Delhi District Court
Sh. Bittu vs Arjun on 17 August, 2016
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 476210/15
Case I.D. Number : 02402C0221662014
IN THE MATTER OF :
Sh. Bittu
S/o Sh. Babu Ram
R/o H. No. 282, Gali No. 4,
Mahalaxmi Enclave,
Karawal Nagar, Delhi110094 Plaintiff.
V E R S U S
Arjun
S/o Sh. Ganga Saran Kalwa
Meat Ke Shop Wala
R/o Village Gambdi Road,
Near Hansraj Diary,
Delhi110053
Also At:
Arjun Band Baggi Wale
At Mavi Hospital
Near Shiv Vihar Pulia,
Karawal Nagar, Delhi Defendant
Date of Institution of suit : 26.07.2014
Date of argument : 17.08.2016
Date of Judgment/Order : 17.08.2016
Decision : Suit is dismissed with cost.
CS No. 476210/15 page 1 of 13
Bittu V/s Arjun
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
SUIT FOR RECOVERY OF Rs. 3,20,000/
J U D G M E N T
1. By this judgment, the suit of the plaintiff filed against the defendant for
recovery of Rs. 3,20,000/ alongwith pendentelite and future interest is
disposed off.
2. As stated, the plaintiff and defendant have family relations. On
11.12.2013, defendant requested the plaintiff for Rs. 3,20,000/ which was paid
in cash. The defendant was to return the amount within six months along with
interest and defendant also executed promissory note/receipt in this respect.
The defendant failed to return the amount after expiry of six months despite
repeated requests and service of the legal notice dated 25.06.2014. Hence, this
suit is filed by the plaintiff against the defendant for recovery of Rs. 3.20,000/.
The plaintiff has filed the suit for recovery U/o 37 CPC. After service of
the summons for appearance and summons for judgment, leave to defend
application filed which was allowed and defendant was granted leave to defend
the suit.
3. In the WS, defendant contended that this suit is filed to harass the
defendant and no amount was taken by him. It is further mentioned that
promissory note/receipt relied by the plaintiff is forged and fabricated and
therefore neither the amount nor the date of execution of promissory note is
mentioned in the plaint. No promissory note was executed by the defendant as
stated and he do not know the witnesses of alleged promissory note at all. The
defendant denied any transaction with the plaintiff alongwith execution of
CS No. 476210/15 page 2 of 13
Bittu V/s Arjun
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
promissory note relied by plaintiff in support of contentions. The defendant
further denied all the relevant contentions of the plaintiff in the plaint praying
that the suit of the plaintiff may be dismissed with cost.
4. Replication to the WS of defendant filed by plaintiff wherein the
allegation made in WS have been denied in toto and contentions made in the
plaint have been reiterated as correct.
5. In view of the pleading of the parties, following issues were framed vide
order dated 11.05.2015:
(i) Whether the plaintiff is entitled for decree of Rs.
3,20,000/along with interest as prayed in the suit? OPP
(ii) Relief.
The case was thereafter fixed of Plaintiff's Evidence.
6. Plaintiff filed his affidavit by way of evidence Ex. PW1/1 and examined
himself as PW1 who deposed regarding the case. The witness has deposed
nothing but the averments made in the plaint and also deposed regarding the
relevant documents i.e. promissory note cum receipt dt. 11.12.13 Ex. PW 1/ A
and legal notice dt. 25.06.14 alongwith postal receipt Ex. PW 1/ B( colly).
Plaintiff examined further witnesses i.e. Smt. Urmila Devi and Sh.
Sandeep as PW2 and PW3 by way of their affidavits Ex. PW 2/1 and Ex. PW
3/1 respectively who deposed nothing but as deposed by PW1. As no other
witness was examined by the plaintiff, the PE was closed and the case was
fixed thereafter defendant's evidence.
7. Defendant filed his affidavit by way of evidence Ex. DW 1/A and
examined himself as DW1 in support of contentions. The witness has deposed
CS No. 476210/15 page 3 of 13
Bittu V/s Arjun
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
nothing but the averments made in the WS. DE was thereafter closed.
8. I have heard ld. Counsel for the parties and gone through the relevant
materials on record. I have also considered the relevant provisions of law.
9. Having drawn my attention to the pleadings of the parties, testimony of
witnesses and materials on records, it is submitted by learned counsel for the
plaintiff that the case of the plaintiff has been duly proved and plaintiff has
discharged the onus, the plaintiff is entitled for the amount as prayed in the
suit. It is further argued that the defence of the defendant is shame, vague and
fanciful, the defendant failed to pay the outstanding amount and is therefore
liable to pay the same along with interest. As contended, this suit is filed
within limitation. The Ld. Counsel for the plaintiff further prayed to decree the
suit in favour of the plaintiff and against the defendant.
Ld. Counsel for defendant on the other hand contended that this suit is
filed by plaintiff on the basis of forged and fabricated promissory note Ex. PW
1/A and it does not bear the signature or thumb impression of defendant. Ld.
Counsel for defendant argued that plaintiff has failed to discharge the onus and
prayed to dismiss the suit with cost.
10. I have given my thoughtful consideration to the submissions made on
behalf of the parties. My findings issuewise are as under :
Issue No. I:
(i) Whether the plaintiff is entitled for decree of Rs.
3,20,000/alongwith interest as prayed in the suit? OPP
11. The onus to prove the issue regarding entitlement for the amount
claimed in the suit was on the plaintiff. It is well settled that a suit has to be
CS No. 476210/15 page 4 of 13
Bittu V/s Arjun
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
tried on the basis of the pleadings of the contesting parties which is filed in the
suit in the form of plaint and written statement and the nucleus of the case of
the plaintiff and the contesting case of the defendant in the form of issues
emerges out of that. Being a civil suit, this suit is to be decided on the basis of
preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly
executed by the deceased Sh. Sohan Singh. The Power of
Attorney is after all a registered Power of Attorney, and more
importantly, the original title documents of the subject
property are in the possession of the respondent No. 1 and
which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
CS No. 476210/15 page 5 of 13 Bittu V/s Arjun
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
12. Section 101 of the Evidence Act, 1872 defines " burden of proof" which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove CS No. 476210/15 page 6 of 13 Bittu V/s Arjun Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
13. In the present case, the transaction between the parties is not admitted and the defendant has denied regarding any amount taken from the plaintiff. The defendant claimed that the promissory note Ex. PW 1/A relied by the plaintiff is forged and fabricated and does not bear the thumb impression/ signature of the defendant. It is relevant to note that no steps was taken by plaintiff during trial of the matter to verify the signature/ thumb impression of the defendant on Ex. PW 1/ A( promissory note) and the application U/s 45 of Indian Evidence Act was filed on behalf of plaintiff only after the evidence of the parties was concluded and case was fixed for final arguments. The said application was dismissed. The plaintiff examined himself as PW1 who deposed that Rs. 3,20,000/ was given to the defendant by way of cash. Plaintiff claimed that he has received Rs. 1,00,000/ from Urmila and Rs. 1,50,000/ from Dharmender and in support of his contentions, produced one receipt Ex. PW 1/X1 executed by Dharmender. It is noted that plaintiff has CS No. 476210/15 page 7 of 13 Bittu V/s Arjun Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
failed to produce any acknowledgment/receipt regarding payment of Rs. 1,00,000/. Plaintiff has even failed to produce any acknowledgment/ receipt regarding payment of Rs. 3,20,000/ to the defendant. Ex. PW 1/X1 relied upon by the plaintiff does not prove that Dharmender has paid Rs. 1,50,000/ to the plaintiff as the said Dharmender was not produced before the court as a witness at all. Plaintiff categorically failed to prove the payment of Rs. 3,20,000/ to the defendant at all as he admitted during cross examination that Ex. PW 1/ A was executed before making the payment to the defendant.
PW2 Smt. Urmila Devi examined by the plaintiff failed to disclose as to when she has taken the loan of Rs. 1,00,000/ from the plaintiff and there is nothing to show that she made any payment to the plaintiff. The testimony of PW3 is also not reliable nor helpful to prove the claim of the plaintiff regarding payment of Rs. 3,20,000/ to the defendant. DW1 during cross examination categorically deposed that Ex PW 1/1 do not bear his signature and thumb impression and it is forged and fabricated. The PW3 examined by the plaintiff is his relative as well.
14. The testimony of plaintiff was totally shattered during cross examination as witness. It is interesting to note that plaintiff is doing the work of Baggi Band and Baja and had no fixed income as deposed by him and paid Rs. 3,20,000/ in cash without disclosing the source of income and proving such source of income. Nothing is referred by plaintiff in the plaint or in the affidavit as to how he has arranged the amount of Rs. 3,20,000/ from Smt. Urmila or Sh. Sandeep. Plaintiff has not produced any documents including income tax return or bank statement to show his capacity to make the payment CS No. 476210/15 page 8 of 13 Bittu V/s Arjun Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
of such amount. Admittedly, the amount was given in cash and therefore there is no proof / acknowlgment / receipt regarding any payment by the plaintiff to the defendant of the said amount except the bald averments. Moreover, the testimony of plaintiff during cross examination that he arranged the amount from Smt. Urmila and Sandeep appears to be beyond pleadings. The document Ex PW 1/ A is not proved in accordance with law. Merely oral and bald avements of plaintiff is not sufficient to prove his case.
15. After going through the pleadings and the evidence of the witnesses examined in this case, this court has no hesitation in holding that the plaintiff categorically failed to prove the payment of Rs. 3,20,000/ to the defendant as mentioned in the plaint. As admitted, plaintiff did not file any income tax return in support of claim and contention. Plaintiff has not placed on record any documents to show that he has arranged the loan amount and paid to the defendant. The plaintiff claimed that Rs. 3,20,000/ was paid in cash but no income tax return is placed in record in support of contentions nor any steps was taken. There is nothing on record nor anything proved in this respect except the bald averments of the plaintiff. The testimony of the plaintiff was further controverted during crossexamination and his testimony was totally shattered. No income tax return was placed on record by the plaintiff to corroborate his claim. The case of the plaintiff do not inspire confidence.
16. Plaintiff has not produced any income tax return to show that any payment was made and same was reflected in the return at the relevant time. Had the amount been actually given by plaintiff to defendant and same would have been shown by plaintiff in his income tax return at the relevant time and CS No. 476210/15 page 9 of 13 Bittu V/s Arjun Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
said fact would have been proved on record by examining the concerned official from Income tax department. The witness/plaintiff claimed to have paid Rs. 3,20,000/ by way of cash which itself is unbelievable and also contrary to the provisions of law. This act and conduct appears to be suspicious and does not inspire confidence. There is no averments in the plaint nor any evidence to infer the capacity of the plaintiff for payment of such huge amount in cash nor there is anything as from where such large amount was arranged by the plaintiff in cash. The plaintiff failed to show the source of arranging such large money in cash. Moreover, even the alleged transaction of Rs. 3,20,000/ in cash made by the plaintiff is violative of the provisions of Income Tax Act. Section 269(SS) of the Income Tax Act prohibits any person from taking or accepting from any other person any loan or deposit in any other way than by cheque or bank draft where the amount is more than Rs. 20,000/. Similarly Section269(T) prohibits the repayment of any loan or deposit other than by way of cheque or bank draft, if amount is more than Rs. 20,000/. These provisions have been extended to loans between two individual as well and in such cases, the Income Tax assessing officer can levy penalty as high on the amount itself. The whole idea behind this clause is to counter act tax evasion. In this case, plaintiff failed to show any reason or ground for alleged transaction in violation of provisions of Income Tax Act. The plaintiff has not produced any corroborative evidence to show or prove that such amount was arranged or paid, whether such payment was reflected in the income tax return or any records maintained by the plaintiff. The plaintiff cannot be permitted to gain from the illegal act violating any law of the land. Further, merely oral CS No. 476210/15 page 10 of 13 Bittu V/s Arjun Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
averments is not sufficient to prove the case of the plaintiff for entitlement of the relief particularly when the transaction appears to be barred by the provisions of law. There is nothing on record except the bald averments of the plaintiff. In view of the aforesaid discussions, plaintiff failed to discharge the onus and prove the issue.
17. Plaintiff has not produced any income tax return to show that any payment was made and same was reflected in the return at the relevant time. Had the amount been actually given by plaintiff to defendant and same would have been shown by plaintiff in his income tax return at the relevant time and said fact would have been proved on record by examining the concerned official from Income tax department. I have gone through the judgment reported as AIR 2008( NOC) 2495( KAR.) which is squarely applicable in the facts and circumstances of the case. Further the judgment reported as 2009 (107) DRJ 271 squarely applies in the facts and circumstances of this case. The plaintiff has not filed even a single document to show the availability of cash in such large volume along with the source of the same.
18. I have gone through the judgment titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) and ratio of the case squarely applies in the facts of this case. The relevant para No. 13 of the judgment reads as under: 13" In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time CS No. 476210/15 page 11 of 13 Bittu V/s Arjun Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
but till recording of evidence in the year 2006 it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
19. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33). The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged.
CS No. 476210/15 page 12 of 13 Bittu V/s Arjun
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
20. In view of the aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiff has failed to discharge the onus and prove the issue No. I. The plaintiff categorically failed to prove any payment of Rs. 3,20,000/ as contended in the plaint along with entitlement of relief/amount as prayed in the suit. Plaintiff is accordingly not entitled for any relief as prayed in the suit. Issue No. I is decided against the plaintiff.
Relief : In view of the above said discussions and findings, this court is of the considered opinion that plaintiff is not entitled for the relief as prayed in the suit. The suit of the plaintiff is therefore dismissed with cost. The decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 17th day of August, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 476210/15 page 13 of 13 Bittu V/s Arjun