Delhi District Court
Cs No. 134/15 Som Prakash vs . Dr. Bharat Bhushan Batra on 12 August, 2015
CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra
IN THE COURT OF SH. NAVEEN ARORA
ADJ06: SOUTH DISTRICT: NEW DELHI
Suit No : 134/15
In the matter of :
Sh. Som Prakash
S/o Late Sh Jia Lal,
16A/48, DDA Flats,
Chittranjan Park,
New Delhi110019 ...................... Plaintiff
VERSUS
Dr. Bharat Bhushan Batra,
A316, Sarita Vihar,
New Delhi110076 .....................Defendant
Date of institution of Suit : 30.08.2011
Date on which order was reserved : 10.08.2015
Date of Judgment : 12.08.2015
SUIT FOR RECOVERY OF RS. 3,49,500/ (RUPEES THREE
LACS FORTY NINE THOUSAND AND FIVE HUNDRED ONLY)
TOGETHER WITH INTEREST PENDENTELITE AND FUTURE
INTEREST FROM THE DATE OF DECREE UP TO THE DATE
OF REALIZATION AND COSTS OF THE SUIT WITH INTEREST
THEREON
1.As per the case of the plaintiff, on account of friendly relations on the request of defendant, plaintiff extended a friendly loan of Rs. 2 Lakhs to him in the month of January 1998 for the period of eight years on agreed interest of 24 % per annum. The defendant in order to secure the loan issued two cheques bearing No. 609382 dated 25.08.2008 for Rs. 1 lakh and 609383 Page 1 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra dated 31.08.2008 of Rs. 1 Lakh, both drawn on Bank of Maharashtra, Kalkaji New Delhi. But the defendant did not pay any interest to the plaintiff, nor repaid the loan and on the expiry of period of 10 years, plaintiff presented both the cheques on their due dates, but both the cheques got dishonoured on account of "funds insufficient" and " Account Closed" respectively. The defendant was accordingly, informed but he kept on lingering on the matter and finally plaintiff sent a legal notice dated 08.09.2008 which was falsely replied vide letter dated 25.09.2008. The plaintiff filed a criminal complaint U/s 138 Negotiable Instruments Act. Prior to filing of the present suit, plaintiff sent another legal notice dated 20.08.2011 which was also falsely replied vide letter dated 24.08.2011. Hence, this suit.
2. The defendant contested the suit and filed WS alleging that present suit is false as the amount taken by him as loan was repaid in November 1998, along with interest of Rs. 44,000/ in the presence of Sh. Rajesh Kumar an employee of defendant. It is stated that plaintiff has admitted in his cross examination in the criminal complaint case that it was him who has filled up the name and date on the cheques in question which proves that the cheques were not post dated and they were issued blank, therefore, the limitation for the repayment of the alleged loan was over in the year 2001 as it was not given for the period of ten years. It is stated that plaintiff seems to have stumbled upon the cheques and became greedy and presented those cheques to cheat the defendant. It is stated Page 2 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra that the said bank account of the defendant was closed many years ago and criminal case filed against the defendant has already been dismissed on 06.09.2011 and on the above mentioned ground prayed for dismissal of the suit.
3. Plaintiff filed replication to the WS denying the allegations contained in the WS and reaffirming the contents of the plaint. It was alleged that limitation for the purpose of filing of the present suit starts from the date of cheque i.e. 31.08.2008 and therefore, the suit is within limitation. It is stated that there is no explanation as to how the cheques came in power and possession of the plaintiff. It is further stated that in or around the year 2002, the defendant had in fact left Delhi and became untraceable to the plaintiff and the plaintiff came to know about the defendant only i n the year 2008 when the defendant resurfaced and had come back to Delhi.
4. From the pleadings of the parties, following issues were framed on 28.02.2012:
Issue No. 1: Whether the suit is barred by law of limitation? OPD.
Issue No. 2: Whether the suit is without cause of action, and based on blank cheque, false and frivolous pleas, ? OPD Issue No.3 (a) Whether the defendant issued two cheque Nos. 609382 dated 25.08.2008 and 609383 dated 31.08.2008 of Rs. 1 Lakhs each of the plaintiff ? OPP.
Issue No.3 (b) Whether the defendant had returned back amount of Rs. 2,00,000/ (principal amount ) and Rs. 44,000/ Page 3 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra as interest in November 1998? OPD.
Issue No. 4: Whether the plaintiff is entitled for decree of Rs. 3,49,500/ (i.e. principal amount of Rs. 2 ,00,000/ + interest of Rs.1,44,000/ from 29.08.2011 + Legal notice charges Rs. 5,500/ ) against the defendant? OPP.
Issue No.5: Whether the plaintiff is entitled for pendentelite and future interest @ 24 % p.a? OPP.
Issue No. 6: Relief.
Thereafter, matter was adjourned for PE.
5. In plaintiff evidence, plaintiff examined himself as PW1 who reiterated the contents of the plaint in his affidavit tenderred in his examination in chief and relied upon the following documents : Sl. No. Documents relied upon Exhibit Inference/Remark
1. Cheque No. 609382 PW1/1 dated 25.08.2008 of Rs. 1 Lakhs
2. Cheque No. 609383 PW1/2 dated 31.08.2008 of Rs. 1 Lakhs
3. Return memo dated PW1/3 W. R. T Cheque Ex.
27.08.2008 PW1/1.
4. Return memo dated PW1/4 W.R.T Cheque 02.09.2008 Ex.PW1/2
5. Legal Notice dated PW1/5 08.09.2008 with certified &6 copies of postal receipts.
6. Certified copy of the PW1/7 reply dated 25.09.2008
7. Certified copy of the PW1/8 statement of plaintiff Page 4 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra herein recorded U/s 313 Cr.P.C in Complaint case No. 2395C/09
8. Certified copy of the PW1/9 judgment of acquittal of Complaint case No. 2395C/09
9. Copy of Legal notice PW1/10 dated 20.08.2011 with to postal receipts PW1/12 Reply letter dated PW1/13 10 24.08.2011
6. During his cross examination, he admitted the certified copy of his affidavit of evidence filed in criminal complaint case i.e. Ex. PW1/D1 and his cross examination i.e. Ex. PW1/D2 and affidavit and cross examination of Sh. Rajesh Kumar as Ex. PW1/D3 &D4 respectively. He admitted that he had filled the date and name of the payee in his hand writing on the cheques in question. He volunteered that he had done so on the instruction and presence of the defendant. He denied the defence of the defendant. He admitted that there is no document to show that the loan was given for 10 years period. He admitted that in para 14 of his affidavit, he stated that the transaction was of commercial in nature. He remained stick to his stand during his entire cross examination.
7. Plaintiff examined Sh. P L Kataria, Sr. Manager, Punjab National Bank as PW2 who proved on record the account statement of plaintiff i.e. of Account No. 1467000100100404 as Ex. PW2/1, Computerized statement of his account for the Page 5 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra period 01.08.2008 to 30.09.2009 as Ex.PW2/2. He deposed with respect to the banking transactions involved in the case as per the case of the plaintiff and identified the documents Ex. PW1/3 & PW1/4. Even otherwise these documents are not disputed by the defendant.
8. Plaintiff also examined Ms. Veena Satewal as PW3, Sr. Judicial Assistant, Record Room Civil, Patiala House Courts, New Delhi who proved on record the certified copies of Documents Ex. PW1/1 to PW1/8. Thereafter plaintiff evidence was closed.
9. Defendant in his defence evidence examined himself as as DW1 who filed his affidavit in his examination in chief reiterating the contents of the WS and relied upon following documents: Sl. Documents Exhibit Inference No. s no.
1 Order dated 05.08.2014 of DW1/1 Vide which the Hon'ble High Court of Delhi application for grant of leave to appeal was dismissed.
10. During his cross examination also he stated that no terms and conditions were agreed between the parties for the repayment of the loan and stated that plaintiff had asked him to repay the loan whenever, it is possible. He stated that it is for the plaintiff to explain as to how he came in possession of these cheques. He stated that these cheques were lying in the table drawer at his wife's clinic. He stated that around October 2001 he was transferred to Masouri from Delhi Page 6 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra Government to IAS Academy where he remained for two years and then came back to Delhi i.e. in the year 2003 to CGHS. He stated that he does not remember the exact date or year when his account was closed but it was prior to presentation of cheques. He denied that when he came to know about the dishonour of first cheque, he immediately closed his account. Thereafter defence evidence was closed.
11. I have heard the arguments and have perused the record. From the pleadings and the evidence of parties, it is not disputed that cheques in question bears the signatures of the defendant and the amount is also mentioned in the hand writing of the defendant. It is also admitted that the name of the payee and the date on the cheques, is in the hand writing of the plaintiff. The defendant though, alleged that he had repaid the loan and which he tried to prove on record from the one line statement (contained in his affidavit) of Sh.Rajesh Kumar i.e. one of his employee i.e. Ex. PW1/D4, in my opinion has not be able to establish the same to the satisfaction of the court. Merely on the bald allegation of Sh. Rajesh Kumar and defendant, it cannot be believed that the said loan was repaid because if loan had repaid then why the cheques were not taken back, has not been explained by the defendant. The defendant has not been able to establish that the cheques in question were stolen by the plaintiff and a bald allegation to this effect, in my opinion is not sufficient and it can be safely assumed that cheques must have been given as security for the repayment of the loan. The defendant could have easily Page 7 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra shown to the court that these cheques were not issued in the year 1998 by placing on record his bank statement showing the issuance of the cheques of same series in some other period of time. But the same was not done, therefore, it can be assumed that the cheques were issued at the time of taking of loan and in the absence of any proof of repayment, it can be safely assumed that it was never repaid.
12. The plaintiff has relied upon the following judgments and I have perused them:
i) 154 (2008) Delhi Law Times 579 titled as Mojj Engineering Systems Ltd & Ors Vs. A B Sugars Ltd.
and
ii) (1967) 1 S C R 190, titled as Jiwanlal Achariya Vs. Rameshwarlal Agarwalla These judgments are on the point of limitation stating that the limitation shall start from the date of the post dated cheque which is not in dispute being a legal issue. Iii) AIR 1964 S C 538 (V 51C 68), titled as Badat and Co. , Bombay Vs. East India Trading Com.: This is with respect to evasive and vague denial in written statement which should be deemed to be an admission, which is also not in dispute.
iv) 2009 VIII AD (Delhi) 35, Crl. L. P. 10/2006 titled as Ashok KUmar (Shri) Vs. Gulshan Kumar and v) AIR 2010 Supreme Court 1898 titled as Rangapa Vs. Mohan : These judgments are with respect to appreciation of evidence holding that completely inconsistent defence cannot be said to be a Page 8 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra probable defence to rebut the presumption.
vi)2008 (102) DRJ 147 of Hon'ble High Court of Delhi titled as Ravi Chopra Vs. State & Ors. and vii) I (2004) BC 130 DB titled as Lillykutty vs. Lawrance : These judgments holds that any material alteration to the cheques without the consent of the drawer unless it is made out with the common intention of original the parties thereto renders the cheques void. When the cheque has been signed by the drawer, the fact that the ink in which name and figure are written or the date is filled up is different from the ink of the signatures is not a material alteration.
Viii) JT 2009 (13) SC 44, titled as Sh. Vishnu Dutt Sharma Vs. Smt. Daya Sapra and ix) 2009 (5) Scale 527, titled as Seth Ramdayal Jat Vs. Laxmi Prasad: In these judgments, it is held that judgment in criminal case would not be binding upon civil proceedings as it had got only limited application.
x) AIR 1962 Gujarat 68 (V 49 C19) titled as Modi Nathubhai Motilal & Ors Vs. Chhotubhai Manibhai Desai, and xi) AIR 1934 Calcutta 766, titled as Superintendent and Remembrancer of Legal Affairs, Bengal Vs. Forhad and Others: I have perused the same, the said judgments are irrelevant in the context of the matter in dispute. Xii) 127 (2006) Delhi Law Times 611 (DB), of Hon'ble Delhi High Court, titled as Union of India & Ors Vs. M/s Seil Ltd (Unit Mawana Sugar Works ) & Ors.: This Judgment with respect to payment of interest to the suit amount.
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13. Arguments heard. My issue wise findings are as under :
14.Issue No. 1: " Whether the suit is barred by law of limitation? OPD." : The burden of proving this issue was upon the defendant. It is an admitted position that the cheques allegedly given by the defendant to the plaintiff were not mentioning any dates and dates were filled by the plaintiff on those cheques. If we see the case of the plaintiff, that defendant had approached him for a friendly loan in the year 1998 for a sum of Rs. 2 Lakhs and i.e. for a period of 10 years. This allegations of the plaintiff in itself is quite unusual and cannot be believed on the face of it, especially when the loan is being given on interest of 24 % per annum, there was no need for fixing the time period for repayment of the loan amount. It is beyond every stretch of imagination that one friend would give a loan to the other friend for a period of 10 years at the first instance. It can be a case that initially the loan was given and from time to time its repayment period was extended provided the interest was being paid regularly but it cannot be assumed that it was given for a period of 10 years unless proved by way of cogent evidence. It is also pertinent to mention here that even if it is believed for the sake of arguments, that loan was granted for 10 years in the month 1998, even in that case the plaintiff has failed to explain that why two cheques of Rs.1 lakhs each were given for 25.08.2008 and 31.08.2008 Page 10 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra instead of 01.01.2008 or 31.01.2008 i.e. on the expiry of the period of 10 years. It is quite unusual that any person would issue two post dated cheques of repayment of loan after a period of 10 years by giving difference of 5 days i.e. 25.08.2008 and 31.08.2008. From the facts, which have come in evidence it seems that defendant after taking loan did not pay interest and was transferred outside Delhi and when he returned back, the plaintiff by filling the two dates on the cheques as per his convenience presented those cheques. From the facts of the case it can be safely assumed that when the loan was granted, it was not given for any fix period and i.e. why two blank cheques were given to secure the loan without mentioning the date. Therefore, the limitation period for filing the present suit in terms of Article 21 of the Limitation would expire maximum by January 2001 i.e. three years from the date of loan and the present suit was filed on 30.08.2011 i.e. much after the limitation period. Hence, this issue stand decided against the plaintiff.
15.Issue No. 2: " Whether the suit is without cause of action, and based on blank cheque, false and frivolous pleas, ? OPD": The burden of proving this issue was also upon the defendant. In view of decision of issue No.1 , it can be said that the suit of the plaintiff is based upon false allegations i.e. the allegations which cannot be presumed to have happened in normal course of events, hence, this issue is Page 11 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra also decided against the plaintiff.
16. Issue No.3 " (a) Whether the defendant issued two cheque Nos. 609382 dated 25.08.2008 and 609383 dated 31.08.2008 of Rs. 1 Lakhs each of the plaintiff ? OPP". The burden of proving this issue was upon the plaintiff. As stated above, in the absence of any explanation from the side of defendant as to how those cheques came in possession of plaintiff, it can be safely assumed that these cheques were given by the defendant to the plaintiff for securing the loan of Rs. 2 lakhs.
17.Issue No.3 "(b) Whether the defendant had returned back amount of Rs. 2,00,000/ (principal amount ) and Rs. 44,000/ as interest in November 1998? OPD". The burden of proving this issue was upon the defendant. As held above I am of the opinion that one line statement of Sh. Rajesh Kumar contained in his affidavit, is not sufficient, to hold that loan was repaid by the defendant to the plaintiff in his presence and in the absence of any other evidence, it can be safely held that defendant never repaid the loan. It is pertinent to mention here, as per the Income Tax Act. any payment exceeding Rs. 20,000/ should be made against a duly executed receipt and when the law requires any transaction to be reduced in the form of a document, the oral evidence in that regard is not admissible, in view of Section 91 & 92 of Indian Evidence Act 1872 and therefore, in the absence of any receipt or any other form of documentary proof, it cannot be assumed merely on the allegations of the defendant Page 12 of 13 CS No. 134/15 Som Prakash Vs. Dr. Bharat Bhushan Batra or DW Rajesh that defendant had repaid the loan. Hence, this issue stands decided against the defendant.
18.Issue No. 4: Whether the plaintiff is entitled for decree of Rs. 3,49,500/ (i.e. principal amount of Rs. 2 ,00,000/ + interest of Rs.1,44,000/ from 29.08.2011 + Legal notice charges Rs. 5,500/ ) against the defendant? OPP.
In view of the decision of above mentioned issued, specially Issue No.1 & 2, this issue stands decided against the plaintiff.
19.Issue No.5: Whether the plaintiff is entitled for pendentelite and future interest @ 24 % p.a? OPP.
In view of the decision of above mentioned issued, specially Issue No.1 & 2, this issue stands decided against the plaintiff.
20.Issue No. 6: Relief.
In view of decision of above mentioned issues, the suit of the plaintiff stands dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in Open Court (NAVEEN ARORA)
on 12 th August 2015 ADJ06(SOUTH) SAKET
NEW DELHI.
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