Delhi District Court
Sh. Gurbax Singh vs Sh. Ramesh Grover on 20 November, 2010
In the court of Sh. Devender Kumar CCJ/ARC (N/E),
Karkardooma Courts Delhi.
UNIQUE I.D. NO.
CIVIL SUIT NO.456/09
IN THE MATTER OF :
SH. GURBAX SINGH
S/O SH. BELA SINGH
R/O 184, WET GURU ANGAD NAGAR,
DELHI 110092
PLAINTIFF
Versus
SH. RAMESH GROVER
S/O SH. R.N. GROVER
R/O 13/182, GEETA COLONY,
DELHI 110031
DEFENDANT
Date of Institution of the Suit : 061104
Arguments Heard : 201110
Date of Judgment : 201110
SUIT FOR THE RECOVERY OF RS. 1,60,000/ UNDER ORDER
XXXVII CPC
Judgment :
1.Vide this judgment, I shall dispose off a suit for recovery of Rs. 1,60,000/ filed by the plaintiff against the defendant U/o 37 CPC, but after CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 1 of 14 granting the leave to the defendant, the suit was contested by the parties. The brief facts of the case are as under :
2. Plaintiff has alleged that the defendant was having good family relations with the plaintiff and is a close friend. It is further alleged that on 12.01.01, the defendant came to the house of the plaintiff and requested for a loan of Rs. 1,50,000/ for two years and against the security of the amount, possession of one room set at the ground floor in the house bearing no. 13/182, Geeta Colony, Delhi 110031 was mortgaged and the plaintiff advanced the loan in three installments dated 12.01.01 , 11.06.01 and 09.08.01 against the documents and receipts dated 09.08.01. It is further alleged that after the period of two years, the plaintiff asked the defendant to return the amount, but defendant issued a cheque of Rs. 1,60,000/ in favour of the plaintiff including interest, but the cheque was dishonoured for the reason "Account Closed". It is further alleged that the plaintiff approached to the defendant on dishonour of the cheque, but the defendant changed the date of the cheque from 18.07.03 to 21.04.04 and asked the defendant to present the cheque again, but on inquiry by the plaintiff from the bank of the defendant, it was found that the account of the defendant was still closed, due to the cheque was not presented again and thereafter defendant refused to pay the amount. It is further alleged that the plaintiff got served a legal notice, but the defendant has neither paid the loan nor CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 2 of 14 replied the notice, hence present suit.
3. The defendant has filed WS and has alleged that the plaintiff has fabricated the documents including stamp papers and cheques and even has alleged that the cheque was never revalidated by the defendant on 21.04.04 and it is a false allegation otherwise the plaintiff has not mentioned this fact in the legal notice and even the cheque clearly shows manipulation of the date. The defendant has denied all the allegations of the plaintiff and has submitted that the defendant requested the plaintiff to advance the loan and plaintiff was agreed and got executed the various blank documents including blank cheque as security, but the amount was never advanced by the plaintiff and the plaintiff instead of returning the documents has misused the same. It is further alleged that the suit is barred by limitation and even possession of one room set as alleged by the plaintiff was never handed over to the plaintiff by the defendant. It is further alleged that the defendant has never revalidated the cheque after the period of one year as alleged by the plaintiff and the plaintiff is liable for the prosecution of perjury thereby relying upon the forged documents and even no notice was ever served upon the defendant. The defendant has prayed that the suit is liable to be dismissed.
4. Plaintiff has filed the replication to the WS of the defendant and denied all the allegations of the defendant and reaffirmed his pleadings. CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 3 of 14
5. As per the pleadings of the parties, following issues have been framed vide order dated 20.09.05.
ISSUES
1. Whether the suit is based on false and fabricated documents and liable to be dismissed ? OPD
2. Whether the plaintiff is entitled for the recovery of suit amount as prayed for ? OPP
3. Whether the plaintiff is entitled for the interest, if so at what rate ? OPP
4. Relief
6. To prove the case, the plaintiff has examined himself as PW1 and PW2 Sh. M. S. Bhatia and closed PE. Defendant has examined himself as DW1 and closed DE.
I have heard the arguments and perused the record. My issue wise findings are as under :
7. ISSUE NO. 1
The onus to prove this issue was fixed upon the defendant. To discharge the onus, the defendant has examined himself as DW and also cross examined the PWs. Arguments heard. It is submitted by counsel for defendant that the plaintiff has fabricated the documents Ex.PW1/2 to PW1/6 and this fact is itself evident from the document Ex. PW2/2 as the stamp paper was purchased on 28.04.1, whereas the agreement was CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 4 of 14 prepared on 12.01.01 which is a forged document. Further the document Ex. PW1/3 is also bearing the correction at point B and C and the other documents were also not executed by the defendant and even the cheque Ex. PW1/6 is not bearing the signature of the defendant at point G and even the cheque at point F was never revalidated by the defendant, due to the suit is liable to be dismissed.
On the other hand, counsel for plaintiff has argued that the document Ex. PW1/2 is not a manipulated document as the same is not bearing the date as 28.04.01, but it is year 2000 and the document was prepared on 12.01.01, due to the same is correct document and even Ex.PW1/3 is bearing the same correction at point B and the same was done by the stamp vendor concerned and it has nothing to do with the manipulation by the plaintiff. It is further submitted that the Ex. PW1/5 is admitted document of the defendant which is bearing the signature of the defendant at point Z to Z2 and Ex. PW1/2 was issued against the said consideration including some interest amount, due to the suit is well maintainable and liable to be decreed.
I have heard the arguments and perused the record. PW1 who is the plaintiff has deposed in the examinationinchief that he advanced the loan of Rs. 1,50,000/ to the defendant on three occasions and defendant issued a cheque Ex. PW1/6, but the same was dishonoured for "Account Closed". CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 5 of 14 During cross examination, PW1 has deposed that he is not in the business of money lending and had not purchased the stamp papers Ex. PW1/2 to Ex. PW1/4. It is further deposed that the defendant himself brought the agreement papers and the agreement was executed on the same day. It is further deposed that Ex. PW1/2 at point A, bearing a date 28.04, but he cannot read the year. It is further deposed that he does not know what is the validity period of the stamp papers from the date of issuance and it is admitted that at point B on Ex. PW1/3, there is one overwriting and the same has not been done by him. It is further admitted that the different ink has been used in Ex. PW1/3 at point D and B and the agreement was executed for six months as the defendant had undertaken to pay the amount after six months and he has not mentioned two years at point E in his handwriting and he does not know who had written the same. It is further admitted that no interest was agreed at the time of grant of the loan. It is further denied that the document Ex. PW1/2 and PW1/3 are manipulated document. It is further deposed that he does not remember the date of cheque, but it was returned unpaid for the reason of "account closed" and he did not present the same again as the account of the defendant was still closed. It is further deposed that the signature in Ex.PW1/6 is of the defendant at point G and H and the signature at point G were put in his presence by the defendant and he cannot say whether there is any difference CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 6 of 14 in signature at point G and H. It is further deposed that the cheque was always in his possession and legal notice was issued by his counsel, but he did not go through the legal notice at the time of its issuance, but he disclosed to his counsel about the revalidation of the cheque at the time when he inquired the same from him.
PW2 has deposed that he does not remember on which agreement, he signed or which agreement are stated in his affidavit. It is further deposed that cheque was revalidated in his presence and the cheque Ex. PW1/6 is the same cheque which has been revalidated by the defendant, but he cannot tell as to whether the signature at point G and H are different. It is further deposed that he does not know whether the signature at point G is different or forged. It is further deposed that he does not remember the date on which cheque was revalidated but the same was revalidated in his presence and he has not stated this fact in his affidavit. It is further deposed that at the time when the loan was advanced the same was in the format of Rs. 500/ and 100/ and a total of Rs. 1,50,000/ was advanced to the defendant on three occasions and he was present there. It is further deposed that he is not a witness in any of the documents filed by the plaintiff and he cannot say whether the plaintiff has lend any advance or loan to any other person, but he has never advanced any loan to any person. It is further deposed that the agreement Ex. PW1/2 to PW1/4 were entered in his presence, but he CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 7 of 14 does not remember when he signed the agreements. It is further deposed that the defendant has not signed the document Ex. PW1/3 in his presence and the documents were in possession of the plaintiff thereafter. It is further deposed that he signed the document in presence of the plaintiff, defendant and witness, but he did not read the document before signing and he signed the document on the asking of both parties.
On the other hand, DW1 has deposed that he does not remember as to what is written in his affidavit as the same was prepared by his counsel. It is admitted that he issued the cheque against the loan amount, but did not hand over the possession of one room set and kitchen against the said loan amount. It is further admitted that the cheque Ex. PW1/6 has been issued by him and the signature at point H is of him, but signature at point G has not been done by him. It is denied that he revalidated the cheque, but he does not remember the date when the cheque was executed by him. It is further deposed that he cannot say as how the sign in Ex. PW1/6 at point G came. It is further deposed that he know the plaintiff since 1012 years, but he has never taken any loan from the plaintiff. It is further deposed that Ex. PW1/2 bears his signature and thumb impression at same point and Ex. PW1/3 is also bearing the signature at point Y and thumb impression and Ex. PW1/4 is also bearing the signature and thumb impresssion at point Z and Z1 and the Ex. PW1/5 was also bearing the signature at point Z2. It is further CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 8 of 14 admitted that there is no correction, overwriting or manipulation or fabrication on Ex. PW1/2 and also on Ex. PW1/4 as well as PW1/5. It is further deposed that the date of Ex. PW1/4 and PW1/5 is same and Ex. PW1/5 is the loan agreement at the last loan of Rs. 50,000/. It is further deposed that Ex. PW1/2 and PW1/3 are having some format and alphabets, but he cannot tell whether the same has been printed from the same computer. It is further deposed that he has not taken any loan from other persons. It is further deposed that the affidavit has been signed blank.
8. After going through the testimoney of both the parties, it is clear that the execution of the documents Ex. PW1/2 to PW1/5 are admitted on the part of the defendant and these documents were duly executed by the defendant, but the defendant has tried to point out the document Ex. PW1/2 is manipulated document on account of date at point A and agreement Ex. PW1/3 again at point B to E. Other documents Ex. PW1/4 and 5 have not been disputed in any manner, rather these have been specifically admitted by the defendant. The PW1 has duly explained that the stamp papers were not purchased by him and those were purchased by the defendant himself and the signature on the same have been admitted by the defendant which clearly proved that the plaintiff was not involved in the purchasing of the document. PW1 has specifically deposed that he has not done any overwriting in the documents and has failed to point out the year of CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 9 of 14 purchase of stamp papers on which the agreements were executed. But, it has not been suggested by the defendant to the PW1 as to what is the exact year of execution of the document. In the absence of the clear year at point A in document Ex. PW1/2, it may be presumed that other documents might have been purchased prior to execution of the subsequent documents by the defendant himself. If the defendant was purchasing the stamp papers, then he is liable for the purchase of the defective stamp papers and no liability can be attributed to the plaintiff. The stand of the defendant has been remained changed during the cross examination as in the WS, he has alleged that the documents are forged and fabricated and he never executed any document and whatever documents were executed the same were executed in blank, but in the cross examination he has not only admitted the execution of the document, but also issuance of the cheque. If the documents have been admitted by the defendant during cross examination and cheque was issued in pursuance of those documents, then it shall be presumed that the documents were duly executed against the consideration. The cheque Ex. PW1/6 is a negotiable instrument and presumption of section118 A R/w Section 139 of Negotiable Instrument Act is in favour of the plaintiff and the same was to be rebutted by the defendant, but no such rebuttal has been done by the defendant.
CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 10 of 14
9. Defendant has further disputed the date of revalidation of the document Ex. PW1/6. The account of the defendant was admittedly not being operated by the defendant and cheque was dishonoured vide Ex. PW1/7 for the same reason and signature at point A on the cheque has been admitted, but at point G has been denied. If the cheque was not revalidated by the defendant, then there was no occasions to put his signature at point G as the same was not required in any manner. The signature is usually put at the same point by as put by the defendant at point H. The signature at point G usually is to be done only at the correction in the date or revalidation of the instrument. PW2 has proved this fact that the cheuqe was revalidated in his presence and even he was present at the time of advancement of loan of Rs. 1,50,000/ on three occasions by the plaintiff to the defendant. Though the testimony of PW2 is shaking during the cross examination to some extent, yet the same is only minor contradictions and not major to disbelief the case of the plaintiff. PW2 has duly proved the facts of advancement of loan and revalidation of Ex. PW1/6 and both the facts are clearly proving the case of the plaintiff. The document Ex. PW1/5 is a receipt of the loan of Rs. 1,50,000/ which is bearing the revenue stamp which have been mentioned in document Ex. PW1/2 to PW1/4 and this document is clarifying the stand taken by the plaintiff and as such, the documents are not forged in any manner. If the document Ex. PW1/5 has been admitted by the CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 11 of 14 defendant, then entire loan is admitted and even document Ex. PW1/5 is competent document to prove the stand of the plaintiff as well as liability. Though the plaintiff has denied any interest over the suit amount, yet the defendant had issued the cheque Ex. PW1/6 and it might have been issued with some understanding between the parties regarding any interest to some extent over the loan amount, accordingly the document Ex. PW1/6 is already proving the case of the plaintiff. The document Ex. PW1/1 is legal notice and the same was dispatched through courier and the same has not been received back, then it might have been served upon the defendant. If the defendant is taking so much vague defences, then denial of this legal notice also may be the part of the same. Even otherwise, the present suit is for recovery and the legal notice was not mandatory and having not much bearing on the civil recovery of the plaintiff. The cheque is dated as 21.04.04 after revalidation and the suit has been filed on 05.11.04, due to the same is also within limitation. As such, the defendant has failed to prove that the suit has been filed on the basis of the forged document, whereas the plaintiff has proved that the claim of the plaintiff is legal and defendant has failed to discharge the onus to prove this issue and issue is decided against the defendant and in favour of the plaintiff. CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 12 of 14 10. ISSUES NO. 2 & 3 The onus to prove these issues was fixed upon the plaintiff. I have already given my findings on issue no. 1 that the defendant had executed the document against the loan amount which was advanced by the plaintiff on three occasions and a cheque issued by the defendant against the consideration of loan amount was dishonoured as the defendant was not operating the account. If the defendant was not operating the account, then he may definitely having the knowldege about the same that he was issuing the cheque against the amount just to cheat the plaintiff and to withheld the lawful amount of the plaintiff. The plaintiff has already proved all the documents and liability and he is entitled for the suit amount.
So far the rate of interest is concerned, Though the plaintiff has himself deposed in his cross examination that no interest was fixed between the parties against the loan amount, yet the defendant issued the cheque of Rs. 1,60,000/ against the consideration amount of Rs. 1,50,000/ and the same might have been issued against the same understanding between the parties for the interest amount, but in the absence of any specific rate of interest, it could not be ascertained that the amount was to be repaid with the specific rate of interest due to the defendant has failed to prove that he is entitled for the interest over the suit amount.
CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 13 of 14 However after demanding the loan amount by the plaintiff from the defendant despite receipt of the legal notice, the defendant has deliberately with held the plaintiff from the utilization of the lawful amount, due to the defendant is certainly liable to pay some interest over the suit amount. As such, the plaintiff has proved both the issues and both the issues are decided in his favour and against the defendant.
11. RELIEF :
The plaintiff has already proved that he is entitled for the suit amount, accordingly I hereby pass a decree of Rs. 1,60,000/ along with cost in favour of the plaintiff and against the defendant. The plaintiff further shall be entitled for the interest @ 6% from the date of filing of the suit to the realization. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Devender Kumar) CCJ/ARC/MM 20.11.10 CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 14 of 14 C.S. No. : 456/09
12.11.10 Pr. : Counsels for both parties Arguments heard.
Vide separate judgment, suit of the plaintiff has been decreed. Decree sheet be prepared accordingly. File be consigned to record room.
(Devender Kumar) CCJ/ARC/MM 12.11.10 CS No. 456/09Gurbax Singh Vs Sh. Ramesh Grover 15 of 14