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Delhi District Court

Prince Kapoor vs Kishore Kumar on 6 February, 2025

   IN THE COURT OF SH. KISHOR KUMAR, DISTRICT
 JUDGE-04, NORTH DISTRICT, ROHINI COURTS, DELHI.

                      CS No. 456/2022
                CNR No: DLNT01-005955-2022


Prince Kapoor
Prop of M/s Prince Tyre
S/o Late Sh. Ashok Kapoor,
R/o A-38, Panchwati, Azadpur,
Delhi.
                                                  .....Plaintiff

                           VERSUS
Kishore Kumar
Prop of M/s Hari Fruit
H-2-536, Jahangir Puri,
Delhi-110033
                                                .......Defendant

Date of Institution : 08.07.2022
Date of Decision : 06.02.2025
Final Decision      : Suit Decreed


                   JUDGMENT (EX PARTE)

1. The plaintiff has filed the present suit for recovery of Rs.4,70,000/- along with pendente lite and future interest stating inter alia that plaintiff and defendant are having the business terms as both are working in the same locality. Defendant approached the plaintiff for financial assistance and on account of close relationship, plaintiff advanced a loan of Rs.4,70,000/- to the defendant through bank transfer which defendant assured CS DJ No. 456/2022 Page No. 2 of 5 to return within few months.

2. It is further averred that after six months, plaintiff approached the defendant and asked for repayment of the loan amount, but defendant requested for another nine months as defendant was facing financial crisis. Thereafter, the plaintif demanded the aforesaid loan amount, however, defendant intentionally avoided the plaintiff and even did not pick up the phone of the plaintiff. The plaintiff got served legal notice dated 21.05.2022 upon the defendant, however, despite service of the said legal notice, defendant did not return the said loan amount. Hence, the present suit.

3. Summons were served upon the defendant by way of publication in the newspaper 'The Statesman' dated 04.08.2023, however, despite service defendant failed to appear nor filed written statement and accordingly, vide order dated 02.04.2024, the defendant was proceeded against ex parte.

4. In order to prove his case, plaintiff/Sh. Prince Kapoor, examined himself as PW1 by way of affidavit in evidence Ex. PW1/A and relied upon the documents i.e. copy of Aadhar Card Ex. PW1/1(OSR), bank statement Ex. PW1/2, certificate under CS DJ No. 456/2022 Page No. 3 of 5 section 65B Indian Evidenc Act Ex. PW1/3, legal notice dated 21.05.2022 Ex. PW1/4 and speed post receipt Ex. PW1/5.

5. I have heard ex-parte final arguments advanced by Ld. counsel for the plaintiff and have carefully gone through the material on record.

6. In C.S. Rowjee v. State of Andhra Pradesh, 1964 AIR 962 it was held by the Apex Court that facts in the affidavit uncontroverted by opposite party can be deemed as admitted to rely. Further, in Sushma Berlia & Ors. vs Kamal Kumar & Ors., 2014 SCC OnLine Del it was observed by Hon'ble Delhi High Court that Testimony of PW-1 (Bharat Bhushan) has remained unchallenged and unrebutted. Adverse inference is to be drawn against the defendants for not contesting the suit on adjourned date and remaining ex- parte. There are no sound reasons to disbelieve the positive uncontroverted testimony of PW-1.

7. In the present case, as the defendant remained ex-parte, the testimony of PW1 remained unrebutted. As such this court has no reason to not believe the case of the plaintiff.

8. On a bare perusal of evidence of PW-1, particularly in view of the documents filed on record, particularly, the document Ex. PW1/2 i.e. bank statement shows that there are debit entries in the same of different dates thereby transferring a sum of Rs.4,70,000/- in total to the defendant. The document Ex. PW1/4 and Ex. PW1/5 shows that the defendant failed to return the cheque amount despite service of legal notice. Since the defendant did not appear in the present case and chose to remain ex parte, the evidence and documents produced on behalf of the plaintiff remained unchallenged. Consequently, the plaintiff is held entitled for the relief claimed.

9. The last payment made by the plaintiff as part of the loan amount on dated 08.07.2019 and the present suit has been filed by the plaintiff on dated 06.07.2022, which is, thus within limitation.

Relief

10. In the aforesaid facts and circumstances of the case, the suit of the plaintiff is decreed for a sum of Rs.4,70,000/- along with interest @ 6% per annum from the date of filing of the suit till realization of decretal amount.

11. The plaintiff is entitled to recover costs of the suit from the defendant.

12. Decree sheet shall be prepared accordingly.

13. File be consigned to Record Room after due compliance.

                           KISHOR                 by KISHOR
                                                  KUMAR

Announced in open
                           KUMAR                  Date: 2025.02.06
                                                  15:21:13 +0530
Court on 06.02.2025                             (Kishor Kumar)
                                        DJ-04, North, Rohini Courts,
                                                Delhi/06.02.2025