Delhi District Court
Bhim Sain Sharma vs Birender Singh on 11 March, 2024
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL DISTRICT JUDGE-01, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
DLST-01-007549-2021
CS DJ No.439/2021
Bhim Sain Sharma
S/o Late Sh. Ram Narain Sharma
R/o Flat No.45, Block-18, DDA Flats,
Dakshinpuri, New Delhi-110062
.... Plaintiff
VERSUS
1. Birender Singh
2. Sukhbir Singh
Both S/o Sh. Jaspal Singh Bhatia,
Both R/o H. No.244/245, Block G-I,
Madangir, Dr. Ambedkar Nagar,
New Delhi-110062
..... Defendants
Date of institution : 29.09.2021
Date of final arguments : 16.01.2024
Date of pronouncement of judgment : 11.03.2024
JUDGMENT
Suit for recovery for a sum of Rs.7,20,000/-
1. The present suit has been filed by Bhim Sain Sharma (hereinafter called and referred to as plaintiff) against Birender Singh (hereinafter called and referred to as defendant no.1) and Sukhbir Singh (hereinafter called and referred to as defendant no.2) for recovery of Rs.7,20,000/- alongwith interest @ 18% per annum.
2. The case of the plaintiff is that plaintiff and defendants were well acquainted with each other and known to each other since long. The defendants were willing to purchase residential property for CS No.439/2021 Page 1 of 12 Bhim Sain Sharma Vs Birender Singh & Anr which they approached different banks for loan and all the banks wanted a surety for granting the same. The defendants approached the plaintiff and requested to give a collateral surety for the loan. At the request and assurance of defendants, plaintiff gave two FDRs for collateral surety for defendants in Punjab & Sind Bank, Pushp Vihar, New Delhi and bank granted loan of Rs.6,50,000/- to the defendants.
3. The defendants purchased property bearing no.244/245, Block G-
I, Madangir, Dr. Ambedkar Nagar, New Delhi. After payment of 13 installments, defendants defaulted in the payment of EMI's. The plaintiff requested the defendants from time to time to pay EMIs for release of FDR of the plaintiff but they did not take any steps for release of the same. Thereafter, bank issued notice to the plaintiff on 15.04.2021 and plaintiff again requested the defendants to make the payment to the bank and finally an amount of Rs.4,04,283/- was adjusted from the FDR no.12521400000417 in the name of the plaintiff, which was under pledge for loan amount.
4. The plaintiff approached the defendants and they assured the plaintiff to sell their property and return the amount but they did not take any steps. The defendants kept on extending the time but failed to pay the amount. The plaintiff visited the house of defendants on 30.04.2021 and they promised to pay the total amount to the plaintiff with interest of Rs.4,200/- per month but they failed to pay any amount. Legal notice was issued to the defendants on 12.08.2021. The defendants replied to the legal CS No.439/2021 Page 2 of 12 Bhim Sain Sharma Vs Birender Singh & Anr notice but they have not made any payment till date. Hence, the present suit has been filed by the plaintiff.
5. Summons were issued to the defendants but they did not appear before the court despite service and they were proceeded ex-parte vide order dated 18.04.2022. During trial, defendants appeared and moved an application under Order IX Rule 7 CPC seeking setting aside the ex-parte order dated 18.04.2022. However, the application was dismissed and the right of the defendants to file the written statement was closed vide order dated 20.10.2022.
6. Thereafter, matter was listed for plaintiff evidence. During the plaintiff evidence, plaintiff examined himself as PW1, who tendered his affidavit in evidence as Ex.PW1/A. He relied upon the following documents:
1. Copy of Aadhar Card, Ex.PW1/1.
2. Bank statement, Ex.PW1/2.
3. Copies of letter dt. 15.04.2021 and 23.04.2021, Ex.PW1/3.
4. Whatsapp messages, Ex.PW1/4.
5. Copy of complaint dated 05.06.2021, Ex.PW1/5.
6. Copy of compliant to DCP, Ex.PW1/6.
7. Legal notice dated 12.08.2021, Ex.PW1/7.
8. Postal receipts, Ex.PW1/8.
9. Tracking report, Ex.PW1/9.
10. Certificate u/s 65B IE Act, Ex.PW1/10.
11. Reply to legal notice, Ex.PW1/11.
PW1 was duly cross-examined by counsel for defendants. He stated that the alleged loan was advanced at the request of CS No.439/2021 Page 3 of 12 Bhim Sain Sharma Vs Birender Singh & Anr parents of the defendants and defendants. No written document was executed for the alleged loan. Witness admitted that he only assisted/helped the defendants for advancement of loan for the house of defendants. The same was purchased in the name of the mother of the defendants. Witness further admitted that he had not made mother of the defendants as party to the suit. Bank had issued a letter dated 27.04.2021 against the alleged loan of defendant. Witness further stated in his cross examination that he was in a practice of giving financial assistance to the people in his block and in his vicinity and he never charged any interest from anyone. Witness denied that he was a money lender or that said FD's were adjusted against some other transaction which had no concern with the loan transaction of the defendants.
7. No other witness was examined by the plaintiff in support of his case and plaintiff's evidence was closed. As the right to file the written statement has already been closed, defendants were not in a position to lead defendants' evidence and matter was listed for final arguments.
8. Final arguments were addressed by both the parties and written arguments were also filed by both the parties.
9. The plaintiff in his written submissions reiterated the facts of his plaint. On the other hand, learned counsel for defendants had submitted in his written submissions that plaintiff had made approbate and reprobate pleadings without impleading defendant's father. It was further submitted that there had been mis-joinder / CS No.439/2021 Page 4 of 12 Bhim Sain Sharma Vs Birender Singh & Anr non-joinder of the parties as the alleged loan was executed upon request of defendant's father and and the alleged loan was extended for purchase of property in the name of mother of the defendants. Learned counsel for defendant has relied upon the judgment of Hon'ble Supreme Court of India in case titled as Kasturi Vs Uyyemperumal & Ors decided on 25.04.2005 wherein it has been held that "Two tests are to be satisfied for determining the question who is a necessary party. Tests are (i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings, (ii) no effective decree can be passed in the absence of such party".
10. There is an averment made in the plaint that the alleged loan was extended for the purchase of the property on the request of the father of the defendant and the same was purchased in the name of defendants' mother, however, neither the mother nor the father of the defendants have been made party to the suit. The defendants are neither the beneficiary of the alleged loan nor had entered into any contract either in oral or in writing. Therefore, the suit is liable to be dismissed as per the provisions of the Indian Contract Act.
11. It is also argued that as per Section 26 of CPC and Order IV Rule 3 & 4 CPC, the suit is filed without affidavit and verification and the affidavit is prior dated to the date of plaint, hence, the suit is defective and cannot proceed.
12. The defendants have also pointed out to the cross-examination CS No.439/2021 Page 5 of 12 Bhim Sain Sharma Vs Birender Singh & Anr wherein the plaintiff has submitted that he used to extend loan to many people in his vicinity which is in the nature of money lending activity and hence, the suit of the plaintiff is barred under Section 3 of Punjab Registration of Money Lenders Act, 1938.
13. The defendants have further stated in the written submissions and have also argued that the documents of the bank have not been proved properly hence the suit should be dismissed. The plaintiff has not even filed on record the document allegedly stating the foreclosure of the loan account vide letter dated 23.04.2021. Hence, no liability can be fastened upon the defendants. The defendants have prayed that the suit is also barred by limitation and therefore should be dismissed.
14. I have gone through the written arguments filed and perused the record carefully.
15. For the sake of convenience and for passing of the judgment, the court is framing the following issues and shall accordingly decide each of them:-
(1)Whether the plaintiff is entitled to decree for a sum of Rs.7,20,000/- as prayed ? OPP (2) Whether the plaintiff is entitled to interest, if yes, at what rate ? OPP .
(3) Relief.
16. As per the brief facts of the plaint, the defendants took a loan of Rs.6,50,000/- from the bank for which the plaintiff stood as a CS No.439/2021 Page 6 of 12 Bhim Sain Sharma Vs Birender Singh & Anr surety and pledged his two FDRs with Punjab & Sind Bank. After paying few installments, the defendants stopped making the payment, due to which the bank encahsed the FDRs and adjusted the amount against the loan of the defendants. The main objection of the defendants is that the father of the defendants who requested the plaintiff to stand as a surety for the loan and the mother of the defendants in whose name the property was purchased have not been made parties, cannot be entertained as the loan was tendered in the name of both the defendants namely Sh. Birender Singh and Sh. Sukhbir Singh. The present suit is a suit for recovery and not making the father and mother of the defendants as parties, does not amount to non-joinder or mis- joinder as the recovery has to be effected from the person who took the loan and for whom the plaintiff stood as a surety.
17. The argument that the defendants were not the beneficiaries and did not enter into any contract with the plaintiff is also not viable as the documents of the bank including Ex.PW1/3 (closure of LABD) and Ex.PW1/4 (closure proceeds of LABD) as well as the whatsapp chat which is Ex.PW1/5 accompanied by certificate under Section 65B Indian Evidence Act Ex.PW1/10 together go to show that the transaction was between the plaintiff and the defendants and it cannot be said that defendants were neither the beneficiaries nor had any dealing with the plaintiff.
18. As far as the suit being barred as per Section 26 CPC is concerned, it is a settled law that procedure is the handmaid of justice and the date on the affidavit and the verification clause is only an CS No.439/2021 Page 7 of 12 Bhim Sain Sharma Vs Birender Singh & Anr irregularity. It has been held in a recent judgment of the Hon'ble Supreme Court in HDFC Bank Ltd. v. Union of India and Ors. that no man should suffer a wrong by technical procedure or irregularities. It has been held that the rules of procedure are the handmaidens of justice and not the mistress of justice. Hence, a predated affidavit or verification clause is merely an irregularity which can not be fatal to the case of the plaintiff.
19. The fact of the plaintiff extending loan to many people has been explained in his cross-examination by the plaintiff himelf by specifically answering that he never charged any interest upon the loan extended and this fact could not be rebutted or demolished by the defendants in the cross-examination.
20. The non-examination of the banker is also not fatal to the case of plaintiff. Although it is a legal position that mere production and marking of a document cannot be held to be a due proof of its contents and its execution has to be proved by admissible evidence (Narbada Devi Gupta v. Birender Kumar Jaiswal & Anr., Civil Appeal 315/1998, Supreme Court) but at the same time, the court cannot ignore Section 34 of the Indian Evidence Act, 1872 which explains the evidentiary value of books of account including bank records which are maintained in the daily course of business.
Section 34 of the Indian Evidence Act 1872 elucidates that books of accounts, including Bank records, which are maintained in the daily course of business in electronic form or otherwise are relevant CBI Vs V.C. Shukla & Ors) to be admissible in a court of CS No.439/2021 Page 8 of 12 Bhim Sain Sharma Vs Birender Singh & Anr law. Primary and Secondary both form of Evidence is admissible under the law. Most of the data nowadays are stored electronically on big Servers (M/S ICICI BANK LIMITED V/S KAPIL DEV SHARMA), Clouds, etc. with the help of computer programs, making it easily accessible and secure. Now when these documents are to be submitted in a court as Evidence, it becomes practically impossible to bring out these Hard-Drives, Servers or data stored on Cloud pertaining to the concerned party, which is stored along with the data of many other people. Hence, courts have recognized this need to adapt with technology and allow Secondary Evidence to be submitted in cases where Primary Evidence which is in electronic form is impossible to be produced (M/S ASHOKA CHEMICALS (INDIA) V/S M/S BHARTIYA HINDU SHUDHI SABHA TRUST ( REGD)).
This Act tends to illustrate the provisions, which provide for the conditions which are to be followed while submitting bank records as Evidence in a court of law. Section 4 of Banker's Book Evidence Act 1891, deals with the mode of proving such bank records. Bank records should be accompanied by a certificate in accordance with section 2(8) and 2A of the Act. The certificate is to ensure the accuracy and reliability of the entry in banking records. The printout of entry or copy of such printout along with the certificate by the branch manager/principal accountant and the person in charge of the computer resource which generated that entry together makes a "certified copy". A certified copy of any entry of banker's book shall be admissible prima facie as Evidence.
CS No.439/2021 Page 9 of 12Bhim Sain Sharma Vs Birender Singh & Anr
21. Section 65B is pari materiaui (OM PRAKASH VS CENTRAL BUREAU OF INVESTIGATION (CBI)) to section 2A of the Banker's Book Evidence Act, which means they are to be construed together.
On April 24th, 2009 RBI published a notification advising State and Central Co-operative Banks to comply with the provisions of Banker's Books Evidence Act, 1891 while furnishing certified copies and computer printouts to courts. The notification further says that if such statutory certification is not complied with, the courts will not be obliged to admit the document in Evidence without any further proof.
Qua the nature of certification under the Bankers' Books Evidence Act, 1891, the decision of different courts helps us understand the concept better. Bombay High Court in one of its judgement ( Radheshyam G. Garg vs. Safiyabai Ibrahim Lightwalla) held that when a certificate is signed by an agent of bank, validating the records to be a true copy of the original entry in records, which were maintained in usual course of business and were kept in custody of the bank, then in such cases the court should not adopt a hyper-technical view and should not focus on all the conditions provided for certification under section 2(8) of the Act because the detailed ingredients mentioned in the definition clause are only directory in nature and not mandatory.
22. Hence, the arguments of the defendant that the bank and its officials were never called as witness and made a party to prove the documents is not convincing as the documents Ex.PW1/3 and Ex.PW1/4 were exhibited after seeing the originals and same have CS No.439/2021 Page 10 of 12 Bhim Sain Sharma Vs Birender Singh & Anr been duly attested by the Manager of the Bank and as per the Banker Book Act, the witness of the bank need not be called for proving the said document.
23. As far as aspect of limitation is conerned, this court is of the opinion that the cause of action firstly arose when the defendant approached the plaintiff for becoming a security for grant of laon and further arose on 21.08.2015 when plaintiff pledged his FDRs. It finally arose when bank closed the loan account on 27.04.2021 after encashing the FDRs of the plaintiff. Therefore, the suit which is filed on 29.09.2021 is very much within limitation and is maintainable.
Hence, the plaintiff has been able to prove that he is entitled to a decree for the sum of Rs.7,20,000/-, as prayed. The defendant has not been able to discharge the burden that the suit is barred by limitation or that no cause of action exists in favour of the plaintiff. Therefore, the present issue is decided in favour of the plaintiff and against the defendants.
24. Further, the plaintiff has demanded rate of interest 18% but has not been able to bring anything on record to show that he is eligible to claim such a high rate of interest. However, keeping in view the market rate of interest, the defendant is directed to pay a interest @ 12% per annum from the date of filing of the suit till the decreetal amount is realized. Therefore, the present issue is also decided in favour of the plaintiff and against the defendants.
25. Relief.
CS No.439/2021 Page 11 of 12Bhim Sain Sharma Vs Birender Singh & Anr In view of the above discussions, the suit is decreed in favour of the plaintiff and defendants are directed to pay a sum of Rs.7,20,000/- to the plaintiff along with interest @ 12 % per annum from the date of filing of the suit till the date of decreetal amount is realized.
26. No order as to cost. Decree sheet be prepared accordingly. The present decree is passed subject to filing of deficient court fees, if any.
File be consigned to Record Room after due compliance.
Digitally signed by PURVAPURVA SAREEN Date: SAREEN 2024.03.18 Announced in open court 11:56:07 +0530 On 11th March, 2024 (Purva Sareen) Additional District Judge-01, (South) Saket District Courts, New Delhi CS No.439/2021 Page 12 of 12 Bhim Sain Sharma Vs Birender Singh & Anr