Delhi District Court
Also At vs Smt. Smita Chaudhary on 20 March, 2013
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA No. 96/11
Date of Institution of Appeal : 30.04.2011
Date on which Reserved for Judgment : 16.03.2013
Date of Judgment/Order : 20.03.2013
Case I.D. Number : 02402C0013292011
IN THE MATTER OF:-
SMT UMA DEVI
W/O SH. VIJAY PAL SINGH
C/O SH. HARISH YADAV
H. NO. 469, A-BLOCK
NEW ASHOK NAGAR, DELHI - 110096
ALSO AT:
VILLAGE & P. O. GAZIPUR,
DISTRICT MEERUT, UTTAR PRADESH
.....APPELLANT.
VERSUS
SMT. SMITA CHAUDHARY
D/O SH. SATISH CHAUDHARY
R/O 737, CHURCH MISSION ROAD,
FATEHPURI, DELHI - 110006
.......RESPONDENT.
JUDGMENT
1. This appeal has been filed against the impugned order dated 01.04.2011 by which the Learned Trial Court has decreed the suit of the respondent/plaintiff for recovery of principal amount of Rs.1,00,000/- along with interest at the rate of 12% per annum.
2. Brief facts leading to the filing of the appeal are that respondent/plaintiff filed a suit under, summary procedure, averring that the defendant, who her aunt, approached her for a personal loan of Rs.1,00,000/- to arrange the marriage of her daughter. She promised to repay the same along with interest at the rate of 2% per month. It is averred that in view of relationship the plaintiff agreed to the request RCA No. 96/11 1/16 and gave Rs.1,00,000/- to the defendant in cash as a loan to be returned with interest at the rate of 2% per month. It is averred that while receiving the loan amount, the defendant executed a promissory note and receipt both dated 27.02.2006 in favour of the plaintiff in this regard which were witnessed by Sh. R. S. Yadav, brother in law of defendant.
3. It is averred that the defendant sent a letter dated 12.10.1998 to the mother of the plaintiff along with cash amount of Rs.25,000/- and expressed her inability to return the entire loan amount and sought more time for this purpose. It is averred that the amount of Rs.25,000/- sent by the defendant towards part payment was adjusted by the plaintiff towards the outstanding loan amount. It is averred that thereafter the defendant did not make any further payment in spite of repeated reminders. Plaintiff in these circumstances sent a legal notice dated 27.03.2000 to the defendant calling upon her to repay the balance loan amount which along with interest had accrued to Rs.1,95,000/-. Despite service of the said notice, the defendant did not respond and the plaintiff filed a suit under summary procedure praying for a decree for recovery of Rs.1,95,000/- along with interest at the rate of 24% per annum from the date of filing of the suit till the date of recovery.
4. By order dated 23.04.2001 summons for appearance were directed to be issued to the defendant. After completion of the procedural requirements the defendant filed an application under Order 37 Rule 3 (5) CPC praying for leave to defend the suit. In the said application, the defendant denied taking any loan from the plaintiff. She denied that she had executed any promissory note or receipt in favour of the plaintiff. She denied sending the letter dated 12.10.1998 to the plaintiff. The defendant claimed that the father of the plaintiff Sh. Satish Chandra had lured the defendant and obtained her signatures on blank papers for the purposes of copying her signatures on the promissory note, receipts and letter dated 12.10.1998. It was further claimed that Sh. Satish Chandra Yadav in conspiracy with Sh. R. S. Yadav (brother in law of defendant) had obtained a general power of attorney in favour of R. S. Yadav for the purposes of contesting certain Court cases on behalf of the defendant. It is claimed that Sh. Satish Chandra Yadav obtained signatures of the defendant on blank papers on the pretext of purchasing the share of the defendant in ancestral property at Fatehpuri, RCA No. 96/11 2/16 Delhi regarding which a partition suit was pending in the Hon'ble High Court. It is claimed that the signatures of the defendant were obtained by Sh. Satish Chandra Yadav and Sh. R. S. Yadav under coercion with the promise that he would pay her Rs.5,00,000/- as earnest money for her share which was never paid to her.
5. Reply to this application was filed by the plaintiff in which she denied the said contentions. The Learned Trial Court by order dated 01.09.2011 allowed the application of the defendant and granted her unconditional leave to defend the suit. Written statement was filed by the defendant to the suit. In the written statement, the defendant raised preliminary objections. Preliminary objection no. 1 was that the suit was bad for non-joinder of necessary parties. It was contended by the defendant that Sh. R. S. Yadav, her brother in law was a witness to the promissory note and it was he who had taken the loan from the plaintiff and therefore it was Sh. R. S. Yadav who is liable to pay the amount to the plaintiff and not the defendant. The defendant further contended that the suit was barred by limitation since the loan was alleged to have been taken on 27.09.2006 and the suit was filed beyond the period of limitation. The defendant has alleged that in order to overcome the said hurdle, the plaintiff has fabricated letter dated 12.10.1998. The defendant has contended that the promissory note dated 27.02.1996 has not been signed by her and the same is forged and fabricated.
6. On merits, the defendant denied the loan. It is claimed that signatures of the defendant were obtained on blank papers by Satish Chandra Yadav and Sh. R. S. Yadav who entered into conspiracy and fabricated the promissory note and letter dated 12.10.1998 by getting the same filled in English. In para no. 3 of the written statement the defendant has claimed that Sh. Satish Chandra Yadav and Sh. R. S. Yadav obtained her signatures on blank papers and made those signatures in the promissory note, receipt and the letter dated 12.10.1998. In para no. 4 of the written statement the defendant had sought the leave of the Court to get the signatures on the said documents examined by an approved handwriting expert or to permit the defendants to appoint handwriting expert for this purpose, to prove that the promissory note, receipt and letter dated 12.10.1998 did not bear her signatures or were made in her writing.
7. Replication to the written statement was filed by the plaintiff in which she RCA No. 96/11 3/16 denied the contentions thereof and reiterated her averments made in the plaint. On the pleadings of the parties, the Learned Trial Court by order dated 09.10.2001 framed the following issues:-
1. Whether the suit is filed within time? OPP
2. Whether the plaintiff is entitled to recover any amount from the defendant? If so, how much? OPP
3. Whether the plaintiff is entitled to any interest? If so, at what rate? OPP
4. Relief
8. The plaintiff examined herself as PW-1 and Sh. R. S. Yadav as PW-2 and closed evidence. Initially the defendant did not lead any evidence and was proceeded ex-parte on 31.05.2004. The suit was decreed ex-parte by order dated 18.03.2005. The defendant thereafter moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree. The said application was allowed by order dated 25.09.2006 and the ex-parte decree was set aside. The defendant examined herself as DW-1 and Sh. Hitesh Gupta (Son of Raj Kumar Gupta) as DW-2, Sh. Raj Kumar Gupta as DW-3.
9. After considering the material on record the Learned Trial Court by the impugned order decreed the suit of the plaintiff. Although the plaintiff had prayed for recovery of Rs.1,95,000/- along with interest at the rate of 24% per annum, the Learned Trial Court has granted a decree for principle amount of Rs.1,00,000/- along with interest at the rate of 12% per annum from the date of filing of the suit till the date of recovery of decretal amount.
10. Before this Court, the learned counsel for the appellant has argued that the Learned Trial Court failed to appreciate that the promissory note, receipts and the alleged letter dated 12.10.1998 were all fabricated and did not bear the signatures of the defendant. He submitted that the letter dated 12.10.1998 has been manufactured by the plaintiff in order to get over the hurdle of the suit from being barred by limitation as the alleged loan was given on 27.02.1996 and the suit for recovery was filed on 23.04.2011. Counsel for the appellant has argued that Sh. Hitesh Gupta, DW-2 has deposed that the letter dated 12.10.1998 was written by him in February 2000 on the asking of Ms. Poonam Chaudhary, sister of the RCA No. 96/11 4/16 plaintiff. He argued that once the author of the letter has himself deposed that it was written by him in February 2000, it was apparent that the said letter was forged and even otherwise having been written in February 2000 would render the suit of the plaintiff to be barred by limitation.
11. He argued that Sh. Raj Kumar Gupta, father of Sh. Hitesh Gupta (DW-2) was an employee of the plaintiff till year 2001. He submitted that DW-2 came into contact with the plaintiff through his father, Raj Kumar Gupta and he was forced to write on a blank piece of paper in February 2000 by Poonam Chaudhary against his wishes. He submitted at that point of time DW-2 was only 14 years old and could not put up any resistance, specially since his father was working at that time with the plaintiff. He submitted that the Learned Trial Court failed to take into account this fact.
12. During the course of arguments, the Counsel for the respondents pointed out that there was no pleading in the written statement of the defendant regarding the letter dt.12.10.1998 having been written by Hitesh Gupta. This Court had then called upon the counsel for appellant to explain as to how the appellant / plaintiff came to know that this letter had been written by DW-2 Hitesh Gupta. In response, Counsel for appellant drew the attention of this Court to an application under Order 1 Rule 10 CPC dated 03.11.2003 moved by Sh. Raj Kumar Gupta (DW-3 and father Hitesh Gupta). He stated that in the said application it was mentioned by Raj Kumar Gupta that his son Sh. Hitesh Gupta was called upon by Ms Poonam Chaudhary to write the said letter. Counsel for appellant submitted that it was through this application that the appellant came to know about this fact and thereafter summoned DW-2 as a witness who deposed in the Court.
13. Counsel for appellant further submitted that the signatures of the defendant on the pro-note, receipt and the letter dated 12.10.2008 did not match with the signatures of the defendant to the naked eye and the Trial Court could not have read the said letter in evidence. Counsel for appellant has argued that no loan was taken by the defendant and she is a victim of conspiracy among family members of the plaintiff and therefore the impugned order could not sustained.
14. Counsel for respondent on the other hand supported the impugned order and argued that the same did not call for any interference.
RCA No. 96/11 5/1615. I have heard the counsel for parties and have perused the record. The main contention of the appellant before this Court is that no loan was taken by the appellant and nor were her signatures appended on the disputed documents. The Ld. Trial Court has held that Sh. R. S. Yadav PW-2, who is the attesting witness to the promissory note and receipt has proved the same. The Learned Trial Court observed that even after the plaintiff sent a legal notice to the defendant referring to the letter dated 12.10.1998, the defendant did not take any legal action against the plaintiff although as per her the said documents were forged. Learned Trial Court observed that there was material contradiction in the testimonies of DW-2, Hitesh Gupta and his father DW-3, Raj Kumar Gupta regarding the letter dated 12.10.1998. The Learned Trial Court further observed that the defendant had taken contradictory stands in her application for leave to defend the suit and in her written statement when leave was granted.
16. The suit of the plaintiff is based on the promissory note and receipt both dated 27.02.1996 as well as the letter dt.12.10.1998. The promissory note and the receipt are in printed form and filled in hand. Both are on a single piece of paper. The promissory note bears two signatures stated to be of Uma Devi across revenue stamps. The receipt bears one signature of Uma Devi across a revenue stamp at point B. Sh. R. S. Yadav has signed on the same as attesting witness no. 1 at point A and one Baljeet Singh V&PO Nangal Pathani, District Rewari, Pin 123401 is the second attesting witness. The promissory note states that the executant had promised to pay Smt. Smita Chaudhary on demand Rs.1,00,000/- along with interest at the rate of 2% per mensem for having received the said amount in cash. The receipt acknowledges Rs.1,00,000/- in cash from Smt. Smita Chaudhary.
17. The other document is a letter dated 12.10.1998 Mark A which is written in hand in Hindi and addressed to "Bhabhi Shail". The same bears the signatures of Smt. Uma Devi at point V. In the letter Uma Devi has stated that she had taken Rs. 4,00,000/- from her (Shail) and Rs.1,00,000/- from 'Smita' in February 1996 for marriage of her daughter Anju. It is stated that she could not return the said amount due to domestic problems and has expressed her apologies for the same. In the letter Uma Devi has stated that she is sending Rs.50,000/- along with the RCA No. 96/11 6/16 letter out of which she (Shail) may retain Rs.25,000/- and give the remaining Rs. 25,000/- to Smita and adjust the same towards interest with the assurance to return the balance amount as early as possible. She has stated that since she has a share in the property at Fathepuri, she will sell the same and return the outstanding amounts. She has stated that she was in talks with two to three persons for sale of the said property.
18. In order to prove her case, the plaintiff deposed as PW-1 by way of affidavit Ex.PW1/A. She was cross examined by the counsel for defendant. In her cross examination she has deposed that the letter dated 12.10.1998 written by the defendant was given by Usha Yadav and son of Uma Yadav. She could not remember the date. She denied the suggestion that the person who handed over the letter dated 12.10.1998 did not hand over any money. She denied the suggestion that her mother never gave her any money. She deposed that she could not identify the handwriting of the defendant but she could identify the signature of the defendant on the promissory note PW-1/1 as the same was appended in her presence. She denied the suggestion that the said document was fabricated by her in collusion with R. S. Yadav. She denied the suggestion that the letter dated 12.10.1998 was forged and fabricated.
19. PW-2 is Sh. R. S. Yadav who has deposed by way of affidavit Ex.PW2/A. In his affidavit he has deposed that the defendant took a loan of Rs.1,00,000/- from the plaintiff as she required the said amount for the marriage of her daughter. He deposed that the defendant executed the promissory note and receipt in his presence on which Uma Devi had signed. He deposed that he had also singed the same as attesting witness and his signature at point B. He deposed that he could identify the signature of the defendant. He was cross examined by the counsel for the defendant. In his cross examination he has deposed that Rs.1,00,000/- was given in his presence but he was not aware about the duration of the loan. He denied the suggestion that no loan was given in his presence. He denied the suggestion that no promissory note or receipt were executed in his presence. He denied the suggestion that blank signed papers were used to prepare the promissory note and other documents. He denied the suggestion that the signatures on the document Mark A were not of the defendant.
RCA No. 96/11 7/1620. Both the witnesses PW-1 and PW-2 have stuck to their version as deposed in their evidence by way of affidavit. It is to be noted that a suggestion was given by the Counsel for the defendant to PW2 that he had used blank papers with the signatures of the defendant to prepare the promissory note and other documents.
21. Coming to the case of the defendant, she has in her written statement made the following averments in respect of the above mentioned documents:-
A) In para 4 of the preliminary objections in the written statement the defendant has averred as under:-
"4. That the Promissory Note dated 27.02.1996 has not been executed by the Defendant nor signed by her as the Defendant has never taken any loan far less a loan in the sum of Rs.one lac as falsely alleged. It may be submitted that the Promissory Note is not in the handwriting of the Defendant which further proves that the signature of the Defendant as also the contents of the Promissory Note are forged and fabricated."
B) In para 5 of the preliminary objections in the written statement the defendant has averred as under:-
"5. ...... In this context, it is submitted with greatest respect to this Hon'ble Court that the father of the Plaintiff Shri Satish Chandra Yadav along with Shri R. S. Yadav, the brother-in-law of the Defendant got some blank papers signed from the Defendant. Later it is clear that documents such as Promissory Note, receipt and Agreement to sell have been fabricated by Shri Satish Chandra Yadav for the sale of the share of the Defendant in her ancestral property situated at 727-737, Church Mission Road, Fatehpuri, Delhi
- 110006. ....."
C) In para 2 of the reply on merits the defendant has averred as under:-
"2. ...... On seeing this action of the Defendant, Shri Satish Chandra Yadav and Shri R. S. Yadav that they have failed in their conspiracy against the Defendant entered into another conspiracy and fabricated the present Promissory Note and the letter and got the details filled up in English (a language the Defendant does not understand) got the suit filed through the Plaintiff, (daughter of Sh. Satish Chandra Yadav) for the recovery of the alleged loan. The suit of the Plaintiff is based on falsehood, and mischievous and ought to be rejected and dismissed with costs and with heavy costs in favour of the Defendant."RCA No. 96/11 8/16
D) In para 3 of the reply on merits the defendant has averred as under:-
"3. ... As stated hereinabove Shri Satish Chandra Yadav and Shri R. S. Yadav had obtained the signature of the Defendant in Hindi and have made those signatures on the Promissory Note and the receipts and fabricated a letter dated 12.10.1998 to suit their convenience, and to cheat the Defendant. The story of witnessing the said documents by Shri R. S. Yadav, the brother -in-law of the Defendant is a clean pointer to the fact that the loan seems to have been paid to Shri R. S. Yadav with whom the Plaintiff had entered into a forgery and fabrication of documents."
22. The averments made by the defendant in her written statement reveals that she has taken two stands. The first stand is that Sh. Satish Chandra Yadav and Sh. R. S. Yadav obtained her signatures on blank documents which were later filled up to create the promissory note, receipt and letter dated 12.10.1998. The other stand taken by her is that Sh. Satish Chandra Yadav and Sh. R. S. Yadav obtained her signatures on blank papers and thereafter copied these signatures of the defendant on to the promissory note, receipt and letter dated 12.10.1998.
23. As per the first stand, the signatures of the defendant on these documents would be genuine but were fraudulently obtained on blank documents which were later filled up to create these documents.
24. As per the second stand Sh. Satish Chandra Yadav and Sh. R. S. Yadav copied the signatures of the defendant on these documents and thus the signatures on these documents would not be of the defendant but would be in the handwriting of Sh. Satish Chandra Yadav and Sh. R. S. Yadav.
25. Both these stands of the defendant are contradictory to each other. Either the signatures of the defendant on these documents are genuine but were fraudulently obtained on blank documents on which the promissory note, receipt and letter dated 12.10.1998 were filled in or the signatures of the defendant were copied on to these documents. Both these circumstances cannot exist at the same time. As recorded above, a suggestion was given by the Counsel for the defendant to PW2 during his cross examination that he had used blank papers with the signatures of the defendant to prepare the promissory note and other documents.
RCA No. 96/11 9/1626. It is to be seen that the defendant in para 4 of her written statement has averred as under:-
" ......The Defendant craves leave of this Hon'ble Court to either get the signatures on the Promissory Note, the receipt and the letter examined by an approved Handwriting Expert or allow the Defendant to get the same examined through an approved Handwriting Expert to prove that the Promissory Note, the receipt dated 27.02.1996 was not signed and executed by the Defendant and the letter dated 12.10.1998 was not written by the Defendant in her handwriting. ......"
27. The defendant has categorically asserted in her written statement that she will take steps to have her alleged signatures on these documents compared by an expert with her genuine signatures to prove that her alleged signatures on these documents are forged. Despite taking such a categorical stand in her written statement, the defendant inexplicably did not take any such step before the Learned Trial Court to get these documents examined by a handwriting expert.
28. With respect to the letter dated 12.10.1998, the defendant has claimed that the same was forged and fabricated by the plaintiff to overcome the hurdle of limitation. The defendant nowhere in her written statement has averred that the contents of the said letter were written by Sh. Hitesh Gupta, son of Raj Kumar Gupta. There is also no averment that Ms. Poonam Chaudhary forced Sh. Hitesh Gupta to write this letter in February 2000. She has not even deposed so in her evidence.
29. The defendant has deposed by way of affidavit Ex.DW1/A. Her evidence is on the lines of her written statement. She was cross examined by the counsel for the plaintiff. In her cross examination she has deposed that she could not remember the date on which she has signed her affidavit, the number of pages or paragraphs. She admitted having received the legal notice from the plaintiff regarding the amount being claimed but did not reply to the same. She admitted that R. S. Yadav was her brother in law and her relations with him were good till the time of the marriage of her daughter Anju Yadav. She admitted that she has not filed any case against R. S. Yadav regarding forging of her signatures on the promissory notes. She has denied the suggestion that she borrowed Rs.1,00,000/-
RCA No. 96/11 10/16from the plaintiff or that she had signed the promissory note in front of R. S. Yadav. She denied the suggestion that she wrote a letter to the mother of the plaintiff regarding not paying back the loan amount in time.
30. Sh. Hitesh Gupta was summoned as a witness and he deposed as DW-2. In his examination in chief Sh. Hitesh Gupta has deposed that the said letter was written by him on the asking of Ms. Poonam Chaudhary in February 2000 when he was only 14 years old. He deposed that when he wrote the letter, it contained a date and a signature with the rest of the portion being blank. He was cross examined by the counsel for plaintiff. In his cross examination he deposed that the paper on which he wrote did not contain anything, other than signature. He deposed that he was the person who wrote the date on the letter. He deposed that he knew Ms. Poonam Chaudhary as he had seen her in the Court with his father. He deposed that at the time of writing the letter dated 12.10.1998, Mark A, he was accompanied with his father Raj Kumar Gupta. He admitted that his father Raj Kumar Gupta was an accused in the Criminal case registered by Smt. Shail, mother of the plaintiff. He deposed that he had never met the defendant and came to depose after receiving summons. He deposed that his father did not mention his name as a witness in the matter.
31. As observed above, the learned counsel for the appellant had stated that the plaintiff came to know about the letter Mark A having been written by Sh. Hitesh Gupta through the contents of an application under Order 1 Rule 10 CPC dated 03.11.2003 filed by Raj Kumar Gupta. I have gone through the said application. In this application Raj Kumar Gupta has averred that he was introduced to Ms Poonam Chaudhary by her Reader Sh. Om Prakash in the year 1999 to look after the litigation of her family members in various Courts at a salary of Rs.2000/-. In the application it is averred that Raj Kumar Gupta attended several matters in various Courts. Since the averments made in this application are relevant, the same are reproduced as under:-
"5. That in the month of February, 2000 the applicant was called by her residence at E-39A, East of Kailash, New Delhi and as per her instructions the applicant reached her resident at that time all the family member i.e. Satish Choudhary father of the plaintiff, Shail RCA No. 96/11 11/16 Choudhary mother of the plaintiff, Ms. Poonam Choudhary younger sister of the plaintiff and plaintiff herself.
6. That Ms. Poonam Choudhary showed me two blank pronotes dated 27.02.1996 in English and three blank papers without any date. Ms. Poonam Choudhary stated that these blank documents alleged to be signed by Uma Devi (the defendant in the present suit).
7. That during the course of discussion it was revealed that Pronote which was blank has become time bared as per the date mentioned in the pronote. On this Ms. Poonam Choudhary suggested that separate back dated letter should be prepared on the blank paper allefed to be signed by Uma Devi which was already showed to me at her residence.
8. That after one week Ms. Poonam Choudhary again called the applicant at her residence E-39A, East of Kailash, New Delhi. Immediately the applicant went there, all the above family members were present there and one more unknown person was also there, in my presence Ms. Poonam Choudhary directed that man to right that letter in Hindi according to her instructions and that letter was written by that person on the blank paper which was earlier shown to me in her house alleged to be signed by Uma Devi defendant. According to the instructions of Ms. Poonam Choudhary.
9. That Ms. Poonam Choudhary hand over me two pronotes and one letter dated 12.10.1998 which was dictated by Ms. Poonam Choudhary to that unknown person and that unknown person wrote on that blank paper in Hindi as per the instructions of Ms. Poonam Choudhary and she instructed me to hand over these two prontoes along with the said letter to Sh. Sanjeev Sindhwani, Advocate for necessary action.
10. That it may be mentioned here that the said letter dated 12.10.1998 was prepared as per the instructions of Ms. Poonam Choudhary on the blank paper alleged to be signed by Uma Devi to cover the limitation of two pronotes dated 27.02.1996. Under the these circumstances it is crystal clear that Shail Choudhary, Satish Choudhary and the plaintiff committed fraud by preparing a false letter dated 12.10.98 at the instance of Ms. Poonam Choudhary which was written and prepared in my presence."
32. Raj Kumar Gupta is none other than the father of Sh. Hitesh Gupta, DW-2. Sh. Hitesh Gupta has deposed that he wrote the letter dated 12.10.1998 on the asking of Ms. Poonam Chaudhary in February 2000 in the presence of his father Raj Kumar Gupta. However Raj Kumar Gupta in para no. 8 of the above mentioned application filed in the year 2003 has averred that the said letter was written by an "unknown person" on the direction of Ms. Poonam Chaudhary. It is very strange RCA No. 96/11 12/16 that Raj Kumar Gupta did not recognize his own son and termed him as an "unknown person" in his application while Hitesh Gupta has positively deposed before the Court that he wrote the letter in the presence of his own father.
33. Sh. Raj Kumar Gupta was examined as DW-3 as a summoned witness. In his examination in chief he has deposed that he knew the plaintiff and all her family members since 1999 as he used to deal with their cases. He has deposed that there was a property dispute between the plaintiff and the defendant regarding a house at Fatehpuri. He deposed that he was aware of certain suites pending against the defendants. He deposed that he was aware of the suit which was for recovery of Rs.1,00,000/-. He deposed that his son used to go his working place on Sundays. There is no other statement of DW-3 in his examination in chief.
34. DW-3 was cross examined by counsel for plaintiff. He deposed that he had good relations with the plaintiff till the year 2001. He deposed that at the time of filing of this suit his relations with the plaintiff were good. He deposed that his relations with the plaintiff ended when she stopped paying him salary. He has deposed that his son Sh. Hitesh Gupta accompanied him to the house of the plaintiff when he was in 9th standard. He deposed that he was not present with his son at the time of the writing of the letter Mark A (12.10.1998). He deposed that his son had informed him about having written the letter Mark A (12.10.1998) in the year 2001, which was one year after he wrote the said letter. He deposed that his son did not inform him as to who asked him to write the said letter. He deposed that in the year 2001 when he was going through some documents in his house, his son showed him the said letter. Raj Kumar Gupta further deposed that a criminal case was pending against him regarding stealing of promissory notes which was instituted by the mother of the plaintiff in the year 2002.
35. In his cross examination, DW-3 has deposed that he was not present with his son when his son wrote the letter Mark A (12.10.1998). This part of his deposition is contradictory to the deposition of his own son DW-2 who had deposed that his father was present with him at that time.
36. DW-3 has deposed that he came to know about the letter in the year 2001 when he was checking some documents in his house. This part of his deposition is in absolute variance to the contents of his own application under Order 1 Rule 10 RCA No. 96/11 13/16 dated 03.11.2003 supported with his affidavit which has been reproduced above. In para no. 8 of the said application, DW-3 has averred that in February 2000, Ms. Poonam Chaudhary called him to her residence where one "unknown person" was present. He has averred that in his presence Ms. Poonam Chaudhary directed that unknown person to write the letter dated 12.10.1998 in Hindi. DW-3 has therefore contradicted himself in this regard.
37. DW-3 in his cross examination has deposed that it was his son Hitesh Gupta who had informed him that he wrote the letter in 2001. He has deposed that his son Hitesh Gupta did not inform him about the name of the person who asked him to write the said letter. This part of his deposition is again contradictory to para 7 and 8 of his application under Order 1 Rule 10 CPC dated 03.011.2003 in which he has averred that Ms. Poonam Chaudhary got the said letter written by an "unknown person" in his presence at her residence.
38. It is therefore amply evident that both DW-2 and DW-3 have made false statements on oath before the Learned Trial Court. They have done so willingly and deliberately, for reasons best known to them. DW-2 and DW-3 have admitted that DW-3 is an accused in a criminal case instituted by the mother of the plaintiff against him for stealing promissory notes. Whatever be the reason, the evidence of DW-2 and DW-3 is absolutely unreliable and casts a serious doubt about the version of the defendant.
39. It is also to be kept in mind that the story of the letter dated 12.10.1998 having been written by DW-2 Hitesh Gupta at the instance of Ms Poonam Chaudhary is not part of the written statement of the defendant. The defendant in her written statement has taken a categorical stand that all the three documents including the letter dated 12.10.1998 were fabricated by Sh. Satish Chandra Yadav and Sh. R. S. Yadav. Her witnesses have however come out with an absolutely different version. The evidence of DW-2 and DW-3 is beyond pleadings and cannot be looked into. The same was so held in the cases of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao, reported in (2010) 1 SCC 466 and Union of India v. Ibrahim Uddin, reported in (2012) 8 SCC 148.
40. Even though the evidence of DW-2 and DW-3 cannot be looked into, an adverse inference to the defence of the defendant has to be drawn. The same has RCA No. 96/11 14/16 eroded the credibility of the defence of the defendant. Even otherwise, the defendant took it upon herself to disprove her alleged signatures in these documents, as averred by her in para no. 4 of her written statement but she failed to take any steps in this regard.
41. A civil suit is to be decided on the principal of preponderance of probabilities. The same was so reiterated in the case of Raj Kumar Singh & Anr. V/s Jagjit Chawla, reported in 183 (2011) DLT 418 and Vishnu Dutt Sharma v. Daya Sapra, reported in (2009) 13 SCC 729. Looking into the evidence of the parties and in particular the contradictory stands taken by the defendant and her witnesses, I do not think that the findings of the Learned Trial Court call for any interference.
ISSUES NO . 1, 2 AND 3
42. Issue no. 1 was whether the suit was filed within the period of limitation. The loan was given by the plaintiff to the defendant on 27.02.1996. The suit was filed on 23.04.2001. The letter dated 12.10.1998 operated as an acknowledgment in writing within the meaning of Section 18 of the Limitation Act 1963 and a fresh period of limitation is to be computed from the time when the acknowledgment was signed. The suit having been filed on 23.04.2001 was within the period of limitation.
43. Issue no. 2 and 3 were the entitlement of the plaintiff to recovery of any amount and the rate of interest, if any on the same. The Learned Trial Court has held that the loan was proved. I have already recorded my reasons for upholding the findings of the Learned Trial Court. As regards interest the Learned Trial Court has declined the claim for interest at the rate of 24% per annum and has granted recovery of principal amount of Rs.1,00,000/- along with interest at the rate of 12% per annum. It is to be noted that the plaintiff herself had pleaded that she had received Rs.25,000/- from the defendant. The Learned Trial Court however has not adjusted the said amount against the principal amount. Hence in the opinion of this Court the principal amount to which the plaintiff is entitled would be Rs.75,000/- along with interest at the rate of 12% per annum from the date of filing of the suit till the date of realization.
RCA No. 96/11 15/1644. The net result of the above discussion is as follows:-
(a) The appeal of the appellant is partly allowed. It is held that the plaintiff shall be entitled to recovery of Rs.75,000/- along with interest at the rate of 12% per annum from the date of filing of the suit till the date of realization;
(b) The rest of the findings of the Learned Trial Court are not disturbed.
45. Decree sheet be drawn. File be consigned to Record Room. TCR be sent back with a copy of this Order.
Announced and Dictated to the Steno in Open Court today i.e. 20.03.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi RCA No. 96/11 16/16