Delhi District Court
Ms. Neeraj Dahiya vs Shri Desh Raj Arora on 18 July, 2012
1
IN THE COURT OF Ms. RICHA MANCHANDA
CIVIL JUDGE : CENTRAL03 : THC : DELHI.
SUIT No. 547/2008
IN THE MATTER OF :
Ms. Neeraj Dahiya, D/o Shri Karan Singh Dahiya,
R/o H. No. A225, Majlish Park,
Delhi110033. ....................................Plaintiff
Versus
Shri Desh Raj Arora, C/o Chuni Lal Bhasin,
R/o H. No. 44, Second Floor, Tagore Marg, Kewal Park,
Azadpur, Delhi110033.
Second Address :
Desh Raj Arora, Shop in A2, Kewal Park, Main Road,
Azadpur, Delhi110033. ...................................Defendant
Suit for recovery of Rs. 1,00,000/
Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora
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DATE OF INSTITUTION : 30.07.2008.
DATE OF DECISION : 18.07.2012.
J U D G M E N T
1. Vide this Judgment, I shall decide the suit for recovery of an amount of Rs.1,00,000/ filed by the plaintiff against the defendant.
2. Essential facts necessary for disposal of the present suit as per the plaint are that the defendant being acquaintance of plaintiff's father borrowed a sum of Rs.1,50,000/ from plaintiff vide cheques bearing No. 848009 dated 23.05.200 for Rs.50,000/ and cheque bearing No. 848010 dated 10.01.2007 for Rs.1,00,000/ both drawn on State Bank of India, Azadpur Branch, Delhi. He assured to repay the loan amount in a short period.
3. It is averred that on demand the defendant paid a sum of Rs.50,000/ but failed to pay the balance amount of Rs.1,00,000/ Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 3 despite repeated requests of the plaintiff. The defendant is also liable to pay interest @ 18% per annum as per market usage and customs. Thereafter, the plaintiff sent a legal notice dated 17.04.2008 to the defendant through her counsel vide registered post & UPC which was duly served upon defendant but inspite of service, the defendant failed to repay the outstanding loan amount nor he replied the legal notice. Hence, the present suit.
4. Summons of the present suit for settlement of issues were served upon defendant. The defendant filed the written statement on 21.04.2009 controverting the allegations levelled against him and has submitted that plaintiff has filed the present suit with ulterior motive and dishonest intention only to harass the defendant and to extract money fraudulently. The plaintiff has not come to the Court with clean hands. He has intentionally and deliberately concealed the actual and material facts from the Court. The defendant had taken a shop on rent situated at A225, Main Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 4 Road, Majlis Park, Azadpur, Delhi110033 from the father of plaintiff for sale of fire crackers etc. The shop No. A225 is owned by the mother of plaintiff. She had also given NOC in favour of plaintiff for obtaining permission from police in this regard. At the time of letting out the shop, the defendant had given a sum of Rs. 1,50,000/ as security deposit and it was agreed that as and when defendant shall vacate the rented shop, the father of plaintiff will return the security amount. As relations between defendant and parents of plaintiff were cordial, no written agreement in this regard was executed.
5. It is averred that defendant handed over vacant possession of the tenanted shop to the father of plaintiff but her father did not return the security amount. Rather he requested to return the amount in a short period. Thereafter, father of plaintiff returned an amount of Rs.50,000/ vide cheque bearing No. 848009 dated 23.05.2006 and assured to return the outstanding Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 5 amount of Rs.1,50,000/ within 67 months. After some time, father of plaintiff gave another cheque bearing No. 848010 dated 10.01.2007 for Rs.1,00,000/ drawn on State Bank of India, Azadpur Branch, Delhi from the account of plaintiff. Now, plaintiff is alleging that the said amount is a loan amount which is absolutely false and frivolous. The defendant never approached the plaintiff for alleged loan of Rs.1,50,000/ as alleged in the plaint. The plaintiff has filed the present suit in collusion with her father in order to illegally extract the money from defendant. The suit of the plaintiff is without any cause of action and is liable to be dismissed with exemplary costs under Section 35A CPC.
6. Vide order dated 01.08.2009 the following issues were framed : (1) Whether plaintiff has suppressed the material facts from the Court ? OPD (2) Whether plaintiff extended a loan of Rs.1,50,000/ to Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 6 the defendant ? OPP (3) Whether plaintiff is entitled to the interest @ 18% per annum ? OPP (4) Whether plaintiff is entitled to a decree for a sum of Rs.1,00,000/ alongwith interest and cost against the defendant ? OPP (5) Relief.
7. The plaintiff has examined only one witness to prove her case. Ms. Neeraj Dahiya, D/o Shri Karan Singh Dahiya appeared as PW1 and tendered her evidence by way of an affidavit which is exhibited as EX. P1. She also relied upon certain documents in support of the plaint. Mark A is the copy of the bank certificate. Mark B is the copy of cheque bearing No. 848010 dated 10.01.2007 for Rs. 1,00,000/. EX. PW1/1 is the office copy of legal notice dated 17.04.2008. EX. PW1/2 & EX. PW1/3 are the postal receipts & EX. PW1/4 is the returned AD card. Vide a separate statement of Shri Rajeev Huda, Ld. Counsel, P.E was closed on 15.12.2010.
8. The defendant has examined two witnesses in support of his Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 7 defense. Shri Desh Raj Arora, S/o Late Inder Ram appeared as DW1 and tendered his evidence by way of an affidavit which is exhibited as EX. DW1/A.
9. Shri Neeraj Sethi, S/o Shri Devinder Sethi appeared as DW2 and tendered his evidence by way of an affidavit which is exhibited as DW2/A. DW2 has also deposed on the identical lines of the defendant. Thereafter, vide a separate statement of Shri Desh Raj Arora, D.E was closed on 23.01.2012.
10. Final arguments were addressed on 21.05.2012.
11. I have heard the rival contentions of both the parties and carefully gone through the material placed on record.
12. My issuewise findings are as follows : ISSUE No. 1.
(1) Whether plaintiff has suppressed the material facts from the Court ? OPD The onus to prove this issue was on the defendant. The Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 8 defendant/DW1 has deposed in his evidence by way of affidavit that he was a tenant in the shop which is owned by mother of the plaintiff and had deposited a security amount of Rs.1,50,000/ with her father which he has failed to return despite repeated requests and demands of the defendant. The plaintiff/PW1 in her cross examination has admitted that the defendant was a tenant in the shop. The PW1 in her crossexamination rather denied the receipt of Rs.1,50,000/ by her mother or father. In the same cross examination she has denied having any knowledge regarding the rent or any other issue relating to tenancy. This shows incoherency in the statement of plaintiff/PW1.
The defendant has examined DW2 who was working as Helper with the defendant. In his crossexamination, the DW2 stated that he was present in the shop when the defendant paid an amount of Rs.1,50,000/ in cash as security deposit to the father of the plaintiff. In the crossexamination, the DW2 has submitted that Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 9 he has no knowledge of any financial transaction, however, the transaction of this amount was taken place in his presence. Since, the amount was allegedly received by the father of the plaintiff, the plaintiff should have examined him as a witness to the present case to rebut the contentions of the defendant. The plaintiff has failed to disprove the fact as alleged by the defendant. Hence, the Court is of the opinion that plaintiff has suppressed the material facts from the Court. The issue No. 1, therefore, stands decided in favour of defendant and against the plaintiff.
ISSUES No. 2, 3 & 4.
(2) Whether plaintiff extended a loan of Rs.1,50,000/ to the defendant ? OPP (3) Whether plaintiff is entitled to the interest @ 18% per annum ? OPP & (4) Whether plaintiff is entitled to a decree for a sum of Rs.1,00,000/ alongwith interest and cost against the defendant ? Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 10 OPP The issues No. 2, 3 & 4 requires common discussion, hence they are taken up together. The onus to prove these issues was on the plaintiff. It is deposed by plaintiff in her evidence by way of affidavit that the defendant had taken a loan from her vide cheques bearing No. 848009 dated 23.05.200 for Rs.50,000/ and cheque bearing No. 848010 dated 10.01.2007 for Rs.1,00,000/ both drawn on State Bank of India, Azadpur Branch, Delhi. The same is also admitted by the defendant in his written statement. However, the defendant submitted that through these cheques the plaintiff had returned the security amount deposited with her father in lieu of the shop taken on rent from him.
In the crossexamination of PW1 she denied receipt of any security amount by her mother or father, though she admitted that defendant had taken on rent the shop from her father which is owned by her mother.
Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 11 It is also pertinent to mention here that in her cross examination, the PW1 submitted that Rs.1,50,000/ which were previously advanced as loan by her to the defendant was given to him as cash amount and was not given through cheques. Whereas in the plaint, the plaintiff has averred that the entire loan amount of Rs.1,50,000/ was given to the defendant by way of two cheques. This shows major discrepancy in the case of plaintiff. It is also averred by the plaintiff that out of the entire loan amount of Rs.1,50,000/, Rs.50,000/ was repaid by the defendant to the plaintiff. There is no mention of this Rs.50,000/ as to how the same was received, when it was received by the plaintiff except in EX. PW1/1 which is the office copy of the legal notice. In EX. PW1/1 it is submitted by the plaintiff that Rs.50,000/ was returned through cheques. However, the plaintiff has not placed on record any document to show that she received Rs.50,000/ from the defendant and, therefore, the plaintiff has not been able to prove Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 12 any liability of the defendant towards the plaintiff regarding the suit amount.
There is no cogent evidence produced by the plaintiff to prove that she advanced a loan of Rs.1,50,000/ to the defendant or that defendant repaid a sum of Rs.50,000/ but could not pay the amount of Rs.1,00,000/ as loan taken by him from the plaintiff.
In view of the decision on the issue No. 2, the Court has already held that no cogent evidence has been produced by the plaintiff to prove her case. The Court has already held that balance of convenience also does not lie in favour of plaintiff. It is well settled principle of law that decision on civil cases depends upon preponderance of probabilities. The Court is of the opinion that the plaintiff has miserably failed to prove on record or to bring any evidence in support of her contentions that she advanced a loan of Rs.1,50,000/ to the defendant alongwith interest @ 18% per annum. She has also failed to prove that defendant repaid a sum Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora 13 of Rs.50,000/ but failed to pay back the loan amount of Rs. 1,00,000/ to the plaintiff.
In view of the above discussion, the Court is of the opinion that plaintiff has miserably failed to discharge the onus to prove the issues No. 2, 3 & 4. On the contrary, the defendant has successfully proved his defense. Consequently, the issues No. 2, 3 & 4 are decided against the plaintiff and in favour of defendant.
RELIEF In view of the above discussion, the suit of the plaintiff stands dismissed.
13. Decree Sheet be prepared accordingly.
14. File be consigned to Record Room after necessary compliance.
Announced in Open Court ( RICHA MANCHANDA ) on 18 July, 2012. CivilJudge : Central03 : THC : Delhi.
th Suit No. 547/2008 Neeraj Dahiya Vs. Desh Raj Arora