Delhi District Court
Ms. Poonam Krishna Manuja vs Mrs. Anupama Juneja on 10 June, 2022
IN THE COURT OF SH. ANKIT KARAN SINGH,
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. : 9236/16
Date of Institution of suit : 18.02.2015
Date of reservation of judgment : 04.06.2022
Date of pronouncement of Judgment : 10.06.2022
Ms. Poonam Krishna Manuja
R/o 61, Mausam Apartments
C2, West Enclave, Pitampura
New Delhi34.
.................Plaintiff
Vs.
1. Mrs. Anupama Juneja
2. Mr. Sumit Juneja
3. Mr. Amit Juneja
All residents of
A3/146, Janakpuri
New Delhi58
Also at
GF2, Anand Chambers, 25/34
East Patel Nagar, New Delhi08
............Defendants
SUIT FOR RECOVERY
JUDGMENT
Initially the suit was filed U/o 37 CPC. Thereafter Vide statement made by counsel for plaintiff the present suit was converted into ordinary suit for recovery on 17.04.2015.
CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 1/21
1. Brief facts of the present case as per plaint are that defendants are legal heirs of Late Mr. Subhash Juneja ( hereinafter referred to as 'deceased') who expired on November, 2012, who was the proprietor of firm named Jaico Securities which was engaged in the business of share trading. Defendant no.1 is the wife of deceased Mr. Subhash Juneha and defendant no.2 and 3 are sons of defendant no.1.
2. It is further averred by the plaintiff that deceased approached plaintiff and her husband Mr. Manish Krishana in the year 2003, and sought loan from them with the promise of providing better rate of interest as compared to banks and other government schemes and plaintiff out of her savings started providing loan to deceased since 2003 wherein monthly interest of Rs. 4,750/ was paid to the plaintiff and a cheque bearing no. 373999 of Rs. 2,50,000/ dated 28.07.2007, was issued by deceased to plaintiff in lieu of loan amount as surety.
3. In the year 2006, plaintiff provided a loan of Rs. 1,50,000/ to deceased and in lieu thereof, a post dated cheque bearing no. 265619, drawn on Indian Bank dated 14.01.2008 for the sum of Rs. 1,50,000/ was handed over to plaintiff by deceased as surety and assurance was given by defendant to pay monthly interest @ 12 % on the said amount to plaintiff and therefore, the said loan was renewed on 14.01.2008 I.e after expiry of two years and a post dated cheque bearing no. 272893, dated 14.01.2010 was issued as surety by deceased to the plaintiff. It is further stated that plaintiff again renewed the said loan in January, 2010 and a post dated cheque dated 14.01.2012 was issued by deceased to plaintiff as surety. It is further stated that after the maturity of said period the loan of Rs. 1,50,000/ was again renewed in January, 2012 and in lieu thereof a cheque bearing no. 987331 dated 14.01.2014 was CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 2/21 issued by deceased to plaintiff and the cheque had been deposited with bank with the hope that it will be cleared however the same got dishounoured with the reason "kindly contact drawer/drawee and please present again.".
4. It is further stated that the deceased assured the plaintiff that interest of 12 % would be paid on the above said loan of Rs. 1,50,000/, hence a sum of Rs. 88,433.47/ has been paid by the deceased to the plaintiff from time to time as interest between January, 2008 and November, 2012 and the said interest was paid by the deceased vide cheques drawn on Indian Bank. It is further averred that in addition to the abovesaid loan, a sum of Rs. 75,000/ was also provided to the deceased by the plaintiff as loan in the year 2007 against which a total sum of Rs.17,249.83/ was paid by the deceased to the plaintiff from September, 2007 to July 2009 vide various cheques drawn on Indian Bank, Janakpuri, New Delhi.
5. It is further averred that the loans were renewed by the plaintiff after every two years however, in the year 2009, in addition to the previous loan of Rs. 75,000/, a further sum of Rs. 50,000/ was taken by the deceased as loan. Thereafter on a total loan of Rs. 1,25,000/, a post dated cheque bearing no. 104761 of amount Rs. 1,25,000/ drawn on Indian Bank dated July 13,2011 was issued by the deceased in favour of plaintiff as surety.
6. It is further stated that since monthly interest was paid by the deceased to the plaintiff on the said loan amount, therefore the said loan amount was extended again for two years. Accordingly, another post dated cheque bearing no. 383433, drawn on Indian Bank , dated July, 13, 2013 of Rs.1,25,000/ was provided by the deceased to the plaintiff as surety. Further stated that on the loan amount of Rs.
CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 3/21 1,25,000/ a sum of Rs. 46,249.80/ has been paid by the deceased to plaintiff as interest vide various cheques drawn on Indian Bank from January, 2009 to November, 2012. Since no interest was paid to the plaintiff for the month of December, 2012, plaintiff after making enquiries in this regard, got to know that Late Mr. Subhash Juneja had expired in the month of November, 2012. Thereafter plaintiff made request to the LRs of Sh. Subhash Juneja, to make the payment of remaining loan amount with interest, however they kept on delaying the matter on one pretext or the other.
7. It is further averred that despite several assurances, defendants had not made payment, hence the plaintiff was constrained to issue legal notice dated 07.10.2014 viz registered AD and said legal notice was replied by the defendant no.1 and 2 vide reply dated 31.10.2014. However no payment was made by defendants. Hence this suit.
8. By way of present suit the plaintiff has prayed for the following reliefs :
1. Decree for sum of Rs. 2,75,000/ be passed in favour of plaintiff company and against the defendant company.
2. Pendente lite and future interest @ 18 % p.a be awarded to plaintiff company from the due date of respective cheques till date of realization of the amount due.
3. Any other relief.
9. Written statement filed on behalf of defendant no.1 and 2 wherein it is stated that no cause of action arose in favour of plaintiff. It is further contended that there is no privity of contract between the plaintiff and deceased Sh. Subhash Juneja. Neither the deceased Sh. Subhash Juneja nor the defendants are liable to pay any amount to CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 4/21 plaintiff on any account whatsoever.
10. It is further stated that plaintiff has concealed material facts as Sh. Manish Krishna Manuja (husband of plaintiff) is cousin brother of defendant no.1 and cousin mama of defendant no.2. It is further stated that defendant no.3 is a NRI and is living in Ireland with his family for about 13 years and defendants no.1 and 2 have not accepted or received any notice/summons on behalf of defendant no.3.
11. It is further stated that the present suit has been filed by plaintiff with an ulterior motive and evil design to extort money from the defendants.
12. In reply to the merits it is stated that M/s Jaico Securities never took loans from public at any point of time and M/s Jaico Securities never conducted business as a bank or financial institution as averred by the plaintiff.
13. It is denied that the deceased Sh. Subhash Juneja approached the plaintiff or her husband in 2003 for seeking a loan or that the deceased Sh. Subhash Juneja promised to give a better rate of interest as compared to banks or other Government schemes as there are other banking institutions and companies for this purpose. It is stated that no loan was provided by plaintiff to deceased Sh. Subhash Juneja at any point of time, hence there is no question of payment of any interest.
14. It is stated that husband of Sh. Manish Krishan Manuja used to visit frequently the office of deceased Sh. Subhash Juneja because the husband of plaintiff used to conduct business of trading of shares through deceased Sh. Subhash Juneja who was the proprietor of M/s Jaico Securities. The husband of plaintiff, had suffered heavy losses in the said share trading business, but still he continued to conduct share trading transactions through deceased Sh. Subhash Juneja CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 5/21 and it appears that that the husband of plaintiff laid hands upon some cheques, which were kept in the office of deceased Sh. Subhash Juneja during his visits to the office Sh. Subhash Juneja. It is further stated that Late Sh. Subhash Juneja was never in any financial difficulties which could have forced him to avail any loan from the plaintiff and in fact, Late Sh. Subhash Juneja had earned a huge reputation as honest and fair dealer and hence the allegations levelled by the plaintiff are unsustainable. In rest of the W.S the averments made in plaint are denied and prayer is made for dismissal of suit.
15. Vide Order dated 08.01.2018, defendant no.3 was dropped from the array of parties.
16. Replication to the W.S is filed wherein the averments made in plaint are reiterated and the contentions raised in W.S are denied.
17. Vide Order dated 14.03.2018, the following issues have been framed by the Ld. Predecessor of this court :
1. Whether the plaintiff is entitled to a decree for a sum of Rs. 2,75,000/ as prayed for ? OPP
2. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period ? OPP
3. Relief.
18. In order to prove her case plaintiff examined herself as PW1 and tendered in evidence her duly sworn in affidavit which is Ex. PW 1/ A and relied upon the following documents :
(1) Copy of loan receipt dated 15.01.2000 Mark X issued by the plaintiffs having reference number L/429 CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 6/21 (2) Copy of acknowledgement slip bearing no. Mark Z 12691 dated 11.01.1999 (3) Copy of loan receipt dated 15.01.2000 Mark Y issued by the plaintiffs having reference number L/10/2000 (4) Copy of cheque bearing no. 343236 and Mark A 343237 both dated 14.01.2000 (5) Copy of form dated 11.01.1999 issued Mark A1 by the defendant (6) Copy of acknowledgement slip bearing Mark E no. 12692 dated 11.01.1999 (7) Covering letter dated 04.11.2000 Mark F (8) Covering letter dated 20.11.2000 Mark G (9) Covering letter dated 01.01.2001 Mark H (10) Copy of 18 Cheques issued in favour of Mark A2 plaintiff by defendant at various instances (11) Bank Account Statement of HSBC bank Ex.PW 1/2 of plaintiff and her husband (OSR) for the period w.e.f 01.01.2010 to 01.10.2012 (12) Copy of interest chart, chart which shows Mark A3 that Jaico group of Companies is one of selective company which accepts deposit and copy of gift chart (13) Copy of photographs of the shop showing the Jaico Mark I Group of Companies also deals with share and commodities (14) Copy of cheque bearing no. 373999 of Rs. Mark A4 2,50,000/ drawn on Indian Bank dated CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 7/21 28.07.2007 (15) Copy of cheque bearing no. 265619 of Rs.
1,50,000/ drawn on Indian Bank dated Mark A5 14.01.2008 (16) Copy of cheque bearing no. 272893 Mark A6 drawn on Indian Bank dated 14.01.2010 (17) Copy of cheque bearing no. 987331 Ex. PW 1/5 drawn on Indian Bank dated 14.01.2014 (18) Copy of return memo dated 21.01.2014 Ex. PW 1/6 (19) Copy showing interest received by PW1 Mark A7 from the defendant w.e.f 200812 (colly) alongwith copy of cheques (20) Copy of table showing interest received by Mark A 8 PW1 on loan of Rs. 75,000/ w.e.f 2007 (colly) to 2009 alongwith copies of cheques (21) Copy of cheque bearing no. 104761 dated Mark A9 13.07.2011 drawn on Indian bank for an amount of Rs.1,25,000/ (22) Cheque bearing no. 383433 dated Ex. PW 1/7 13.07.2013 drawn on Indian bank for an amount of Rs. 1,25,000/ (23) Copy of table showing interest received by Mark A 10 PW1 of Rs. 1,25,000/from 2009 to 2012 alongwith copies of cheques (24) Copy of legal notice dated 7th October, Ex. PW 1/8 2014 (25) Reply dated 31.10.2014 to the legal Ex. PW 1/9 notice on behalf of defendant no.1 and 2 CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 8/21
19. Beside herself plaintiff has also examined another witness namely Sh. Manish Krishna who has tendered in evidence his duly sworn in affidavit as Ex. PW 2/A.
20. PWs were crossexamined by counsel for defendants and thereafter on 25.01.2019, PE was closed vide statement made by counsel for plaintiff in this respect and the matter was listed for DE .
21. In defendant evidence Sh. Sumit Juneja was examined as DW1 who has tendered in evidence his duly sworn in affidavit as Ex. DW 1/A.
22. DW1 was crossexamined by counsel for plaintiff and thereafter vide statement made by counsel for defendant no.1 and 2, on 05.03.2019, DE was closed and the matter was listed for final arguments.
23. I have heard final arguments advanced by counsel for parties and perused the record.
24. My issuewise findings are as under :
ISSUE NO 1 Whether the plaintiff is entitled to a decree for a sum of Rs. 2,75,000/ as prayed for ? OPP In the present case, defendants have not relied upon a single document in support of their defence. Plaintiff has relied upon various documents in support of her case. Most of these documents are photocopies. Lets determine whether plaintiff has sufficiently proved all the documents relied by her. PW1 has relied upon various documents during testimony most of which are marked. PW2 has relied upon the documents already relied by PW1. PW3 is bank witness.
CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 9/21
25. Indian Evidence Act provides that
61. Proof of contents of documents. -- The contents of documents may be proved either by primary or by secondary evidence.
62. Primary evidence. -- Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. --Where a document is executed in several parts, each part is primary evidence of the document.Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. -- Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
63. Secondary evidence. -- Secondary evidence means and includes --
(1)certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: --
(a) when the original is shown or appears to be in the possession or power --of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 10/21 does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
26. Hon'ble Supreme Court in Jagmail Singh & Anr vs Karamjit Singh & Ors, Civil Appeal no 1889 of 2020, held that "11. A perusal of Section 65 makes it clear that secondary evidencemay be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 11/21 given being the reasons as to why the original Evidence has not been furnished.
....
14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H.Siddiqui (dead) by LRs Vs. A. Ramalingam, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence."
27. In the present case, PW1 has marked various documents being photocopy. The affidavit of PW1 or plaint does not lay the foundation for leading secondary evidence. Plaintiff not even suggested during course of proceedings in whose possession or power the original document lies. PW2 also did not lay any foundation for leading secondary evidence in the present case. PW2 during his cross examination stated that he does not know where are the originals of the copies of loan receipts, acknowledgment slips etc. PW2 during his crossexamination denied the suggestion that he is not producing the originals of loan receipts, acknowledgment slips etc as the same are false and fabricated. PW2 voluntarily added that he could not trace out the originals despite best efforts. As per Section 64 of Evidence Act, documents must be proved by primary evidence except in the cases mentioned in section 65 of Evidence Act. Clause (a) of sec 65 of Evidence Act, cannot be applied as PW1 and PW2 did not mention in whose possession or power original document lies. Clause (b) of sec 65 of Evidence Act, cannot be applied in the present case as the documents are not admitted by the defendants. Clause (c) of sec 65 of Evidence CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 12/21 Act, cannot be applied in the present case as PW1 and PW2 have not specifically stated that original documents cannot be traced due to reason not arising from their own default or neglect. Similarly, clause
(d), (e), (f) and (g) of sec 65 also does not apply in the present case. It is apparent that without laying foundation for leading secondary evidence PW1 and PW2 cannot rely upon photocopies. In view of the above, this court finds that photocopies are not sufficiently proved in the present case and thus, cannot be relied upon by the court. Hence, marked documents cannot be appreciated.
28. Counsel for the defendants has argued that plaintiff is not clear in her stand whether loan was given to late Mr. S. C. Juneja or a deposit or investment was made with Jaico Securities. Counsel for the plaintiff has submitted that it was deposit though in the plaint and testimonies of PW1 and PW2 loan is also mentioned. In the plaint, testimony of PW 1 and PW 2 loan or deposit or investment term has been used. Merely on the basis of wrong terminology this court does not find that plaintiff's suit must fail. The marked documents contain the loan receipt Mark X, fixed deposit term in Mark Z and deposit/loan details in other marked documents. Ambiguity seems to be created in view of documents being given to the plaintiff by Sh. S. C. Juneja.
29. It is the case of the plaintiff that she provided loan to the defendant since 2003 out of her own savings. During crossexamination PW1 stated that she gave somewhere around Rs 50,000/ to her husband. It was further stated that post 2003 she has given the money to her husband two or three times but she do not remember the exact dates but the amount was lesser than Rs.50,000/. If we go by the cross examination of PW1, even if we take the liberal view here, as per PW 1 she has given around Rs.2,00,000/ to her husband for giving it to late CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 13/21 Mr. S. C. Juneja. It is further the testimony of PW1 that all transactions used to be made by her husband i.e. PW2 on her behalf. As per plaint and testimony of PW2, sum of Rs. 1,50,000/, then Rs. 75,000/ and finally Rs. 50,000/ was paid to late Sh. S. C. Juneja. In para 17 of affidavit of PW1 and in para 16 of affidavit of PW2, it is testified that defendant till date have failed to liquidate the outstanding amount of Rs. 2,75,000/ along with upto date interest. Thus, it is apparent that there is minor discrepancy in the testimony of witnesses to the extent what amount was given by plaintiff to her husband. However, the same can be attributable to the fallible human memory and cannot be a ground to disbelieve PW1 and PW2 completely.
30. It is also to be noted that during crossexamination, PW1 was questioned about her source of income. She stated that she has been giving tuition classes since 2001 and the money given to her husband was out of her savings earned from the tuition classes. She further stated that income tax returns are filed on her behalf by her husband. She further stated that she does not maintain any books of accounts and she has not shown these loan amounts at any place. The testimony of PW1 and her crossexamination clearly shows that loan/deposits were not accounted anywhere. PW2 during his crossexamination stated that he has never seen any FDR or loan agreement issued by Sh. S. C. Juneja in favour of any person. PW2 further stated he did not show the investment amounts in his ITR of 2003 or of subsequent years nor did he show any interest received or accrued. PW2 further stated that it is correct that investment amounts with Sh. S. C. Juneja were not accounted for anywhere.
CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 14/21
31. In the present case, PW1 and PW2 have filed bank account statement of HSBC bank of the plaintiff and her husband for the period w.e.f. 01.01.2010 to 01.10.2012 as Ex PW 1/ 2. PW3 has also brought certified copy of statement of account of PW1 and PW2. The credit of amount in the account of PW1 and PW2 does show that there was some transaction between PW1 and PW2 with late Sh. S. C. Juneja, however, the nature of such transaction is not clear on the basis of evidence led. It is however, clear that nature of transaction must relate either to loan agreement or deposit scheme floated by the Sh. S. C. Juneja. The onus was upon defendants to show that amount credited in the account of plaintiff is with respect to mutual funds, securities, bonds etc. Defendant has not led any evidence in this regard. Thus, lets determine if plaintiff has sufficiently proved whether it was loan or deposit.
32. If all the marked documents are read, then case of the plaintiff will prima facie tilt in her favour. The plaint, testimony of PW 1 and PW2 uses the word loan and deposit. On the basis of material on record this court cannot decipher and hold with absolute certainty that the arrangement with late Sh. S. C. Juneja was with respect to loan or deposit. Lets see whether plaintiff is entitled to relief even thereafter.
33. Counsel for the plaintiff has relied upon the judgement Hon'ble High Court of Madras in Sivakami Sundari and Ors vs Michael Fernando, Crl O.P. (MD) No. 4478, submitting that civil suit is maintainable against the LRs of Sh. S. C. Juneja. Counsel for the plaintiff has also relied upon judgement of Hon'ble High Court of Delhi in Manali Malik & Ors vs Rekha Khanna, RFA no 608/2010, CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 15/21 submitting that plea of defendants that cheques were stolen was not entertained by the Hon'ble High Court. Counsel for the plaintiff has also relied upon the judgement of Hon'ble High Court of Madra in Abdul Hamid Sahib & Ors vs Rahmat Bi, AIR 1965 Mad 427. Hon'ble High Court of Madra in Abdul Hamid Sahib & Ors vs Rahmat Bi, AIR 1965 Mad 427, held that "(8) The terms "loans" and "deposits" are not mutually exclusive terms: There are a number of common features between the two. In a sense a deposit is also a loan with this difference that is a loan with something more. Both are debts repayable. But, when the repayment is to be, in our opinion, furnishes the real point of distinction between the two concepts. A loan is repayable the minute it is incurred. But this is not so with a deposit. Either the repayment will depend upon the maturity date fixed therefor or the terms of the agreement relating to the demand, on making of which the deposit will become repayable. In other words, unlike a loan there is no immediate obligation to repay in the case of a deposit. That we think is the essence of the distinction between a loan and a deposit. This view of ours is supported by the observations of the Privy Council in 63 Id App 279: (AIR 1936 PC 171):
"The distinction which is perhaps the most obvious is that the deposit not for a fixed term does not seem to impose an immediate obligation on the deposit to seek out the depositor and repay him. He is to keep the money till asked for it. A demand by the depositor would, therefore, seem to be a nominal condition of the obligation of the depositee to repay".
Earlier the Board pointed out that in effect a deposit is a loan under conditions. Although that is the distinction between a loan and a deposit, the question in a given case whether a debt is a deposit or a loan will be one of act which will have to be decided on the facts and circumstances in each case. The use of the term "loan" and "deposit" may not in itself be conclusive though, of course, it is a circumstances which would be taken into account.
CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 16/21 What should be regarded is the cumulative effect of the evidence which bears on the character of the debt as a loan or a deposit."
34. Counsel for the defendant has relied upon the judgement of Hon'ble High Court of Delhi in Vijay Singh & Ors vs Smt. Manali Malik & Ors, 2009 (160) DLT 259, submitting that on demise of drawer, cheque ceases to be a cheque. Hon'ble High Court of Delhi in Vijay Singh & Ors vs Smt. Manali Malik & Ors, 2009 (160) DLT 259, has held that "13. It is to be noted that the drawing of a cheque does not by itself operate as an assignment of the monies in the hands of the banker in favour of the payee. The holder of a cheque has no right to enforce payment from the bank unless the banker has contracted with the holder to honour. The banker is only liable to the order of the drawer and thus if there is no order of the drawer on the banker, on the date of the presentment owing to the death of the drawer, the bank is not liable to pay. Section 57 provides that the legal representatives of a deceased person cannot negotiate by delivery only a cheque payable to order and endorsed by the deceased but not delivered. This is on the ground that the legal representative is not the agent of deceased. Upon demise, the estate including the amounts with the bank vest in the legal representatives or nominee and it requires a fresh act on the part of the legal representative or nominee to transfer the money, if any. Only if the cheque had been signed by the legal representative, at the instance of holder thereof does the legal representative becomes personally liable thereunder, under Section 29 of the Act.
14. Sir Ernest Pollock M.R. speaking for the court of Appeal in Re Swinburne; Sutton Vs. Featherley 1926 (134) Law Times 121 held that a cheque is clearly not an assignment of money in the hands of a banker; Lord Romilly in Hewitt Vs. Kaye L. Reports 6 E.Q. 198 was quoted :
CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 17/21 "A cheque is nothing more than an order to obtain a certain sum of money, and it makes no difference whether the money is at the banker or anywhere else. It is an order to deliver the money and if the order is not acted upon in the lifetime of the person who gives it, it is worth nothing." It was further held that it is merely a mandate or authority in the hands of the holder of the cheque to go to the bank and get the money from it. Warington L.J. in the same judgment held that a cheque is nothing more than an order directed to the person who has the custody of the money, requiring him to pay so much to the person in whose favour the cheque is drawn.
15. The House of Lords in London Joint Stock Bank Limited Vs. Mac. Millan Arthur 1918 LR (HL) 777 speaking through Lord Finlay L.C. so described the relationship between the banker and the customer: "The relation between banker and customer is that of debtor and creditor, with a super added obligation on the part of the banker to honour the customers' cheques if the account is in credit. A cheque drawn by a customer is in point of law a mandate to the banker to pay the amount according to the tenor of the cheque." The said mandate, on demise of customer, ceases to be a mandate. On the moment of demise of customer, the bank, in terms of its contract, is holding the money not to the order of the deceased customer, but to the order of his nominees or legal representatives. The bank cannot thus act on the order of the deceased customer. The cheque, which has been held to be merely an order, thus, on demise of drawer, ceases to be a cheque.
16. Closer home, in Canara Bank Vs. Canara Sales Corporation MANU/SC/0904/1987 it has been held that a cheque on which the signatures of the account holder are forged is not cheque in as much as it is no order/mandate of the drawer to the banker to pay the money. To the same effect is Bihta Cooperative Development Cane Marketing Union Ltd. and Anr. v. The Bank of Bihar AIR 1967 SC 389.
CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 18/21
17. I, therefore, reach a conclusion that the cheques on the basis of which the present suit has been filed, since not presented for payment in the lifetime of the drawer, ceased to be a cheque on the demise of the drawer in as much as they ceased to be the order of a person entitled to make an order to the bank to pay the money thereupon and thus the suit under order 37 of the CPC would not be maintainable on the same."
35. It is to be noted that facts of the present case are not in pari materia with the facts of above mentioned case. In Suresh Kumar Joon vs Mool Chand Motors & Ors. decided on 22 August, 2012, Hon'ble High Court of Delhi has observed that "8. It is true that the cheque does not contain an express promise in writing, to pay the amount of the cheque to the payee or the cheque. However, Section 9 of the Indian Contract Act makes it very clear that the promise can be express as well as implied. In my view, when a debtor issues a cheque to his creditor, he makes an implied promise to him to pay the amount of the cheque being issued by him. It is only towards fulfillment of that such promise that a cheque is issued by the debtor to the creditor. Once it is alleged that the relationship between the parties was that of debtor and a creditor and it is further alleged that the cheque was issued by the debtor to the creditor, it would be difficult to dispute that a cheque contains an implied promise, in writing, to pay the amount of the cheque. Since, even a timebarred debt is saved by Section 25(3) of the Indian Contract Act, 1872, the issuance of a cheque towards repayment of a timebarred debt constitutes a contract within the meaning of Section 25(3) of the Indian Contract Act, 1872."
36. In the present case, if we consider that loan was given by the plaintiff to the defendant (instead of deposit), then issuance of cheques Ex PW 1/5 and Ex PW 1/7 would constitute new contract as per above mentioned judgement. This court finds that bank statements of PW1 and PW2 sufficiently prove that there was arrangement of CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 19/21 loan or deposit with late Sh. S. C. Juneja. Mere denial of the same by defendants will not rebut the said fact. Further, the defence that the cheques were stolen is meritless as no complaint by late Sh. S. C. Juneja or even by defendants in this regard was filed. Further, the cheques also bear the stamp of Jaico Securities. Plaintiff has sufficiently proved that the said cheques were issued by late Sh. S. C. Juneja. Thus, if we consider the cheques were issued for loan advanced then the plaintiff can be held entitled to relief for past consideration as it constituted new contract.
37. If we assume that cheques were issued with respect to deposit, then also plaintiff can be held entitled to relief as limitation period for the same will commence from the date of demand i.e. after serving of legal notice. Counsel for the plaintiff in this respect relied upon the judgement of Hon'ble High Court of Delhi in Jagmohan Behl vs K.S. Gupta and Ors, Manu/DE/2337/2018. Presentment of cheque if of no consequence after demise of Sh. S. C. Juneja. Plaintiff has sufficiently proved that PW1 and PW2 had an arrangement with Sh. S. C. Juneja wherein Sh. S. C. Juneja used to accept deposits / loan from the plaintiff and also used to regularly pay the interest thereon. The cheques Ex PW 1/5 and Ex PW 1/7 are drawn on Indian Bank and the payment received by plaintiff of interest is also via cheque drawn on Indian Bank. However, plaintiff has not been able to prove the extent of estate received by defendants of Late Sh. S.C. Juneja. In the cross examination of DW1, DW1 has stated that Sh. S.C. Juneja had no properties. It was further stated that DW1 has no knowledge about the bank account number 719060077. Thereafter plaintiff has not led any rebuttal evidence to show properties left behind by Late Sh. S.C. Juneja CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 20/21 for the defendants. Issue no.1 is decided against the plaintiff.
38. ISSUE No. 22. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period ? OPP The onus to prove this issue was upon plaintiff. Consequently Issue no.2 is also decided against the plaintiff.
39. In view of above findings and observations, the suit of the plaintiff stands dismissed. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signedANKIT by ANKIT KARAN SINGH KARAN Date:
2022.06.11 SINGH 12:33:48 +0530 Pronounced in the open court (Ankit Karan Singh) today i.e. on 10.06.2022 Civil Judge01(West)/Delhi CS SCj No. 9236/16 Poonam Krishna Manuja Vs. Anupama Juneja & Ors. 21/21