Delhi District Court
Sh. Dharam Pal vs Sh. Satish Kumar on 24 May, 2013
1
IN THE COURT OF SHRI MANMOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 01
TIS HAZARI COURTS, DELHI
C.S. No. 286/2004
Unique ID no. 02401C6052982004
Sh. Dharam Pal
S/o Late Sh. Sube Singh,
R/o WZ37, Nangli Zalib,
Janak Puri, New Delhi. ....Plaintiff
Versus
Sh. Satish Kumar
R/o RZ6A, Suraj Vihar,
Kakrola, Near Arya Public School,
New Delhi110059. ....Defendant
Date of institution of the suit : 07.10.2004
Reserved for judgment on : 16.05.2013
Date of pronouncement of judgment : 24.05.2013
JUDGMENT
Briefs facts of the case, as propounded by the plaintiff, are as under:
i) The defendant and the plaintiff were good friends and the defendant had in the month of September, 2002 approached and C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 1 of 17 2 requested the plaintiff for a friendly loan of Rs. 5,50,000/ as the defendant was under financial constraints. However, at that point of time, the plaintiff could only arrange a sum of Rs. 5,06,000/ and accordingly gave the said sum of money to the defendant. Accordingly, in lieu of the receipt of the said sum of Rs. 5,06,000/ the defendant executed a Promissory Note in the presence of the witnesses undertaking to repay the said sum of Rs. 5,06,000/ within a period of 18 months from the date of execution of Pronote in the month of September, 2002. The plaintiff was gracious enough to the extent of not claiming any interest for the said period of 18 months, provided the defendant repay the said friendly loan within the stipulated period.
ii) Instead of repaying the loan, the defendant filed a false and frivolous complaint with the Police Post Matiala under the jurisdiction of PS Uttam Nagar. In the said complaint the defendant had levelled false and frivolous allegations against the plaintiff which after due enquiry by the police were found to the false. The complaint was made to pressurize the plaintiff not to claim his legal dues.
iii) The plaintiff send a demand notice under registered cover on 05.06.2004 through his Advocate thereby demanded the said C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 2 of 17 3 sum of Rs. 5,06,000/ alongwith interest @18% per annum from the month of September, 2002 being the prevalent market rate. The notice was duly received by the defendant. Who replied to it vide a false reply dated 05.07.2004 and did not make the payment.
iv) The defendant is liable to pay a sum of Rs. 5,06,000/ alongwith interest @ 18% per annum from the month of September, 2002 till its realization.
2. Notice of the suit as summary suit was sent to the defendant. Vide order dated 12.04.2005 unconditional leave to defend was granted to the defendant.
3. In his Written Statement the defendant opposed the claim of the plaintiff denying the material averments on which the plaintiff has founded his cause of action.
4. The defendant pleaded the Promissory Note to be defective, forged and invalid and stated that a blank document was got signed from him by the plaintiff on 09.02.2003 under pressure and threats; the plaintiff has not approached with clean hands; the suit being not properly valued; plaint not signed/verified in accordance with the rules. The averments on merits have been denied.
5. The plaintiff filed the replication denying the averments of the C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 3 of 17 4 written statement and reiterating the averments of the plaint.
6. Issues were framed vide minutes of proceedings dated 06.02.2006 as under:
1) Whether Pronote dated 10.09.2002 is fabricated document? If so, its effect? OPD
2) Whether the plaintiff is entitled to recovery of the suit amount from the defendant? OPP
3) Whether plaintiff is entitled to any interest on the suit amount? If so, at what rate and for what period? OPP
4) Relief.
7. Plaintiff has examined three witnesses in his PE. Defendant has examined himself as DW1.
8. Arguments have been addressed by Shri R. Mohanty, Ld. Counsel for the defendant who has also filed written arguments. No arguments have been addressed on the part of the plaintiff despite opportunities afforded and finally the opportunity was closed vide minutes of proceedings dated 03.04.2013.
9. Ld. Counsel for the plaintiff has argued that the pronote on the face of it is defective and does not come within the definition of the word 'Promissory Note'. A bare reading of the Ex. PW1/1 by itself C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 4 of 17 5 shows that it is not a Promissory Note. It is for the plaintiff to prove that the defendant had borrowed money in which he has drastically failed. Even the parentage of the defendant has not been correctly mentioned in the Promissory Note. There are material alterations which make the document Ex. PW1/1 void. The Promissory Note is not duly stamped in accordance with Article 49(b) read with Article 13 of the First Schedule of the Stamps Act and therefore cannot be read in evidence. The evidence of witness of plaintiff does not establish anything in favour of the plaintiff. Nothing in plaitiff's favour emerges from the evidence of defendant.
10. On the part of defendant the case of Nanga Vs. Dhannalal & Others, AIR 1962 Rajasthan 68 has been relied upon as to the manner of proving a promissory note. Ram Raj Ahir Vs. Hirdaya Narain Rai, 1982 All. L. J. 1435 has been cited on the aspect that the plaintiff must prove that the defendant borrowed money.
11. Defendant relied upon Bolisetti Bhavannarayana @ Venkata Bhavannarayana Vs. Kommuru Vaullakki Cloth Merchant Firm, Tenali, 1996 (1) ALT 917 (F.B.)to cite as to what constitutes a promissory note. The case of Jagjivandas Bhikhabhai Vs. Gumanbhai Narottamadas, AIR 1967 Gujrat 1 (V 54 C1) is also on the similar aspects.
C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 5 of 17 6
12. Ld. Counsel for the defendant has cited Loonkaran Sethia etc. Vs. Mr. Ivan E. John and Others, AIR 1977 SC 336 on the point of material alteration and any material alteration without the consent of party bound amounts to cancelling the deed. The case of Verco Private Ltd. Padi and Others Vs. Newandram Naraindas and another, AIR 1974 Madras 4 has been cited to read that the promissory note is rendered void if materially altered without consent. On this aspect another case cited is N. Narayanaswamy Vs. Madanlal, AIR 1982 Karnataka 227.
13. It is submitted on behalf of the defendant that unstamped pronote is inadmissible in evidence and on this aspect the case of Bollam Venkataiah Vs. Venumuddala Venkata Ramana Reddy, AIR 1985 AP 26 has been cited. On the same point Dokka Joganna Vs. Upadrasta Chayadevi, 1 (1998) BC 186 has been relied upon. Kallappa Pundalik Reddi Vs. Laxmibai Dattoba Vellaram and others, AIR 1995 Bombay 160 has been relied upon to cite that the pronote not stamped as per Art. 49(b) of the Stamp Act is inadmissible in evidence. Another case relied upon on the similar aspect is Gujjala Hanumanthappa and others Vs. S. Bala Rangaiah, AIR 1987 Karnataka 285. The case of Ram Rattan C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 6 of 17 7 (dead) by legal representatives Vs. Bajrang Lal and Others, AIR 1978 SC 1393 is also on similar point.
14. During the course of arguments the pleadings and evidence has been copiously referred to and read. No other point has been argued or urged. No other case law cited.
15. I have considered the submissions and my findings on various issues are as under: Issue no. 1: Whether Pronote dated 10.09.2002 is fabricated document? If so, its effect?
& Issue no. 2: Whether the plaintiff is entitled to recovery of the suit amount from the defendant?
16. I am taking up these two issues together as the first issue is the defence of the defendant whereas the second issue is cause of action of the plaintiff. Therefore the first issue is very much inherent in the second issue as the defendant has opposed the cause of action as propounded by the plaintiff. The onus of issue no. 1 is on the defendant and the onus of issue no. 2 is on the plaintiff.
17. Onus is only a right to open or begin the evidence. It is different from burden of proof. In a trial the burden may proof may remain fixed i.e. it may be on the propounder generally as it is the plaintiff who may fail if no evidence is led by either side. However the onus of C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 7 of 17 8 proof may keep on shifting during the course of trial. Hon'ble Supreme Court of India in Rebti Devi vs. Ram Dutt AIR 1998 SC 310 has held that once both the sides have lead the evidence question of burden of proof pales into insignificance. Hon'ble the High Court of Delhi in Kerala Agro Industries Corporation Limited vs. Beta Engineers 188 (2012) DLT 373 has been held that "...a civil case is decided on balance of probabilities. A civil court puts all the evidence which have been led in a melting pot so as to determine the final picture which has to emerge...."Thus the final conclusion have to emerge after considering the entire evidence led in the case and weighing the same on the scale of preponderance of probabilities.
18. The plaintiff has tendered in evidence various documents of which Ex. PW 1/ 1 is the Promissory Note; Ex. PW 1/ 2 is the Notice of demand and receipt of service and Ex. PW 1/3 is the defendant's reply to the notice.
19. PW1 is the star witness of the case. In his cross examination PW1 stated that he knew the defendant for past many years and that the defendant also used to purchase bricks from his kiln. He denied the suggestion that he never supplied any bricks to the defendant. He denied the suggestion that he never had friendly relations with the defendant. He also stated that except defendant he had not advanced C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 8 of 17 9 loan to anyone.
20. PW1 further stated in his cross examination that prior to the transaction in question he did not advance any loan to the defendant. Since defendant was suffering loss in his grocery shop, he needed money. The loan advanced by the plaintiff was out of his savings and the compensation of land acquisition. He also stated that he had given the loan in one go. He stated that he gave the loan in cash at the residence of defendant; the day he handed over cash, the same was lying at his house as he had withdrawn the money a few days before. He stated the he can produce his bank statement. He produced his Pass Book of SB Account No. 18786 branch Bank of India, Janakpuri, Delhi and the photocopy of the passbook is Ex. PW 1/DX. He stated that he withdraw the money in the months of March and April, 2002 amounting to Rs. 3 lacs. He denied the suggestion that he filled the pronote ante dated as he withdrawn the money quite earlier. He stated that he has not shown the loan in his income tax returns. He denied the suggestion that he had not shown the same in ITR since he had not given any loan.
21. PW1 cross examined as to his means. About his vocation the PW1 stated that he was a property dealer and an agriculturist, earlier he had a brick kiln. He stated that he was not a professional money C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 9 of 17 10 lender. He stated his education to be a graduate.
22. Extensive cross examination of PW1 was conducted on the aspect of execution of the promissory note. PW1 stated that he had never filled any pronote form. The pronote Ex. PW 1/1 was filed by him as per the dictation given by defendant. The pronote was written at the residence of defendant at about 10 am on 10.09.2002. After having written the same he did not read that pronote. He denied the suggestion that the pronote was not filed in on dictation of defendant. The pronote was first signed by the defendant followed by Dashrath Singh followed by Sunil Kumar. He denied the suggestion that as per pronote, liability to pay is against the plaintiff and volunteered to stated that had that been so, the defendant would have demanded money from him. Dashrath Singh and Sunil Kumar are not witnesses to the pronote. He denied the suggestion that does not disclose name, parentage and address of the witnesses and volunteered to state that it was so because both the parties personally knew both the witnesses. He denied the suggestion that defendant does not know the witnesses. PW1 admitted the suggestion that the pronote does not mention his parentage or address. He stated the since the defendant told wrong name as his parentage, he mentioned the same on pronote as it is. He stated that he did not know the name of defendant's father as C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 10 of 17 11 defendant was residing in Delhi while his father was in native village. He denied the suggestion that the promissory note was signed blank by the defendant and subsequently filled in and ante dated by him to avoid any police action.
23. PW1 was also cross examined as to the signing and attestation by witness of the pronote Ex. PW1/1. Further in his cross examination PW1 denied the suggestion that pronote Ex. PW 1/1 was executed without any consideration. He denied the suggestion that the pronote Ex. PW 1/1 was got signed by the plaintiff from defendant on gun point in company of Sanjay Jaipal and Yashpal and volunteered to state that the defendant was not vacating the shop of Jaipal and Yashpal and had rather tried to lodge false criminal case against them. He stated that similarly the defendant also owed money to Sanjay and tried to lodge false criminal case against Sanjay as well however for the reason that Since Sanjay did not have any written document, he did not file any suit against the defendant. PW1 stated that he was not aware as to if any complaint was lodged by the defendant with the local police and PCR.
24. PW1 in his cross examination also denied the suggestions that the demand notice sent by him to the defendant is false. He admitted the reply by the defendant and that the plaintiff did not issue any C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 11 of 17 12 rejoinder notice. He denied the suggestion that the defendant is not liable to pay any money or that his suit is false.
25. PW2 and PW2 are the persons who have witnessed the transaction of the promissory note and signatory to the same. They have been cross examined on the aspect of there being known/related to the plaintiff; deposing at his instance; no transaction; material alterations etc.
26. DW1 is the defendant himself. He admitted the suggestion that para 4 to 8 of his affidavit Ex.DW1/1 is not the part of the pleadings and same is beyond the pleadings.
27. DW1 stated in his cross examination that he did not file any complaint against the plaintiff and his associates on 09.02.2003 as he and his family were scared. On 10.02.2003 when the plaintiff again came to threaten him and then his wife made a complaint at police control room. He stated that he got to know that the promissory note was filled incorrectly when he reached in the Court room as a defendant in said case. He has not filed any complaint against the plaintiff for using forged documents after being served in the suit as a defendant. He made a complaint to DCP concerned before being summoned in the present suit and he stated in detail about the incident.
C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 12 of 17 13
28. About the execution of the Promissory Note Ex. PW1/1, the witness DW1 stated that he was made to sign a blank document on 09.02.2003. Again said the he was made to sign on a small on a small ticket affixed on blank paper. Again said that something was printed on the paper when he signed the same.
29. DW1 denied the suggestion that he is liable to pay a sum of Rs. 5,06,000/ to the plaintiff alognwith interest or that his complaint Ex. A is false that is why no action has been taken on the same. He also denied the suggestion his reply to notice dated 05.06.2004 Ex. B is also false. He denied the suggestion that he has voluntarily signed the promissory note Ex.PW1/1 or that he had taken a loan of Rs. 5,06,000/ from the plaintiff which I am liable to pay.
30. The rights and obligations of the parties to the lis have to be chalked out by reading the contents of the Promissory Note Ex. PW1/1 to find out what rights and liabilities it creates.
31. As Ex. PW1/1 is propounded as a Promissory Note, first of all it is necessary to examine it conforms to the definition of a promissory note or not.
32. What are the ingredients of a Promissory can be seen by reading section 4 of the Negotiable Instruments Act, 1881 which reads as under: C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 13 of 17 14 "4."Promissory note"--A "promissory note" is an instrument in writing (not being a banknote or a currencynote) containing an unconditional under taking signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.
Illustrations A signs instruments in the following terms: --
(a) "I promise to payB or order Rs. 500."
(b) "I acknowledgement myself to be indebted to B in Rs. 1,000, to be paid on demand, for value re ceived."
(c) "Mr. B.I.O.U. Rs. 1,000."
(d) "I promise to pay B Rs.500 and all other sums which shall be due to him."
(e) "I promise to pay B Rs.500 first deducting there out any money which he may owe me."
(f) "I promise to pay B Rs.500 seven after my mar riage with C."
(g) "I promise to pay B Rs.500 on D's death, pro vided D leaves me enough to pay that sum."
(h) "I promise to pay B Rs. 500 and to deliver to him my black horse on 1st January next."
The instruments respectively marked (a) and (b) are promissory notes. The instruments respectively marked (c), (d), (e), (f), (g) and (h) are not promis sory notes."
33. Thus from the above definition the following constituents of a Promissory Note emerge:
(i). It is an instrument;
C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 14 of 17 15
(ii). In writing;
(iii). Containing an unconditional undertaking to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument;
(iv). It is signed by the maker,
(v). A banknote or a currencynote is excluded from being a Promissory Note.
34. A look at Ex. PW1/1 shows that it is an instrument and in writing and it is also admittedly signed by the defendant. It is not a bank note or a currency note. However it is not an undertaking of the defendant to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. It appears to be an undertaking of the plaintiff to return the pronote to the defendant if he makes the payment of money within 18 months without any interest. Portion 'Y' of Ex. PW1/1 shows some undertaking of the plaintiff to return the pronote.
35. In Brij Kishore Rai v. Lakhan Tewari, AIR 1978 ALL 314 it has been held that there must be an express undertaking to pay the amount mentioned in the instrument before it can be held to be a promissory note.
C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 15 of 17 16
36. Even on a meaningful reading the document Ex. PW1/1 falls short of the requirement of section 4 of the Negotiable Instruments Act, 1881 as to the ingredients of a promissory note.
37. Thus the document Ex. PW1/1 cannot be treated as a promissory note. As such it is not capable of creating any rights as propounded by the plaintiff in the suit or any corresponding liabilities.
38. Notwithstanding the fact that the document Ex. PW1/1 is not a promissory note, even examining the case sans this document the plaintiff has failed to establish grant of loan to the defendant otherwise also. However there is no evidence that the document Ex. PW1/1 is a fabricated document.
39. Thus the finding on the issue no. 1 is returned in negative. The finding on the issue no. 2 is also returned in negative. Issue no. 3: Whether plaintiff is entitled to any interest on the suit amount? If so, at what rate and for what period? OPP
40. This issue is incidental or ancillary to the issue no.2. In view of the findings rendered on issue no.2, the substratum of this issue does not subsist. Therefore, this issue is answered accordingly.
41. In view on my findings on the issue nos. 1, 2 and 3 the suit of the plaintiff is dismissed.
42. Parties to bear their own costs.
C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 16 of 17 17
43. Decree sheet be drawn accordingly.
44. File be consigned to Record Room.
Announced in the Open Court On this 24th day of May 2013 (MAN MOHAN SHARMA) ADJ (Central)01, Delhi C.S. 286/2004 Dharam Pal Vs. Satish Kumar Page 17 of 17