Delhi District Court
Shri Hansraj Bansal vs Mr. Sarafaraz Ahmad on 1 November, 2018
In the court of Sh. A.S. Jayachandra, Ld. District & Sessions Judge,
Shahdara, Karkardooma Courts, Delhi
C.S. No. 983/2016
Shri Hansraj Bansal,
S/o late Om Prakash Bansal,
R/o H. No. C-1/119, Yamuna Vihar,
Delhi-110053 ....Plaintiff
Versus
Mr. Sarafaraz Ahmad
S/o Sh. Shamim Ahmad,
R/o C-12/120, Yamuna Vihar,
Delhi-110053. .....Defendant
Date of Institution : 23.08.2011
Arguments heard on : 11.10.2018
Date of decision : 01.11.2018
JUDGMENT
Facts in the plaint
1. This is a suit for recovery of Rs.14,90,000/-. Plaintiff claims that he is known to the defendant since a long time and have accumulated borrowing relationship of the defendant who was running chit fund business. As a matter of practice, defendant used to borrow money by executing pronotes. Defendant had sought for financial assistance for his business and executed several pro-notes and upon completion of date of each pronote as a matter of practice, cheques were issued with respect of the sid pronote in discharge of such payment (it must be noted that there is no dates of such pronotes, the amounts and the issuance of the corresponding cheques and its dates in the pleadings at para 5 of the plaint).
2. It is further pleaded that in discharge of the above liabilities upto 20th March, 2009, consolidating the above pro-notes, a cheque is issued by the defendant bearing no. 078861 dated 20.03.2009 for a sum of C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 1/8 Rs.14,90,000/- drawn on Standard Chartered Bank, Preet Vihar, Delhi. The said cheque bounced on 23.03.2009 with a remark "Insufficiency of Funds". A legal notice dated 24.03.2009 was issued which was served but not complied. A case u/s 138 of NI Act is also filed before the competent criminal court. The cause of action is pleaded on the date of cheque, bouncing and also the legal notice. The suit was filed as a summary suit.
3. Upon process, defendant appeared and filed an application for leave to defend. The ld. Predecessor of this court by a detailed order dated 30.05.2015 allowed the defendant to contest the case. Accordingly, W.S. is filed.
Contentions of the Defendant:
4. The suit is resisted on the ground that plaintiff has no locus to file the suit. Defendant alongwith one Abdul Ahad has taken loan of Rs. 5 lakhs from the plaintiff in the year 2008 agreeing to repay in installments. At that time, the said Abdul Ahad and his friend were made to sign certain documents on seventy blank pronotes. Some of the signed pro-notes of the defendant were lost and a complaint is lodged with P.S. Seelampur. This fact is tape recorded by one Shekhar Bansal. Defendant submits that plaintiff collected nearly Rs.30 lakhs in the guise of the recovery of loan from the said Abdul Ahad and his friends. Some of the pro-notes were destroyed by the plaintiff after receipt of the amount and nearly 30 blank pro-notes remained with the plaintiff. Defendant had complained the same with the police. The plaintiff refused to return the pronotes and the cheques.
All the pronotes were filled up by the plaintiff in his hand writing and plaintiff is extorting the money from the defendant and his friends. Several cases are filed against the defendant and his friends by the plaintiff. Plaintiff filed 25 cases of money recovery. It is also submitted that complaint cases u/s 138 of NI Act was dismissed by the competent criminal court. On merits, the transactions pleaded in the suit are denied as false and incorrect. The long time acquaintance is also denied. The contentions in the preliminary C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 2/8 objections are reiterated and the defendant prays for dismissal of the suit. Issues:
5. Upon completion of pleadings, the following issues were framed on 27.01.2017.
1. Whether the plaintiff proves that he is entitled to recover the suit amount alongwith interest from the defendant as prayed for in the suit? OPP
2. Whether the defendant proves that he took only Rs.5 Lacs and the same was repaid ? OPD
3. What relief?
Evidence on record.
6. Plaintiff examined himself as PW-1 and closed his evidence.
The defendant examined himself as DW-1 and closed his evidence. Arguments were heard. The parties have filed their written submissions also which are perused.
Arguments of parties
7. The plaintiff submits that the similar matter, the suit no. 171/2010 was decreed by the Ld. ADJ vide judgment dated 19.05.2014. Since the reply is not sent to the legal notice, it is to be presumed that the defendant admits the suit claim and it is prayed that the suit be decreed. Reliance is also placed on the ruling of Bachhaj Nahar Vs. Nilima Mandal & Anr, Indian Kanoon org/DOC/170697 to urge that defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief when there are no pleadings.
8. On the other hand, the ld. Counsel for the defendant in his written arguments submits that the plaintiff admitted that he does not have money lending license though he filed 25 complaint cases u/s 138 of the NI Act. The contentions of the plaintiff are not corroborated by any of the independent witness who had signed the pronotes and that the transactions C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 3/8 in question are not proved by filing the income tax returns by the plaintiff. The bank details of the payments to the defendant are also not forthcoming. The facts are concealed. The loan was taken by the defendant and Abdul Ahad together and the amounts are paid. The contentions in the written statement are repeated. It is contended that plaintiff misused the documents obtained. He relies on the ruling of Hon'ble High Court in Virender Singh Vs. Deepak Bhatia, dated 08.04.2013 and also on the provisions of the Punjab Money Lenders Act which prevents the claim. Ld. Counsel prays for dismissal of the suit.
9. With the available oral and documentary evidence and in the backdrop of contentions, the issues are being answered as under. Issue no. 1
9. Plaintiff in his examination in chief had reiterated the plaint allegations. According to him the defendant had executed in the course of accumulated borrowing relationship sought for financial assistance to carry out the chit business. As a matter of practice, defendant issued the cheque to the plaintiff against the pronotes. Five pronotes are spoken to in the affidavit at Ex. PW1/A. On the other hand, the documents relied are collectively marked which are only the certified copies obtained from the Magistrate court which are marked as Ex. PW1/1. These documentary evidence are:
a) the first page of the complaint u/s 138 of NI Act filed against this defendant.
b) Certified copy of cheque no. 078861 dated 20.03.2009 for a sum of Rs.14,90,000/- of Standard Chartered Bank, Preet Vihar along with cheque bounce memo.
c) pronote dated 10.12.2008 for a sum of Rs.2 Lacs in the name of plaintiff.
d) pronote dated 10.12.2008 for a sum of Rs.3 Lacs in the name of plaintiff.
e) pronote dated 15.12.2008 for a sum of Rs.6 Lacs in the name of plaintiff.
f) pronote dated 15.12.2008 for a sum of Rs.2,40,000/- in the name of C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 4/8 plaintiff.
g) pronote dated 15.12.2008 for a sum of Rs.1,50,000/- in the name of plaintiff.
h) the copy of the legal notice dated 24.03.2009 and postal receipt.
10. The plaintiff submits that this is the basis for the claim of the suit. The entire claim is based on the above five pronotes which are witnessed by two persons though the names of the witnesses are not depicted in block letters. However, one name can be read as one Amin.
11. During the cross examination of the PW-1, it is admitted that PW-1 had transactions with the defendant to the tune of Rs. 74,00,000/- on several dates and he does not have money lending license. He also admits that he has filed cases against 15-16 people. He also admits having withdrawn some cases when the amounts were paid. He submits that he does not file the income tax returns in support of his case. He also submits that he has not mentioned, the date amount of pronotes in his pleadings. The name of the witnesses to the pronote are Trilok and Amin. He also admits that these witnesses are living nearby. He admits having filed 25 complaint cases. He further admits that he had given the loan to such of the parties who had defaulted earlier so that they may pay all the amounts together. He does not remember how much money recovered from this defendant and Abdul Ahad. He denies the suggestion of procuring a cheque from the party to whom he advances the loan. He also denies that the signatures of the witnesses were obtained on the pronotes at one go.
12. The defendant had reiterated in his evidence, the contentions raised in the W.S. He had also summoned the records from the Ld. MM court to show the pronotes at Ex. DW1/1 which are the pronotes compared with the original record summoned. The details are one pronote dated 19.11.2008 addressed to nil for a sum of Rs.50,000/-, one pronote dated 15.11.2008 addressed to nil and the other pronote addressed to nil for a sum of Rs.50,000/- dated 22.08.2008 witnessed by none and cancelled C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 5/8 pronotes for different sums of different dates witnessed by none.
13. It is seen from the cross examination of DW-1 that he does not remember the date of obtaining the joint loan taken by him along with Abdul Ahad and also admits that he does not have any receipts for having made the payments of monthly installments. He also admits that he had replied to the legal notice. He further admits that he does not have the receipts to show the repayment of Rs. 35 lakhs.
14. In order to succeed issue no. 1, the plaintiff is mandated to prove that he had lent a sum of Rs.14,90,000/- to the defendant. According to the pleadings at para 5 of the plaint, it is seen that the pleadings are vague. What is stated is that the defendant had sought for financial assistance to run the chit business and executed the pronotes. The date of the pronotes and the amounts are not pleaded. By the very ruling relied by the plaintiff in Bachhaj Nahar (supra), the civil courts are bound by certain rules. It is held " the object of issues is to identify from the pleadings, the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek particular relief are not found in the plaint, the court cannot focus the attention of the parties or its own attention on that claim or relief."
15. In the present case the pleadings are very vague. The dates of various transactions under pronotes, the amounts involved in such transactions are not pleaded to prove that the cheque in question is issued in discharge of such a liability arising under the pronotes.
16. PW-1 who admits that there were two witnesses namely Trilok and Amin to the these pronotes which are subject matter of this case had not examined any of these witnesses to corroborate the above pleadings and had utterly failed to establish the genesis of the cheque in question.
17. It is also to be noted that the plaintiff had not produced the originals but had only produced the certified copies of the documents on C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 6/8 which the entire suit claim is relied. In these circumstances, the onus to prove the necessary pleadings are not discharged by the plaintiff. It is also necessary to cull out the deductions of the evidence of the plaintiff and the following facts emerge on record glaringly which denies the relief to the plaintiff.
(a) the various transactions of amounts allegedly paid on different pro-notes to the tune of the cheque amount is not properly pleaded and proved.
(b) there no corroborative evidence by way of original documents of the various pro-notes.
(c) the alleged witnesses on the pro-notes are not examined to prove the transactions.
(d) there is no supportive document to show that the cheque allegedly issued by the defendant is in discharge of the earlier transactions under the pro-notes.
(e) the sane and prudent money lender would insist upon a document of acknowledgement of the debts under the pro-notes if a cheque is issued in discharge of the same.
(f) the consideration having passed on to defendants on the pro- notes are not proved on record.
(g) the admissions found in the evidence of the plaintiff shows that he has various transactions of the money recovery becoming subject matter of the litigation before the courts. He does not have the money lending license to carry out such an avocation and therefore, the same is prohibited under law.
18. Thus, this court is constrained to hold that the plaintiff had failed to establish the transaction that the cheque in question was issued by the defendant in discharge of liabilities arising under the pro-notes which were executed in acknowledgement of the loan obtained by the defendant . Therefore, the issue no. 1 is answered in the negative and against the C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 7/8 plaintiff.
Issue no.2.
19. By this issue, the defendant is obliged to prove that he has taken Rs.5 lac only and the same is repaid. Though the defendant contends so, the same is not proved on record. On the other hand, the defendant himself admitted that he does not have any documentary evidence to show that he had repaid such amount. Therefore, this issue is answered in the negative and against the defendant.
Issue No.3.
20. Though, the defendant failed to prove his defence, it should be kept in mind that the plaintiff who claims certain reliefs based on the facts pleaded had miserably failed to prove the contentions. In the circumstances, the plaintiff having utterly failed to prove the transactions of liabilities of the defendant as pleaded in the plaint, no relief can be granted to the plaintiff. Accordingly, the following:
ORDER The suit of the plaintiff stands dismissed. Decree be drawn Digitally signed by accordingly. File be consigned to record room. A.S. A.S. JAYACHANDRA JAYACHANDRA Date: 2018.11.01 16:28:25 -0400 Typed to the dictation directly, (A.S. Jayachandra) corrected and pronounced in District & Sessions Judge, open court on 01.11.2018 Shahdara/KKD Courts, Delhi.C.S. No.983/2016 Hansraj Bansal Vs. Abdul Ahad Page No. 8/8