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Delhi District Court

Sh.Shankar Singh vs Sh.Yashpal Singh Tomar on 2 August, 2013

                 IN THE COURT OF SH. REETESH SINGH
              ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
                     KARKARDOOMA COURTS, DELHI

                                                                    RCA 127/2012

      Date of Institution of Appeal                   :        29.11.2012
      Date on which Reserved for Judgment             :        11.07.2013
      Date of Judgment/Order                          :        02.08.2013
      Case I.D. Number                                :        02402C0337812012

IN THE MATTER OF:-
      SH.SHANKAR SINGH
      THROUGH COMMANDANT COMPANY - E
      BELT No.483 AT 8th BATALIAN, R.A.C.I.R-B COMPANY
      GHAZIPUR DELHI 110 096                       ....APPELLANT

                                      VERSUS

      SH.YASHPAL SINGH TOMAR
      SON OF SH MAHENDER SINGH
      RESIDENT OF T-37, SINGH SABHA ROAD,
      SHAKTI NAGAR DELHI 110 007

      ALSO AT
      HOUSE No.B-1/5, 2nd FLOOR
      YAMUNA VIHAR, NDEAR YAMUNA VIHAR DEPOT
      DELHI 110 053                          ....RESPONDENT

JUDGMENT

1. This appeal has been preferred against the impugned order dated 8.8.2012 by which the learned Trial Court has dismissed application of the defendant/appellant under Order XXXVII Rule 3(5) of the Code of Civil Procedure praying for grant of leave to defend the suit and has decreed the summary suit in favour of the plaintiff/respondent for a sum of Rs.1,00,000/- along with interest pendentelite at the rate of 12% per annum and future interest at the rate of 6% per annum.

2. Brief facts leading to filing of the present appeal are that the respondent/plaintiff filed a summary suit under Order XXXVII of the Code of Civil Procedure before the learned Trial Court averring that the defendant was working RCA 127 of 2012 1/6 with Rajasthan Police and was posted at that time with 8 th Battalion, RAC, IR-B Company Gazipur Delhi. It was averred that the plaintiff and defendant were good friends and in the month of April 2004, the defendant approached the plaintiff for financial help for purchasing some land in at Ghazipur, Loni, Distt Ghaziabad (UP). It was averred that the plaintiff agreed and gave Rs.1,00,000/- to the defendant as loan with the condition to repay the same on demand. It is averred that upon receipt of the loaned amount, the defendant executed a promissory note/receipt in favour of the plaintiff in the presence of witnesses and also assured that he would return the loaned amount on demand. It is averred that the defendant further informed the plaintiff that he was working with Rajasthan Police and would return the loaned amount after raising loan from a nationalized bank .It was averred that in January 2006 as the plaintiff was in need of money, he requested the defendant to repay the loaned amount but the defendant requested for some time for repayment of the same. It is averred that in the month of February 2006, the plaintiff again requested the defendant to repay the loaned amount but the defendant avoided making payment of the same. In these circumstances the plaintiff issued legal notice dated 22.2.2006 to the defendant calling upon him to repay the loaned amount. Despite service of the same, the defendant failed to respond. Thus the plaintiff filed a summary suit under Order XXXVII CPC for recovery of Rs.1,00,000/- along with interest at the rate of 18% per annum from the date of filing of the suit till the date of realization.

3. Summons for appearance under summary procedure were directed to be issued to the defendant. The defendant was served and entered into appearance within the prescribed period. Thereafter the learned Trial Court issued summons for judgment to the defendant at the address mentioned in the memo of appearance. Summons for judgment sent to the defendant were received back with the report that the "post and batch number of the defendant" were not mentioned and therefore the same could not be served. The learned Trial Court noted that the summons for judgment were sent at the address mentioned in the memo of appearance and was of the opinion that the defendant was avoiding to receive the summons. Thus the suit was decreed vide order dated 28.11.2007.

4. On 11.8.2010 the defendant filed an application under Order XXXVII Rule 4 of the Code of Civil Procedure praying for setting side the decree contending that he was never served with the summons for judgment. In paras 4 and 5 of this application, the defendant averred that he was not known to the plaintiff and that the suit had been filed on the basis of forged promissory note and forged documents. It was further stated that the defendant had purchased land at Loni and while executing the documents of title, some blank papers bearing his signatures were kept by the deed-writer which have been mis-used to prepare the document on the basis of the suit had been filed. The defendant further contended that he never took any loan amount nor executed any promissory note or receipt in favour of the plaintiff. The defendant averred that these documents were procured by the plaintiff in collusion with one Ikram from whom the defendant had purchased the plot. It is averred that the plaintiff had asked the defendant to sign certain documents which he executed in good faith and that Ikram also obtained signatures of the defendant on some blank papers on the basis of which the suit has been filed.

5. Reply to the application was filed by the plaintiff in which he denied the averments made by the defendant.

6. Vide order dated 14.102011, the learned Trial Court allowed the application of the defendant/appellant on the ground that the defendant was not properly served with the summons for judgment and the decree dated 28.11.2007 was set aside. Time was granted to the defendant to file an application for leave to defend the suit.

7. The defendant thereafter moved an application under Order XXXVII Rule 3(5) of the Code of Procedure on 22.10.2011 for grant of leave to defend the suit. In para 2(a) of the application the defendant averred that the promissory note was forged and fabricated and that he had never taken any loan from the plaintiff. In para 2(b) of the application the defendant averred that signatures on the promissory note did not belong to him and that he did not know the witnesses RCA 127 of 2012 3/6 whose signatures were appearing thereon. In para 2(c) thereof, the defendant contended that the plaintiff had filed the present in connivance with one Ikram from whom he purchased the land measuring 100 sqyds for Rs.1,35,000/-. The defendant averred that at the time of registration of title documents Ikram got some blank papers executed from him on the pretext that the same were required for "authority letter". The defendant has averred that the plaintiff had given a loan to Ikram who had failed to return the same to the plaintiff and in connivance with said Ikram, the plaintiff forged the promissory note in question with the intention to recover the loan given to Ikram.

8. Reply to this application was filed by the plaintiff in which he denied the averments made by the defendant and re-iterated the contentions made in the plaint.

9. Vide the impugned order dated 8.8.2012 the learned Trial Court dismissed the application of the defendant praying for leave to defend the suit holding that the defence raised by the the defendant was moonshine and sham. It was held that the defendant had raised two contradictory pleas - one of forgery of the promissory note and receipt on blank documents bearing his signatures and the other of denying his signatures on the said documents. The learned Trial court held that both the defences being contradictory could not exist at the same time and thus dismissed the application of the defendant.

10. Before this Court, learned counsel for the appellant has argued that the learned Trial Court has failed to appreciate that the stand taken by the defendant was not contradictory. He submitted that it not was not the case of the appellant that the promissory note in question was the same document which was obtained by Ikram from the appellant at the time of execution of "authority letter". He further submitted that the defendant had raised triable issues and was entitled to grant of leave to defend the suit. Counsel for the respondent, on the other hand, supported the impugned order and submitted that the same did not call for any interference.

11. I have heard counsel for the parties and have perused the record.

12. The suit of the plaintiff is based on a document described as "promissory note/receipt". As per the same, the executant (appellant) had promised to pay to Yashpal Singh Tomar (respondent) Rs.1,00,000/- on demand. In his application for leave to defend the defendant has averred in para 2(a) (b) and (c) as under :-

"2.That the suit of the plaintiff may kindly be dismissed on merits on in the alternative the defendant may kindly be allowed leave to defend the present case on merits on the following grounds

(a) The plaintiff has filed the present suit on the basis of promissory note dated 11.10.2004 alleged to have been executed by the defendant at the time of obtaining allege loan of Rs.1 lac from the plaintiff.

It is submitted that the promissory note in question is a forged and fabricated document because the defendant has never received any loan from the plaintiff. Moreover, the defendant did not even know the plaintiff prior to receipt of summons of present suit.

(b) Further, signature of the defendant appearing in the promissory note is not of the defendant and moreover, the defendant does not know the alleged witnesses therein. The perusal of the promissory note shows that the name of the witnesses appearing at Serial No.2 is of Naveen Dutt Sharma, however, the signature appearing next to it is of some Narottam Sharma.

(c) It seems that the plaintiff has filed the present suit in connivance and conspiracy with Ikram from whom the defendant had purchased a piece of land measuring 100 sqy.Yds at Ghazipur, Loni in the year 2004 for Rs.1,35,000/-. At the time of registration of title documents for purchase of aforesaid plot, Ikram got executed some blank papers from the defendant on the pretext that the same are required for 'authority letter'."

13. Perusal of the averments made by the defendant clearly reveal that the stand of the defendant is contradictory. In para 2(a) the defendant has described the promissory note/receipt as a forged document while in para 2(b) he has averred that the signatures appearing on the said document do not belong to him. In para 2(c) he has averred that Ikram has obtained his signatures on blank documents at the time of a property transaction and thereafter forged the documents on the said blank paper. The defendant cannot deny his signatures on these documents and at the same time claim that the document has been executed on a blank paper bearing his signatures.

14. The view taken by the learned Trial Court is a probable view and I do not find any ground to interfere with the same. In the result the appeal being devoid of any substance is dismissed.

15. TCR be sent back with a copy of this judgment and appeal file be consigned to the record room.

Announced and dictated to the steno in open Court today i.e. 2.8.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi RCA 127 of 2012 6/6