Delhi District Court
Radhey Shyam Sharma vs Khushnuma Iqbal on 5 December, 2024
IN THE COURT OF SH. AAKASH SHARMA: CIVIL JUDGE -02
(CENTRAL), TIS HAZARI COURTS, DELHI.
CS SCJ No. 2385/2023
In the matter of :-
Sh. Radhey Shyam Sharma
S/o Late Sh. Kunji Lal Sharma,
R/o H.No.333, Kucha Mir Ashiq,
Chawri Bazar, Delhi-110006.
Also at:
H.No.302, 3rd Floor, 383/12,
West Guru Angad Nagar, Delhi
.... Plaintiff
VERSUS
Ms. Khushnuma Iqbal
R/o 5784, Kucha Rehman,
Chandni Chowk, Delhi-110006. ....Defendant
Date of Institution: 18.12.2023
Date of reserving the judgment: 12.11.2024
Date of Judgment: 05.12.2024
Final Judgment : Suit Decreed.
EX-PARTE JUDGEMENT
(Suit for Recovery of Rs. 2,78,535/-)
,
1.The brief facts of the present case are that the plaintiff is a senior citizen aged about 86 years and that the plaintiff with his family was earlier residing at H.No.333, Kucha Mir Ashiq, Chawri Bazar, Delhi-
CS No. 2385/2023 Sh. Radhey Shyam Sharma Vs. Ms. Khushnuma Iqbal Page 1 of 7 Digitally signed by AAKASHAAKASH SHARMA SHARMA Date:
2024.12.05 14:29:31 +0530 110006 and thereafter shifted to H.No.302, 3rd Floor, 383/12, West Guru Angad Nagar, Delhi. That the son of the plaintiff is doing the business of Carry Bag under the name and style of M/s Tanu Paper Bag from the said address i.e. H.No.333, Kucha Mir Ashiq, Chawri Bazar, Delhi-110006.
1.1 It is further submitted that the defendant is also a resident of Kucha Rehman, Chandni Chowk, Delhi and defendant is well known to the plaintiff for the last many years. That the defendant in the month of July, 2021 had approached the plaintiff at his earlier residential address i.e. H.No. 333, Kucha Mir Ashiq, Chawri Bazar, Delhi-110006 and requested plaintiff to give a sum of Rs.2,00,000/- (Rs. Two Lacs Only) as financial help on the pretext that the defendant wanted to start some work for livelihood and assured the plaintiff to repay the same within one and half years positively without any default. That considering the need of defendant to be genuine and considering the old acquaintance, the plaintiff gave sum of Rs. 2,00,000/- to the defendant in cash on 13.07.2021 in the presence of his family members. That during the time of receiving the said money, the defendant had assured the plaintiff to repay the said amount within one and half years positively.
1.2 It is further submitted that after the expiry of the abovesaid period, the plaintiff contacted the defendant telephonically and requested the defendant to repay his abovesaid amount but instead of giving any satisfactory answer, the defendant started avoiding the plaintiff on one pretext or another. That seeing the lackadaisical and negligent conduct and CS No. 2385/2023 Sh. Radhey Shyam Sharma Vs. Ms. Khushnuma Iqbal Page 2 of 7 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date: 2024.12.05 14:29:35 +0530 behaviour of the defendant, the plaintiff felt cheated and ultimately, the plaintiff lodged a written complaint to SHO PS Laxmi Nagar, Delhi on 10.01.2023 against the defendant. That after coming to know about the abovesaid complaint, the defendant transferred very meagre amount Rs.
5,000/- in the bank account of plaintiff's daughter on 05.06.2023 and also handed a cheque bearing no.785010 dated 01.09.2023 drawn on Canara Bank, Chandni Chowk, New Delhi-110006 to the plaintiff. That the plaintiff accepted the aforesaid cheque reluctantly as the same was for a very meagre amount of Rs. 10,000/- and the defendant had assured the plaintiff to repay the remaining amount of Rs. 1,85,000/- upto September 2023 and the defendant had assured the plaintiff that the said cheque will be duly encashed on its due date.
1.3 It is further submitted that as per the assurance and promises of the defendant, the plaintiff deposited the abovesaid cheque with his banker i.e. Bank of Baroda, Town Hall, Chandni Chowk, Delhi for its encashment but the said cheque was returned unpaid/dishonoured with the reasons "Outdated" and the same was returned back to the plaintiff vide cheque returning memo dated 19.09.2023. That the plaintiff contacted the defendant and informed her about the dishonourment of the said cheque and demanded the amount of the dishonoured cheque but the defendant instead of giving any satisfactory answer, avoided the plaintiff on one pretext or the other with malafide intention to grab his hard earned money.
1.4 It is further submitted that the defendant has issued the CS No. 2385/2023 Sh. Radhey Shyam Sharma Vs. Ms. Khushnuma Iqbal Page 3 of 7 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date: 2024.12.05 14:29:39 +0530
aforesaid cheque with malafide intention in order to cheat and defraud the plaintiff knowingly well that the same shall not be encashed on its presentation as the account of the defendant was having insufficient balance at that occasion to meet out the complete liability of the said cheque and for this reason, the defendant had issued an outdated cheque, resulting which the said cheque was dishonoured. That the defendant has been withholding the abovesaid outstanding amount of Rs. 1,95,000/- of the plaintiff illegally, unlawfully, willfully with malafide intention, hence the defendant is liable to pay interest @18% per annum thereon from the date of payment i.e. 13.07.2021 till its actual realization.
1.5 That the plaintiff through his Counsel Ms. Rama Sharma dispatched a legal demand notice dated 13.10.2023 under Section 138 NI Act to the defendant through speed post to pay the cheque amount and also in para no.11 of the legal demand notice, plaintiff reserved his right to file a Civil Suit for recovery of the entire amount with interest @18% per annum which notice was duly served upon the defendant, however, the defendant did not make the payment. Hence, the present suit is filed for recovery of Rs.2,78,535/- along with pendente lite and future interest @ 18% p.a. as well as costs of the suit.
2. Summons for settlement of issues were issued on 18.12.2023 to the defendant which were received back unserved with report of "refusal", whereas, summons were served upon the defendant through CS No. 2385/2023 Sh. Radhey Shyam Sharma Vs. Ms. Khushnuma Iqbal Page 4 of 7 Digitally signed AAKASH by AAKASH SHARMA SHARMA Date: 2024.12.05 14:29:44 +0530 Whatsapp on 18.01.2024. Again fresh summons were issued to the defendant on 14.03.2024 which were received back unserved with the report that "no such person resides at the given address". Whereas summons issued to the defendant on 14.03.2024 were received back served upon the defendant on 06.04.2024 through Whatsapp. Despite lapse of statutory period, the defendant did not file the written statement nor appeared despite repeated calls, accordingly, the defence of defendant was struck off and defendant was proceeded ex-parte vide order dated 30.05.2024.
3.1 In its ex-parte plaintiff's evidence, the plaintiff examined himself as PW-1 who tendered his evidence by way of affidavit Ex.PW1/A. He relied upon the following documents :-
i) Ex.PW1/1 is the photocopy of Aadhar Card of the deponent (OSR).
ii) Ex.PW1/2 is the photocopy of the police complaint dated 10.01.2023 filed by the deponent with the SHO P.S. Laxmi Nagar, Delhi against the defendant, which is now de-exhibited and marked as Mark 'A'.
iii) Ex.PW1/3 is the photocopy of the Statement of account of Ms. Anupama Sharma, daughter of the deponent, which is now de- exhibited and marked as Mark 'B'.
iv) Ex.PW1/4 is the original dishonoured cheque No. 785010 dated 01.09.2023 drawn on Canara Bank, Chandni Chowk, CS No. 2385/2023 Sh. Radhey Shyam Sharma Vs. Ms. Khushnuma Iqbal Page 5 of 7 Digitally signed by AAKASH AAKASH SHARMA SHARMA Date: 2024.12.05 14:29:48 +0530 New Delhi- 110006 issued by the defendant in favour of the deponent.
v) Ex.PW1/5 is the photocopy of cheque return memo dated 19.09.2023, which is now de-exhibited and marked as Mark 'C'.
vi) Ex.PW1/6 is the office copy of the legal demand notice dated 13.10.2023.
vii) Ex.PW1/7 is the original speed post receipt dated 13.10.2023.
3.2 The plaintiff also examined Ms. Anupama Sharma as PW-2, who deposed that the payment of Rs.5,000/- was received by PW-2 in her account bearing no. 120010100375047 on 09.06.2023 which was made by the defendant and thereafter, no payment has been received by PW-2 from the defendant. Her bank statement Mark B is true and correct and she relied upon the Certificate U/s 63 of B.S.A., 2023 regarding the same which is Ex.PW2/A.
4. I have heard the arguments advanced by Ld. Counsel for the plaintiff and carefully perused the record.
5. As noted above, the defence of the defendant was struck off and the defendant was proceeded exparte vide order dated 30.05.2024. The evidence of PW-1 and PW-2 stands unrebutted/ unchallenged as they were not cross-examined by the defendant. This court does not find any reason to disbelieve the unrebutted testimony of PW-1 and PW-2 recorded in the CS No. 2385/2023 Sh. Radhey Shyam Sharma Vs. Ms. Khushnuma Iqbal Page 6 of 7 Digitally signed AAKASH by AAKASH SHARMA SHARMA Date: 2024.12.05 14:29:52 +0530 court on oath. In view of the unrebutted testimony of PW-1 and PW-2, documents exhibited/tendered in evidence by them and on the basis of material on record, it may be said that the plaintiff has been able to prove its case against the defendant. However, the rate of interest which is claimed by the plaintiff, is highly exorbitant. Considering the facts and circumstances of the case, this Court is of the opinion that interest of justice will be served, if the plaintiff is awarded interest @ 6% per annum on the principal amount from the date of filing of the present suit till the date of realization.
6. Relief.
In view of the above discussion, the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is entitled for recovery of the principal amount of Rs.1,95,000/- along with interest @ 6% p.a. on the same from the date of filing of the present suit till the date of realization.
Costs of the suit are also awarded to the plaintiff. Decree-sheet be prepared accordingly.
Digitally signed by File be consigned to record room as per rules. AAKASH AAKASH SHARMA SHARMA Date:
2024.12.05 14:29:57 +0530 Announced in the open (Aakash Sharma) court today on 05.12.2024 Civil Judge -02 (Central), Tis Hazari Courts, Delhi.CS No. 2385/2023 Sh. Radhey Shyam Sharma Vs. Ms. Khushnuma Iqbal Page 7 of 7