Delhi District Court
Sh Maheshwar Kumar vs Mrs. Renu Gupta on 4 July, 2014
IN THE COURT OF MS. SHELLY ARORA,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM- GUARDIANSHIP JUDGE,
DISTRICT: SOUTH, NEW DELHI.
CS No. 573/11
Unique ID No 02403C0061272009
SH MAHESHWAR KUMAR
S/o Rajendra Prasad Singh,
R/o A-230, Sec-2, Dr. Ambedkar Nagar,
J.J. Colony, Khanpur,
New Delhi-110062. .................. Plaintiff.
Vs.
1. MRS. RENU GUPTA,
W/o Mr. Devendra Gupta,
R/o Shop No.7 & 8, D.D.A. Market,
J.J. Colony, Khanpur,
New Delhi -110062
2. MR. DEVENDRA GUPTA
R/o Shop No.7 & 8, D.D.A. Market,
J.J. Colony, Khanpur,
New Delhi- 110062 ..............Defendants.
DATE OF INSTITUTION : 16.01.2009
DATE OF RESERVING JUDGMENT : 07.06.2014
(From 09.06.2014 to 30.06.2014 were Summer Vacation)
DATE OF PRONOUNCEMENT : 04.07.2014
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 1 of 18
J U D G M E N T
Vide this judgment, I shall dispose of suit filed by Sh. Maheshwar Kumar (hereinafter called the Plaintiff) against Mrs. Renu Gupta (hereinafter called the Defendant No.1) and Mr. Devendra Gupta (hereinafter called the Defendant No.2) seeking recovery of Rs.95,000/-.
Brief facts as stated in the plaint filed by the Plaintiff are as follows :-
1. That the Plaintiff is employed with a private company in Delhi and has been enjoying cordial relation with the Defendant.
It is further averred that the Defendant approached the Defendant for a debt for the purpose of marriage of their daughter which was given on various different dates as in Rs. 25,000/- in cash on 10.01.2006 and Rs.70,000/- in cash on 07.03.2006.
2. It is further averred that the Defendant No.1 had issue two cheques in favour of the Plaintiff bearing No.447807 dated 10.01.2006 of the amount of Rs.25,000/- and bearing No. 447793 dated 07.03.2006 of Rs.70,000/- drawn on Punjab National Bank, Nizamuddin West, New Delhi with the assurance the said cheques would be encashed on presentation. The agreement was also executed in this respect on 07.03.2006 vide CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 2 of 18 which Defendants had agreed to return the amount of loan taken by them.
3. It is further averred that the Plaintiff presented the above noted cheques for encashment on 07.06.2006 which were returned unpaid along with memo dated 08.06.2006 with remarks "Funds Insufficient". On questioning the Defendant in this respect, the Defendant threatened the Plaintiff to get him implicated in some false case. The Criminal Complaint bearing No.1405/1 of 2006 was sent upon the Defendant to repay the amount which was replied to by the Defendant No.1. Plaintiff was accordingly compelled to file this present suit of recovery of Rs.95,000/- against Defendants.
4. The suit was earlier filed under Order 37 CPC wherein the Defendant after appearance had filed leave to defend application which was allowed vide order dated 06.03.2012.
5. Written Statement on behalf of the Defendants No. 1 and No.2 was filed in pursuance to service of summons upon them wherein it is submitted that plaintiff in connivance with Sri Gopal had filled the cheques and presented the same for the amount of which was not due to him.
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 3 of 18
6. It is further submitted as part of Written Statement that the Plaintiff has no locus standi to file this suit.
7. It is further submitted that the Defendant No.1 in lieu of aforesaid loan of Rs.25,000/- taken from Sri Gopal had given back the entire amount already in kind by giving electrical goods including CDs, TV and other gift items of shop to the said Sri Gopal who chose not to return the two cheques to the Defendant No.1 and kept deferring the return of the same and after some time it was stated that the cheques have been misplaced.
8. It is further submitted that the cheques in question were taken as security document, only bearing the signature of the Defendant. It is further submitted that the agreement relied upon is a manufactured document as signature of the Defendant on that alleged agreement do not tally with the admitted signature of the two said cheques. Attention has also been brought to the effect that the cheque which was issued later qua the amount borrowed subsequently had its serial number prior to the one which was issued earlier qua the amount borrowed earlier. It is accordingly prayed that the suit of the plaintiff be kindly dismissed.
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 4 of 18
9. Replication was filed on behalf of the plaintiff wherein the submission made in the WS were denied in toto and the averments made in the plaint were reiterated.
10. Following issues were framed from the pleadings of the parties vide Order dated 01.05.2012 passed by the Ld. Predecessor of this Court.
1. Whether the plaintiff has suppressed/concealed the material facts from the Court, if so, what facts and its effect? OPD.
2. Whether plaintiff has no locus standi to file the present suit against the defendants? OPD.
3. Whether the suit of the plaintiff is bad for non- joinder and mis-joinder of necessary/proper parties, if so, what parties and its effect? OPD.
4. Whether the plaintiff is entitled to recover a sum of Rs.95,000/- from the defendants, as prayed for in the suit? OPP.
5. Whether the plaintiff is entitled for interest, if so, at what rate and for which period? OPP.
6. Relief.
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 5 of 18
11. Matter was then listed for Plaintiff evidence. Plaintiff appeared as witness box as P1 and relied upon his evidentiary affidavit Ex. PA. He also relied upon certain documents Ex. PW1/1 to Ex. PW1/10, which are as follows.
1. Ex. PW-1/1 is copy of the Cheque dated 10.01.2006 of Rs.25,000/- bearing No.447807 .
2. Ex. PW-1/2 is copy of the Cheque dated 07.03.2006 of Rs.70,000/- bearing No.447793.
3. Ex. PW-1/3 is copy of agreement dated 07.03.2006 for obtaining the money/debt.
4. Ex. PW-1/4 is copy of memorandum dated 08.06.2006,
5. Ex. PW-1/5 is copy of memorandum dated 08.06.2006,
6. Ex. PW-1/6 is true copy of Legal Notice dated 14.06.2006.
7. Ex. PW-1/7 is true copy of receipt of receipt of registered A/D
8. Ex. PW-1/8 is true copy of receipt of U.P.C. Dated 14.06.2006
9. Ex. PW-1/9 is true copy of receipt of courier dated 14.06.2006.
10. Ex. PW-1/10 is true copy of reply of legal notice dated 17.06.2006.
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 6 of 18 Plaintiff evidence was closed vide Order dated 21.08.2012.
12. The matter was then listed for Defendant Evidence.
Defendant No.1 appeared as to the witness box as Defendant No.1 and tendered his evidentiary affidavit as DW-1/A. She also relied his document Ex. DW-1/1 to Ex. DW-1/5 which are as follows.
1. Ex. DW-1/1 to Ex. DW1/3 are copies of complaints under Section 138 N.I. Act with summons, cross examinations and statement of Maheshwar Kumar respectively.
2. Ex. DW-1/4 is copy of Order dated 20.07.2011 passed by the then Ld. Senior Civil Judge-cum-Metropolitan Magistrate, Order dated 28.09.2011 passed by the then Senior Civil Judge- Cum-Metropolitan Magistrate, Examination Report/analysis of Documents of Forensic Science Laboratory dated 16.11.2011 and Result of Examination of Forensic Science Laboratory dated 31.10.2011.
3. Ex. DW-1/5 is copy of Complaint against Sh. Maheshwar Kumar and Sh. Gopal dated 26.06.2006.
13. Sh. Sayed Faisal Huda was produced in the witness box as DW-3 as an Forensic Expert witness.
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14. Defendant evidence was then closed vide order dated 21.09.2013 passed by the Ld. Predecessor of this Court.
15. Final arguments advanced by Counsel for the Plaintiff as well as by Counsel for the Defendant.
16. Counsel for the plaintiff contended and drawn attention of the Court to Mark A which is a copy of Criminal Complaint filed by the two defendants against plaintiff and Gopal pointing out that why Rs.75,000/- were returned when a loan only of Rs. 25,000/- was taken. He has argued that the defendants acknowledged their liability on document Ex. PW-1/3 and thus, the plaintiff is entitled to recover the loan amount from the defendants. Counsel for defendants, on the other hand, argued that the said cheques forming the basis of claim of the plaintiff were signed by defendant no. 1 and thus, defendant no. 2 has no role to play as far as this case is concerned. He further argued that the document Ex. PW-1/3 is a forged and fabricated document. He also argued that the two cheques were handed over as security to Gopal who has not been impleaded as one of the party in this case and it was Gopal who acted in collusion with plaintiff to institute this false case against two defendants. He has accordingly prayed that the suit of the plaintiff be dismissed as the defendants have no liability against the CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 8 of 18 plaintiff.
17. My issue-wise finding is as below: -
ISSUES NO. 1 :
Whether the plaintiff has suppressed/concealed the material facts from the Court, if so, what facts and its effect? OPD.
Burden of proving this issue is upon defendant. Defendant as such has not led any direct evidence on the point. There is a difference of version of facts between plaintiff and defendant. It is only on the adjudication of the merits of the case on the basis of balance of preponderance of probabilities that the case has to be decided. But that directly does not point towards any deliberate concealment of fact although the case of plaintiff may loss its credibility on certain facts. As such, this issue stands decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2:
Whether plaintiff has no locus standi to file the present suit against the defendants? OPD.
Burden of proving this issue is upon defendants. The traditional view qua locus standi was that a person who seeks CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 9 of 18 relief from court should ordinarily be one who has a personal or individual right in the subject matter of the petition and as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him locus standi. In other words, he should be an "aggrieved" person. The expression "aggrieved" person is an elastic concept and cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him. Hon'ble Supreme Court in "J. M. Desai v. Roshan Kumar AIR 1976 SC 578" recognized this traditional view. However, the Court also indicated that the ordinary rule is not a cast-iron rule and is flexible enough to take in those cases where the petitioner has been prejudicially affected by an act or omission of an authority even though he has no proprietary or fiduciary interest in the subject matter. In exceptional cases, even a stranger or a person who was not a party to the proceeding before the authority, but has a substantial and genuine interest in the subject-matter of the proceeding, will be covered by the rule.
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 10 of 18 The defendants have not made out the any clear facts on basis of which he claimed in the written statement that the plaintiff has no locus standi to file the present suit apart from their version that the cheques were given only as security towards the liability they incurred against Gopal. Whether or not the defendants had any transaction with the plaintiff is a matter of trial. Plaintiff has filed this case on the basis of claim, he has affirmed against the two defendants. Therefore, plaintiff has to be treated an aggrieved atleast apparently and prima facie against the two defendants. His claim deserves to be tried/adjudicated upon and cannot be thrown out summarily on the basis of lack of locus standi with him to be able to file this claim. In view thereof, the issue is decided in favour of defendants and against the plaintiff.
ISSUE NO. 3:
Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary/proper parties, if so, what parties and its effect? OPD.
Burden of proving this issue is upon defendants. It is important to reproduce Order I Rule 9 of CPC which deals with Misjoinder and Non-Joinder of the parties:
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 11 of 18 "9. Misjoinder and non-joinder - No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
[provided that nothing in the rule shall apply to non-joinder of a necessary party]."
It has been so held in the case titled as "Manoharamma Hotels and Investments Pvt. Ltd. Vs. Aruna Hotels Ltd., AIR Mad 344 that " in law, misjoinder of parties, even in the event of coming to be proved, would not lead the situation for the very claim to be rejected or the application to be dismissed as not maintainable and it could not be declared that the suit or application is bad for misjoinder of parties becoming invalid pertaining to the other reliefs sought for regarding the other parties relevant to the suit or application.
Though Rule 9 of Order I mandates that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, it is important to notice that the proviso thereto clarifies that nothing in that rule shall apply to non-joinder of a necessary party. Therefore, care must be taken to ensure that the necessary party is before the Court, be it a plaintiff or a CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 12 of 18 defendant, otherwise, the suit or the proceedings will have to fail. Rule 10 of Order I provides remedy when a suit is filed in the name of wrong plaintiff and empowers the Court to strike out any party improperly joined or to implead a necessary party at any stage of the proceedings; Chief Conservator of Forests, Govt. of A. P. v. Collector, AIR 2003 SC 1805."
In the present matter, plaintiff no where relied its case on the transaction, defendants allegedly had with Gopal. It was the case of defendants only that they had loan transactions with Gopal and not with the plaintiff. Therefore, the defendants also could have approached the Court with an appropriate application seeking addition/impleadment of Gopal as one of the party. As such, transaction between plaintiff and defendants may or may not be related with the transaction between defendants and Gopal apart from the claim that the cheques were passed on by Gopal to the plaintiff who ended up misusing the same in collusion with the plaintiff being related to him. The impleadment of Gopal could atleast have cleared the cobwebs over the version of defendants qua the two cheques. Still, it cannot be said that he would have been necessarily effected by the decision of the Court in this matter and thus, at the most can be stated to be a proper party. The suit of the plaintiff thus, cannot fail for the reason of non impleadment of Gopal as one of CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 13 of 18 the parties. Issue is decided in favour of the plaintiff and against the defendants.
ISSUES NO. 4 & 5:
Whether the plaintiff is entitled to recover a sum of Rs. 95,000/- from the defendants, as prayed for in the suit? OPP.
Whether the plaintiff is entitled for interest, if so, at what rate and for which period? OPP.
Both these issues are taken together being interconnected. Burden of proving both these issues is upon plaintiff. The premise of the case of the plaintiff is about defendants having approached him for a debt for the purpose of marriage of their daughter which was given by him on two occasions one of Rs.25,000/- cash on 10.01.2006 and the other one of Rs.70,000/- cash dated 07.03.2006. The defendants in order to discharge their liability entered into an agreement on 07.03.2006 acknowledging their liability towards the plaintiff and their promise/assurance to pay back the amount of Rs.95,000/-
by the last week of May, 2006. Both defendants also handedover two cheques of respective amounts of the particular dates on which the cash was received on two occasions.
This stand has been controverted completely by the two defendants who deposed that they were not even acquainted CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 14 of 18 with the plaintiff and have had no loan transaction with him. They respectively deposed that only an amount of Rs.25,000/- was borrowed from one Sh. Gopal and the two cheques which are in question here were handedover in blank to him as security to return the loan amount. It is further submitted that the loan amount has been returned back to Gopal although without any acknowledgment in kind by giving certain electronic goods and other gift items of her shop.
Plaintiff has based his claim primarily over three documents, Cheque bearing No. 447807 dated 10.01.2006 of Rs.25,000/- which is Ex. PW-1/1 on record, Cheque bearing No. 447793 dated 07.03.2006 of Rs.70,000/- which is Ex. PW-1/2 on record and copy of Agreement dated 07.03.2006 entered into by both the defendants and the plaintiffs which is Ex. PW-1/3 on record. Defendant no. 1, Ms. Renu Gupta has admitted her signatures on the two cheques Ex. PW-1/1 and Ex. PW-1/2 but has denied having filled the other particulars in those two cheques. Both the defendants have claimed that the Agreement Ex. PW-1/3 is forged and fabricated document and that any such agreement was never entered into by any of them with the plaintiff who is not even known to them. There are certain interesting observations with respect to the document Ex. PW-1/3. Firstly, it cannot be stated to be an agreement as it does not bear any signature of the plaintiff, Sh. Maheshwar CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 15 of 18 Kumar. Defendant no. 1 in her evidence has relied upon Ex. DW-1/3 which is the certified copy of cross examination in case titled as "Maheshwar Kumar Vs. Renu Gupta" u/s 138 N. I. Act wherein plaintiff in his cross examination admitted that the contents of Agreement/document Ex. CW-1/C (Ex. PW-1/3 in this case) is in his handwriting. It is strange that plaintiff wrote acknowledgement on behalf of defendants no. 1 and 2 but did not put his own signatures on the said document even acknowledging the receipt of two cheques against the borrowed amount. It is also important to note as pointed out by both the defendants in their respective evidence that the cheque of a later date bears the former serial number and vice versa which circumstance has not been explained by any of the parties. Further, when the amount was supposed to be returned in May, 2006 there was no question of giving the cheques for return of the borrowed amount of the date on which the amount was taken/borrowed at the first place.
Although the signatures sent for comparison for FSL by the Court of Ld. Metropolitan Magistrate, in case u/s 138 N. I. Act was returned back with inconclusive opinion but defendants has produced DW-3 Sh. Syed Faizal Huda, a Forensic Expert before the Court with opinion as well as the detailed report comparing the signatures on the document Ex. PW-1/3 and two admitted signatures on the cheques Ex. PW-1/1 and Ex. PW-1/3 CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 16 of 18 as per which he conclusively held that the disputed and the admitted signatures have not been written by one and the same person. DW-3 has been put to cross examination by counsel for the plaintiff. Apart from the opinion of DW-3, a Forensic Expert, it can be seen by comparing the signatures of defendant no. 1 on Ex. PW-1/1, Ex. PW-1/2 & Ex. PW-1/3 that the letters are widely spaced in the document Ex. PW-1/3 whereas it is not so in Ex. PW-1/1 and Ex. PW-1/2 which appear to be more in running handwriting and there is absolute similarity of the signatures on Ex. PW-1/1 and Ex. PW-1/2. The report submitted by DW-3 is otherwise a very detailed report which has taken into cosideration lots of aspects involving the issue.
It is for the plaintiff to prove his case. Plaintiff has not been able to explain several contradictions in documents relied upon by him as noted in the presiding paragraphs. Whether or not defendants returned the loan amount to Gopal is beyond the domain and scope of this case. The case under Section 138 N. I. Act filed by complainant/plaintiff against the defendants has already been dismissed by a separate judgment where the Court has held that the two Cheques handedover to Gopal were only against security and without any consideration to discharge any debt or liability. Plaintiff thus has failed to discharge its burden to prove these issues. These issues are accordingly decided against the plaintiff and in favour of defendants.
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 17 of 18 ISSUE NO. 6/RELIEF:
In view of my findings as mentioned in the preceding paragraphs and the discussions with regard to various Issues, the suit of plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court on 04.07.2014 Present Judgment contains
18 Pages and each page of Judgment has been signed by me.
(Shelly Arora) JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
CS No. 573/11 Sh. Maheshwar Kumar VS. Renu Gupta & Ors. Page No. 18 of 18