Delhi District Court
Sh. Vinod Kumar Tanwar vs Dinesh Kumar Tanwar on 27 February, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No.516924/2016
CNR No. SW010004702012
IN THE MATTER OF:
Sh. Vinod Kumar Tanwar
S/o Sh. Ishwar Dass Tanwar
R/o H No. WZ-909/I, Ring Road
Naraina, New Delhi -28 ... Plaintiff
v.
Sh. Dinesh Kumar Tawar
S/o Sh. Jaipal Singh
R/o WZ-911/1, Ring Road
Naraina, New Delhi - 110028 ... Defendant
Date of institution of suit: 17.11.2012
Date of judgment reserved: 21.01.2023
Date of pronouncement of judgment: 27.02.2023
JUDGMENT
1. The plaintiff has preferred the present suit under Order XXXVII of the Code of Civil Procedure,1908 (hereinafter "CPC") for recovery of ₹4,60,000/- (Rupees four lakh sixty thousand only) together with interest at the rate of 2% per month calculated w.e.f 01.04.2011 to 31.07.2012 amounting to Rs 1,47,200/- (Rupees One lakh fourty seven thousand only) and CS DJ ADJ No.516924/16 Page No. 1/14 therefore, for total recovery of ₹6,07,000/- (Rupees Six Lakhs and seven thousand only) on the basis of promissory note (pronote), against the defendant.
2. Briefly stated, it is the case of the plaintiff that he and defendant are known to each other from their childhood and belongs to the same village. It is further averred that defendant approached the plaintiff for a loan of Rs. 5,00,000/- due to business losses in his lucky draw scheme and was also in urgent need for construction of his building and on the said request plaintiff arranged a sum of Rs 2,00,000/- on 10.03.2011 and informed the defendant and the plaintiff handed over the amount to the defendant at his house. Similarly, again on 01.04.2011 plaintiff arranged a sum of Rs 2,60,000/- and informed the defendant and the plaintiff handed over the said amount to the defendant at his house and there itself the defendant executed the promissory note in favour of the plaintiff for a sum of Rs. 4,60,000/- carrying interest @ 2% per month.
3. It is further averred in the plaint that on 09.08.2011 a legal demand notice was issued to the defendant for payment of sum of ₹4,60,000/- alongwith interest at the rate of 2% through registered AD/ Courier and the same was served upon him but despite of receiving the aforesaid notice, defendant did not pay the amount of pronote and receipt to the plaintiff.
4. On the basis of above pleadings, the present summary suit under Order XXXVII CPC was filed.
5. The Ld. Predecessor of this Court allowed the leave to defend application filed by the defendant vide order dated CS DJ ADJ No.516924/16 Page No. 2/14 15.04.2014 subject to deposit of 50% of the principal amount by way of FDR and on 31.05.2014 FDR of Rs 2,30,000/- dated 30.05.2014 drawn on Punjab National Bank was filed by the defendant.
6. Thereafter, defendant filed his written statement wherein he has taken more or less the same grounds as taken in the application for leave to defend. It is the case of the defendant that he has never taken any money from the plaintiff due to loss in lottery business or construction of the house due to shortage of money as alleged by the plaintiff and he never signed any pronote or receipt in favour of the plaintiff and the same is forged and fabricated. The defendant denied his liability to pay the suit amount. The defendant however, admitted that he was doing the business of lucky draw scheme in the year 2000 and thereafter the said draw was closed by him due to personal reasons. It is contended by the defendant that he was having sufficient means to construct his house. It is the case of the defendant that the whole story was concocted by the plaintiff to exort money from the defendant. It is denied by the defendant that he ever approached the plaintiff in the month of March 2011 and visited his house to take any amount of ₹2 lakhs and he further denied that on 01.04.2011 he has taken ₹2,60,000/- from the plaintiff and signed any promissory note or any receipt in favour of the plaintiff for a sum of Rs 4,60,000/-.
7. Thereafter, plaintiff filed the replication to the written statement of the defendant and he denied the contentions raised CS DJ ADJ No.516924/16 Page No. 3/14 by the defendant in the written statement and reiterated and reaffirmed the stand taken by him in the plaint.
8. On the basis of the pleadings of the parties, the following issues were framed on 07.07.2015:-
(i) Whether plaintiff had paid a sum of Rs 4,60,000/- to the defendant as loan? ... OPP
(ii) Whether pronote-cum-receipt dated 01.04.2011 was duly executed by the defendant in favour of plaintiff in respect of loan? ... OPP
(iii) Whether the plaintiff is entitled for the principal amount of Rs 4,60,000/- alongwith interest @2% per month? ... OPP
(iv) Relief
9. In order to prove his case, plaintiff examined three witnesses.
10. On 13.11.2017 plaintiff tendered his evidence by way of affidavit - Ex. PW1/X and he relied upon the following documents:
(i) Promissory note - Ex. PW1/A,
(ii) Legal notice, postal receipt and courier receipt - Ex. PW1/B to Ex.
PW1/D, respectively.
(iii) Acknowledgment of RL-AD - Ex. PW1/E
11. He also produced his son, Mr. Jatin Tanwar and his wife, Smt. Vijay Laxhmi in the witness box, they both tendered their evidence by way of affidavit Ex. PW2/A and Ex. PW3/A, respectively and CS DJ ADJ No.516924/16 Page No. 4/14 reiterated the facts of plaint, thereafter they were cross-examined and discharged.
12. Thereafter plaintiff's evidence was closed and in order to prove his case, defendant examined two witness and he himself entered the witness box and tendered his evidence by way of affidavit - Ex. DW1/A.
13. He also produced Mr. Vijender Singh in the witness box and he tendered his evidence by way of affidavit Ex. DW2/A. Arguments:-
14. It is argued by the learned counsel for the plaintiff that the plaintiff has duly proved his case by proving the promissory note Ex. PW1/1 dated 01.04.2011 by calling both the witnesses of the promissory note in the witness box. He further argued that the defendant failed to cause any dent in the case of the plaintiff and prays for decree of the suit as per the reliefs prayed for.
15. Per contra, the Ld. Counsel for the defendant argued that the plaintiff not only failed to prove the source of funds out of which he has paid the alleged loan amount to the defendant but also both the witnesses to the promissory note also failed to prove the said note in their testimony and he thus prays for dismissal of the present suit with exemplary costs.
Issue-wise Finding :-
16. All the three issues are taken up and are being discussed together as they are inter connected and finding on one will have bearing on other.
CS DJ ADJ No.516924/16 Page No. 5/14 ISSUE NOS. 1 TO 317. The onus to prove all the three issues was on the plaintiff.
18. Coming to the point that whether the plaintiff duly proved the source of Rs.4,60,000/- and payment of the same to the defendant and also the due execution of the promissory note dated 01.04.2011. In the plaint as well as in his evidence by way of affidavit, it is claimed by the plaintiff that on the demand raised by the defendant, he arranged a sum of Rs.2,00,000/- on 10.03.2011 and Rs.2,60,000/- on 01.04.2011 and handed over the same to the defendant.
19. However, the plaintiff has not mentioned the source of funds. In cross examination on particular questions put to him by the counsel for the defendant, he deposed that he had been working as draftsman (mechanical) till May 2017 and before introduction of GST he was receiving the salary in cash and thereafter started receiving the same by cheque and before the implementation of GST he was getting a salary of Rs 20,000/- out of which the income expenditure was Rs 12,000/- and Rs 8,000/ per month was saving and after retirement he again re-employed and was having a monthly salary of Rs 16,000/- and besides monthly salary he used to have rental monthly income of Rs 50,000/- per month and the said house was constructed in 2007. He further deposed that he gave Rs 2,00,000/- to the defendant on CS DJ ADJ No.516924/16 Page No. 6/14 10.03.2011 as he has that money with him as his father has sold another property for Rs 17,00,000/- and the defendant knew that. He further deposed that the defendant came alone to take the loan amount and he gave the same in the presence of his family members including his wife, brother and son and when a further sum of Rs 2,60,000/- towards the loan was given the defendant came in the evening and thereafter, he executed a promissory note Ex. PW1/A in his presence and the said promissory note was signed as a witness by his son Jatin Tanwar and brother Ramesh Kumar. He also deposed that the defendant had taken the loan for a period of two years and the said fact is not mentioned in the promissory note and he also admitted that he has filed the present suit against the defendant before the expiry of two years from the date of the loan.
20. PW-2 Jatin i.e the son of the plaintiff entered the witness box and reiterated the stand taken by the plaintiff in the plaint. He in his examination in chief by way of affidavit deposed that "the promissory note already exhibited Ex. PW1/A was executed in my presence which I had signed at point A".In his cross examination he failed to tell the earnings of his father in 2010- 2011. He deposed that the loan amount was given in his presence in two installments but he do not know the amount of loan sought by the defendant and even he do not know the amount of loan given by his father in the first installment to the defendant and even he do not know for how much period the loan was given and for what purpose the loan was taken by the defendant and further when the defendant started further construction of his house CS DJ ADJ No.516924/16 Page No. 7/14 which was built up to first floor with one room on the second floor when they shifted to house No. WZ-909/1, Naraina, which is infront of the house of the defendant. He deposed that the contents of the promissory note were already written when the defendant came to their house and after taking the second installment of loan amount and handing over the promissory note to his father the defendant left their house.
21. Similarly, PW-3 Smt. Vijay Laxmi w/o of the plaintiff entered the witness box and in her chief examination by way of affidavit deposed in verbatim as per the averments made in the plaint and also deposed that "the promissory note already exhibited Ex. PW1/A was executed in my presence which was signed by Sh. Ramesh at point B".
22. In cross examination she has deposed that loan amount was given in her presence in two installments out of the funds lying at their house after selling the house. By way of first installment Rs 2,60,000/- was paid and by way of second installments Rs 2,00,000/- was paid. She further deposed that the defendant has started the construction of his house in the year 2007-2008. She further deposed that she do not know if the contents of the promissory note were already written or not when the defendant came to their house to collect the remaining amount.
23. After going through the testimony of PW-1 to PW-3 the relevant portion which is reproduced above, at the outset it is observed that none of them while tendering the promissory note Ex. PW1/A in evidence have identified the signatures of the CS DJ ADJ No.516924/16 Page No. 8/14 defendant on the promissory note. The simply deposed that promissory note was executed by the defendant which was already pre-filled and he handed over the same to the plaintiff after taking the second installment. Interestingly, PW-2 only identified his signature at point 'A' and he has not identified the signatures of the second witness Mr. Ramesh and even Mr. Ramesh never appeared in the witness box and instead the wife of the plaintiff identified his signatures at point 'B'. Interestingly, in her chief she deposed that the promissory note bears her signatures and she has not deposed that the signatures are that of his brother and she is well conversant with his signatures. She also had not identified the signatures of the defendant on the promissory note. Thus, the primary requirement as envisaged by Section 67 of the Indian Evidence Act, 1872 has not been fulfilled by the plaintiff which provides as follows:-
67. Proof of signature and handwriting of a person alleged to have signed or written document produced- if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting.
24. The Hon'ble High Court of Madhya Pradesh in L.S. Trading Company, Gwalior v. Manish Mishra (2010) 93 AIC 838 MP, while examining the scope of Section 67 of the Evidence Act has held that the following are the modes for proving a document:
CS DJ ADJ No.516924/16 Page No. 9/14(a) by calling a person who signed or wrote a document;
(b) by calling a person in whose presence the documents are signed or written;
(c) by calling handwriting expert;
(d) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
(e) by comparing in Court, the disputed signatures or handwriting with some admitted signatures or writing;
(f) by the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person;
(g) A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant;
(h) by other circumstantial evidence.
25. However, plaintiff has not adopted any of the methods mentioned above to prove the signatures of the defendant on the promissory note. Therefore, once the signatures on the promissory notes were denied by the defendant on the ground that the same are forged and fabricated documents, the initial burden was upon the plaintiff to prove that the promissory notes bears the signature of the defendant and it is only thereafter, the onus to prove plea of forgery and fabrication could have shifted on the defendant. It is also relevant to mention that rather it is the defendant who filed an application to get his signatures examined for CFSL Rohini in order to prove that same are forged and fabricated but the CFSL Rohini failed to give any satisfactory report after examining the disputed and admitted signatures of the defendant.
CS DJ ADJ No.516924/16 Page No. 10/1426. Moving further, it is relevant to observe that PW-2 in cross- examination has deposed that when his father told him about advancing the loan to the defendant, he was not aware if the defendant has taken any loan from anybody else. Pertinently, it is relevant to mention that brother-in-law of the plaintiff namely Kulbhushan has also preferred a summary suit bearing no. 516972/2016 titled as Sh. Kulbhushan vs. Dinesh Kumar Tanwar for recovery of Rs. 14 lakhs against the defendant herein pending before this Court on similar facts and circumstances and he also relied upon two promissory notes dated 01.02.2011 & 04.03.2011 and on both the promissory notes, son of the plaintiff i.e. Jatin (PW-2 herein) is the witness. Similarly, he is also witness to another promissory note dated 08.02.2011 of Rs.2,50,000/- relied upon by one Sh. Charan Singh on the basis of which he also filed a summary suit bearing no. CS DJ ADJ 516925/2016 titled as Sh. Charan Singh vs Sh. Dinesh Tanwar against the defendant herein. Admittedly, in the present suit the date of loan and execution of pronote is 01.04.2011 i.e. subsequent to the execution of three promissory notes mentioned above. Thus, the testimony of the witness that he is not aware about any other loan taken by the defendant is not sustainable and thus his testimony cannot be relied upon as he has testified falsely before this Court.
27. It is also pertinent to mention that the both the attesting witness to the promissory note are related to the plaintiff i.e. son and brother in law (brother of the wife of plaintiff)and thus, adverse inference can be drawn against them that they will testify in favour of the plaintiff being interested witnesses unless their CS DJ ADJ No.516924/16 Page No. 11/14 testimony is impeccable one, which is not the case herein. It is not out of place to observe that the witnesses being related to the plaintiff, he can take the signatures at his sweet will to manufacture a promissory note.
28. Further, the contradiction in the testimony of PW-2 and PW-3 also demolishes the case of the plaintiff as PW-2 even though deposed that the amount was given in two installments in his presence, however, he failed to tell the exact amount advanced to the defendant in two installments which is in the considered view of this Court is highly improbable that a person in whose presence a transaction is carried out is not knowing the details of the transaction as in the case of PW-2. Similarly, PW-3 i.e. wife of the plaintiff deposed that amount of Rs.2,60,000/- was paid in the first installment and Rs.2,00,000/- in the second installment on the other hand the plaint of the plaintiff is diametrically opposite as he is claiming that Rs.2,00,000/- was paid in the first installment and Rs.2,60,000/- was paid in the second installment. Pertinently, plaintiff has not placed on record any document to show that at that relevant time any property of his father was sold and the loan amount was paid out of that funds.
29. Further, the plaintiff failed to create any contradiction or elucidate any favorable statement from the testimony of defendant who in his evidence by way of Ex. DW1/A he reiterated the stand taken by him in the written statement. In his cross examination he has deposed that he is an income tax assesses and have two building in Village Naraina. He is also the CS DJ ADJ No.516924/16 Page No. 12/14 owner of WZ-165, Village Naraina consisting of 3-1/2 floors and also owner of half portion of building No. WZ-911/1 Ring Road, Naraina and have given them on rent and receiving a total rent of Rs 70,000/- to Rs 80,000/- per month since 2010. He further deposed that WZ-165 was constructed in the year 2005 and 2½ storey of WZ-911/1 was constructed in the year 1992. He further deposed that he built the WZ-165 out of the funds taken from his father. He denied all the suggestion with respect to taking of loan from the plaintiff for the construction of the house and repayment of the loan amount taken by him from other people etc.
30. Thus, in totality of the discussion and observations made above, after going through the relevant pleadings and evidence of the parties this Court is of the considered view that the plaintiff has miserably failed to prove his case by preponderance of probabilities as not only the plaintiff himself and through the witnesses produced by him failed to prove the payment of Rs 4,60,000/- in two installments to the plaintiff but also failed to prove the promissory note alleged to be executed by the defendant.
31. Accordingly, the issue Nos. 1 to 3 are decided against the plaintiff and in favour of the defendant.
Relief
32. On the basis of my finding on issue Nos. 1 to 3, the suit of the plaintiff is hereby dismissed with no orders as to costs.
CS DJ ADJ No.516924/16 Page No. 13/1433. The original FDR of Rs 2,30,000/- placed on record by the defendant be returned to him after taking on record the certified copy of the same against acknowledgment and the concerned bank is directed to release the FDR amount alongwith accrued interest as on date in favour of the defendant.
34. Decree sheet be drawn accordingly, as per Rules.
35. File be consigned to record room, after due compliance and necessary action, as per Rules. Digitally signed SACHIN by SACHIN JAIN JAIN Date: 2023.02.28 15:42:18 +0530 Pronounced in the open (Sachin Jain) Court on 27.02.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No.516924/16 Page No. 14/14