Delhi District Court
Shashank Sharma vs Mithilesh Sharma on 30 March, 2026
THE COURT OF MS. MAYURI SINGH
DISTRICT JUDGE-03, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
RCA DJ No. 81/25
CNR No. DLCT01-007393-2025
In the matter of:-
SHASHANK SHARMA
W/o Sh. Jai Prakash Sharma
R/o 338/10, New Durga Market,
Kashmiri Gate, Punja Sharif,
Delhi-110006.
.......Appellant
Vs.
MITHILESH SHARMA
W/o Sh. Sant Prakash Sharma
R/o A-741, Block A/2,
Shastri Nagar, Delhi-110052.
.......Respondent
Date of institution : 21.05.2025
Date of arguments : 18.03.2026 and
30.03.2026
Date of decision : 30.03.2026
Appeal under Section 41 CPC against the Order/judgment dated 21.03.2025 passed by Ms. Divya Gupta, Ld. Civil Judge-08, Central, Delhi RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.1 of 20 J U D GE M E N T
1. This appeal under Section 41 of the Code of Civil Procedure 1908 (in short CPC) is preferred against the impugned order /judgment dated 21.03.2024 passed by Ms. Divya Gupta, Ld. Civil Judge-07, Central, Tis Hazari Courts, Delhi in Civil Suit 254/2017 titled as 'Mithlesh Sharma Vs. Shashank Sharma.' whereby the suit filed by the plaintiff was decreed in favour of plaintiff and against the defendant/appellant.
2. In the appeal, brief facts as stated in suit filed by respondent have been mentioned. It is stated that appellant is permanent resident of New Delhi and used to be a partner in a firm bearing name RDS World, along with son of plaintiff namely Sh. Rahul Sharma. It is stated that as per the case of respondent/plaintiff, the appellant approached respondent in February 2016 and stated that he required a sum of Rs. 1,00,000/- (Rupees One Lakhs Only) for marriage purpose and the said amount was given by the respondent to plaintiff, which the appellant assured to pay after two months. It is stated that at the time of advancement of alleged loan, no acknowledgment was taken from side of respondent. It is stated that as per version of respondent, on 25.06.2016 defendant issued a cheque bearing no. 000001 dated 25.06.2016 for an amount of Rs. Cheque 1,00,000/- (Rupees One Lakhs Only) drawn on Kotak M Bank, New Rohtak Road, Karol Bagh, New Delhi and respondent/plaintiff RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.2 of 20 deposited it in her account on 23.09.2016 for encashment, however, the same was returned unpaid on 25.09.2016 with remarks "instrument outdated/ stale".
3. It is stated that appellant entered his appearance in the suit and he filed application for leave to defend, explaining the defence of appellant. As per the appellant, he was a partner with son of plaintiff/respondent and in August 2016, their partnership was dissolved and the said partnership firm was converted into sole proprietorship firm by son of plaintiff. It is stated by appellant that after the dissolution of their partnership, the cheques were misused at instance of Sh. Rahul Sharma by giving the cheque to his mother i.e. Respondent and at his instance, another case titled Sh. Sant Prakash Sharma vs Shashank Sharma is pending adjudication for a sum of Rs 2,00,000/- (Rupees Two Lakhs Only).
4. It is stated that on account of laxity of previous counsel, written statement was filed beyond the period of limitation and by order dated 22.08.2019, written statement of appellant was not taken on record and case was directly put up for Plaintiff Evidence and even ironically, no appeal was preferred by the defendant/appellant. It is stated that plaintiff had examined herself as PW1 and was cross- examined by defendant but on failure from the side of respondent to lead defence evidence as right of their defence was already struck off, the court proceeded the matter RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.3 of 20 after hearing arguments from side of plaintiff/respondent in the present matter.
5. It is stated that appellant had filed application for leave to defend, where he strongly denied any sort of transaction between the plaintiff and defendant. As per the version of the appellant, he and son of the plaintiff were running a partnership firm under the name and style of RDS WORLD at E-2/161 Shastri Nagar, New Delhi -52 and on account of some dispute/issues, partnership firm was dissolved on 22 August 2016 and the said agreement/ settlement was duly signed and witnessed by husband of the plaintiff namely Sant Prakash Sharma but original of that agreement/ settlement was in the possession of son of the respondent namely Rahul Sharma.
6. It is stated that partnership firm namely RDS WORLD is now being run by Rahul Sharma in the capacity of being proprietor of the above-mentioned proprietorship firm. It is further submitted that 4-5 blank signed cheques of the appellant were in the possession of Rahul Sharma who had given the same to his mother and father who have filed two cases Titled 'Mithlesh Sharma Vs Shashank Sharma' and 'Sant Prakash Sharma Vs Shashank Sharma' and at no point of time, there was any occasion for the appellant to obtain loan of Rs 3,00,000/- from the parents of Rahul Sharma. It is stated that the stand of the respondent is that appellant obtained a loan of Rs.1,00,000/- for his marriage in RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.4 of 20 February 2016, which the appellant assured to return after the period of two months. It is stated that the respondent did not even bother to take the cheques at the time of alleged advancement of loan in February 2016 and even no return related documentation was ever executed between the appellant and the respondent. It is further stated that these show that the probability of misuse of cheques- which were given to the son of respondent in August 2016- in the hand of the respondents cannot be ruled out. It is stated that cheques were presented in September 2016, just after one month of the dissolution of partnership between the appellant and the son of the respondent Rahul Sharma.
7. It is stated that respondent has admitted that she is a housewife and having no source of income and no evidence had been brought on record by the respondent to show that she is having the capacity to advance loan of Rs 1,00,000/- to the appellant/defendant and respondent even failed to place her bank statements and ITR record in evidence in order to substantiate that she was having financial capacity to advance any such loan amount to the appellant/defendant in the present case. It is stated that plaintiff and her husband had advanced Rs.3,00,000/- to the person with whom her son Rahul Sharma was having strained relationships on account of dissolution of their partnership firm and all of this shows that a fake liability has been created upon the appellant.
8. It is stated that on account of failure of appellant to lead his RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.5 of 20 defence, his defence had already been struck-off as written statement was not taken on record and due to this reason, the appellant was not given the chance to present his defence and on account of this reason, the appellant has moved an application under order 41 rule 27 of CPC along with present appeal and on basis of leave to defend and written statement which are already filed on judicial record, the appellant is having a plausible defence.
9. It is stated that suit of recovery under order 37 of CPC was filed by the respondent/plaintiff for a sum of Rs 1,00,000/- (Rupees One Lakhs Only). In this case, appellant/defendant had filed his appearance and he in his application for leave to defend, had taken the defence that appellant/defendant had no transaction of any nature with the respondent/ plaintiff, as he had not seen the respondent/plaintiff in his entire life, till filing of the civil suit against him. It is stated that on the other side, the case of the respondent is that respondent and the appellant are known to each-other and share good family relations and that the appellant/ defendant approached the plaintiff/ respondent for financial assistance in a sum of Rs.1,00,000/- (Rupees One Lakhs Only) in February 2016 for a period of two months and as per the plaintiff, she with difficulty arranged the said amount from her account. However, in order to show her solvency, she had not even placed her bank statements on judicial record which could show that she was having financial capacity/finances to advance a loan of Rs. 1,00,000/- to appellant.
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10. It is stated that as per the respondent, she did not take any cheque from the appellant in February 2016, inspite of the fact that no prior transaction with appellant/ defendant had ever taken place. As per the version of respondent, she took the cheque from appellant in June 2016 and cheque was dated 25.06.2016. In the entire plaint, no reason has been given why the cheque was presented on 23 September 2016 and the cheque was returned dishonored with remarks "Instrument-Outdated". It is stated that the appellant had also given specific reply to legal notice dated 03.12.2016 and the reply is dated 22.12.2016, where the appellant had categorically denied of taking any loan from the respondent. This shows that a fake liability has been created upon the appellant by misusing those cheques which were given to her son namely Sh. Rahul Sharma. Appellant and Rahul Sharma used to be partners in a partnership firm, which was dissolved in August 2016 and deliberately respondent used the cheques along with her husband by filing two separate civil suits of recovery against the appellant.
11. It is stated that respondent in this case was cross-examined as PW1 and despite the fact that PW1's son and appellant were partners in RDS World, respondent had denied the suggestion in this regard and she further denied the suggestion that RDS World was taken over by her son Rahul Sharma. Further, when a specific question was asked from the respondent, she had given an evasive reply, which shows that she was RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.7 of 20 trying to hide the fact that cheque in question was given to Rahul Sharma, the earlier partner of the appellant, who had given the same to the respondent i.e. his mother. When the question was asked from defendant no. 1 to disclose the source of funds, she failed to give any proof but she said that she had taken the same from the savings of her children and PW1 stated that she was not aware about the evidence affidavit on which she was relying.
12. Following grounds of appeal have been taken by appellant:
a) Because the impugned order and Judgment dated 21 March 2025 is against the law and facts on record as the trial court has failed to appreciate the available evidences brought on record by the appellant.
b) Because the trial court has totally ignored the facts that there are major contradictions in the testimony of the plaintiff and she stated that she does not know anything about her evidence by way of affidavit and the trial court failed to appreciate how the cheque came into possession of the respondent and further trial court failed to appreciate that two other cheques had been misused by husband of the plaintiff in another civil suit.
c) Because the trial Court failed to appreciate that respondent/plaintiff did not have any transaction with the appellant at any point of time barring the fact that appellant used to be the partner of son of the plaintiff namely Sh. Rahul Sharma.
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d) Because the order has caused miscarriage of justice, particularly when there are several flaws in the testimony of the plaintiff as the appellant has created doubt on the credibility of testimony of the witness and the alleged transaction, which never happened.
e) Because the trial court has failed to appreciate the admission of the plaintiff in her cross-examination where she herself admitted that she does not know anything about the content of affidavit, then how it is possible that the same affidavit can be relied upon.
f) Because no prima facie transaction occurred between the respondent and the appellant at any point of time and the appellant successfully created doubt on the testimony of respondent.
13. Trial Court Record (TCR) was summoned and was perused. Notice was issued to the plaintiff/respondent. The appeal was filed alongwith an application for condonation of delay, which was allowed by Order dated 17.12.2025 after hearing both sides. The application moved under Order XLI Rule 5 CPC read with Section 5 of Limitation Act, praying for interim injunction in favour of appellant was dismissed by the Court by a separate order.
14. Submissions of the appellant and respondent have been heard on RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.9 of 20 the appeal as well as application under Order XLI Rule 27 CPC. The application under Order XLI Rule 27 CPC has been dismissed vide a separate order of even date. Written submissions are also considered.
15. The present appeal arises from the judgment and decree passed by the Trial Court in a summary suit instituted under Order XXXVII CPC, whereby the suit of the plaintiff for recovery of money based on a cheque was decreed. The plaintiff's case, in brief, is that the defendant approached him in January 2016 seeking a friendly loan for marriage expenses, assuring repayment within two months. Upon failure to repay, the defendant issued a cheque in July 2016 towards discharge of the said liability. The cheque, upon presentation, was dishonoured. The defendant initially sought leave to defend, which was allowed. However, despite opportunity, the defendant failed to file a written statement within the prescribed time, and his right to file the same was closed. The suit thereafter proceeded and was decreed in favour of the plaintiff.
16. The principal grounds urged in appeal are that the cheque in question was not issued towards any personal loan but was signed by the defendant as an authorized signatory of a partnership firm allegedly run by the son of the plaintiff and the defendant. Further, the partnership stood dissolved prior to the date of the cheque and that the cheque was misused by the plaintiff after being obtained through the plaintiff's son. It is further stated that respondent in his reply to the legal notice of the RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.10 of 20 plaintiff has denied any liability and testimony of PW1 is not credible and in another case filed by husband of the plaintiff, the final Order has been passed in favour of the appellant.
17. The defence taken is that the cheque was issued in a different capacity and misused. However, this defence remained unsubstantiated. No documentary evidence of existence of the partnership, its dissolution, or the capacity in which the cheque was issued, was brought on record by the defendant. It is a settled proposition of law that mere pleading, without proof, cannot rebut the statutory presumption. The record clearly shows that leave to defend was granted to the defendant. However, despite opportunity, the defendant failed to file written statement. His right to file written statement was accordingly closed. Once the defence is struck off/closed, the defendant cannot be permitted to rely upon unproved pleas. The Trial Court was therefore justified in proceeding on the basis of the plaintiff's unrebutted evidence.
18. The plaintiff's consistent case remains that money was advanced, cheque was issued and the cheque was dishonoured. Even assuming some ambiguity in cross-examination, the defendant failed to plead his case through a written statement and failed to lead evidence and to prove misuse. Thus, the alleged ambiguity with respect to non-production of the evidence with respect to the source of funds does not demolish the plaintiff's case. The presumption of liability remains unrebutted and the RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.11 of 20 defence was never properly pleaded or proved. The Trial Court rightly relied upon unrebutted evidence of the plaintiff.
19. It is necessary to note that the appellant's appeal rests on a defence that was never crystallized into pleadings or evidence. Allowing such a defence to succeed at the appellate stage would amount to permitting a party to bypass procedural discipline and undermine the structure of civil trial. Further, the reliance on stray portions of cross-examination, to suggest that the plaintiff was not aware regarding facts of the case, does not throw away the case of the plaintiff, which is arising from an admitted instrument. It is seem that plaintiff stated in her cross- examination at one place that she was not aware regarding the contents of her affidavit in examination in chief i.e. ExPW1/A, as she is illiterate. However, in the very next line, she stated that she knows about the contents of her affidavit, even though she does not remember the same as well as the year and month when the affidavit was prepared. The evidence of PW 1 has to be read as a whole and when read as a whole, it cannot be concluded that the defendant succeeded in creating a dent in the testimony of PW1 and the case of the plaintiff.
20. The contention that documents filed along with the leave to defend application ought to have been considered is fundamentally flawed. Once leave to defend was granted, the proceedings ceased to be summary in nature and the suit proceeded as an ordinary civil suit. At that stage, the RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.12 of 20 defendant was required to file a written statements and pleadings had to be completed and documents had to be proved in accordance with law. Mere filing of documents along with the leave to defend application does not amount to proof. In the present case, no written statement was filed, no issues were framed on the alleged partnership or its dissolution and no evidence was led. Therefore, such documents remained unproved and legally non-existent for adjudication purposes.
21. Ld. Counsel for the respondent/plaintiff submitted that it is not in dispute that a separate suit was filed by the husband of the present plaintiff against the defendant and the said suit has been dismissed by the Trial Court and findings adverse to the husband have been recorded but the said judgment is not under challenge before this Court and was contested on its own merits and further the said subsequent judgement in another case has no direct bearing on this case and that reliance on the said case by appellant is misplaced. I agree with the contention raised by Ld. Counsel for the respondent that the reliance on dismissal of another suit filed by the plaintiff's husband is misconceived. The present plaintiff and her husband are distinct legal persons. A decree of findings against one in another suit does not automatically bind the other. The said case is stated by plaintiff to be arising from a different transaction and in the present case, no evidence was led by the defendant to prove otherwise. It is also to be seen that the judgment by trial Court in this case was pronounced much prior to any judgement in any other unconnected case.
RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.13 of 20 Each case must be decided on its own evidence. Findings in another case against defendant as filed by husband of the plaintiff, do not operate as res judicata and no identity of cause of action and issue was established during trial and further, any decision in another case after the judgement in the present case, cannot come to the rescue of the appellant in appeal in this case. Moreover, the present case stands on a dishonoured cheque, which independently raises a presumption of liability. Further, appellant has also argued that financial capacity of the plaintiff is not proved in trial. The argument regarding lack of financial capacity of respondent, does not advance the appellant's case. No such defence was properly pleaded due to absence of written statement. Further, no cross- examination of substance was directed towards demolishing the source of funds. In cases based on cheque, once execution is admitted, the burden shifts on the defendant to rebut the presumption, which was not discharged by defendant in this case. Plaintiff deposed that she arranged the amount of Rs. 1 lakh from her small business and money from monthly expenses taken from her children. Hence, the source of funds was reasonably explained by her in her cross-examination. The plea regarding the absence of documentation with respect to loan also does not carry weight. Friendly loans often undocumented. There is no substantial rebuttal evidence and mere raising of doubt cannot substitute proof and the theory raised in the leave to defend application remains unproved. The appellant seeks to import findings from a separate proceeding involving a different party (husband) to defeat the present RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.14 of 20 claim of the wife. Such an approach is legally impermissible and contrary to settled principle governing adjudication. A plea has been taken that the cheque having been returned as stale instrument creates doubt about the genuineness of the transaction. However, no evidence in defence was led in this regard and there is nothing in the cross-examination of PW1 to dislodge her testimony.
22. The argument that the cheque was presented immediately after dissolution of partnership is again unsupported by evidence. The very existence and dissolution of the partnership remained unproved and no documentary evidence was exhibited and proved on record by the defendant and no witness in defence was examined. The defendant failed to file written statement despite opportunity and his defence was consequently struck off/closed. In such circumstances, the plaintiff's case remained unrebutted. The presumption arising from admitted cheque remains unrebutted. The present appeal is essentially an attempt to convert a failed defence into a triable case at the appellate stage. The defendant, having failed to file a written statement and lead evidence, cannot now rely upon documents that were never proved on record and defences never pleaded as written statement was not filed in time and belated Written Statement was not taken on record. The Trial Court's decree is based on admitted execution of cheque and absence of rebuttal. No perversity, illegality, or material irregularity has been demonstrated by the appellant. Interference in such circumstances would amount to RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.15 of 20 permitting a litigant to bypass procedural law and reopen a case on grounds that were never raised. An argument built on a fact contrary to record must fail at the threshold. Filing of documents along with leave to defend does not amount to proof. In absence of written statement, framing of issues and proof of documents, such material cannot be considered. The cheque in question, dated 25.06.2016, was presented on 23.09.2016 and returned unpaid as "instrument stale"and it is argued that the delay in presentation of cheque is not explained. However, this aspect does not advance the defence. No question was put to the plaintiff in her cross-examination to explain the delay in presentation of the cheque by her. With the defence struck off, no factual contest survived. The entire plea remains at the level of unsubstantiated assertion. Even the argument that all cheques (in this case and in the husband's case) were presented around the same time is merely a circumstance, insufficient to establish misuse, in absence of proof in this case. The appellant has pointed out to alleged contradictions between plaintiff and her husband and lack of her knowledge of affidavit contents. These aspects do not go to the root of the matter and the evidence and finding in another case cannot be imported and looked into in this case. The present case must be decided on its own evidence. Minor inconsistencies, if any, do not outweigh unrebutted primary evidence. Lack of detailed knowledge of affidavit preparation does not nullify the transaction itself. The signature on affidavit Ex.PW1/A is not disputed. Courts cannot permit a litigant to ignore statutory timelines, avoid pleadings and thereafter seek a retrial at RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.16 of 20 the appellate stage. The integrity of civil procedure mandates that litigation must proceed on pleadings and proof and not on belated assertions. The appellant has, inter alia, contended that the Trial Court failed to properly appreciate the cross-examination of PW-1, which reveals serious inconsistencies. However, there is no material discrepancy in the testimony of PW1 and there is no defence evidence to rebut her testimony. It is a settled principle of law that testimony must be read as a whole and not in isolated fragments. PW1 stated that she is illiterate. Hence, lack of precise recollection of date when the cheque was given to her, does not by itself discredit the transaction.
23. In Credential Leasing & Credits Ltd. vs Shruti Investments & Anr., decided on 29.06.2015. it was observed by Hon'ble Delhi High Court that:-
"30..the onus to raise a probable defence would lie on accused, as a law raises a presumption in favour of the holder of the cheque that the dishonored cheque was issued in respect of a debt or other liability. As settled by the Supreme Court, the said onus obliges the accused to raise a defence- either by picking holes in the case of the complainant and/or by positively leading defence evidence which leaves the court to believe that there is a probable defence raised by the accused to the claim of the complainant with regard to the existence of the debt or other liability.."
RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.17 of 20 In the case at hand, the appellant failed to create a dent in the evi- dence of PW1.
24. Further, In Kaushik Narsinhbhai Patel & Ors. Vs. M/s. S.J.R. Prime Corporation Private Limited & Ors, Civil appeal No.8176/2022, decided on 22.07.2024, it was observed by Hon'ble Apex Court that:-
"18. In the context of the aforesaid provisions under the CPC, it is apt to refer to a decision of a Division Bench of the Karnataka High Court in Nalini Sunder v. GV Sunder. It was held therein that a party could not make out a case on the basis of evidence for which he/she has AIR 2003 Kar 86 laid no foundation in the pleadings. It is fairly settled that no amount of evidence can prove a case of a party who had not set up the same in his/her pleadings, it was further held therein. According to us, it is the correct proposition of law. In the absence of any specific provisions dealing with non-filing of written statements/forfeiture of the right to file a written statement, taking note of the general position as above, it can only be held that it should bar the opposite party in a proceeding before the Consumer Redressal Forums to bring in pleadings, indirectly to introduce its/his case and evidence to support such case. In the situations mentioned above, the right of the opposite party is confined to participate in the proceedings without filing a written statement and to cross-examine RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.18 of 20 witness(es), if any, examined by the complainant(s). It be the position of law, the first respondent who is bound by Annexure P- 18 order could not have been permitted to introduce its case to defend the case of the complainants through written submissions though it was rightly permitted to participate in the proceedings. There is no case for the first respondent that it sought permission to cross- examine Kaushik Narsinhbhai Patel who filed affidavit of evidence and produced documentary evidence. At any rate, no such case was put forth by the first respondent and no grievance of denial of such opportunity was also raised. In the circumstances expatiated above, in view of Annexure P-18 order the reply and objection filed by the first respondent herein in this proceeding also cannot be looked to the extent it carries pleadings relating its case, the reasons and objections which could have been let in through a written statement. In short, the first respondent could be permitted only to argue the legal questions arising based on authorities and provisions of law as also regarding lapses or laches and the consequential non-admissibility or otherwise of evidence, let in by the appellants."
25. The core of the plaintiff's case remains regarding advancement of money, issuance of cheque by defendant and dishonour of cheque. These aspects have not been dislodged. Absence of defence evidence is crucial and determinative. Suggestions in cross-examination remain mere RCA DJ- 81/25 Shashank Sharma Vs. Mithilesh Sharma Page no.19 of 20 suggestions in absence of any evidence in defence and denials by PW-1 cannot be converted into proof of defence. The theory of partnership, misuse, or settlement remains unproved.
26. The decree, therefore, does not suffer from perversity, misreading of evidence, or legal infirmity warranting appellate interference. In view of the above, the appeal is dismissed. The judgment and decree of the Trial Court are affirmed. No order as to costs.
27. Appeal file be consigned to Record Room. The Trial Court Record (TCR) be sent back along with copy of the judgment.
Announced in the Open Court
on 30.03.02026 (MAYURI SINGH)
District Judge-03;Central District
Tis Hazari New Delhi
It is certified that this judgment contains 20 pages and each page bears my signatures.
(MAYURI SINGH) District Judge-03;Central District Tis Hazari, New Delhi Digital Signature of the Ld. Presiding Officer has expired. The new digital signature is awaited.
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