality who has manipulated the documents of receipt and promissory note with forged signature; defendants never approached the plaintiff as mentioned in para no.5, 6, 7 and 8 of plaint and no such incident has taken place between the parties; defendant no.1, 2 and 3 i.e. Tejpal, Shiv Kumar and Hari Singh never signed any promissory note and receipt and the plaintiff has prepared forged documents with forged signature to extort money from the defendants. It is further submitted CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 4 of 11 that in the entire plaint, stipulated time/period as well as cause of action are not mentioned; defendants are not liable to pay a single penny to the plaintiff as no amount was taken by them from the plaintiff and plaintiff has cooked a false and fabricated story to abstract money from the defendants; plaintiff has affixed court fees of only Rs.8200/- instead of Rs.10,000/-. It is submitted that the suit of plaintiff is liable to be dismissed with heavy costs.
6. Plaintiff filed replication wherein he denied the facts as mentioned in written statement while re-affirming the facts as mentioned in the plaint.
7. From the pleadings of the parties following issues were framed vide order dated 25.03.2022:-
i) Whether plaintiff is entitled to decree of recovery of Rs.6,00,000/- alongwith interest @ 18 % per annum from the date the said amount became due till its recovery alongwith litigation cost ? OPP
ii) Whether the suit of the plaintiff is without any cause of action ? OPD
iii) Whether the plaintiff is entitled to relief sought ? OPP
8. Vide order dated 23.08.2022, name of defendant no.1 i.e. Tejpal was deleted from the array of parties on an application filed by plaintiff u/s 151 CPC.
9. In support of case, plaintiff examined himself as PW-1 and tendered his examination in chief by way of affidavit Ex.PW1/A. PW-1 has relied upon following documents:-
CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 5 of 11i) Copy of Aadhar Card i.e. Ex.PW1/1.
ii) Original Promissory Note of Sh. Tejpal and its receipt dated 25.12.2017 i.e. Ex.PW1/2 and Ex. PW1/3 respectively
iii) Original Promissory Note of Sh. Shiv Kumar and its receipt dated 25.05.2018 i.e. Ex. PW1/4 and Ex. PW1/5 respectively.
iv) Original Promissory Note of Sh. Hari Singh and its receipt dated 23.04.2019 i.e. Ex.PW1/6 and Ex.PW1/7 respectively.
v) Legal notice dated 10.12.2020 and its postal receipt i.e. Ex.PW1/8 and Ex.PW1/9 respectively.
vi) Reply to legal notice dated 26.12.2022 i.e. Ex.PW1/10.
10. The defendants in support of their case, examined Hari Singh as DW-1 and Shiv Kumar as DW-2 and closed their evidence
11. Arguments have been advanced by Sh. Pankaj Arya, Ld. Counsel for plaintiff as also by Mr. K. L. Rajora, Ld. Counsel for defendant no.2 and 3. I have given my thoughtful consideration to the rival submissions made by them and perused the material as placed on record. My issue wise findings are as under:-
Issue no:-1 Whether plaintiff is entitled to decree of recovery of Rs.6,00,000/- alongwith interest @ 18 % per annum from the date the said amount became due till its recovery alongwith litigation cost ? OPP CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 6 of 11
12. Onus to prove this issue was upon the plaintiff. It is relevant to note here that after the death of defendant no.1 Tejpal on 05.07.2022, plaintiff filed an application, Ex.X-1 u/s 151 CPC for deleting the name of defendant no.1 from the array of parties and also to withdraw his claim against him, which was allowed by Ld. Predecessor vide order dated 23.08.2022. Therefore, the claim of the plaintiff in present suit remains for recovery of Rs.4,00,000/- alongwith interest @ 18 % per annum against defendant no.2 and 3 only.
13. Plaintiff in his affidavit of evidence Ex.PW1/A has deposed that all the three defendants approached him on 25.12.2017, 25.05.2018 and 23.04.2019 and requested him for extending financial help of Rs.2,00,000/- for extending/to repay their committee. Defendant no.2 executed Promissory note and receipt i.e. Ex.PW1/4 and Ex.PW1/5 on 25.05.2018 and defendant no.3 signed Promissory Note and receipt Ex.PW1/6 and Ex.PW1/7 on 23.04.2019. Defendant no.2 and 3 have taken a defence that Promissory note and receipt Ex.PW1/4 to Ex.PW1/7 do not bear their signatures and same are forged and fabricated. However, defendant no.2 in his cross examination has deposed that it is possible that he might have signed the Promissory note of Rs.2,00,000/- on 25.05.2018. It is also matter of record that an application under Section 151 CPC for referring the signature of defendants for expert opinion as filed by defendants was dismissed by Ld. Predecessor subject to cost of Rs.2000/-
CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 7 of 11vide order dated 11.11.2022 and the said order was not challenged by the defendants.
14. DW-1 has admitted in his cross-examination that he had received a legal notice dated 18.12.2020 from the plaintiff and had given reply of the said legal notice through Mr. S. Mansoori, Advocate dated 26.12.2020 i.e. Ex.PW1/10. Perusal of Ex.PW1/10 i.e. reply to legal notice given on behalf of all the three defendants shows that grant of loan of Rs.2,00,000/- alongwith interest @ 5 % per month is admitted and it is also mentioned that plaintiff put a condition to give Promissory Note as well as receipt for which the defendants agreed but despite making the payment of loan amount, Promissory note and receipts were not returned by the plaintiff while saying that same are not traceable. When the defendants in their joint reply to the legal notice of the plaintiff have admitted taking of loan of Rs.2,00,000/- on 5 % interest per month after execution of Promissory note and receipts, burden to prove shift upon the defendants to prove that they had returned the loan amount to the plaintiff for which no evidence has been led by them. Therefore, plaintiff is entitled for recovery of Rs.4,00,000/- from defendant no.2 as well as from defendant no.3. Plaintiff has claimed 18 % interest, but it is stated in his affidavit of evidence that he had given friendly loan to the defendants, therefore, he is entitled for interest @ 9 % per annum from the date of filing of suit till realization as well as cost of the suit. Accordingly, this issue is decided in favour of plaintiff and against defendant no.2 and 3.
CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 8 of 11Issue no.2:-
Whether the suit of the plaintiff is without any cause of action ? OPD
15. Onus to prove this issue was upon the defendants. Ld. Counsel for defendants argued that plaintiff has clubbed separate cause of action in one suit, which is not permissible. It is submitted that as per case of the plaintiff, defendant no.2 executed Promissory note and receipt on 25.05.2018 while defendant no.3 executed Promissory note and receipt on 23.04.2019. Ld. Counsel for defendants has also relied upon the authorities reported as Church of Christ Charitable Trust & Educational vs. Ponniamman Educational Trust represented by its Chairperson/ Managing Trustee, 2012 (3) CLJ 231 SC; Hemant Kumar vs. Sadhna Sharma & Ors., 2013 (3) CLJ 10 Del.; Spearhead Digital Studio Pvt. Ltd. vs. H. K. Mitroo, 2014 (4) CLJ 764 Del.; Facebook India Online Services Pvt. Ltd. vs. Mufty Aijas Arshad Qasmi, 2013 (4) CLJ 118 Del.; Rajenderpal Singh Bhatia vs. Joginder Singh, 2013 (1) CLJ 587 Del.; Meena Tevary & Anr. vs. Shri Jugal Kishore Ratnu & Ors., 2013 (4) CLJ 535 Del. and Ashok Kumar & Anr. vs. Ram Avtar Gupta, RC Rev. 308/17, decided by Hon'ble High Court of Delhi.
16. On the other hand, Ld. Counsel for plaintiff argued that all the defendants approached the plaintiff together on each occasion for grant of friendly loan in order to extend/pay their committee. It is submitted that plaintiff can unite several cause of action. My attention is drawn in CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 9 of 11 respect of authorities reported as Jay Industries vs. Nakson Industries, AIR 1992 Delhi 338.
17. Plaintiff has filed the present suit for recovery on the averments that the defendants approached the plaintiff on 25.12.2017 and requested to extend financial help of Rs.2,00,000/- and Promissory note and receipt was signed by defendant no. 1 Tejpal, thereupon on 25.05.2018 and 23.04.2019, they again approached the plaintiff for financial help of Rs.2,00,000/- and on these two dates, defendant no.2 and 3 executed Promissory note and receipt. Thus, as per plaintiff, he granted loan of Rs.6,00,000/- to all the three defendants on three occasions i.e. on 25.12.2017, 25.05.2018 and 23.04.2019. Order II Rule 3 CPC reads as under:-
"3. Joinder of causes of action.- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.
18. In view of Order II Rule 3 CPC, it is permissible and up to the plaintiff, to unite in the same suit several causes of action against the same defendant. The plaintiff has also filed appropriate court fee i.e. Rs.8200/- on the suit amount CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 10 of 11 i.e. for recovery of Rs.6,00,000/-. The authorities as relied by Ld. Counsel for defendants are not helpful in the facts and circumstance of present case. Accordingly, this issue is decided against the defendants and in favour of plaintiff.
Issue no.3:-
iii) Whether the plaintiff is entitled to relief sought ? OPP
19. In view of my findings on issue no. 1 and 2, plaintiff is entitled for recovery of Rs.4,00,000/- from defendant no.2 and 3 alongwith interest @ 9 % per annum from the date of filing of suit till realization. Costs of the suit are also awarded in favour of plaintiff and against defendant no.2 and 3. Decree sheet be prepared accordingly.
20. File be consigned to Record Room.
Digitally signed SANJEEV by SANJEEV KUMAR KUMAR Announced in the open court MALHOTRA MALHOTRA Date: 2023.12.18 on 18th December, 2023 16:46:23 +0530 (Sanjeev Kumar Malhotra) District Judge (Commercial Court) North-East District, Karkardooma Courts, Delhi CS 52/2021 Bhagwat Swaroop vs. Shiv Kumar and Ors. Page 11 of 11