Delhi District Court
Smt. Anju Jain vs Sh. Ashok Kumar Jain on 15 February, 2011
"IN THE COURT OF SH. V.K YADAV, ADJ (NORTH04),
TIS HAZARI COURTS, DELHI"
CS NO. 74/10
SMT. ANJU JAIN
W/O SH. SATISH JAIN
R/O 2315, BHARAMPURA
CHANDANI CHOWK
DELHI110006
THROUGH HER ATTORNEY
SH. SUNIL JAIN
........... PLAINTIFF
VERSUS
SH. ASHOK KUMAR JAIN
M/S THREAD SALES
5301/B SINDHI MARKET
SADAR BAZAR
DELHI110006
ALSO AT :
SH. ASHOK KUMAR JAIN
R/O 12A, SHREE RAM RAOD
OPP. RAILWAY COLONY
CIVIL LINES
DELHI110054
........... DEFENDANT
CS No.74/10 1
Date of institution : 05.05.2010
Date of reserving for judgment :10.02.2011
Date of pronouncement :15.02.2011
SUIT FOR RECOVERY OF RS. 9,54,100/
JUDGEMENT
1. Materialism has taken over in such a manner in the present era, that the human relation has lost its sheen and warmth. One such friendly relation turned sour when money came in between. The situation went to the extent that one of the parties had to resort the legal recourse by filing a suit for recovery for a sum of Rs. 9,54,100/ against the other one. The same is hereby disposed off through this judgment.
2. The indispensable facts as set up by the parties are, that the plaintiff advanced a friendly loan in order to help the defendant from the financial crises in which he had landed up. As per the terms of the said loan/Hundi/deposit interest @ 1.1% per month was payable on the amount lend. According to the plaintiff, the interest was received till 27.07.2007 and thereafter the defendant was not forthcoming with the interest or with the principal amount forcing the plaintiff to call upon the defendant through a legal notice to clear the dues. However, legal notice dated 23.04.2010 also could not move the defendant and the amount of Rs.7,00,000/ which was loaned swelled to the tune of Rs.9,54,100/. CS No.74/10 2 Therefore, the instant suit was filed by the plaintiff claiming principal together with interest etc.
3. The defendant contested the claim of the plaintiff and submitted, that no such loan was ever advanced to the defendant by plaintiff, nor the plaintiff was ever in such a position to shell out that much of money. However, it is further contended that the so called attorney Sh. Sunil Jain through whom the instant suit has been filed is the person who is behind in all these issues. Sh. Sunil Jain as a broker/commission agent and was working for the defendant as well. Sh. Sunil Jain took advantage of certain blank documents signed by the defendant which were handed over to him in order to facilitate to work as a broker for the defendant. Since Sh. Sunil Jain could not have used those documents himself therefore, he has set up Ms. Anju as a front to claim the money from the defendant. The claim however, according to the defendant, is time barred and the suit has not been filed by a duly authorized person, therefore, the same is bound to fail.
4. In the replication, the plaintiff reaffirmed and reiterated the case set up in the plaint, while controverting the contents of written statement.
5. From the pleadings of the parties, the following issues were framed : CS No.74/10 3
1. Whether the suit filed on behalf of the plaintiff is barred by limitation ? OPD
2. Whether the plaintiff is entitled to recover a sum of Rs. 9,54,100/from the defendant ? OPD
3. Whether the plaintiff is entitled to claim interest from the defendant ? If so at what rate and for what period ? OPP
4. Relief
6. In order to prove the case, the plaintiff examined Sh. Sunil Jain, attorney of the plaintiff as PW1 and relied upon the following documents : Ex. PW1/1 GPA Ex. PW1/2 Hundi Ex. PW1/3 Legal notice Ex. PW1/4 & 5 Postal receipts Ex. PW1/6 & 7 AD Cards
7. The defendant examined himself as DW1 and closed the evidence.
8. I have considered the submissions made by the learned counsels of the contesting parties and have perused the record as well, accordingly my issuewise findings are as follows :
Issue No.1
1. Whether the suit filed on behalf of the plaintiff is barred by limitation ? OPD Section 3 of Limitation Act casts a duty upon the court to ascertain CS No.74/10 4 notwithstanding the fact that objection with regard to the limitation has been raised or not, that suit is within the limitation prescribed by law. In the instant case, a formal issue is there and the responsibility lies upon the defendant to show that it is barred by limitation and in other words it is for the plaintiff to show that the suit is within limitation. The defendant has contended that the amount allegedly advanced by the plaintiff is in the nature of a loan and the interest is nothing but a corollary to the transaction of the loan. The nature of the documents reflect that it was a loan and in any case once it is asserted by the plaintiff that it was a loan there can be no doubt, nor can it be questioned in any manner and the aspect of interest becomes a supplementary part of the transaction. This attracts article 21 of the Limitation Act and as per that the suit should have been filed within three years of loaning the money, and as it was in the year 2001, the suit is apparently hit by Limitation.
9. The document which has been made basis of the claim by the plaintiff in itself is under cloud for two reasons, one that the defendant has taken up the specific plea that it is the document which has been misused by the attorney of the plaintiff. The attorney of the plaintiff is broker who was working for the defendant and in that process certain CS No.74/10 5 blank documents were given by the defendant to him under his own signatures. The second ground taken by the defendant to question the very basis of the case qua the nature of document whether it is Hundi, deposit receipt or receipt indicating friendly loan as three versions have come from the side of the plaintiff herself. In the legal notice which was got issued by the plaintiff, it has been mentioned as friendly loan and Hundi was given by the defendant. It is also mentioned that money was to be returned on demand which brings the document into domain of promissory note. In this context, the observations made in the judgment V.E.A. Annamalai Chettiar and another Vs. S.V.V.s. Verrappa Chettiar and others (S) AOR 1958 S.C. 12 (V. 43 4 Jan) can be looked into which is as follows:
"Whether a transaction is a transaction of loan or deposit does not depend merely on the terms of the document but has got to be judged from the intention of the parties and all the circumstances of the case.
Even though the transaction is a transaction of deposit the deposit can be coupled with an agreement that it will be payable on demand. Such an agreement can be express or implied and if an express agreement in that behalf is recorded in the document the transaction of deposit cannot be thereby converted into a transaction of loan and the words 'we shall pay the said sum' cannot covert the document into a promissory note. The promise to pay will CS No.74/10 6 be involved in a promissory note as well as in a deposit within the meaning of Article 60, Limitation Act and the court will have regard to the intention of the parties and the circumstances of the case in order to arrive at the conclusion whether the document is a promissory note."
Reference can further be made to the judgment in M/s Roshan Lal Kuthiala and another Vs. Raja Rana Yogendra Chandra and others AIR 1996 Himachal Pradesh 14.
10. There is no denial from the attorney of the plaintiff about the allegation of the defendant vizaviz their relationship. Therefore, in these circumstances, the possibility of submissions made on behalf of the defendant cannot be ruled out. These facts further gets strength when the attorney of the plaintiff says that all the entries with regard to the interest on the back of the documents Ex.PW1/2 are in his own hand. The plaintiff has not appeared to testify about the case and the purported entries on the back of the documents in the hands of the attorney further reflects that it is the attorney who is actual person whereas the plaintiff appears to be front for him. In this context, it has been held in various pronouncement that the attorney cannot be substituted as a witness in place of the executor of the attorney. Reference can be made to the case of S. Padmawatamma Versus Sudha Rani AIR 2004 (SC) 309 and CS No.74/10 7 Ram Prasad Vs. Hari Narain and other AIR 1998 Rajasthan 185,
11. On the aspect of limitation, counsel for the defendant has submitted that as per Article 21 of the Schedule attached to the Limitation Act, the suit is barred by limitation. Counsel for the plaintiff submits that Article 21 is not relevant for the purpose of instant suit, rather it is article 25 which comes into play and according to the same, the suit is within limitation. As discussed in preceding para, the nature of the documents is not clear nevertheless on the plain reading of the document, notice and the petition it appears that money was payable on demand in case if it was lent to the defendant. Therefore, article 21 is relevant article in order to ascertain the Limitation. Article 25 cannot be held to be attracted in the instant matter inasmuch as it speaks about the interest only and the language reflects that it confine exclusively to the interest, whereas in the instant case, not only the interest but principal is also involved. As such, the period of limitation is three years and apparently the suit is time barred inasmuch as the loan was advanced in 2001 and the suit was filed in 2010.
12. It is, however, contended further on behalf of the plaintiff that acknowledgment of loan is there till May, 2007 to be precise till 24.7.2007 and the suit was filed in May, 2010 as such, from that CS No.74/10 8 particular date, the suit is within limitation. However, the plaintiff is unable to show any acknowledgment. Any such acknowledgment should have been in writing as has been held in various pronouncement and even otherwise the statute itself i.e. Section 18 of Limitation Act provides that in the absence of any acknowledgment in writing, the extension of limitation cannot be there. The plea that entries on the back of the document Ex.PW1/2 showing payment of interest has to be taken as acknowledgment, fails to fit bill as the signatures of the defendant are not there. In this context reference can be made to the judgment in Sant Lal Vs. Kamla Prasad AIR (38) 1951 Supreme Court 477 and M/s Wazir Sultan and Sons Vs. P.S. Rao AIR 1959 Madras 195 (V 46 C
62). As such, the limitation cannot be said to have been extended beyond 2003. As such the issue no.1 is decided in favour of the defendant and against the plaintiff.
Issue No. 2:
2. Whether the plaintiff is entitled to recover a sum of Rs.
9,54,100/from the defendant ? OPD
13. The plaintiff has not been able to prove her case for the recovery of money against the defendant for several reasons besides those in the preceding paras enumerated herein below, that is, the plaintiff should CS No.74/10 9 have herself appeared and testified in support of her claim. No reason has been given as to why she has chosen not to come and depose. The transaction was in her personal knowledge and the attorney cannot substitute her in respect of evidence. It has been vehemently argued by the counsel for the defendants that in any case the attorney is not proper for the want of authentication and relied upon the judgment in M/s E.C. And E. Co. Vs. M/s J. E. Works Sirsa AIR 1984 Delhi 363 where it was observed in the following words in the former judgment:
"Section 85 raises a presumption about the execution of power of attorney provided two conditions are satisfied. Firstly, it must be executed before the Notary Public and secondly it must be authenticated by Notary Public"
The plaintiff could not meet the argument and the distinction in ascertain and authentication also goes to the detriment of the plaintiff as no evidence is on record qua the attorney being an authenticated one.
The amount of Rs.Seven lacs is not a small amount given on loan by the plaintiff. The defendant admittedly is dealing in thread business and supposed to have audited accounts and income tax assesses. In these circumstances, she is expected to file the income tax return and pay other taxes. Had it been the case of the plaintiff that such particular sum CS No.74/10 10 was advanced to the defendant, then it must have been shown in the income tax return/ accounts of the defendant, which the plaintiff could have secured in the evidence. Alternatively, the plaintiff herself would have shown the source of funding such an amount, her account and income tax return showing the loan to the defendant and receipt of the interest in her income to substantiate her claim against the defendant. Where the defendant has specifically alleged that the document bearing his signatures i.e. Ex.PW1/2 is not the genuine document it becomes all the more desirable. Then where was the occasion with the attorney of the plaintiff to even make endorsements with regard to the interests received by the plaintiff. The relationship between the plaintiff and her attorney has not been clarified as to whether it was some kind of professional relationship or personal relations. This question could have been answered by the plaintiff herself, but then she has chosen not to appear in the witness box, which further derails the case of the plaintiff. In view of the above, both the issues no.1 & 2 are decided against the plaintiff and in favour of the defendant.
Issue No.3:
"Whether the plaintiff is entitled to claim interest from the defendant ? If so at what rate and for what period ? OPP
14. In these circumstances, when the plaintiff is unable to establish her CS No.74/10 11 case against the defendant for recovery of principal, there is no question of awarding any interest thereupon. As such, the issue no. 3 are decided in favour of the defendant and against the plaintiff. Relief:
15. In view of the above discussions on the issues, the suit of the plaintiff fails, the same is hereby dismissed. No order as to costs. Decree be drawn accordingly. File be consigned to record room.
Announced in open court (V.K. YADAV)
on 18.2.2011 Addl. District JudgeII (North)
Delhi
CS No.74/10 12
CS No. 74/10
15.2.2011
Present : None.
Vide separate judgment dictated and announced, the suit of the plaintiff is dismissed. No order as to costs. Decree be drawn accordingly. File be consigned to the Record Room.
(V.K. Yadav) ADJII (North) Delhi.
CS No.74/10 13