Delhi District Court
Sonali Sikka vs Bipendra Kumar Dogra on 21 July, 2020
IN THE COURT OF SH SANJAY SHARMA-II, ADDITIONAL
DISTRICT JUDGE-05, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CS No. 1073/2018
CNR No.: DLSE01-005939-2018
Sonali Sikka
D/o Sh. Surender Kumar Sikka
R/o H. No. 49A, Ground Floor,
Kalkaji, New Delhi-110019
..... Plaintiff
VERSUS
Bipendra Kumar Dogra
S/o Sh. Ratan Lal Dogra
R/o A-62, Jalvayu Towers, Sector-47,
Noida, Uttar Pradesh-201 301
Also at:
Ericsson Forum, DLF Cybercity,
Sector-25A, Gurgaon, Haryana - 122 002
..... Defendant
CS No. 1780/2018
CNR No.: DLSE01-010243-2018
Bipendra Kumar Dogra
..... Counter-claimant
VERSUS
Sonali Sikka
..... Respondent
Misc. DJ No. 113/2018
CNR No.: DLSE01-007130-2018
Bipendra Kumar Dogra
..... Applicant
VERSUS
Sonali Sikka
..... Respondent
Misc. DJ No. 113/18 Bipendra Kumar Dogra vs. Sonali Sikka 1 of 25
Date of Institution : 20.07.2018
Date of Arguments: 18.03.2020
Date of Judgment : 21.07.2020
JUDGEMENT
1. The plaintiff instituted a suit for recovery of Rs. 16,00,000/- alongwith interest @ 18% per annum w.e.f. 03.06.2013 till realization against the defendant.
2. According to the plaintiff, she knew the defendant through Manish Sehgal. She met him alongwith Manish Sehgal several times. In the month of November, 2012; the defendant was in need of financial assistance and for that reason, the defendant through Manish Sehgal approached her and requested for advancing loan of Rs. 25,00,000/- for a period of 6 months. The defendant assured the plaintiff that in case he failed to return the said loan amount within 6 months, he would pay interest @ 18% per annum on the loan amount. Believing assurance and request, the plaintiff gave Cheque No. 126707 dated 03.12.2012 in the sum of Rs. 25,00,000/- drawn on 'Oriental Bank of Commerce, Nehru Place, New Delhi-110019' issued in favour of the defendant alongwith letter dated 03.12.2012 which was acknowledged by the defendant. The said cheque was encashed on presentation on 05.12.2012.
3. According to the plaintiff, the defendant failed to repay the said loan amount within 6 months. The plaintiff contacted the defendant. The defendant requested for extension of period of repayment of the said loan amount and offered to pay interest @ 18% per annum on the said loan amount.
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4. According to the plaintiff, the defendant failed to repay the said loan amount and interest. The defendant has made payment, as under:
Sl. No. Cheque No. Date Amount
1. 253088 26.04.2014 Rs. 2,00,000/-
2. 787605 13.10.2016 Rs. 5,00,000/-
3. 787606 17.04.2017 Rs. 2,00,000/-
TOTAL Rs. 9,00,000/-
5. The case of the plaintiff is that she tried to contact the defendant but he was deliberately avoiding her calls. The plaintiff sent demand notice dated 09.06.2018 to the defendant. The defendant replied the said notice vide reply dated 17.06.2018. The defendant has not paid balance amount of Rs. 16,00,00/-. Therefore, the plaintiff filed the suit for recovery.
6. On being served with the summons of the suit, the defendant filed written statement.
7. The defendant, in the written statement, contended that the suit is barred by limitation. He contended that the plaintiff had advanced amount vide cheque dated 03.12.2012 for 6 months only. The period of limitation started running from 03.12.2012. The suit for recovery of the loan amount should have been filed by 02.12.2015. The suit for recovery filed by the plaintiff on 20.07.2018 is barred by limitation. The defendant contended that the suit is not maintainable on account of non- joinder of the parties. He contended that he had not taken any loan from the plaintiff. He contended that Mr. Siddharth Sikka, brother of the plaintiff advanced loan to Mr. T.N. Sehgal from the plaintiff through the account of the defendant.
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8. The defendant contended that Mr. Siddharth Sikka and Manish Sehgal are necessary parties to the suit. He contended that he is not a necessary party to the suit. He contended that the suit is barred by 'the principle of res judicata' on the ground that a civil appeal pertaining to the transaction in question is pending before the Court of ADJ-02, South-East, Saket Courts, New Delhi vide RCA DJ / 121 / 2017 titled as 'Manish Sehgal vs. Siddharth Sikka & Ors.' arising out of civil suit vide CS No. CS SCJ / 899 / 2017 titled as 'Manish Sehgal vs. Siddharth Sikka & Ors.'.
9. The case of the defendant is that Mr. Trilok Nath Sehgal, father of Mr. Manish Sehgal was in need of money in the year 2011-12 and through a neighborhood reference, he came to know that Mr. Siddharth Sikka, brother of the plaintiff, can lend him money. Mr. Siddharth Sikka agreed to advance loan. However, he demanded collateral security. Mr. Trilok Nath Sehgal offered jewellary as collateral security which was assessed to be of around Rs. 30,00,000/- and therefore, Mr. Siddharth Sikka offered a loan of Rs. 25,00,000/- to him. For the reasons best known to Mr. Siddharth Sikka, he insisted for adding name of Mr. Manish Sehgal to the bank locker of the plaintiff to make it a joint locker and the said hypothecated jewellary was placed in that joint locker. Thereafter, Mr. Siddharth Sikka made delay in releasing the loan amount and finally, he released the loan amount in the month of November, 2012. Mr. Siddharth Sikka agreed to advance loan from account of his sister to the account of the defendant to transfer the loan amount to Mr. Trilok Nath Sehgal.
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10. The case of the defendant is that he received an amount of Rs. 25,00,000/- in his account, through the said cheque issued by the plaintiff, on 05.12.2012. The defendant transferred the said amount to account of Mr. Trilok Nath Sehgal vide cheque on 11.12.2012. The case of the defendant is that the transaction was completed in this manner and the entire transaction was within knowledge of all persons involved therein. It was agreed between the parties to the suit, Siddharth Sikka and Mr. Trilok Nath Sehgal that they will perform bank transaction through the account of the defendant whereas cash transactions will be done between them. The amount received by the defendant from Mr. Trilok Nath Sehgal was transferred to the account of the plaintiff for being paid to Mr. Siddharth Sikka. Mr. Trilok Nath Sehgal and his son Mr. Manish Sehgal made several cash payments to Mr. Siddharth Sikka. The details of payment received by the defendant in his account from Mr. Trilok Nath Sehgal and transferred to the account of the plaintiff for Mr. Siddharth Sikka are as under:
S. No. Amount Receiving Details Forwarding Details
1. Rs. 4,00,000/- NEFT ICIC 547181108 CAS PRES CHQ T N SEHGAL CHQ NO. 787601 06.02.2014 08.02.2014
2. Rs. 2,00,000/- NEFT ICIC 574854363 CAS PRES CHQ T N SEHGAL CHQ NO. 253091 08.04.2014 22.04.2014
3. Rs. 2,00,000/- NEFT ICIC 579804756 CAS PRES CHQ T N SEHGAL CHQ NO. 253088 21.04.2014 26.04.2014
4. Rs. 5,00,000/- ICI BY CLEARING OBC SONALI SIKKA CHQ NO. 52157 CHQ NO. 787605 10.10.2016 13.10.2016
5. Rs. 2,00,000/- ICI BY CLEARING CAS PRES CHQ CHQ NO. 052159 CHQ NO. 787606 13.04.2017 17.04.2017 Misc. DJ No. 113/18 Bipendra Kumar Dogra vs. Sonali Sikka 5 of 25
11. According to the defendant, he received an amount of Rs. 15,00,000/- from Mr. Trilok Nath Sehgal and transferred the said amount to the plaintiff for Mr. Siddharth Sikka. He contended that the plaintiff and Mr. Siddharth Sikka had also collected cash from Mr. Trilok Nath Sehgal and according to calculation of Mr. Trilok Nath Sehgal, he has paid amount more than Rs. 25,00,000/- including the above bank transfers. He contended that for that reason, Mr. Manish Sehgal filed a civil suit vide CS No. 899/2017 for recovery of excess amount and hypothecated jewellary, as stated above, which is pending adjudication in the appeal.
12. The case of the defendant is that on payment of excess amount, Mr. Trilok Nath Sehgal demanded hypothecated jewellary from the plaintiff, her brother Mr. Siddharth Sikka and father Mr. Surender Kumar Sikka. However, Mr. Siddharth Sikka, with the intention to retain hypothecated jewellary and subdue Mr. Trilok Nath Sehgal and his son Mr. Manish Sehgal, sent the plaintiff to house of Mr. Trilok Nath Sehgal and Mr. Manish Sehgal on 17.04.2017 at 6.30 a.m. to make demand of the amount. The plaintiff threatened Mr. Trilok Nath Sehgal and his wife and thereafter, she injured herself and lodged a false case in collusion with local police. Mr. Trilok Nath Sehgal and Mr. Manish Sehgal tried to contact Mr. Surender Kumar Sikka, father of the plaintiff on his mobile phone. He picked the phone but did not complete the talk. Thereafter, he did not answer any call made by Mr. Trilok Nath Sehgal and Mr. Manish Sehgal. Local police had not taken any action on the complaint of Mr. Manish Sehgal.
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13. According to the defendant, the said incident led to following cases:
S. No. Case No. Title Particulars Status
1. CC/10734/2017 Manish Sehgal vs. Application u/s Pending
SHO-Kalkaji & Ors. 156(3) Cr.P.C.
against Sonali
Sikka & Siddharth
Sikka
2. CrC/2985/2017 State vs. Manish Case arising out of Pending
Sehgal & Ors. impugned FIR No.
147/17 u/s 323,
341, 504, 506 & 34
IPC PS Kalkaji
3. Cr. Rev./459/2017 Manish Sehgal vs. Criminal Revision Pending State & Ors. challenging the summoning orders in CrC/2985/2017.
Proceeding stayed.
4. CS CSJ/899/2017 Manish Sehgal vs. Civil Suit for Rejected Siddharth Sikka & recovery of excess Ors. money paid & return of hypothecated jewelleries.
5. RCA DJ/121/2017 Manish Sehgal vs. Civil Appeal against Pending Siddharth Sikka & the rejection order Ors. in CS CSJ/899/2017
14. The case of the defendant is that the plaintiff is seeking recovery of the amount which is already returned vide cheques and cash. The plaintiff is seeking recovery of the amount from the defendant as well as Mr. Manish Sehgal. The defendant denied that he signed any acknowledgement letter. He denied that he had availed any loan from the plaintiff. He contended that he has no dealing with the plaintiff. He contended that he is a stranger to the understanding between Mr. Siddharth Sikka and the plaintiff, on one side, and Mr. Trilok Nath Sehgal, on the other side.
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15. In the replication, the plaintiff denied contentions raised by the defendant in the written statement and reiterated the averments made in the plaint. According to the plaintiff, Manish Sehgal became joint owner of the said bank locker in the year 2011 whereas the defendant had taken loan in the year 2012. The plaintiff had denied that she had taken any jewellary for collateral security. She stated that the defendant has paid an amount of Rs. 15,00,000/- out of Rs. 25,00,000/-. She stated that she has separate claims against Manish Sehgal and the defendant. She stated that the defendant made last payment in 2017 and therefore, the suit is within limitation.
16. The defendant also preferred a counter-claim against the plaintiff seeking damages in the sum of Rs. 25,00,000/- on account of defamation. Thereafter, he moved an application seeking withdrawal of the said counter-claim and institution of counter-claim for a decree for recovery of Rs. 15,00,000/-.
17. In the counter-claim, the case of the defendant is that the plaintiff is seeking recovery of the same amount which was paid by her vide cheque in question from Mr. Manish Sehgal as well as the defendant. He contended that the plaintiff obtained divorce in 2015. She had two children from her marriage. She was in relationship with Mr. Manish Sehgal and they had a joint bank locker since 2011. In December, 2012 when the amount in question was paid, the marriage of the plaintiff was subsisting. For that reason, the plaintiff used the counter-claimant for transfer of an amount of Rs. 25,00,000/- from her account to the account of Mr. Manish Sehgal to avoid any direct transaction with Mr Manish Sehgal.
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18. According to the defendant, he transferred the amount paid by the plaintiff to Mr. Manish Sehgal through his father Mr. Trilok Nath Sehgal. The defendant stated that an amount of Rs. 25,00,000/- credited to his account vide Cheque No. 126707 on 05.02.2012 was transferred to the account of Mr. Trilok Nath Sehgal vide Cheque No. 253077 dated 11.12.2012. As such, the defendant has paid the said amount to the plaintiff. In the month of April, 2017; the relationship between the plaintiff and Mr. Manish Sehgal became bitter and therefore, the plaintiff filed this false suit against him. According to him, he has paid an amount of Rs. 15,00,000/- to the plaintiff. The case of the defendant is that the plaintiff has not made Mr. Manish Sehgal and his father Mr. Trilok Nath Sehgal, as parties to the present suit and therefore, the defendant is entitled to seek recovery of Rs. 15,00,000/- from the plaintiff which he had transferred via cheques to the account of the plaintiff.
19. According to the defendant, the plaintiff is having full knowledge of the transaction between her brother Mr. Siddharth Sikka and Mr. Trilok Nath Sehgal, father of Mr. Manish Sehgal and that the defendant has not obtained any loan from her. Mr. Siddharth Sikka had advanced loan to Mr. Trilok Nath Sehgal and he has right to recover the said amount from him. This fact is admitted by the plaintiff in case FIR No. 147/17 lodged by her. The plaintiff is having lien on the jewellary hypothecated by Mr. Trilok Nath Sehgal and she can recover her balance amount from the said jewellary. According to him, the averment, in para No. 5 of the plaint, that the defendant stated that he will give interest @ 18% per annum on the loan amount is defamatory.
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20. According to the defendant, the plaintiff has filed a false suit against him to defame him as he had no role in the entire transaction. The plaintiff has purposefully projected the defendant as a loan defaulter in the public and specially among his family members. The defendant's father received the legal notice as well as summons of the false suit which came into knowledge of his wife and children, and were also widely circulated in his office. The defendant has earned good repute during his lifetime as there was no civil or criminal case was pending against him. The defendant has high reputation and working as a 'Senior Manager' with a multi national company namely 'Essjay Ericsson Private Limited' since 11 years and his gross annual income is Rs. 12,00,000/-. According to him, the plaintiff has defamed him by making false allegations and instituting a false case against him.
21. In the written statement to the counter-claim, the plaintiff stated that the defendant is misusing the process of law. The plaintiff stated that the defendant had availed loan from the plaintiff against acknowledgement on letter dated 03.12.2012. The defendant is a well educated person. He acknowledged the loan by putting his signatures on letter dated 03.12.2012. The defendant received the loan amount in his account. There is no document that the loan was given by Mr. Siddharth Sikka for Mr. Trilok Nath Sehgal. The defendant has not paid Court fees on the counter-claim for damages on account of defamation. The plaintiff stated that the cheque dated 17.04.2017 issued by the defendant was encashed on the date of registration of FIR on 17.04.2017 would show that both the transactions are different.
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22. On the pleadings, following issues were framed:
(1) Whether the plaintiff is entitled for a decree for a sum of Rs. 16,00,000/-?
(OPP) (2) Whether the plaintiff is entitled to interest? If so, at what rate and for what period?
(OPP) (3) Whether the suit is bad for non-joinder of necessary parties?
(OPD) (4) Whether there is no cause of action against the defendant and in favour of the plaintiff?
(OPD) (5) Whether the plaintiff has returned the money to the plaintiff in terms of preliminary objections raised in para 6 and 7 of the written statement?
(OPD) (6) Relief.
ADDITIONAL ISSUE:
23. Vide order dated 08.02.2019, following additional issue was framed:
Whether the suit is barred by law of limitation?
(OPD) PLAINTIFF'S EVIDENCE:
24. The plaintiff appeared as PW-1. She deposed, on strength of affidavit Ex.PW1/A. She relied on documents, as under:
Sl No. Description Exhibit
1. Letter dated 03.12.2012 Ex.PW1/1
2. Statement of bank account of the plaintiff w.e.f. Ex.PW1/2
03.12.2012 to 24.10.2016
3. Copy of Cheque No. 787606 dated 17.04.2017 Ex.PW1/3
in the sum of Rs. 2,00,000/-
4. Demand notice dated 09.06.2018 alongwith Ex.PW1/4
postal receipts
5. Reply to demand notice dated 17.06.2018 Ex.PW1/5
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DEFENDANT'S EVIDENCE:
25. The defendant appeared as DW-1. He deposed, on strength of affidavit Ex.DW1/1. He relied on statement of his bank account vide A/c No. 31655422382 issued by State Bank of India, Sector-48, Noida for the period from 01.12.2012 to 30.04.2017 Ex.DW1/2 (colly.).
26. DW-2 Kimneilhai Singsit, Assistant Manager, Oriental Bank of Commerce, 40/55, C.R. Park, New Delhi-110019 brought a copy of register alongwith covering letter pertaining to locker No. 3 Ex.DW2/A.
27. DW-3 Rahul Kumar, Assistant Ahlmad in the Court of Ms. Sheetal Chaudhary Pradhan, Ld. MM-02, Mahila Court, South-East, Saket Courts, New Delhi brought the record pertaining to CRC No. 2985/2017 titled as 'State vs. Manish Sehgal & Anr.' containing photocopy of complaint filed by the plaintiff, statement under Section 161 Cr.P.C., statement under Section 164 Cr.P.C. and counter complaint bearing No. 20B dated 25.04.2017 Ex.DW3/A (colly.). MISC. DJ 113/2018:
28. The defendant also filed an application under Section 340 read with Section 195 of the Code of Criminal Procedure, 1976 (In short 'the Cr.P.C.') for seeking prosecution of the plaintiff for committing offences under Section 177, 181 and 193 of Indian Penal Code, 1860 (IPC). According to the defendant, the cheques in question with bank statement are part of charge-
sheet in FIR No. 147/17 under Section 323/354B/504/506/34 IPC PS Kalkaji. In the said FIR, the plaintiff stated that she had given the said loan to Manish Sehgal.
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29. According to the defendant, in the said FIR, the plaintiff stated that she went to the house of Mr. Manish Sehgal to recover the said loan amount. The present suit is in contradiction to the statement of the plaintiff in the said FIR. The plaintiff has made false statement on oath. The plaintiff concealed material information from the Court that she had given loan, on direction of her brother Siddharth Sikka, to Mr. Trilok Nath Sehgal against jewellary worth Rs. 30,00,000/-. Mr. Siddharth Sikka and the plaintiff, for the reasons best known to them, channeled the said loan through the defendant. Mr. Trilok Nath Sehgal, father of Mr. Manish Sehgal has already returned the entire loan amount to the plaintiff and her brother. He stated that probably, the plaintiff and her brother has misappropriated jewellary of Mr. Manish Sehgal. The plaintiff and her brother lodged a false case against Mr. Manish Sehgal so as to pressurize him to not demand the said jewellary. The said criminal case vide CRC/2985/2017 is pending trial. The plaintiff is regularly appearing in the said case as well as criminal revision vide Cr. Rev./459/2017 against the summoning order. The police did not take action on the true facts disclosed by Mr. Manish Sehgal and thereafter, he has filed an application under Section 156(3) Cr.P.C. The plaintiff concealed payment of Rs. 7,00,000/- vide Cheque No. 787605 dated 08.10.2016 of Rs. 5,00,000/- and Cheque No. 787606 dated 17.04.2017 of Rs. 2,00,000/- in the plaint. The plaintiff and her brother could not subdue Mr. Manish Sehgal and therefore, they filed the present false suit. The defendant has not taken any loan from the plaintiff or her brother.
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30. I have heard arguments of Mr. Bharat Arora, Advocate for the plaintiff and Mr. Sunil Kumar Chaturvedi, Advocate for the defendant and perused written arguments filed by the plaintiff.
ADDITIONAL ISSUE:
31. The additional issue pertaining to limitation was framed on the contention of the defendant that the suit was barred by limitation having instituted after 3 years from the date of advancement of loan.
32. Ld. Counsel for the defendant submitted that the plaintiff, admittedly, advanced loan vide cheque dated 03.12.2012 for 6 months. He referred Article 20 to 'The Schedule' of 'The Limitation Act, 1963' to contend that a suit for recovery of amount lent by way of cheque can be instituted within 3 years when the cheque is paid. He submitted that period of limitation would start from 03.12.2012 on which date the cheque was paid and the suit for recovery of the cheque amount should have been instituted by 02.12.2015. He submitted that the suit filed on 20.07.2018 is hopelessly barred by time.
33. Ld. Counsel for the plaintiff submitted that the defendant made last payment of Rs. 2,00,000/- vide Cheque No. 787606 on 17.04.2017 and therefore, the suit for recovery of the balance loan amount on 20.07.2018 is within limitation.
34. Admittedly, Cheque No. 126707 dated 03.12.2012 in the sum of Rs. 25,00,000/- issued by the plaintiff was encashed in the account of the defendant on 05.12.2012.
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35. Admittedly, the defendant made payment of Rs. 2,00,000/- each vide Cheque No. 253091 and Cheque No. 253088 to the plaintiff on 22.04.2014 and 26.04.2014 respectively within period of limitation of 3 years having computed from 05.12.2012. As per Section 19 of 'The Limitation Act, 1963', fresh period of limitation for filing of the suit started from 26.04.2014. The defendant, admittedly, made payment of Rs. 5,00,000/- and Rs. 2,00,000/- vide Cheque No. 787605 and Cheque No. 787606, to the plaintiff on 13.10.2016 and 17.04.2017 respectively within period of limitation. Therefore, fresh period of limitation commenced for filing of the suit for recovery of the balance loan amount from 17.04.2017. Accordingly, the suit for recovery of the balance loan amount of Rs. 10,00,000/- having instituted on 20.07.2018 is within limitation.
36. Accordingly, additional issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 1 TO 5:
37. Issue No. 1 to 5 are inter-connected and therefore, they are taken up together for determination.
38. The case of the plaintiff is that the defendant was known to her through Mr. Manish Sehgal and she had lent him an amount of Rs. 25,00,000/- vide Cheque No. 126707 dated 03.12.2012 drawn on 'OBC, Nehru Place, New Delhi-110019' which was credited into the account of the defendant on 05.12.2012. It is further case of the plaintiff that the defendant has paid an amount of Rs. 15,00,000/-. The plaintiff is seeking recovery of balance amount of Rs. 10,00,000/-.
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39. The defendant has admitted, in the written statement, that he has received an amount of Rs. 25,00,000/- in his account on 05.12.2012 vide cheque issued by the plaintiff. The defendant, in his cross-examination, has also admitted that he had received an amount of Rs. 25,00,000/- on 05.12.2012 vide Cheque No. 126707 in his account from the account of the plaintiff. The defendant has admitted, in the written statement, that he has made payment of Rs. 15,00,000/- to the plaintiff. The defendant has admitted, in his cross-examination, that he has not returned the amount of Rs. 25,00,000/- to the plaintiff from his money, as under:
"Question: Is it correct that you received a sum of Rs. 25,00,000/- vide Cheque No. 126707 dated 05.12.2012 in your account from the account of the plaintiff?
Ans. Yes. (Vol. I have received this amount to be given to Mr. T.N. Sehgal).
.....I have made payment of Rs. 15,00,000/- to the plaintiff from my account and the details of the same are on record.....
It is correct that I have not returned the amount of Rs. 25,00,000/- to the plaintiff from my money....."
40. The defendant has not been able to prove his defence. Firstly, the defence of the defendant is inconsistent. In the written statement, the defendant came out with the case that he was only a transaction channel of the loan transaction between Mr. Trilok Nath Sehgal and Mr. Siddharth Sikka on the averments that in the year 2011-12; Mr. Trilok Nath Sehgal was in need of certain finance and he came to know through some neighborhood reference that Mr. Siddharth Sikka can lend him the said amount.
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41. The defence raised by the defendant was that Mr. Siddharth Sikka agreed to lend an amount of Rs. 25,00,000/- against collateral security of jewellary worth Rs. 30,00,000/- and addition of name of Mr. Manish Sehgal to bank locker of the plaintiff. According to the defendant, Mr. Siddharth Sikka advanced the said loan amount through bank account of the plaintiff to the account of the defendant for onward transfer to the bank account of Mr. Trilok Nath Sehgal. According to the defendant, the amount received by him from Mr. Trilok Nath Sehgal was returned to the plaintiff vide cheques.
42. The defendant has not explained as to why he allowed himself to become a transaction channel. According to copy of register alongwith covering letter Ex.DW2/A, the name of Mr. Manish Sehgal was added as a joint holder of locker No. 3 on 01.06.2011 whereas the cheque in question was issued on 03.12.2012. In his cross-examination, the defendant asserted that he received the said amount of Rs. 25,00,000/- on 05.12.2012 vide Cheque No. 126707 for being given to Mr. Trilok Nath Sehgal. However, he has admitted that he has not placed any document regarding the said arrangement between him and Mr. Trilok Nath Sehgal. He admitted that there is no document regarding valuation of the jewellary placed in joint bank locker. He admitted that transaction pertaining to hypothecation of jewellary had not taken place in his presence. He admitted that he has not placed any receipt pertaining to cash payment made by Mr. Manish Sehgal to the plaintiff. He stated that the averments made by him, in his affidavit, are based on information received from Mr. Manish Sehgal.
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43. It is, therefore, evident that the entire case of the defendant is based on the information provided to him by Mr. Manish Sehgal. He has not examined Mr. Manish Sehgal in evidence. Moreover, he has not been able to substantiate his defence by any documentary evidence. Mere fact that certain payment received by him from Mr. Trilok Nath Sehgal are corresponding the amount of cheque issued by him to the plaintiff, as mentioned in statement of bank account Ex.DW1/1, would not show that he was a transaction channel between Mr. Siddharth Sikka and Mr. Trilok Nath Sehgal. The relevant cross- examination of the defendant is as under:
"I have not placed on record any document to show any arrangement between me and Mr. Trilok Nath Sehgal. (Vol. Everything is on record).....
Question 2: You have stated in your affidavit that some mortgaged / hypothecated jewellaries were placed in that joint Bank Locker, but is it correct that you have not placed any document on record?
Ans. It is true that I have not placed any such document on record.
.....It is correct that I have not placed on record any document to show any transaction between Mr. Siddharth Sikka and Mr. Trilok Nath Sehgal as alleged in my affidavit. It is correct that I did not value the jewellary as stated by me in my evidence. It is correct that the said transaction did not happen in my presence. It is correct that I have not placed on record any cash receipt of alleged payment made by Mr. Manish Sehgal to the plaintiff. The entire averments made by me in the affidavit are based on the information from Mr. Manish Sehgal....."
44. The defendant has not led any evidence that the plaintiff is seeking recovery of the same amount from him as well as Mr. Manish Sehgal.
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45. In case, the plaintiff is seeking recovery of the same amount on the basis of the cheques in question, Mr. Manish Sehgal can defend the said proceedings or suit.
46. The defendant has not placed on record any suit for recovery filed by the plaintiff against Mr. Manish Sehgal on the basis of the cheques in question.
47. Civil suit vide CS No. 899/2017 titled as 'Manish Sehgal vs. Siddharth Sikka & Sonali Sikka' before the Court of Ld. Senior Civil Judge, South-East District, Saket Courts, New Delhi was filed by Mr. Manish Sehgal against the plaintiff and her brother for recovery of excess amount paid by him and jewellary. The said suit is pending adjudication in appeal vide RCA No. 121/2017.
48. If the defendant was a transaction channel and he was transferring the amount as and when received from Mr. Trilok Nath Sehgal to the account of the plaintiff and he transferred an amount of Rs. 15,00,000/- when received by him from Mr. Trilok Nath Sehgal to the account of the plaintiff, the defendant may recover the suit amount from Mr. Trilok Nath Sehgal.
49. It may be noted that the defendant extensively cross- examined the plaintiff. The focus of the entire cross-examination was marital life of the plaintiff. The defendant neither questioned the plaintiff on the depositions pertaining to the transactions made by her in her affidavit nor confronted her with his case. The defendant did not challenge that he had not signed letter dated 03.12.2012. Instead, he made a suggestion to the plaintiff that why she had not got it signed by the witnesses.
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50. The plaintiff categorically deposed that the defendant was a family friend and she did not feel need of witnesses as she had given him the said amount on trust.
51. It may be noted that the defendant, in the counter- claim for a decree for recovery of Rs. 15,00,000/-, came out with a different case all together. In the counter-claim, the defendant stated that the plaintiff was in relationship with Mr. Manish Sehgal and she had a joint locker with him in the year 2011. The case of the defendant is that the plaintiff was married in the year 2012 and in order to avoid any direct transaction with Mr. Manish Sehgal, she had transferred the said amount to Mr. Manish Sehgal through the defendant. The case set up in the counter-claim is in total contradiction to the case set up in the written statement that the defendant was a transaction channel of the loan transaction between Mr. Siddharth Sikka and Mr. Trilok Nath Sehgal. In the counter-claim, there is no mention of Mr. Siddharth Sikka or hypothecation of jewellary. It may be pertinent to know that if the plaintiff and Mr. Manish Sehgal were in relationship since 2011, there was no occasion for receiving information from a neighborhood reference regarding Mr. Siddharth Sikka as the plaintiff and Mr. Manish Sehgal were already known to each other. The defence set up by the defendant is contradictory and remained unproved.
52. So far as reliance of the defendant upon the civil and criminal cases between the plaintiff and Mr. Manish Sehgal is concerned, the defendant has not been able to show any admission by the plaintiff regarding lending of the amount in question to Mr. Manish Sehgal or his father.
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53. Complaint Ex.DW3/A was in relation to injury suffered by the plaintiff when she had visited the house of Mr. Manish Sehgal in connection with certain matter personal to them. The said civil and criminal cases, certified copies thereof filed by the defendant and referred by him, in his written statement, have no concern with the cheques in question forming foundation of the present suit.
54. This is a case for recovery of loan advanced by the plaintiff to the defendant. Mr. Trilok Nath Sehgal and Mr. Manish Sehgal are not necessary parties to the suit. Being a borrower, the defendant is a necessary party to the suit.
55. It is, therefore, evident that the plaintiff had advanced an amount of Rs. 25,00,000/- to the defendant. The defendant has returned an amount of Rs. 15,00,000/- to the plaintiff. The defendant has not returned balance amount of Rs. 10,00,000/- despite service of demand notice dated 19.06.2018 Ex.PW1/4. The plaintiff has a legal and valid cause of action against the defendant.
56. The plaintiff is entitled to a decree for recovery of Rs. 10,00,000/- from the defendant.
57. The plaintiff is claiming interest @ 18% per annum w.e.f. 03.06.2013 till realization. This is a case of advancement of friendly loan. There was no written agreement between the parties regarding payment of interest. It is not a case of commercial transaction. The plaintiff demanded interest @ 18% per annum vide notice dated 09.06.2018. Therefore, the plaintiff is entitled to interest @ 6% per annum w.e.f. 19.06.2018 till realization.
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58. Accordingly, issue No. 1 to 5 are decided in favour of the plaintiff and against the defendant.
COUNTER-CLAIM VIDE CS NO. 1780/2018:
59. The defendant filed a counter-claim for seeking damages in the sum of Rs. 25,00,000/- on 29.10.2018. However, he filed an application under Section 151 of the Code seeking permission to withdraw the counter-claim and file counter-claim for recovery of Rs. 15,00,000/-.
60. The reasons set up for withdrawal of the counter- claim for damages in the sum of Rs. 25,00,000/- is that the defendant could not arrange sufficient Court fees.
61. Accordingly, counter-claim for decree for damages in the sum of Rs. 25,00,000/- is dismissed as withdrawn.
Whether the defendant is entitled to a decree for damages recovery of Rs. 15,00,000/-?
62. The defendant preferred counter-claim for a decree for recovery of Rs. 15,00,000/- on the ground that the plaintiff was in relationship with Mr. Manish Sehgal and she had a joint locker with him, and she had used the defendant for transfer of an amount of Rs. 25,00,000/- to the account of Mr. Manish Sehgal through the account of his father Mr. Trilok Nath Sehgal.
63. According to the defendant, he has transferred an amount of Rs. 15,00,000/- to the account of the plaintiff. However, the plaintiff has not made Mr. Manish Sehgal and his father, parties to the present suit and therefore, the plaintiff is entitled to a decree for recovery of Rs. 15,00,000/- against her.
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64. The defendant has not led any evidence that there was any arrangement between the plaintiff, Mr. Manish Sehgal, Mr. Trilok Nath Sehgal and the defendant regarding the mode of transaction, as projected by the defendant.
65. The defendant has categorically admitted, in his cross-examination, that he has not filed any document regarding the said arrangement between him and Mr. Trilok Nath Sehgal. In the written statement, the defendant came out with the case that he was a transaction channel of loan transaction between Mr. Siddharth Sikka and Mr. Trilok Nath Sehgal. The defendant, in his affidavit Ex.DW1/1, have also not deposed about such arrangement between the plaintiff and Mr. Manish Sehgal. Instead, the defendant, in his affidavit Ex.DW1/1, stated about the transaction between Mr. Trilok Nath Sehgal and Mr. Siddharth Sikka. Mr. Manish Sehgal and Mr. Trilok Nath Sehgal are not necessary parties to the present suit. The defendant has paid an amount of Rs. 15,00,000/- towards the loan amount advanced by the plaintiff to him. The defendant is not entitled to a decree for recovery of Rs. 15,00,000/- against the plaintiff.
66. Accordingly, counter-claim for a decree for recovery of Rs. 15,00,000/- filed by the defendant against the plaintiff is dismissed.
MISC. DJ 113/2018:
67. The defendant is seeking an inquiry under Section 195 Cr.P.C. against the plaintiff for committing offences under Section 177, 181, 183.
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68. The defendant has not been able to show that the plaintiff has made any false statement on oath or filed a false case against the defendant. Accordingly, the application under Section 340 read with Section 195 Cr.P.C. filed by the defendant is dismissed.
CONCLUSION CS No. 1073/2018:
69. Accordingly, the suit of the plaintiff is decreed and a decree in the sum of Rs. 10,00,000/- is passed in favour of the plaintiff and against the defendant alongwith interest @ 6% per annum from 19.06.2018 till realization. In the facts and circumstances of the case, the plaintiff will be entitled to proportionate cost of the suit. Decree sheet be drawn. COUNTER-CLAIM VIDE CS No. 1780/2018:
70. Counter-claim for damages in the sum of Rs. 25,00,000/- is dismissed as withdrawn.
71. Counter-claim for a decree for recovery of Rs. 15,00,000/- filed by the defendant against the plaintiff is dismissed. Decree-sheet be drawn.
MISC. DJ 113/2018:
72. The application under Section 340 read with Section 195 Cr.P.C. filed by the defendant is dismissed. Files be consigned to record room.
Announced in the open Court Sh. Sanjay Sharma-II Dated: 21st July, 2020 Additional District Judge-05 (SE) Saket Courts, New Delhi Misc. DJ No. 113/18 Bipendra Kumar Dogra vs. Sonali Sikka 24 of 25 Misc. DJ No. 113/2018 21.07.2020 In view of the outbreak of COVID19, the Hon'ble Administrative and General Supervision Committee of Hon'ble Delhi High Court vide office order dated 23.03.2020, 25.03.2020, 15.04.2020, 02.05.2020, 16.05.2020, 21.05.2020 and 29.05.2020, 13.06.2020, 29.06.2020 and 13.07.2020, the functioning of the District Courts remained suspended. In view of office order dated 15.07.2020, the case is taken up for judgment. Vide separate judgment, the application under Section 340 read with Section 195 Cr.P.C. filed by the defendant is dismissed. The judgment be uploaded on the website. Ld. Counsel for the parties be also informed about the judgment. File be consigned to record room.
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