Delhi District Court
Suresh Kumar vs Satish Yadav @ Satish Kumar on 22 February, 2025
IN THE COURT OF SH. MANOJ KUMAR SHARMA :
DISTRICT JUDGE-07, TIS HAZARI COURTS (WEST), DELHI.
CS No. 956/2021
CNR NO. DLWT010098862021
IN THE MATTER OF :
SURESH KUMAR
S/o Late Sh. Rameshwar Dayal,
R/o Flat No. C-705, 7th Floor,
Rohini Heights, Pocket-4, Sector-29.
Sahibabad, Daulat Pur, Delhi-110042. ......Plaintiff
Versus
SATISH YADAV @ SATISH KUMAR
S/o Sh. Hari Ram,
R/o WZ-554, Madipur,
Madipur Gaon, Paschim Vihar,
S.O. West, Delhi-110063. ......Defendant
SUIT FOR RECOVERY OF Rs.10,20,000/- (RUPEES TEN LAKH
TWENTY THOUSAND ONLY)
Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 1/18
Date of institution of the Suit : 18.12.2021
Date of Judgment was reserved : 23.12.2024
Date of Judgment : 22.02.2025
:- J U D G M E N T -::
1.The present suit has been filed by the plaintiff against the defendant seeking recovery of Rs.10,20,000/- alongwith costs and pendente lite and future interest @ 12% per annum from the date of institution till its realization.
2. CASE OF THE PLAINTIFF AS PER PLAINT The necessary facts for the adjudication of the present suit, as stated in the plaint, are as under :
2.1. The plaintiff was defendant's tenant, having a very friendly relation with him.
2.2. On 02.06.2015, the defendant approached the plaintiff seeking financial aid in the sum of Rs.7,50,000/- as he was in a dire need of money and owing to his cordial relations with defendant, he acceded to the request and handed over a sum of Rs.7,50,000/- in cash to him in the presence of Sh. Deepak Chhabra and Sh. Dev Kumar.
2.3. The defendant executed an undertaking-cum-receipt dated 02.06.2015 against the receipt of Rs.7,50,000/- from the plaintiff and also assured to repay the same by 02.06.2016.
Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 2/18 2.4. Even after the expiry of the prescribed time period, the defendant did not honour his promise about the repayment of the loan and when the plaintiff approached him for the aforesaid purpose, the defendant expressed his inability and after much persuasion issued a post dated cheque bearing no. 916509 dated 05.01.2018 for Rs.7,50,000/- drawn on Indian Bank, Punjabi Bagh, 53, West Avenue Road, Punjabi Bagh, West, New Delhi-110026 towards the payment of the loan in question.
2.5. The plaintiff presented the said cheque bearing no.916509 dated 05.01.2018 for Rs.7,50,000/- to its banker, however the said cheque got dishonoured with the remarks " Insufficient Funds". Thereafter, he got issued a legal demand notice dated 19.02.2018 to the defendant which was duly served upon him despite that the defendant did not come forward for the payment of the loan in question.
3. Summons for settlement of issues of the present suit were issued to the defendant and the defendant put his appearance through his counsel on 04.07.2022 and filed his written statement on 28.05.2022.
4. CASE OF THE DEFENDANT.
4.1. The present suit is not maintainable as the plaintiff has suppressed the true material facts and has not approached this Court with clean hands and due to which not entitled to get any relief as claimed by him. Moreover, the plaintiff has no legal, valid or justiciable cause of action to file the present suit.
4.2. The defendant never received any alleged loan of Rs.7,50,000/- from the plaintiff and the present suit has been filed by the plaintiff Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 3/18 misusing one of the four blank signed cheques handed over to him by the defendant at the time of borrowing Rs.40,000/-, as security.
4.3. The defendant has already repaid the aforesaid loan of Rs.40,000/- to the plaintiff and when he demanded his aforesaid four security cheques, the plaintiff pleaded that the same are not traceable and as and when he would find the same, they would be returned to him.
4.4. The defendant never received the loan amount of Rs.7,50,000/- from the plaintiff nor has given any undertaking with respect to the said loan amount and the plaintiff has prepared a frivolous and fake undertaking-cum-receipt, which has been filed alongwith the plaint of the present suit.
5. Ld. Proxy counsel for plaintiff submitted that he does not want to file replication, hence opportunity to file replication was closed vide order dated 06.08.2022.
6. Thereafter, based upon pleadings of parties, the following issues were framed on 06.08.2022:--
(1) Whether the plaintiff is entitled for money decree, as prayed?
OPP.
(2) Whether the plaintiff is entitled for the interest, if yes, at what rate and for which period? OPP.
(3) Whether plaintiff has misused the cheque in question? OPD. (4) Relief.
Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 4/18
7. Thereafter, the defendant stopped appearing and upon this. he was proceeded ex-parte vide order dated 23.02.2023.
8. EX-PARTE PLAINTIFF EVIDENCE AND DOCUMENTS RELIED UPON.
8.1. In support of his case, plaintiff examined himself as PW-1 and tendered evidence affidavit Ex.PW-1/X in his examination-in-chief.
8.2. In his evidence, PW-1 has relied upon the following documents:
A. Certified copy of undertaking-cum-receipt as PW-1/1; B. Certified copy of cheque issued by defendant as Ex.PW-1/2, C. Certified copy of bank memo for dishounour of cheque as Ex.PW-1/3;
D. Certified copy of the legal notice dated 19.02.2018 as Ex.PW-1/4; and E. Certified copy of the postal receipts of legal notice as Ex.PW-1/5.
9. Thereafter, an application under Order IX Rule 7 read with Section 151 CPC was moved on behalf of defendant on 25.04.2023 for setting aside the ex-parte order dated 23.02.2023, which was allowed vide order dated 04.05.2023 and PW-1 was recalled for his cross examination.
10. PLAINTIFF EVIDENCE AND DOCUMENTS RELIED UPON. 10.1. Plaintiff further examined Sh. Rajesh Kumar, JA / Ahlmad in the Court of Ms.Neha Goel, Ld. MM (N.I. Act)-02, Central, Tis Hazari Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 5/18 Courts, Delhi as PW-2, Sh. Sardar Singh, Public Relation Officer, Civil Lines Post Office, New Delhi as PW-3, Sh. Deepak Chhabra as PW-4 and Sh. Dev Kumar as PW-5.
10.2. In his evidence, PW-1 exhibited the certified copies of Ex.PW-1/2, Ex.PW-1/3, Ex.PW-1/4 and Ex.PW-1/5 by comparing the same with the summoned record brought by PW-2 pertaining to CC No.6790/2018 titled as "Suresh Kumar Vs. Satish Yadav @ Satish Kumar", U/s 138 N.I.Act pending before the Court of Ms. Neha Goel, Ld. MM-02, Central, Delhi.
10.3. In his evidence, PW-3 has relied upon the following document :
A. Order dated 19.04.2023 alongwith copy of notification as Ex.PW-3/1 (colly).
10.4. In his evidence, PW-4 has identified his signatures at point A1, signatures of defendant at point A and that of Sh. Dev Kumar at point B on the undertaking-cum-receipt Ex.PW-1/1.
10.5. In his evidence, PW-5 has identified his signatures at point B, signatures of defendant at point A and that of Sh. Deepak Chhabra at point A1 on the undertaking-cum-receipt Ex.PW-1/1. During the cross examination of PW-4 Sh. Deepak Chhabra on 03.02.2024, Ld. Counsel for defendant submitted that PW-5 Sh. Dev Kumar was present in the Court and the same has caused prejudice to him, hence, in all fairness Ld. Counsel for plaintiff dropped PW-5 Sh. Dev Kumar from the array of witnesses on the same day.
Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 6/18
11. No other witness was examined on behalf of plaintiff.
Accordingly, plaintiff evidence was closed.
12. DEFENDANT EVIDENCE AND DOCUMENTS RELIED UPON.
12.1. The defendant himself stepped into the witness box as DW-1 and tendered his evidence affidavit Ex.DW-1/X in his examination-in- chief.
13. No other witness was examined on behalf of defendant. Accordingly, defence evidence was closed.
14. I have heard Ld. counsels for both the parties. I have gone through the written submissions as well as evidence on record.
15. My findings on various issues are as under:--
16. ISSUE NO.1.
Whether the plaintiff is entitled for money decree, as prayed? OPP.
And ISSUE NO.2.
Whether the plaintiff is entitled for the interest, if yes, at what rate and for which period? OPP.
16.1. Both these issues are interlinked, hence they are taken up together. The onus to prove both these issues is upon the plaintiff. The plaintiff himself stepped into the witness box as PW-1 and deposed Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 7/18 that he was the tenant of defendant and on 02.06.2015, the defendant approached him to borrow a friendly loan in the sum of Rs.7,50,000/-, keeping in view their long standing friendly relations, he advanced a sum of Rs.7,50,000/- in cash to the defendant as friendly loan and against the lending an undertaking-cum-receipt Ex.PW-1/1 of the even date was executed by the defendant wherein he undertook to repay the aforesaid loan on or before 02.06.2016 and the said undertaking was witnessed by two witnesses as well. PW-1 has further deposed that after the expiry of the prescribed time, he approached the defendant seeking repayment of his loan, but the defendant expressed his inability and sought some more time and after much persuasion, he issued a post dated cheque bearing no.916509 Ex.PW-1/2 dated 05.01.2018 for the amount of Rs.7,50,000/- towards the payment of loan in question, however, upon presentation, the said cheque got dishonoured with the remarks 'Funds insufficient' vide bank returning memo Ex.PW-1/3 and thereafter, he sent a legal notice dated 19.02.2018 Ex.PW-1/4 as well to the defendant demanding repayment of the loan amount, but all in vain.
16.2. The plaintiff has also examined the attesting witnesses of the undertaking-cum-receipt Ex.PW-1/1 as PW-4 and PW-5, however, after recording the examination-in-chief of PW-5 Sh. Dev Kumar, he was dropped / given up by the plaintiff and his cross examination was not conducted by the defendant, hence, his examination-in-chief could not be read as evidence in support of the claim of plaintiff.
16.3. PW-4 Sh. Deepak Chhabra deposed that he is a long time acquaintance of plaintiff and on 02.06.2015, Rs.7,50,000/- in cash Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 8/18 were handed over to the defendant by the plaintiff as friendly loan in his presence and the defendant also executed the undertaking Ex.PW-1/1, which was signed by him alongwith Sh. Dev Kumar as attesting witnesses.
16.4. In rebuttal, the defendant Sh.Satish Yadav himself stepped into the witness box as DW-1 and deposed that he never borrowed a sum of Rs.7,50,000/- from the plaintiff, however he took a friendly loan of Rs.40,000/- from him and as security handed over four blank signed cheques, out of which, the cheque in question Ex.PW-1/2 has been misappropriated by the plaintiff for filing the present suit. DW-1 further deposed that the undertaking-cum-receipt Ex.PW-1/1 filed by the plaintiff is a fake and frivolous document and the loan of Rs.40,000/- taken by him from the plaintiff has already been repaid and he has no outstanding liability towards the plaintiff to make the payment of any loan amount.
16.5. As in the present case, the claim of the plaintiff is primarily premised upon the Negotiable Instruments i.e. an undertaking-cum- receipt Ex.PW-1/1 and cheque Ex.PW-1/2, which admittedly bears the signatures of defendant and handed over by him to the plaintiff. So, a reference to the relevant provisions of the Negotiable Instruments Act, 1881 is apposite.
16.6. It is trite to mention that once execution of a promissory note is admitted, it gives rise to the presumption under Section 118 The Negotiable Instruments Act, 1881 that until the contrary is proved, a presumption shall be made that every negotiable instrument was made Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 9/18 or drawn for consideration, and that such instrument, when it was accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration and that every negotiable instrument bearing a date was made or drawn on such date alongwith the presumption that the holder of a negotiable instrument is a holder in due course.
16.7. Besides Section 118 of The Negotiable Instruments Act, 1881, Section 139 of the said Act is also relevant which provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or the liability.
16.8. The conjoint reading of Section 118 and 139 of The Negotiable Instruments Act, 1881 entails that in case of a cheque, there is a presumption that the cheque was drawn for some consideration and the holder of the cheque received the same towards the discharge of any debt or liability.
16.9. So, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) Negotiable Instruments Act would arise that it is supported by some consideration. However, at this stage, it is relevant to mention that such a presumption is rebuttable and to disprove the presumption, the defendant is required to bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration did not exist at all or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 10/18 act upon the plea that it did not exist at all. Reference can be made to the judgment passed by Hon'ble Apex Court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal, AIR 1999 SC 1008.
16.10. For the sake of completion, it be also noted that in the present case, the defendant has taken the plea that he handed over four blank signed cheques to the plaintiff and out of which one of them Ex.PW-1/2 has been misappropriated by the plaintiff for filing the present suit. While dealing with an issue regarding issuance of blank signed cheque, Hon'ble Apex Court in Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, observed that a meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Section 20, 39 and 87, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for the payment of a debt or in discharge of a liability and it is immaterial that the cheque may have been filled in by any person other than the drawer if the cheque is duly signed by him.
16.11. The aforesaid discussion delineates that in case a money claim is founded on the basis of Negotiable Instruments, the onus of proof shifts upon the defendant to rebut the presumption and to establish the absence of consideration behind the issuance of the Negotiable Instruments in question.
16.12. As the onus of proof has shifted upon the defendant, so this Court will analyse the case set up by the defendant in support of his Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 11/18 defence through his testimony as DW-1.
16.13. The perusal of the examination-in-chief of defendant reveals that he has neither disputed the fact that the cheque Ex.PW-1/2 belongs to him and bears his signatures nor the fact that he handed over the same to the plaintiff. However, he has pleaded that the cheque in question Ex.PW-1/2 is one of the four cheques handed over to the plaintiff as security for the loan of Rs.40,000/- borrowed by him.
16.14. However, it is a matter of record that in his evidence / examination-in-chief as DW-1, the defendant has not even furnished the basic particulars of the transaction including the date, time, place and mode through which the alleged sum of Rs.40,000/- were lent to him by the plaintiff. He has also not deposed anything about the mode and time schedule of the repayment of the alleged loan of Rs.40,000/- to the plaintiff. The defendant has also not furnished the particulars / details of the four cheques which were allegedly handed over by him as security to the plaintiff. Moreover, the defendant has also not uttered a single word as to why the aforesaid four cheques including Ex.PW-1/2 was not reclaimed by him despite the alleged repayment of the loan of Rs.40,000/- to the plaintiff.
16.15. The aforesaid recapitulation of material / details found missing from the evidence / testimony of the defendant clearly reflects that barring / except making bald assertions, he has not even pleaded the basic foundational facts which are necessary for establishing his defence pleaded by him in a meaningful manner, let alone the Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 12/18 evidence. At this stage, it is relevant to make a reference to the judgment passed by Hon'ble Apex Court in A.B. Govardhan Vs. P. Raghothaman, Civil Appeal No.9975-76 of 2024 wherein it was observed that bald assertions of facts made by parties to the suit are of no use unless the same are backed by admissible evidence.
16.16. Besides the foregoing discussion, the following aspects of the case of defendant are important and has a bearing upon the case set up by him:
A. Firstly, the plaintiff has brought on record the bank returning memo Ex.PW-1/3 which reflects that the cheque Ex.PW-1/2 got dishonoured due to 'Insufficient Funds'. This court is of the opinion that the reason behind dishonour of cheque, 'funds insufficient', in the present case is material as it is an admitted case of the defendant that cheque Ex.PW-1/2 is one of the four cheques handed over by him to the plaintiff as security for the loan of Rs.40,000/- borrowed by him, which has been repaid. So, this Court fails to understand as to why despite the fact that the loan had been repaid with respect to which the cheque in question was issued as security, in the first place the defendant did not reclaim the same and secondly, why no intimation for stoppage of payment was given to the concerned bank by the defendant qua the cheque in question.
B. Secondly, it is a matter of record that no police complaint has been filed on behalf of the defendant against the plaintiff for the unauthorised presentation of the cheque Ex.PW-1/2 for encashment. The aforesaid omission / inaction is relevant because if the version put forth by the defendant is presumed to be correct then the presentation of cheque Ex.PW-1/2 for encashment by the plaintiff is nothing but Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 13/18 criminal misappropriation / breach of trust and a natural remedy / action qua the same is filing a police complaint which is missing from the case of defendant.
C. Thirdly, the defendant has also not pleaded that now he has reclaimed the remaining three blank signed cheques from the plaintiff which were handed over by him alongwith the cheque in question Ex.PW-1/2 nor he has pleaded that he has sent any instruction to the concerned bank qua the aforesaid three cheques, which indicates that either the conduct of the defendant has been unnatural or he has not put forth the true state of facts / affairs.
16.17. As this Court has hereinabove noted that by virtue of Section 118 Negotiable Instruments Act, 1882, the onus of proof to rebut the presumption of consideration in favour of the plaintiff is upon the defendant. However, the record states that he has not brought on record any independent witness for demolishing the case of the plaintiff and rebutting the aforesaid presumption.
16.18. Apart from the foregoing discussion, it also needs to be discussed that the case of the plaintiff is entirely premised upon the undertaking-cum-receipt Ex.PW-1/1 and cheque Ex.PW-1/2 and so far as the cheque is concerned, the defendant has admitted his signatures thereon and also the fact that it was handed over by him to the plaintiff. However, regarding the undertaking-cum-receipt Ex.PW-1/1, the defendant has merely pleaded that it is a fictitious and fake document. But the material / relevant thing is that the defendant has not brought on record any evidence indicating the fact that Ex.PW-1/1 does not bear his signatures by examining any handwriting expert.
Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 14/18 Most importantly, he has not even pleaded in his written statement that Ex.PW-1/1 is a forged and fabricated document which has been prepared by the plaintiff forging his signatures thereon.
16.19. Moreover, during his cross examination, the plaintiff made an admission that the undertaking-cum-receipt Ex.PW-1/1 was not notorised in his presence as the defendant got the same notorised by himself after the execution. However, despite the aforesaid plea of the plaintiff and the sole defence of the defendant that it is a fake document, the defendant did not make efforts to examine the Notary Public, Sh. Rajesh Nayyar who purportedly attested the undertaking- cum-receipt Ex.PW-1/1 for establishing his defence. And in the opinion of this Court, the aforesaid omission on the part of the defendant is very material as he could have easily established the fact that Ex.PW-1/1 does not bear his signatures by examining the concerned Notary Public, in terms of the defence set up by him.
16.20. Before concluding the discussion, this Court feels the need to highlight that there are some gaps in the case set up by the plaintiff as well. Firstly, he has not disclosed anything about the source of Rs.7,50,000/-, the loan in question advanced by him in cash to the defendant especially in view of the fact that he himself admitted that he did not disclose the loan transaction in question in his income-tax return. Secondly, plaintiff deposed in his cross examination that the defendant approached him for the first time for the loan in question on 02.06.2015 and on that very day, he advanced the loan to him, prima facie appears unconscionable. Thirdly, the plaintiff has stated in his cross examination that the undertaking-cum-receipt Ex.PW-1/1 was Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 15/18 not notorised in his presence as the defendant got it done later on.
16.21. However, despite the aforesaid discrepancies in the case of plaintiff, this Court is of the opinion that the plaintiff has been successful in establishing his claim against the defendant as it is a settled principle of law that in civil cases, the standard of proof is preponderance of probability, which is in favour of the plaintiff, in view of the factual matrix of the present case. Reference can be made to the judgment passed by Hon'ble Apex Court in Government of Goa Through The Chief Secretary Vs. Maria Julieta D'Souza (D) and Ors, Civil Appeal No.722 of 2016.
16.22. In the light of the foregoing discussion, this Court is of the opinion that the defendant has miserably failed to rebut the presumption of consideration raised by Ex.PW-1/2 and as a result of which it can be safely concluded that the plaintiff is successful in establishing his plea of advancement of a sum of Rs.7,50,000/- to the defendant.
16.23. So far as the issue of interest is concerned, it is clear from the case set up the plaintiff himself that there was no agreed rate of interest between him and the defendant at the time of advancement of the loan of Rs.7,50,000/-. The perusal of the record reveals that the plaintiff has brought on record the legal notice Ex.PW-1/4 dated 19.02.2018 demanding repayment of the loan of Rs.7,50,000/- and claimed that it was duly served upon the defendant. While on the other hand in his written statement, the defendant has admitted the factum of receipt of the aforesaid legal notice. So, keeping in view the Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 16/18 mandate of The Interest Act, 1978 and Section 34 CPC, the plaintiff is granted 6% per annum pre-suit interest from 19.02.2018 and 6% per annum pendente lite and future interest upon the principal amount of Rs.7,50,000/- .
16.24. Accordingly, both the issues are decided in favour of the plaintiff and against the defendant.
17. ISSUE NO.3.
Whether plaintiff has misused the cheque in question? OPD. 17.1. The onus to prove this issue is upon the defendant. The testimony of the defendant is not reproduced herein for the sake of brevity. While adjudicating issue no.1, this Court has already arrived at the finding that there is no material available on record which could establish the story set up by the defendant regarding issuance of the cheque in question Ex.PW-1/2 alongwith three other cheques as security for the alleged loan of Rs.40,000/- advanced by the plaintiff to the defendant. So consequently, there is no material available on record which could even indicate that the plaintiff has misused the cheque in question Ex.PW-1/2.
17.2. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
18. RELIEF.
18.1. In view of the aforesaid discussion, the plaintiff is held entitled to recover a sum of Rs.7,50,000/- from the defendant alongwith 6% per annum pre-suit interest from 19.02.2018 and 6% per annum Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 17/18 pendente lite and future interest upon the principal amount of Rs.7,50,000/- till the date of its realization. Accordingly, the suit of the plaintiff is decreed.
19. Parties are left to bear their own costs.
20. Decree sheet be prepared accordingly.
21. File be consigned to record room.
MANOJ Digitally
by MANOJ
signed
KUMAR KUMAR SHARMA
Date: 2025.02.22
SHARMA 16:03:57 +0530
Announced in the open court (MANOJ KUMAR SHARMA)
on 22nd February, 2025. DJ-07/WEST/THC/DELHI Suresh Kumar Vs. Satish Yadav @ Satish Kumar Page: 18/18