Delhi District Court
Mrs. Deepa Raghav vs M/S Shirdi Sai Medical Agency on 11 August, 2023
IN THE COURT OF SH. VIRENDER BHAT
LD. DISTRICT JUDGE (COMMERCIAL COURT),
NORTH DISTRICT, ROHINI COURTS: DELHI.
CS (COMM.) 78/19
MRS. DEEPA RAGHAV
D/O SH. PREM PAL SINGH
R/O C-4 / 135-B, LAWRENCE ROAD,
KESHAV PURAM,
DELHI-110035.
..........Plaintiff.
VERSUS
M/S SHIRDI SAI MEDICAL AGENCY
THROUGH ITS PROP. SH. PARDEEP KUMAR
S/O SH. RANDHIR SINGH,
R/O H. NO. 210, GALI NO.4,
RAMESHWAR NAGAR,
MODEL TOWN,
DELHI-110009.
........Defendant.
Date of Institution : 23.04.2019
Date of final arguments : 11.08.2023
Date of decision : 11.08.2023
CS (COMM.) 78/19 Page no. 1 of 7
J U D G E M E N T:-
1. The Plaintiff has filed this suit for recovery of Rs.6,93,150/- against the Defendant.
2. The case of the Plaintiff is that the Defendant had taken loan of Rs.15 Lacs from her in the last week of January, 2016. It is stated that she had advanced the sum of Rs.10 Lacs to the Defendant by way of cheque drawn in favour of M/s Shirdi Sai Medical Agency of which the Defendant is the proprietor and paid to him Rs.5 Lacs in cash. The Defendant had assured her that he would repay the loan amount within six months. It is further stated that upon persistent persuasion, the Defendant repaid Rs.5 Lacs to the Plaintiff through RTGS in the month of November, 2017. Thereafter, the Defendant is stated to have issued a cheque dated 26.02.2018 in the sum of Rs.10 Lacs towards repayment of the balance loan amount but the said cheque got dishonoured on presentation with the remarks "fund insufficient". When the Plaintiff informed the Defendant about the dishonour of the cheque, the Defendant issued another cheque dated 27.05.2018 in the amount of Rs.5 Lacs to the Plaintiff with the assurance that the balance amount of Rs.5 Lacs would be paid by him by cash.
3. It is further averred in the plaint that the aforesaid cheque also got dishonoured on presentation for the reasons "fund insufficient". Accordingly, the Plaintiff got served legal notice dated 17.07.2018 in this regard upon the Defendant but there was CS (COMM.) 78/19 Page no. 2 of 7 no response from the Defendant. The Plaintiff has already filed a complaint u/s 138 of NI Act regarding dishonour of the said cheque.
4. In this suit, the Plaintiff is claiming the balance amount of Rs.5 Lacs from the Defendant alongwith the interest amount of Rs.1,93,150/- (calculated @ 12% per annum w.e.f. 02.02.2016 till the date of filing of the suit) which makes the total claimed amount of Rs.6,93,150/-.
5. The Defendant has contended in the written statement that the Plaintiff wanted to do business with him and hence deposited the cheque of Rs.10 Lacs in his account for doing joint business with him. It is further stated that the Defendant has repaid the entire sum of Rs.10 Lacs to the Plaintiff. According to the Defendant, he transferred Rs.5 Lacs to the account of Plaintiff through RTGS in November, 2017, paid Rs.2.5 Lacs by way cheque dated 08.06.2016 and paid remaining amount of Rs.2.5 to her by cash. Thus, according to the Defendant, nothing is due and payale from him towards the Plaintiff.
6. In the replication, the Plaintiff has denied contents of the written statement and has reiterated the averments made in the plaint.
7. On the basis of these pleadings of the parties, following issues were framed on 01.09.2022:-
CS (COMM.) 78/19 Page no. 3 of 7
1. Whether the plaintiff is entitled to decree in the sum of Rs.6,93,150/- as prayed for? .......OPP
2. Whether the plaintiff is entitled to any interest and if so, at what rate and for what period? .......OPP
3. Relief.
8. The Plaintiff entered the witness box herself as PW-1 to prove her case. She was examined-in-chief on 25.11.2022. However, the Defendant did not cross-examine her either on that date or on subsequent two dates i.e. 01.12.2022 and 13.02.2023. Accordingly, his right to cross-examine PW-1 was closed on 13.02.2023. Ironically, the Defendant did not lead any evidence despite several opportunities and accordingly, his evidence was closed vide order dated 06.05.2023. An application filed on behalf of the Defendant seeking recall of the said order dated 06.05.2023 was dismissed vide order dated 27.07.2023.
9. I have heard the Learned Counsels for the parties and have perused the rival pleadings as well as evidence lead by the Plaintiff.
10. My issue-wise findings are as under:-
Issue No. (i):-
11. The onus of proving this issue was upon the Plaintiff.
CS (COMM.) 78/19 Page no. 4 of 7
12. In her evidence by way of affidavit Ex.PW1/A, she has reiterated the contents of the plaint. She also proved copy of her bank passbook in respect of her Saving Bank Account No. 32088246730 in SBI, Keshav Puram, Delhi as Ex.PW1/1, NCR in respect of lost cheque bearing no. 000050 as Ex.PW1/2 and certified copy of the complaint u/s 138 NI Act filed by her against the Defendant as Ex.PW1/3. As already noted hereinabove, the Defendant did not cross-examine her despite ample opportunities. Hence, her testimony has remained totally uncontroverted from the side of the Defendant. It is evident from her deposition that she had advanced loan of Rs.15 Lacs to the Defendant out of which she had paid Rs.10 Lacs vide cheque in the amount of Rs.5 Lacs in cash. Her deposition further shows that the Defendant has repaid only a sum of Rs.5 Lacs to her through RTGS in the month of November, 2017. Out of the remaining loan amount of Rs.10 Lacs, she is claiming only Rs.5 Lacs alongwith the interest in this suit as she has already filed complaint u/s 138 NI Act in respect of the cheque in the amount of Rs.5 Lacs issued to her by the Defendant on 27.05.2018.
13. Since, the Defendant did not lead any evidence despite several opportunities, he has failed to prove the contentions raised by him in the written statement to the effect that he had received only a sum of Rs.10 Lacs from the Plaintiff and that too not as loan but for doing joint business and later on he has repaid the entire amount to her.
CS (COMM.) 78/19 Page no. 5 of 7
14. Considering the testimony of the Plaintiff and taking note of failure on the part of the Defendant to lead any evidence to prove his contentions, this Court is of the opinion that the Plaintiff has been successful in proving her case and has become entitled to decree as sought for by her.
15. Hence, this issue is decided in favour of the Plaintiff and against the Defendant.
Issue No. (ii):-
16. The Plaintiff has claimed interest @ 12% per annum. But she has not lead any evidence to justify such enormous rate of interest. Further, it is nowhere case of the Plaintiff that there had been any agreement between her and the Defendant to the effect that the Defendant would return the loan amount alongwith the interest. Hence, the Plaintiff is not entitled to any pre suit interest. However, this Court is of the opinion that the Plaintiff is entitled to pendentelite and future interest @ 9% per annum which is the prevalent interest rate at which money is lent by the Nationalized Banks these days.
17. This issue stands decided accordingly.
Issue No. (iii):-
18. In view of the findings on Issue Nos. (i) and (ii) hereinabove, the suit is hereby decreed in the amount of Rs.5 Lacs in favour of the Plaintiff and against the Defendant CS (COMM.) 78/19 Page no. 6 of 7 alongwith pendentelite and future interest @ 9% per annum which is the prevalent interest rate at which money is lent by the Nationalized Banks these days.
19. Decree sheet be drawn accordingly.
Announced in the open Court on 11th August, 2023.
(VIRENDER BHAT)
District Judge (Commercial Court)
North:Rohini:Delhi/11.08.2023
CS (COMM.) 78/19 Page no. 7 of 7