Delhi District Court
Uphar Finvest Ltd vs Mr. Yadvender Pratap Singh on 22 December, 2022
IN THE COURT OF MS. SHRIYA AGRAWAL
JSCC, ASCJ, GJ, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS SCJ 1676/18
CNR No. : DLSE03-002537-2018
Uphar Finvest Ltd
Having its Office at
402-404, Sheetla House, 73-74 4th Floor
Nehru Place, New Delhi-110019. ..... Plaintiff
Versus
1. Mr. Yadvender Pratap Singh
S/o Mr. Ramji Lal
R/o H.No.G-47, F/F Press Quarters
Mirdard Road, Minto Road
Near Gandhi Nagar
New Delhi-110002.
Also at
Mr. Yadvender Pratap Singh
Govt. of Indian Press
2, Minto Road
New Delhi-110002.
2. Mr. Harnandan Swaroop Bhatnagar
S/o Mr. D.N.S. Bhatnagar
R/o H.No.C-127, D.I.Z. Area
R.K. Ashram, Gole Market
New Delhi-110001.
Also at
Mr. Harnandan Swaroop Bhatnagar
Govt. of Indian Press
2, Minto Road
New Delhi-110002. ... Defendants
CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.1 of 15
SUIT FOR RECOVERY FOR A SUM OF Rs.1,12,844/-
ALONG WITH INTEREST
Date of Institution of the case : 20.11.2018
Date of reserving judgment : 14.12.2022
Date of pronouncement of judgment : 22.12.2022
JUDGMENT
1. The Plaintiff has filed the present suit through its Authorized Representative against the Defendants for recovery of the prayed amount of Rs.1,12,884/- with interest as dues towards the outstanding liability of vehicle loan facility availed from the Plaintiff.
CASE OF PLAINTIFF AS PER PLAINT
2. Briefly, the Plaintiff Company is engaged in the business of leasing and financing vehicles and consumer durable goods along-with providing other finance facilities/personal loan to its clients, under monthly or daily installments-based collection schemes on mutually agreed terms and conditions. The Defendant no.1 is described to be the borrower, while the Defendant no.2, the guarantor under one Loan Hypothecation Agreement No.TY-00415 dated 31.12.2014 (hereinafter referred to as 'the Agreement') for an amount of Rs.42,000/- stated to have been executed inter-se the parties. Under the said Agreement, loan was extended by the Plaintiff to Defendant no.1 for purchase of a vehicle as per the Plaintiff's case. The Defendant no. 2 as per the terms had agreed to be equally liable jointly and severally, for compliance of conditions thereof, with Defendant no.1 as the principal borrower, their liability being co- extensive.
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3. It is averred that the Defendants had approached the Plaintiff and had availed the loan facility for purchase of a TVS Jupiter Scooter under the Agreement. The Defendants had undertaken to repay the dues to the Plaintiff as per the terms and conditions of documents executed inter-se the parties. The Plaintiff thus released the payment under the Agreement vide consolidated cheque bearing no. 004332 dated 26.12.2014 drawn on City Union Bank, Janakpuri, New Delhi, for a sum of Rs.42,000/- in favour of the sub-dealer M/s K.K. Automobiles and accordingly, the Defendant no.1 had received the product from the dealer. The payment schedule under the Agreement was to run on the basis of monthly installments of Rs.3,430/- from 25.01.2015 till 25.03.2016. The Defendant no.1 made certain initial payments towards monthly installments, but later started violating terms and conditions of the Agreement.
4. The Defendants eventually after making payment of Rs.25,460/- failed to clear installments as per the agreed terms. The Plaintiff accordingly served the Defendants with a notice dated 19.06.2018 by way of speed post seeking the recovery of the dues. Despite service of the legal notice, the payments were not made. The Plaintiff, under these circumstances served the Defendants with a Legal Notice dated 20.08.2018 by speed post and registered post, demanding the outstanding dues, but to no avail. Hence, the present suit for recovery of Rs.1,12,844/- and interest at the rate of 18% per annum, till its realization of the amount prayed, has been filed by the Plaintiff Company against the Defendants.
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5. Summons were directed to be issued to the Defendants vide Order dated 01.12.2018. Despite service of summons upon Defendant no.1, he neither appeared nor filed his Written Statement in the lis. Accordingly, vide Order dated 18.02.2020 the proceedings were set ex-parte against Defendant no.1. It is only Defendant no.2 who has contested the present suit.
WRITTEN STATEMENT OF DEFENDANT NO.2
6. The Defendant No.2 in his reply has averred that the suit is liable to be dismissed on the ground that the Plaintiff has made false assertions and has suppressed material facts. The Plaintiff had neglected in adhering to the guidelines of RBI while giving the loan on the hypothecation agreement. The Plaintiff is stated to have not verified the identities of the borrower and the guarantor and their capacity for the repayment of the loan installments. It is further pointed out that the loan hypothecation agreement was not properly registered or notarized to verify the signatures of the attesting witnesses. It is also pointed out that while the stamp paper was purchased by the Plaintiff on 07.07.2014, the loan hypothecation agreement was executed on 31.12.2014. It is stated further that the loan agreement is a fabricated document. It is averred that the Plaintiff did not even once inform or approach the Defendant No.2 seeking regular payments of the installments. The Defendant No.1 has claimed that he was the colleague of Defendant No.2 at the Government Press, Minto Road, New Delhi, asserting that the Plaintiff and Defendant no.1 in connivance have infact tried to cheat the Defendant no.2 using false and fabricated documents. The Defendant No.2 has absolutely denied giving any guarantee on CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.4 of 15 behalf of Defendant no.1 and has stated that he had neither ever approached the Plaintiff nor was any loan extended by the Plaintiff as claimed, with his signing the agreement as a guarantor. He has also denied receiving the legal notice.
REPLICATION TO WRITTEN STATEMENT OF DEFENDANT NO.2
7. The Plaintiff in its Replication has denied the objections taken in the Written Statement, again asserting that the parties had duly signed the Agreement out of their free will, whereby Defendant no.2 stood a guarantor to the loan liability of Defendant no.1, the borrower.
ISSUES FRAMED
8. The Ld. Predecessor vide Order dated 17.03.2020 had framed the following issues:
1. Whether the Plaintiff is entitled to a decree of Rs.1,12,844/-OPP
2. Whether the Plaintiff is entitled to receive pendente lite and future interest @ 18 % per annum as prayed for? OPP
3. Relief.
PLAINTIFF EVIDENCE
9. The AR of the Plaintiff had deposed as PW1 on the strength of his affidavit Ex PW1/1, relying upon copy of resolution dated 28.09.2012 (Ex.PW1/A); Copy of power of attorney dated 05.10.2012 (Ex.PW1/B) (OSR); Copy of certificate of commencement of business and certificate of CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.5 of 15 incorporation [ Ex.PW1/C (OSR) and Ex.PW1/D (OSR)]; Copy of NBFC issued by RBI [Ex.PW1/E (OSR)]; Copy of loan agreement [Ex.PW1/F (colly)]; Copy of bank statement (Ex.PW1/G); Copy of invoice dated 31.12.2014 (Ex.PW1/H); Copy of outstanding notice dated 18.06.2018 [Ex.PW1/I (colly)]; Copy of statement of account of Plaintiff Company Ex.PW1/J (colly)]; Certificate under Section 65-B Indian Evidence Act (Ex.PW1/K) and the Legal notice dated 20.08.2018 [Ex.PW1/L (colly)].
10. During his cross examination by the Ld. Counsel for Defendant no.2, the witness stated that it was Mr. Parmesh Kumar, who was the concerned authorized person to approve the loan. He further deposed that on 30.12.2014, M/s K.K. Automobiles had approached the Plaintiff Company for the approval of loan for Defendant no.1 and 2. He explained that the loan agreement was sent through M/s K.K. Automobiles after the requisite signatures and completion of procedural formalities and on the same day the loan agreement was sent to the office of Plaintiff Company along-with complete documents. After receiving the loan agreement with documents, the said papers were sent for re-verification to the concerned department of the Plaintiff. The witness PW1 acknowledged that the loan agreement was not signed in his presence.
11. PW1 further admitted that there was no document of Defendant no.2 on record which could authenticate the address/identity of Defendant no.2. He stated that he was informed that calls were infact made to Defendant no.2 regarding CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.6 of 15 the cheque issued towards the EMIs that had bounced. He admitted that efforts had not been made to re-possess the vehicle after default by the Defendants to repay the loan amount. The Plaintiff denied verifying the financial status of Defendant no.2 at the time of sanctioning the loan to Defendant no.1.
12. The witness referred to Ex.PW1/G, stating that it is the bank statement which reflects that the loan amount was credited in the account of the dealer from whom the vehicle was purchased by Defendant no.1. The witness affirmed that the Plaintiff had duly informed Defendant no.1 on each and every occasion when his cheques got bounced and that the payments made by Defendant no.1 have been reflecting in statement of account [Ex.PW1/J (colly)].
13. In the further cross examination of PW1, the witness denied the suggestion that the payment of Rs. 42,000/- was not made on behalf of the Defendants to M/s. K.K. Automobiles on 26.12.2015. The Plaintiff Company had obtained Post Dated Cheques from the borrower at the time of execution of loan agreement. The witness however could not tell the details of the cheques given. The Plaintiff Company, as per the witness was not aware that Defendant No. 2 was a government servant at the time of execution of loan agreement. The Plaintiff had obtained the identity proof of Defendant No. 2 at the time of execution of the Agreement, though stating that the same was not filed on record.
14. The second witness examined as PW2 for the Plaintiff was Mr. Parmesh Kumar, who deposed on the strength of his affidavit Ex. PW2/1. He relied upon the copy of authorization Ex PW2/A CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.7 of 15 and Certificate under Section 65 B of the Indian Evidence Act (already labelled as Ex.PW1/K). During his cross examination by the Ld. Counsel for Defendant no.2, PW2 stated that the loan agreement was not signed by Defendant No. 2 in his presence. There is no document dated 26.12.2015 on record which authorized the Plaintiff to credit the loan amount into the account of dealer. He could not remember if the identity proof of Defendant No. 2 was taken/ verified before execution of loan agreement. The Plaintiff also could not verify the financial capacity of Defendant No. 2 before sanctioning the loan to Defendant No. 1.
DEFENDANT EVIDENCE (FOR DEFENDANT NO.2)
15. The Defendant no.2 deposed as DW2 on the strength of his affidavit Ex. D2W1/1, tendering in evidence the Service Report [Ex D2W1/2 (colly)] and copy of FIR dated 14.1.2021 (Ex D2W1/4). In his cross examination by the Ld. Counsel for the Plaintiff, the witness stated that he can read and write both in Hindi and English. He denied the suggestion that he was not aware of the guidelines of the RBI referred to by him in his evidence affidavit, which the Plaintiff had not complied with at the time of execution of the Loan Agreement. The witness acknowledged that he had received the summons, though adding that the same Ex D2W1/2 had been handed over to him by the chowkidar at the address mentioned thereupon. He stated that he has been residing at the same address as mentioned in the record till May 2016.
CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.8 of 15
16. He stated further that he used to sign documents both in Hindi and English, though asserting that he mostly signed in English. He admitted that the details on points A and B on Ex PW1/F were his. The witness however when confronted with Ex PW1/F drawing his attention to signatures at points X1, X2, X3, X4, X5, X6 and X7 were his. The witness responded in the negative. He denied the suggestion that he deliberately did not inform the Plaintiff about change in his address. The witness denied the suggestion that with the intention to evade liability, the Defendant no.2 deliberately lodged a complaint against Plaintiff Company.
17. The second witness to depose for the Defendant no.2 as D2W2/1 was the handwriting expert Adarsh Mishra who deposed by way of his affidavit Ex. D2W2/1, tendering in evidence Expert Report dated 4.8.2022 along-with Certificate under Section 65 B of the Indian Evidence Act, including specimen signatures of the Defendant no. 2 in Original taken before the expert, copy of disputed signatures as on record and photo-chart of comparison [Ex. D2W2/A2 (colly)]. During his cross examination by the Ld. Counsel for Plaintiff, the witness when asked about his qualifications stated that he is BSC, MSC and PHD in Forensic Science and has been in the said field for six years now. When asked about the basis of preparation of the report Ex D2W2/A2 (colly), the witness stated that his expert opinion is based on the examination of supplied disputed documents and its comparison with specimen signatures. The witness was further asked if the report had been prepared after the examination of the original signatures of the Defendant. He CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.9 of 15 responded saying that the original signatures were not available with him, though adding that the specimen signatures were taken and the disputed photocopy documents were provided to him.
18. The witness was thereafter asked if he had verified the disputed signatures with original signatures of Defendant no. 2. He stated in response that he had not taken the photograph from the original documents on record, however had taken the photographs of the signatures from the photocopy provided to him by the Defendant.
19. The expert witness stated that he had asked Defendant no.2 to provide the documents from 2015 where he would've signed in Hindi, for comparison, however no such document was available. He acknowledged that there could be slight variations in the signatures of persons and also that after a period of seven years, there can be natural variations. He however added that the master pattern would remain similar. He denied the suggestion that no conclusive report can be given qua handwriting on the basis of photocopies. The witness was also questioned about corrections carried out in evidence affidavit and procedural non- compliances qua the same.
APPRAISAL
20. Final arguments were heard threadbare. The record has been perused carefully.
21. The Plaintiff to substantiate its claim for recovery against the Defendants has tendered in evidence the loan application CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.10 of 15 form and loan agreement dated 31.12.2014 [Ex PW1/F (colly)] bearing the particulars of the Defendants on the loan application form, along with the statement of account (Ex PW1/G), invoice issued by dealer M/s KK Automobile (Ex PW1/H), Legal Notice dated 18.6.2018 seeking recovery (Ex PW1/I) with dispatch receipts, statement (Ex PW1/J colly) and Certificate under Section 65 B Indian Evidence. The Plaintiff has claimed that the loan agreement was duly executed inter-se the parties and that the Defendant no.1 had duly benefited thereunder having purchased the two-wheeler vehicle against invoice dated 31.12.2014 in the name of Defendant no.1 as raised by the dealer (Ex PW1/H), with the aid of the loan facility availed. The Plaintiff has also reflected the transfer of payment to the dealer in the statement of account (Ex PW1/G) as effected on 1.1.2015. The Plaintiff witness/ AR had duly tendered these documents in evidence, with the statement of account (Ex PW1/J) and the Certificate under Section 65 B Indian Evidence Act Ex (PW1/K) having been duly proved by witness PW2.
22. Defendant no. 1 has failed to put up any contest to the claims of the Plaintiff on the basis of the aforesaid evidence led. However, the Defendant no.2 has not only sought to refute the Plaintiff's evidence through cross examination, but also by way of evidence led in the affirmative of his defence independently. The Defendant no.2, though having verified his details of address et al on the loan application form, has denied his signatures appearing as a Guarantor at points X1, X2, X3, X4, X5, X6, X7 appended in Hindi on the loan record [Ex PW1/4 (colly)]. To prove the said plea, the witness has examined the handwriting CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.11 of 15 expert Mr. Adarsh Mishra as D2W2/1 who has given his report (Ex D2W2/A2) after examining the signatures provided from the photocopies of the disputed record and specimen signatures given before him. As per the report the findings returned upon comparison are to the effect that the disputed signatures have not been affixed by the writer of the specimen signatures. The Plaintiff, though having failed to question the competence of the said witness on his expertise, has objected to the aforesaid report and its admissibility in evidence stating that such findings on the basis of expert scrutiny could have been returned only upon comparison of the original documents and not on the basis of photocopies, a modus admittedly followed in the instant suit. Law in the context of admissibility and evidentiary value of handwriting expert opinion is well settled. It was observed in State of Gujarat v Vinaya Chandra Chhota Lal Pathi [ (1967) 1 SCR 249] by the Hon'ble Apex Court that while the Court is competent to compare the disputed handwriting with the admitted endorsements, the opinion of a handwriting expert is also relevant in view of Section 45 of the Indian Evidence Act, though adding a caution that it is not conclusive.
23. The Plaintiff during the entire cross examination of the expert witness for Defendant no.2 has failed to pose any questions raising doubts over the signatures used as 'specimen' having not been actually secured by the expert as claimed from Defendant no. 2 in his own presence. The Plaintiff has also not questioned the witness during the deposition if the photocopy documents utilized were not infact the true copies of the original record. There is no effective plea therefore taken as can render the expert opinion discardable as outrightly inadmissible or CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.12 of 15 unreliable. The opinion as above discussed remains relevant, if not binding.
24. It is also trite law as further held in State of Gujarat v Vinaya Chandra Chhota Lal Pathi (supra) that the expert opinion evidence cannot be the sole basis of deciding a case in a certain way. In the instant suit, the Plaintiff has examined two witnesses, both of whom have acknowledged in their respective cross examinations that the loan agreement/record Ex PW1/F (colly) was not signed in their presence. With the Defendant no.2 having raised serious glaring doubts over his signatures at points X1 to X7 thereupon, having regard to the expert report proved returning a finding of dissimilarity inter-se the disputed and specimen signatures, the Defendant no.2 has established on the test of preponderance of probabilities, that he was not infact a signatory to the subject agreement, for any liability to be fastened upon him.
25. As regards the case of the Plaintiff against Defendant no.1, the onus of proving a case of loan liability was on the Plaintiff, in view of Sections 101, 102 and 103 of the Indian Evidence Act. It is trite law as observed in Anil Rishi v Gurbaksh Singh [MANU/ SC/ 8133/2006] by the Hon'ble Supreme Court of India, that the initial onus is always resting on the Plaintiff to prove its case in the affirmative. In the present suit, the Plaintiff has duly established the factum of transfer of financed amount in the account of the dealer, with the Defendant no.1 eventually benefiting therefrom, having purchased the two-wheeler vehicle against the invoice Ex PW1/H. The Defendant no.1 has failed to CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.13 of 15 put up any contest to the claims of the Plaintiff against him, rendering the case of the Plaintiff uncontroverted and unrebutted qua the borrower i.e. Defendant no.1.
ISSUE-WISE FINDINGS
26. Accordingly, in view of the above discussed reasons, the issues framed in the lis are decided as under :
(1) Whether the Plaintiff is entitled to a decree of Rs.1,12,844/-OPP Finding : This issue is decided in favour of the Plaintiff against Defendant no.1 only, as the burden for a case for recovery against the Defendant no.2 could not be discharged. (2) Whether the Plaintiff is entitled to receive pendente lite and future interest @ 18 % per annum as prayed for? OPP Finding : This issue is decided in favour of the Plaintiff against Defendant no.1 only with interest payable @ 8 % p.a., as the burden for a case for recovery against the Defendant no.2 could not be discharged.
RELIEF
27. The present suit thus is hereby decreed in favour of the Plaintiff against the Defendant no.1 for recovery of Rs. 1,12,844/- along with interest, pendente lite and future at the rate of 8 % p.a. from the date of filing of suit till realisation of the decretal amount. The suit stands dismissed qua Defendant no. 2.
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28. Decree sheet be prepared. File be consigned to Record Room as per Rules.
(Pronounced in the open court on 22.12. 2022) (Shriya Agrawal) JSCC cum ASCJ cum GJ South East District/Saket Courts 22.12.2022 CS SCJ 1676/18 UPHAR FINVEST LTD Vs YADVENDER PRATAP SINGH & ANR Page No.15 of 15