Delhi District Court
Sh. Rakesh Kumar Jaiswal vs Sh. Rahul Jaiswal on 3 September, 2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Suit No. 379/2019 (416 / 2019)
In the matter of:
Sh. Rakesh Kumar Jaiswal
S/o Late Dr. R.L. Jaiswal,
R/o Flat no. 1, Upper Ground Floor,
Street no. 7, B13, Sewak Park,
Uttam Nagar,
New Delhi - 110059
.....Plaintiff
Versus
Sh. Rahul Jaiswal,
S/o Late Dr. R.L. Jaiswal,
R/o Adhunik Tent House,
Behind Jayaswal Nursing Home,
Katchri Road, P.O.
PS Garhwa Jharkhand 822 114
....Defendant
Date of Institution of Suit : 10.05.2019
Date of reserving judgment : 02.09.2022
Date of pronouncement : 03.09.2022
Appearance:
1. Sh. H.L. Rai, Advocate, ld. Counsel for the plaintiff.
2. Sh. Mahesh Katyayan, Advocate ld. Counsel for the defendant
SUIT FOR RECOVERY OF ₹ 6,00,000/ (RUPEES SIX LAKHS ONLY)
ALONG WITH PENDENTELITE AND FUTURE INTEREST
CS No. 379/2019 (416/2019)
Rakesh Kumar Jaiswal v. Rahul Jaiswal
Page no. 1 of 18
JUDGMENT
1. Plaintiff has filed the present suit against defendant thereby seeking recovery of ₹ 6,00,000/ (Six Lakhs Only) along with pendente lite and future interest, which was given as interest free loan to defendant in terms of the loan receipt for a period of one year.
2. Relevant facts as emanating from the plaint are as under:
(i) It is averred that defendant is younger brother of plaintiff.
Defendant had come to the house of the plaintiff i.e. at Flat no. 1, Upper Ground Floor, Street no. 7, B13, Sewak Park, Uttam Nagar, New Delhi 110 059 and requested for a loan as defendant was in urgent need of ₹ 6 lakhs for his business requirements. Plaintiff, considering the request of defendant, had arranged a sum of ₹ 6 lakhs and handed over to defendant as friendly loan cash on 05.04.2018 in terms of the written undertaking (in short, the said receipt) given by defendant. The defendant had also promised to repay the said amount of ₹ 6 lakhs within a period of one year from the date of receiving the same.
(ii) It is averred that defendant, after expiry of the stipulated period, had not returned the said amount to plaintiff and made false excuses on one pretext or the other. The defendant is legally bound to return the amount of ₹ 6 lakhs along with interest @ 24% per annum.
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(iii) It is averred that defendant even stopped receiving the calls of plaintiff. The plaintiff also tried to meet defendant personally, however, defendant had deliberately avoided meeting plaintiff. Plaintiff, finding no other alternative, got issued a legal notice dated 09.04.2019 to defendant, however, defendant failed to reply the same. Hence, the present suit.
3. After filing of the present suit, summons for settlement of issues was issued to defendant. The defendant filed written statement and interalia submitted that late Dr. Rajendra Lal Jayaswal and late Dr. (Mrs.) Maharaja Kumari the parents of plaintiff and defendant (in short, the parents) were having five children namely :
i) Sh. Rakesh Jaiswal
ii) Rajesh Jaiswal
iii) Rahul Jaiswal
iv) Sangeeta Ahluwalia
v) Sarita Walia The parents were Doctors and used to run their nursing home in the name and style of "Jayaswal Nursing Home' in Garhwa, Jharkhand, and were permanent resident over there. The defendant always lived and work for again in Garhwa, Jharkhand and a permanent resident of Garhwa, Jharkhand and is living with his wife and children at the backside of the said nursing home which belonged to the parents.
4. It is submitted that the father of plaintiff and defendant had various properties in the Garhwa, Jharkhand the details of which are as follows :
CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 3 of 18 i. Property bearing plot no. 655, Khata no. 62, area measuring 7 decimal, Plot no. 551, area measuring 8 decimal & Plot no. 550 area measuring 2 Decimal, situated at Village Garhwa, Unchari Behind Ashok Cinema, Jharkhand, valued at ₹ 9,00,000/.
ii. Property bearing plot no. 539, 656 & 663, Khata no. 22, area measuring 2.64 Acre situated in Village Unchari, Thana Garhwa, Post Garhwa, Jharkhand - 822114. (Value, not known).
iii. Land/plot no. 93, Rakba 18.5 decimal, Khasra no. 22, khata no. 45, Thana no. 32, Tauji no.129 Ward no. 2, (Naya12) situated at Katchri Road, Garhwa, Tehsil Katchri Road, Garhwa, Distt. Garhwa, Jharkhand822114 The plaintiff being the eldest brother was trusted by all the other siblings, under the belief, that plaintiff will look after the interest of all the siblings. The plaintiff, on that pretext, obtained signatures of defendant on a plain paper, ostensibly, for filing before some government authorities and also for filing proceedings in court. The plaintiff, taking advantage of the faith reposed in him by defendant and other siblings, started liquidating other properties of the parents on the basis of forged and fabricated documents including Wills of the parents.
5. It is submitted that sisters of the parties to this suit suspecting some foulplay, filed a partition suit on 22.12.2017 bearing CS no. 212/2017 in the court of learned Civil Judge, Senior DivisionI, Garhwa, Jharkhand with the following prayers :
"i) Partition the disputed property in 1/6th equally share to each the legal heirs of the deceased CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 4 of 18
ii) Litigation charges be decreed in favour of the plaintiffs
iii) Any other relief along with such other directions that this Hon'ble Court deems fit and appropriate in the facts and circumstances of the case."
The plaintiff, on learning of the development of the partition suit, on 29.12.2017 on the basis of unregistered Will dated 01.12.2017 immediately contrived through forged document to sell 11.1/4 desimal (442.728 sq. yards) to one Smt. Indu Devi. The plaintiff, on 03.01.2018 filed a Letter of Administration bearing petition no. 01/2018 in the court of ld. Principal District Judge, Garhwa, Jharkhand in respect of the entire plot 93, large part of which had already been sold on devious documentation. Plaintiff, two weeks, later on, through forged signature of his mother, duping his younger brother executed a sale deed in respect of plot no. 4.3/4 desimal (229.900 sq. yards) in favour of his wife Varsha Jayaswal.
6. It is submitted that plaintiff, with a premeditated view to alienate the property completely, and to buy off his brothers, got executed another sale deed in respect of the remaining area admeasuring 2.1/3 desimal (112.772 sq. yards) from plot no. 93, Kachary Road, Garhwa Jharkhand in favour of wife of defendant Smt. Seema Jaiswal. The plaintiff, believing that he had disposed off plot number 93, now set about to dispose off the other properties of his father by putting up another unregistered Will dated 15.05.2017 in respect of the other properties.
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7. It is submitted that plaintiff is an unscrupulous person bent upon cheating the siblings of the parents, of their rightful shares, by indulging in serious malpractices and, therefore, the following litigations are pending between the parties :
S. Particulars Status Filed On
No.
1 Copy of the Probate Petition under Section 276 Dismissed as 14.09.2018 and
of Indian Succession Act, 1925 bearing PC no. withdrawn by the objections filed on
39/18 in respect of Will dated 15.05.2017 of late plaintiff behalf of
Dr. Rajendra Lal Jayaswal, filed by the plaintiff defendants on
herein along with the order dated 22.08.2019 30.01.2019
passed by Sh. Hargurvarinder S. Jaggi, ld. ADJ, Dwarka Courts, Delhi
2. Copy of Probate petition under Section 276 of Pending in the court of 14.09.2018 and Indian Succession Act, 1925 bearing PC no. Sh. J.S. Jaggi, ADJ, objections filed on 40/18 in respect of Will dated 27.02.2018 of late Dwarka Courts, Delhi behalf of Smt. Maharaja Kumari Jayaswal filed by the and the NDOH is defendants on plaintiff herein. 24.10.2019 30.01.2019
3. Photocopy of certified copy of partition suit in Pending in the court of respect of property land Land/plot no. 93, Rakba Civil Judge, Sr. 18.5 decimal, Khasra no. 22, khata no. 45, Division, Garhwa, 23.12.2017 Thana no. 32, Tauji no.129 Ward no. 2, (Naya Jharkhand
12) situated at Katchri Road, Garhwa, Tehsil Katchri Road, Garhwa, Distt. Garhwa, Jharkhand822114 filed by both daughters of the deceased (sisters of the plaintiff herein).
4. Photocopy from certified copy of petition for Pending in the court of Letter of Administration filed by the plaintiff Principal District Judge, herein in Jharkhand in respect of Will executed Garhwa, Jharkhand 03.01.2018 by Rajendra Lal Jayaswal in respect of property bearing no. Land/plot no. 93, Rakba 18.5 decimal, Khasra no. 22, khata no. 45, Thana no.
32, Tauji no.129 Ward no.2, (Naya12) situated at Katchri Road, Garhwa, Tehsil Katchri Road, Garhwa, Distt. Garhwa, Jharkhand822114
5. Suit for recovery filed by the plaintiff herein titled Pending in the court of 26.03.2019 as Rakesh Jaiswal v. Rajesh Jaiswal bearing CS Ms. Mamta Tayal, ADJ, WS filed on No. 282/2019 Dwarka Courts, Delhi 10.05.2019 filed by the plaintiff herein.
8. It is submitted that the defendant had never come to Delhi to the house of plaintiff for seeking a loan for any urgent requirement of ₹ 6 lakhs as alleged in the plaint. The said undertaking is completely CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 6 of 18 forged document using the blank paper signed by defendant as can be seen from the plain reading of the contents written in the handwriting of plaintiff.
9. It is submitted that the date of filing of present suit clearly indicates that it is a counter blast against the litigations filed by the siblings of the parents against plaintiff in respect of the other properties belonging to the parents. The defendant is not withdrawing the suit against plaintiff, hence, plaintiff came up with the devious plan and filed false suit against the defendant and another suit against his brother Sh. Rajesh Jaiswal. The plaintiff, by way of the present suit, is trying to pressurize defendant to withdraw other litigations, more particularly, in relation to the fabricated Will of his father, and is now misusing the papers taken in trust as detailed above.
10. It is submitted that plaintiff is trying to usurp all the properties including the nursing home of the parents and filed the present suit. It is also submitted that defendant has never took any amount of ₹ 6 lakhs from the plaintiff as alleged, therefore, the question of returning the same including interest did not arises. This suit deserves to be dismissed.
11. Replication has been filed by plaintiff denying the averments made by defendant in his written statement and reiterating the contents of the plaint.
CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 7 of 18
12. On the basis of pleadings of the parties, following issues were framed on 10.02.2020:
i) Whether the plaintiff has advanced a loan of ₹ 6 lakhs to the defendant in terms of the undertaking dated 05.04.2018 ? OPP
ii) If issue no. 1 is answered in affirmative, whether the plaintiff is entitled to a decree of ₹ 6 lakhs alongwith pendentelite and future interest at the rate of 24% p.a ? OPP
iii) Whether the undertaking dated 05.04.2018 is forged and fabricated by the plaintiff ? OPD
iv) Whether the suit is liable to be dismissed as no cause of action has arisen in favour of the plaintiff ?
v) Relief.
13. In order to prove his case, plaintiff stepped into witness box as PW1 and deposed by way of affidavit of evidence Ex. PW1/A and has relied on the following documents :
1. Written undertaking dated 05.04.2018 is Ex. PW1/1,
2. Copy of legal notice is Ex. PW1/2,
3. Post slip dated 10.04.2019 as proof of delivery of legal notice is ex.
PW1/3,
14. Thereafter, plaintiffs evidence was closed and matter was listed for recording of defendant's evidence. Defendant examined himself as DW1 and deposed in terms of evidence affidavit Ex. DW1/A and has relied on following documents :
1. Case pending between the parties are already exhibited as Ex.PW1/D1,
2. Letter of administration bearing petition no. 01/2018 in the court of ld. Principal District Judge, GarhwaJharkhand in respect of the entire plot no.93 is already exhibited as Ex.PW1/D2, CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 8 of 18
3. WILL dated 15.05.2017 in respect of the property other than plot no.93 is already exhibited as Ex.PW1/D3,
4. Copy of petition bearing n.40/2018 pending in the court of Sh.Hargurvinder Singh Jaggi, ld.ADJ is Ex.DW1/1,
5. Suit for possession pending between cobrother is exhibited as Ex.DW1/2.
15. I have heard the arguments advanced by learned Counsel for the parties and with their assistance have also gone through the record.
16. My issue wise findings are as under : Issue nos. 1,2 & 3 These issues are overlapping and disposed off by way of common order. The plaintiff in order to prove its case, appeared as PW1 and testified through his affidavit of evidence Ex. PW1/A and reiterated the contents of the plaint, which are not reproduced for the sake of brevity. However, in crossexamination, PW1 has testified that his parents were Doctor by profession and his father was having three properties at Garhwa, Jharkhand. Father of the parties expired on 08.12.2017 leaving behind five legal heirs and after the death of his mother, property no. 93 at Jharkhand was sold to Smt. Indu Devi. He has denied the suggestion that the said property was sold through unregistered will of his father. He has denied the suggestion that on 17.01.2018, he got executed the sale deed through defendant, in the name of his wife in respect of plot number 93 to the extent of 4.3/4 decimal (229 sq. mtrs.). He admitted that the said sale deed was executed in the name of his wife by his mother and brother. The part of CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 9 of 18 the property bearing no.93 admeasuring 2.1/3 decimal (112 .772 sq. yards) was transferred in the name of Smt. Seema Jaiswal, wife of defendant.
17. PW1 further testified that his sisters filed a partition suit bearing no. 212/2017 pending in the court of ld. District and Sessions Judge, Garhwa, Jharkhand. He admitted that he has filed a petition bearing no. 01/218 in respect of unregistered will dated 01.12.2017 executed by his father. He admitted that he has filed a petition under section 276 of the Indian Succession Act bearing no. 39/2018 in respect of the unregistered will dated 15.05.2017 of his father. However, the said petition has been withdrawn on account of lack of territorial jurisdiction.
18. PW1, further testified that he filed a petition bearing number 40/2018 in respect of the registered will dated 27.02.2018 executed by his mother in his favour, which is pending adjudication. He admitted that in both the petitions, his brothers and sisters have filed the objections. He denied the suggestion that at the time of selling the said property situated at Garhwa, Jharkhand by mutual consent of the brothers, he got signed a blank paper from defendant. He admitted that the receipt Ex. PW1/1 was written in a blank paper by him and defendant only signed it.
19. PW1 further testified that he did not file income tax return and he is dealing in the business of share market and is earning an amount CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 10 of 18 of ₹ 20,000 to ₹ 25,000/ per month. He was having some amount at his residence and the deficient amount was taken by him from his friends. He denied the suggestion that he has not taken the amount, from his friends. He denied that he has not paid the amount of ₹ 6 lakhs to defendant. He denied the suggestion that he was having no capacity to pay an amount of 6 lakhs in cash to defendant. He admitted that Ex. PW1/1 did not bear signature of any witness. He further admitted that no payment of interest is written in the said receipt. He denied the suggestion that the receipt is forged and fabricated on blank paper. He admitted that he has filed a suit for partition against his younger brother Sh. Rajesh Jaiswal, which is pending for consideration. He denied the suggestion that he has forged and fabricated all the Wills of his parents.
20. To rebut the case of plaintiff, defendant appeared as DW1 and testified through evidence affidavit Ex. PW1/1 and reiterated the contents of the written statement, which are not reproduced for the sake of brevity. In crossexamination DW1 testified that plaintiff is his elder brother. He has never took any assistance from plaintiff and, hence, no love and affection towards his brother/plaintiff. He had affection for all his family members. Plaintiff has cheated him as well as other family members. He has visited his mother before her death on 23.03.2018. He has also attended the last rites of his mother. He stayed in the house of his brother till the last rites of his mother was performed.
CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 11 of 18
21. DW1 denied the suggestion that he had ever asked the amount of ₹ 10 lakhs as an advance from the plaintiff. He denied the suggestion that plaintiff ever handed over him an amount of 6 lakhs. He admitted the signature on the receipt Ex. PW1/1, however, he further stated that he has signed the said receipt on the blank paper. The revenue stamp was also not affixed when he put his signatures. He admitted that the property owned by his father as detailed in the written statement were his self acquired properties and his father has never executed a Will in respect of the properties. He has admitted the signature on Ex. PW1/1 but he has signed the blank plain document.
22. DW1 did not remember whether the Will dated 01.12.2017 was executed by his father in favour of plaintiff. He admitted that Sh. Rahul Jaiswal and Sh. Rajesh Jaiswal had executed the sale deed in favour of Ms. Seema Jaiswal. He denied the suggestion that his parents, on account of ill treatment, has decided to stay with his elder brother/plaintiff. DW1 submitted that he has signed 45 blank papers on the trust of his elder brother as he is staying in Delhi, however, he could not tell as to whether the said blank documents were used by plaintiff. He has stated he has never challenged the sale deed executed in the name of Smt. Varsha Jaiswal by Sh. Rakesh Jaiswal, otherwise, his sister has filed the case in this regard. His wife is attesting witness in the said sale deed executed in favour of Smt. Varsha Jaiswal. He admitted that he himself and Sh. Rajesh Jaiswal had transferred their shares in the suit property in favour of Smt. Seema Jaiswal without partition of the same and without getting any CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 12 of 18 sale consideration.
23. DW1, testified that he has not taken any amount in cash or in cheque or any loan except the present suit for recovery of ₹ 6 lakhs. He admitted that he has received the amount detailed in two entries in document Ex. DW1/PDX but he has received this amount for repair of the said property as well as for boring the submersible in the said property but he did not remember the exact house number. His parents never resided in Delhi, otherwise, they resided in Garhwa. He and his family has visited his parents at Delhi on number of occasions and was having cordial relations with his parents. He stayed with his parent as and when he happened to be in Delhi. His parents were having good health and having cordial relations with defendant.
24. The pivotal issue involved in the present suit is that whether the document Ex.PW1/1 was executed in the manner, as averred by plaintiff and plaintiff paid the loan amount of ₹ 6 lakhs to defendant.
25. Before reaching to any conclusion, it is imperative to examine the facts of the lis and the evidence of the parties. It is the case of plaintiff that defendant approached him for a loan of ₹ 6 lakhs and he advanced the loan of ₹ 6 lakhs for a period of one year i.e from 05.04.2018 to 04.04.2019 in terms of receipt Ex. PW1/1 which was admittedly written by plaintiff and allegedly signed by defendant.
26. During the course of arguments, ld. counsel for plaintiff has raised the following contentions, namely ;
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(i) that defendant has admitted the receipt Ex. PW1/1 being signed by him, but he has taken a false defence that he has signed a blank document, whereas the receipt Ex.PW1/1 bears his signature on the revenue stamp. The revenue stamp was duly affixed then and there, but unintentionally the little more gum was abruptly, by chance, used and revenue stamp was bound to flip up under the situation, otherwise, the undertaking was made in the presence of defendant only, and has been duly signed by defendant in the presence of plaintiff. The said receipt was prepared under the directions of defendant by plaintiff.
(ii) That defendant in his cross examination on 22.03.2022 has made a categoric admission that he has taken the loan amount of ₹ 6 lakhs and apart from that he had not taken any amount in cash or by way of cheque. Therefore, on the basis of admission of the defendant, the suit deserves to be decreed.
(iii) That plaintiff was having sufficient funds with him and he has categorically deposed that he was having the amount at his residence and the remaining amount he had arranged from his friends. Plaintiff has also given the amount to defendant in terms of the document Ex. DW/1PDX from the account of his wife. Therefore, the plaintiff was having the capacity to extend the loan of ₹ 6 lakhs to defendant.
27. It may be noted that that plaintiff has deposed that he was earning an amount of ₹ 20,000 to ₹ 25,000, therefore, the annual income as revealed by the plaintiff was merely about 2.5 to 3 lakhs CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 14 of 18 which is grossly inadequate in adventuring into such kind of advancing loan to the tune of ₹ 6 lakhs. It is not the case of plaintiff that he has spared money from which he pulled out of ₹ 6 lakhs to be paid to defendant. The plaintiff has pleaded and tried to prove that some amount he was having at his residence and the remaining amount he has collected from his friends, however, none of his friends have been examined so as to prove that how much amount from which friend was arranged by plaintiff.
28. It may be noted that the receipt Ex. PW1/1 is not witnessed by any person and the said receipt bears the signature of defendant only and revenue stamp is affixed beneath thereunder, and it appears that the same has been affixed under the signature of defendant so as to create an impression that documents Ex. PW1/1 has been duly signed by defendant on the revenue stamp. Had the defendant executed the said receipt after having affixed the revenue stamp thereon, his signature must have been appended on the revenue stamp itself. A bare perusal of this receipt depicts that the revenue stamp has been affixed just under the signature of the defendant, so as to show that the defendant had signed on the said receipt.
29. It may be noted that except the testimony of PW1, there is no other independent witness so as to infer that plaintiff was having the funds of ₹ 6 lakhs out of his meager income and he has arranged the funds from his friends as pleaded by him and the said receipt has been signed by defendant after affixing the revenue stamp. The defendant has very categorically submitted that he has signed some blank CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 15 of 18 documents and handed over the same to plaintiff being his elder brother, which has been misused by plaintiff. He has also admitted his signatures but by merely exhibiting a document the same did not lead to conclude that the document has been executed in the mode and manner as claimed by plaintiff. It is well settled legal position that the genuineness of document has to be proved by plaintiff who relies upon the document and, thereafter, it is for the defendant to discharge the credibility of the document as false, sham and bogus document.
30. It is well settled legal position that initial onus is always upon the plaintiff to prove the fact and if he discharges that onus and makes out a case which entitles him to a relief, then onus shift to the defendant to prove those circumstance, if any, which would disentitle the plaintiff to the same. In this case, nothing has been discharged by the plaintiff . The plaintiff has not proved by adducing cogent evidence on record that he had advanced the loan of Rs. 6 lakhs to defendant. Otherwise, defendant has proved on record that various litigations are pending between plaintiff and defendant as detailed in para no. 6 of the evidence affidavit Ex. DW1/A which fact lead to conclude that plaintiff and defendant were having no cordial relations, otherwise, they were having acrimonious relationship.
31. So far as the contention regarding admission of the defendant regarding receipt of the loan of ₹ 6 lakhs is concerned, suffice is to say that, defendant in his crossexamination dated 23.07.2022 has stated that "I have not taken any amount in cash or by cheque or any loan except the present suit for recovery of Rs. 6 lakhs".
CS No. 379/2019 (416/2019) Rakesh Kumar Jaiswal v. Rahul Jaiswal Page no. 16 of 18 A bare perusal of the same did not lead to conclude that there is a clear, unequivocal and unambiguous admission of the liability of the suit amount by defendant, otherwise also, defendant has pleaded in his pleadings as well as evidence affidavit that he has not availed any loan from plaintiff and plaintiff has forged and fabricated the receipt Ex. PW1/1. Therefore, it cannot be stated that there is a candid admission by defendant of the liability involved in the suit amount. Therefore, this contention deserves to be rejected and is hereby rejected.
32. As far as the contention regarding transfer of money from the account of wife of the plaintiff to the account of defendant is concerned, suffice is to say that defendant has admitted the said meager amount transferred from the account of wife of the plaintiff to his account but the said transfer of money is neither involved in the present suit nor from the said transfer, it can be concluded that defendant has availed a loan of ₹ 6 lakhs from defendant on execution of the receipt Ex. PW1/1.
33. It may be relevant to note here that the said receipt cannot be read in isolation unless succored by other circumstances, especially when the entire payment is stated to be made in cash. The above said circumstances, on preponderance of probabilities, indicates that there is something more to the case in hand that what plaintiff expected the court to believe. The plaintiff has failed to discharge the onus placed on him under section 101 of the Indian Evidence Act, in such a situation, it may not be appropriate to fasten the defendant with a liability of ₹ 6 lakhs, especially when the plaintiff has not approached the court with true and complete facts.
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34. The plaintiff could not pass the acid test of crossexamination and plaintiff failed to disclose as to on what grounds, testimony of plaintiff could be believed. In the circumstances, the case of plaintiff is improbable and it will not be enough to burden the defendant with the liability to pay the plaintiff the amount claimed by him. These issues are accordingly decided in favour of the defendant and against the plaintiff.
Issue no. (iv)
35. The onus to prove this issues is on the defendant, however, no evidence has been lead by defendant in this regard except bald allegations raised in the written statement, therefore, this issues is decided in favour of the plaintiff and against the defendant.
Relief:
36. In view of the findings on issues aforesaid, I am of the considered opinion that plaintiff has not been able to establish its case against defendant. The suit filed by the plaitniff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
Announced in the open court on VIJAY VIJAY KUMAR
DAHIYA
03rd Day of September, 2022 KUMAR Date:
DAHIYA 2022.09.17
16:51:01
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS No. 379/2019 (416/2019)
Rakesh Kumar Jaiswal v. Rahul Jaiswal
Page no. 18 of 18