Delhi District Court
Rajesh Kumari vs Pradeep Singh @ Pardeep on 20 January, 2025
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 655/17
CNR NO. DLSW030011432017
IN THE MATTER OF :
SMT. RAJESH KUMARI
THROUGH SHRI OM PRAKASH
S/O SHRI HARI SINGH
(SPECIAL POWER OF ATTORNEY/HUSBAND)
R/0 HOUSE NO.270, SALARPUR KHERA,
NEAR FARM NO.32, BIJWASAN,
NEW DELHI-110061
...PLAINTIFF
VERSUS
SHRI PRADEEP SINGH @ PARDEEP
S/O SHRI DALIP SINGH
R/0 VILLAGE AND POST OFFICE NIMLI,
TEHSIL CHARKHI DADRI,
DISTRICT CHARKHI DADRI, (HARYANA)
...DEFENDANT
Date of filing : 05.07.2017
Date of Institution : 06.07.2017
Date of pronouncing judgment : 20.01.2025
SUIT FOR THE RECOVERY OF MONEY ALONGWITH
INTEREST PENDENTELITE @ 24% PER ANNUM.
JUDGMENT.
By this judgment this Court shall dispose off a suit for
recovery of money filed by the plaintiff against the
defendant. Before adjudicating upon the issues framed in
the present suit, it necessary to dwell upon the plethora of
pleadings in the present suit. Digitally
signed by
ANKIT
ANKIT MITTAL
MITTAL Date:
2025.01.20
17:23:34
+0530
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 1 of 36
1. In brief, it is averred in the plaint that the defendant is son
of the maternal uncle (MAMA) of the plaintiff and he had
very cordial relations with the plaintiff and her family
members and he used to come at the residence of the
plaintiff, being a close relative of the plaintiff.
2. It is submitted that in the month of March, 2011, the
defendant was in need of financial help, hence he had
requested the plaintiff to financially help him and
requested to arrange and give Rs.70,000/- to the
defendant. It is further submitted that after considering the
close relations, the plaintiff had agreed to arrange a sum of
Rs. 70,000 for the defendant and in the month of April,
2011, the plaintiff and her husband had handed over an
amount of Rs.68,250/- to the defendant. While accepting
the amount, the defendant had promised to the plaintiff and
her husband that he would refund the borrowed amount
after fifteen days.
3. It is further submitted that after receiving/borrowing the
amount of Rs.68,250/-from the plaintiff, the defendant had
turned dishonest and after that whenever the plaintiff and
her husband had demanded borrowed money back, the
defendant had avoided to refund the money to plaintiff on
the one pretext or other.
4. It is further averred that the plaintiff and her husband had
requested borrowed the defendant to refund the amount
after the expiry of fifteen days and on that the defendant
had requested the plaintiff and her husband with folded
hands to give some time to him to refund the loan amount
as his financial condition was not good and he was not in a
Digitally
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2025.01.20
17:23:43
+0530
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 2 of 36
position to refund the amount of Rs.68,250/-, to the
plaintiff.
5. In the meantime also the defendant had visiting terms with
the plaintiff and he had never declined to refund the loan
amount and whenever he was asked, he had always
showed his inability to refund the borrowed amount due to
his poor financial condition and always asked the plaintiff
and her husband to wait for a while and always promised
to refund the amount when his financial condition would
be better. This way, defendant the had always avoided to
refund the borrowed amount, on the same excuses of his
poor financial condition.
6. It is further averred that in the year 2014, the defendant
had stopped visiting the plaintiff and also started avoiding
to attend the telephone
call of the plaintiff and her husband. Hence, the plaintiff
and her husband were constrained to visit the defendant at
his house, in Charkhi Dadri, Haryana. The plaintiff and her
husband had visited the defendant several times. The
plaintiff and her husband had visited the defendant in
November, 2016, December, 2016, January, 2017, March,
2017 and May, 2017 and they had requested the defendant
to refund the borrowed amount. But the defendant always
failed loan to refund the amount and avoided to refund the
amount always on the one pretext or other. The plaintiff
finally went to the house of the defendant on 10th March,
2017 and requested the defendant to refund the amount of
Rs.68,250/- and defendant had handed over postdated
cheque bearing No.00005, dated 06.04.2017 of Rs.68,250/-
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 3 of 36
of Andhra Bank, branch Office Bhiwani, in favour of the
(Haryana), plaintiff and the defendant had promised the
plaintiff, while issuing the cheque, that on the presentation
in Bank, the cheque would be honoured. However, on
presentation of the said cheque was dishonoured and
returned with returning memo with the remarks "FUNDS
INSUFFICIENT". Then, the plaintiff has filed the present
for recovery of sum of Rs.68,250/- along with interest
pendentelite @24% per annum from the defendant.
7. Defendant has appeared and filed the Written statement. In
the Written Statement it is submitted that the Defendants
deny each and every submissions made in the Suit and
deny each and every allegations, averments, and/or any
submissions made by the Plaintiff in the suit. It is further
submitted that the contents of the Suit are wrong and
denied as false, misleading, vexatious and unsustainable in
law and each of the paragraphs may be treated to be
general and specific denials.
8. It is submitted that the present suit is liable to be dismissed
under order 7 rule 11 as the plaint of the suit is vexatious,
meritless and groundless and has been filed beyond the
limitation period of three years, prescribed for suit for
recovery under the law because as per the averments made
in the plaint, in the month of April, 2011, plaintiff and her
husband had given an friendly loan for an amount of Rs
68,250/- to the defendant with a condition that the
defendant would return the said amount after the period of
fifteen days, but the present suit for recovery has been filed
in the year, 2017 against the defendant, after the expiry of
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 4 of 36
three years of limitation period provided in this regard,
without giving any specific reason for the delay of filing
the present suit.
9. It is further submitted that no cause of action is arisen in
favour of plaintiff and against the answering defendant as
the defendant never borrowed an amount of Rs 68,250/-
from the plaintiff and her husband, and never issued any
cheque bearing no. 000005, drawn on Andhra Bank in
favour of plaintiff for discharge of his any debt because in
the year, 2011, Sh. Om Prakash, husband of plaintiff/
cousin sister of defendant, had approached the defendant,
for the purpose of getting the scheme of PACL India
Limited thereby plaintiff and her husband namely Om
Prakash also wished to invest their hard earned money in
purchasing the plot/land through company and also wanted
to become a Market agent for earning purpose. In this
manner, on dated 31.10.2011, he had also purchased a
plot/land bearing no. 225, area measuring 1250 SQ. yards
situated at Bhiwani, Near Guliya Nursing Home, Hansi
Road, Bhiwani-127021 for a consideration amount of Rs
62,500/- which was required to be paid in installments and
also became an agent after getting agency code bearing
no.0220059476 and they had paid the said amount in the
company, not given to the defendant and in the year 2013,
when the plaintiff and her husband came to know that the
PACL India Limited facing bankrupt proceedings,
resultantly, was also taken over by or under the control of
SEBI (Securities and Exchange Board of India) for the
purpose of refunding the hard earned money of the
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 5 of 36
investors and working of the company has been stopped,
upon this, both of them started taunting, blaming and
threatening the defendant, just because of him, they
invested their money in this company, now defendant is
the one who is responsible and liable to return the amount
of Rs 68,250/- which they have paid to the PACL India
limited company.
10.It is further submitted that the present suit filed by the
plaintiff is liable to be dismissed forthwith on the sole
ground of territorial jurisdiction as the Hon'ble Court has
no territorial jurisdiction to try and entertain the present
suit filed by the plaintiff as firstly defendant does not
reside or carries on business or personally works for gain
and secondly no cause of action ie., no amount of Rs
68,250/- has been handed over to the defendant at the
residence of plaintiff by the plaintiff, with in the local
limits of jurisdiction of the court.
11.It is submitted by the defendant in the WS that the plaintiff
and her husband in connivance of each other, had stolen
his signed blank cheque in his absence and there may be
chances that they might also be stolen the blank cheque of
the mother as well as defendant.
12.It is submitted that on dated 20.01.2010 defendant had
invested his hard earned money in the PACL Company and
purchased a Plot situated at Bhiwani, Near Guliya Nursing
Home, Hansi Road Bhiwani, and as per the terms and
conditions of the agreement, defendant was directed to
make the payment of whole consideration amount of the
above said plot in installments and by purchasing the plot,
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 6 of 36
defendant also became a market agent of the PACL India
Limited and getting the agency code bearing no.
0220045119, which authorized the defendant to act on
behalf of the company in order to spread the scheme of the
purchasing land/ plot of the company convinces more
buyer, on the profit sharing basis. It is further submitted
that the defendant never borrowed any amount from the
plaintiff.
13.It is further submitted that in the year 2013, the PACL
India Limited was taken by or under the control of SEBI
(Securities and Exchange Board of India) for the purpose
of refunding the hard-earned money of the investors and
working of the company has been stopped. It is pertinent to
mention herein that after hearing this news, plaintiff and
her husband started taunting and blaming upon defendant
and also started threatening to defendant that just because
of him, they invested their money in this company, now
defendant is responsible for this, therefore defendant is
liable to return the amount of Rs 68,250/-(Sixty Eight
Thousand two hundred fifty rupees only) which plaintiff
had paid to the PACL India limited company it is further
submitted that they used to taunt and threaten defendant to
make the payment of said amount of Rs 68,250/-,
otherwise defendant would face the consequences, despite
the fact that they were very well know that whole amount
of Rs 68,250/- had been paid in the company, defendant
have not taken a single penny/any amount from the
plaintiff and her husband, even defendant also suffered
from loss by investing his hard earned money in the said
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 7 of 36
company.
14.Issues were framed on 26.04.2022 as follows:
1) Whether the plaintiff is entitled to a decree of
Rs.68,250/- alongwith interest pendente-lite and future @
24% p.a. against the defendant towards the payment of
dishonoured cheque?.....OPP.
2) Whether the amount of cheque which is Rs.68,250/- is
the same recovery of amount paid in PACL India Ltd.
Company in 2011?.....OPD.
3) Whether the blank signed cheque stolen from the
defendant by the plaintiff from the house of the
plaintiff?........OPD.
4) Relief.
15. Additional issue was also framed by the Ld. Predecessor
of this Court on 19.08.2023 as under:
(5) Whether the present suit of the plaintiff is barred by
limitation? (OPD).
16.The plaintiff only examined herself as PW1. In her
testimony, PW1 tendered her evidence by way of affidavit
being Ex.PW1/A and he reiterated the contents of the
plaint and also relied upon the following documents:
1) Copy of Aadhar card and voter ID card of the plaintiff is
marked as Mark A and B. (ld. Counsel for defendant has
no objection on the identity of the deponent).
2) Certified copy of cheque is Ex.PW1/1.
3) Certified copy of returning cheque bank memo is
Ex.PW1/2.
4) Certified copy of Legal demand notice is Ex.PW1/3.
5) Certified copy of Postal receipt of legal notice dt.
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 8 of 36
07.6.2017 is Ex.PW1/4.
6) Copy of tracking report is marked as Mark C.
17. In the cross-examination, she deposed as under:
"I am 10th class pass. I cannot read English language. I
know the contents of the evidence affidavit. I have filed
the case for recovery of money. Defendant is my cousin
brother (son of maternal uncle/ mama). My husband did
not invest in the PACL Ltd in the year 2011. At this stage,
the witness is shown the document i.e. copy of identity
card of her husband namely Om Prakash, which is now
marked as Mark X1 to which the witness states that the
said identity card is of her husband. She has identified the
said ID card on the basis of photograph of her husband in
the said ID card. It is wrong to suggest that my husband
invested Rs.62,500/- to PACL Ltd. in the year 2011 that is
the reason Mark X1 was issued in favour of my husband.
In the month of March, 2011, defendant has approached
me for the financial help of Rs.70,000/- but I had given
amount of Rs.68,250/-. I have arranged the said money
from my own saving as I was doing the work of stitching.
It is correct that I have not mentioned these facts in my
plaint. I have given the said money for the period of 15
days. I have not executed any document to show that I
have lent the money to the defendant. After the period of
15 days I started demanded my money back. I constantly
requested the defendant to repay the money. I had
approached the defendant in the year 2014 to 2017 till the
time he issued a cheque in question which is Ex.PW1/1 in
favour me. I visited the house of defendant asking him to
repay the money. I took the bus to visit the house of
defendant. It is correct that being a sister of the defendant,
I can roam anywhere in the house of the defendant. It is
wrong to suggest that I and my husband had stolen a blank
signed cheque of the defendant from the house of the
defendant and the same has been misused in order to
recover from losses of amount invested in the PACL Ltd.
It is wrong to suggest that I have filed the present case in
order to recover from losses of amount Rs.62,500/-
deposited in the PACL Ltd. I cannot say whether PACL
Ltd company was facing bank crupt proceedings. The
defendant had handed over cheque in question from his
own house in the year 2017. At the time of handing over
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 9 of 36
the cheque in question, I and defendant was present only.
All the contents of the cheque had filled up by defendant
except my name. My name on the cheque had been filled
up by my husband on my instance at the time of deposit of
said cheque. After the cheque was got dishonoured, my
counsel had informed the defendant about the cheque
being returned dishonoured by the concerned bank. It is
correct that the facts mentioned in the plaint regarding
handing over the cheque, issuance of cheque, approaching
of financial help and handing over the amount to
defendant are not mentioned in legal notice which is
Ex.PW1/3. It is wrong to suggest that when the defendant
received the summons issued by Ld. M.M in U/s. 138 N.I
Act matter, he came to know that the cheque in question
had been stolen. It is wrong to suggest that I am deposing
falsely."
18.The defendant has examined one witness i.e. the defendant
who stepped into the witness box and examined himself as
DW1. In his testimony, DW1 tendered his evidence by
way of affidavit being Ex.DW1/1 and he reiterated the
contents of the WS and also relied upon following
documents:
1) Copy of compliant made by the defendant in the
concerned police station is marked as Mark DW1/A
(colly).
2) Copy of postal receipt is marked as Mark DW1/B.
3) Copy of Aadhar card of the defendant is Ex.DW1/C.
(OSR)
4) Copy of ID card issued through the PACL company to
the defendant is Ex. DW1/E. (OSR)
5) Copy of ID card issued through the PACL company to
the husband of plaintiff is Ex.DW1/F. (OSR)
6) Copy of payment receipts are marked as Mark DW1/G
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 10 of 36
(colly). (objected to as document is not properly legible).
19.In the cross-examination, he deposed as under:
"I am graduate. I am not a law graduate. I am aware about
the contents of my evidence affidavit. I can write and read
English but I can barely understand the English language.
I do not know understand the meaning of terms "misuse of
process of law and intentionally". At this stage, the witness
is shown Ex.DW1/1 more specifically para no.3 to which
witness states that the plaintiff has not given the loan of
Rs.70,000/- to me in the year 2011. The plaintiff met me in
year 2011 lastly. The plaintiff visited my house but I was
not present at that time. Last, plaintiff has visited my
house in the year 2017. The plaintiff is my cousin sister
(bua ki beti). Plaintiff has also invested in the PACL Pvt.
Ltd. It is correct that I have filed the document to show
that the plaintiff is the member of PACL and investor. At
this stage, witness states that no such document is filed in
the case file to show that the plaintiff is the member of
PACL. Again said I have filed the document which shows
that husband of plaintiff is a member of PACL. It is correct
that a person join as a agent in the PACL, the company has
issued the agent I-card and given to the agent. I-card has
not been issued to Sh. Om Prakash by the PACL company.
PACL company has only issued a policy bond and receipt.
I was also one of the agent of PACL company. It is correct
that the PACL company has also issued I-card to me.
Ex.DW1/F is not a forged document which is in my
possession. It is wrong to suggest that I misused the I-card
of Sh. Om Prakash (husband of plaintiff). Sh. Om Prakash
deposited the amount of Rs.68,250/- in PACL company. I
have filed receipts of the abovesaid amount, which is
marked as Mark DW1/G(colly). Only four payment
receipts are on record of Rs.11,375/- each. It is correct that
I made the complaint to the SHO, Police station
Charkhidadri after read the contents. It is correct that in
my complaint the name (Charkhidadri)of Police station is
not mentioned . It is wrong to suggest that plaintiff has
met to me in the year 2017. It is correct that plaintiff was
residing in my house for 1-2 days occasionally. It is
correct that I have not filed any complaint against the
plaintiff in the year 2013 till 2020. It is correct that the
cheque in question belongs to me and belongs my a/c.
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 11 of 36
no.166910100011605 and it also bears my signature. I
operating my bank account from the year 2010 till to date.
During the transaction in my account, no SMS has been
received from the bank to me. I never made a complaint
against the plaintiff regarding threatening and
blackmailing to me. The cheque in question was bounced
in my knowledge that the police official has come to my
house. I am regular operate my bank account to till date. I
never received any legal demand notice. It is correct that
the address mentioned in the plaint is my correct address.
It is wrong to suggest that I have received the legal notice
in the year 2017. I am not filing any case in court against
the plaintiff regarding the misusing of cheque, threatening
and blackmailing. (vol- everything is mentioned in my
Written statement). I have not filed the counter claim in
this case regarding misusing of cheque, threatening and
blackmailing. It is correct that plaintiff is not the member
of PACL India Ltd and has not invested the amount in the
said company. (vol- husband of the plaintiff is the member
of PACL India Ltd. ). I am a member in the PACL India
Ltd. in the year 2010. Sh. Om Prakash has approached me
on 01.11.2011 for investment of an amount of PACL India
Ltd. First installment has been paid on 01.11.2011. The
procedure applied in the PACL India Ltd is firstly, the
form has been given by the company and the form was
duly filled, paste the photograph and deposited the amount
and the same day the company has issued the policy bond
and I-card in favour of applicant. The abovesaid
documents was deposited by me in the company on behalf
of Om Prakash and after deposited the amount, I handed
over the policy bond and I-card to Sh. Om Prakash. I never
operate the bank account for the year 2017 to 2020
maintained with Andhra Bank (now known as Union Bank
of India). My account has been closed by the bank due to
not operating the same. I can produce the bank statement
of my account for the year of 2017 to 2020. It is wrong to
suggest that the cheque became dishonoured was in my
knowledge in the year 2017. It is wrong to suggest that I
never made the complaint against the plaintiff regarding
the liability. At this stage, the witness is shown the
document i.e. Ex.PW1/5 to which witness states that it
bears his signature. At this stage, the witness is shown the
document i.e. Ex.PW1/6 to which witness states that as per
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 12 of 36
Ex.PW1/6 i.e. return memo, the cheque was dishonoured
for the reasons "Funds Insufficient". The date i.e.
01.6.2017 mentioned in Ex.PW1/6 is also admitted. I
produce the attested account ledger enquiry alongwith
certificate of the account. Same are exhibited as
Ex.DW1/P1 and Ex.DW1/P2.That the above said
documents issued by my Bank to me. It is correct that Ex.
DW1/P1 is my bank statement and my account is running
for a period of January 2017 to December, 2020 and the
said account ledger enquires is complete. It is correct that
the amount has been withdrawn by me through ATM and
self by cheque in the period of 2017 to 2020.
Q. I put to you that in your cross-examination dt.
16.10.2023, you had stated that you never operated the
bank account for the year 2017 to 2020 maintained with
Andhra Bank (now known as Union Bank of India) and
your account has been closed by the bank due to non-
operating the same. Whether the statement is correct or
not?.
Ans. I did not had the knowledge when I made that
statement.
It is incorrect to suggest that I deposed falsely since I was
operating the bank account for the year 2017 to 2020. It is
correct that as my ledger account, my account has not been
closed for the period 2017 to 2020. It is correct that as per
ledger account, no entries are reflected for the period of
20.5.2017 to 04.06.2017. It is correct that the cheque in
question got bounced by my bank on dt. 01.6.2017. It is
wrong to suggest that the ledger account Ex.DW1/P1 is
forged and fabricated. My account is saving account. It is
correct that the bank had issued a passbook of my saving
account. It is correct that I have not filed the passbook of
the aforesaid account with my WS. (vol- I can produce the
same). Today, bank official produced the bank
statement Ex.DW2/A. I am operating the bank account
bearing No. 166910100011605 at present. Plaintiff has
lastly come in my house in the year 2017. It is correct that
plaintiff continuously visiting my house and demanding
the amount in question from the year 2011 to 2017. It is
wrong to suggest that I am deposing falsely. It is further
wrong to suggest that I liable to pay the amount of
Rs.68,250/- to the plaintiff."
20.DW-2 is Sh. Ajit Kumar, CSA, PF No. 683191, Union
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 13 of 36
Bank of India, Bhiwani Branch, Haryana. He deposed as
under:
"I am a summoned witness. Today, I have brought account
statement of defendant w.e.f. 01.01.2017 to 31.12.2020.
Attested Copy of the same is Ex.DW2/A."
In the cross-examination, he stated that It is correct
that statement of the defendant's account not complete but
for the period of 01.01.2017 to 31.12.2020 Ex.DW2/A is
correct and complete. The statement of account belongs to
the account bearing No. 166910100011605. It is correct
cheque bearing No. 000005 dt. 06.4.2017 was not
mentioned in Ex.DW2/A. It is correct the cheque
Ex.PW1/1 was belonging to the above said bank account
number. It is correct that Ex.PW1/1 was dishonoured with
the reason Funds Insufficient on dt. 01.06.2017. The above
said account of defendant is closed on 11.01.2021. It is
correct that charges were deducted in the account for
dishonour of cheque. It is wrong to suggest that I am
deposing falsely."
21.DE was closed on 23.08.2024 and final arguments were
heard.
22. Primarily, the case of the plaintiff is that the defendant is a
son of the maternal uncle of the plaintiff and they had very
cordial relations with each other. Further, it was submitted
that in the month of March, 2011, the defendant was in
need of financial help, therefore he sought the loan of
Rs.70,000/- from the plaintiff. Furthermore, it was
submitted that after considering close relations between
parties, plaintiff and her husband had handed over an
amount of Rs. 68,250/- to the defendant in the month of
April, 2011 and defendant promised to return the borrowed
amount after 15 days. It was further submitted that the
plaintiff and her husband requested the defendant to refund
the amount after expiry of 15 days, however defendant
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 14 of 36
requested for some more time on the ground that his
financial condition was not good. Again, it was submitted
that during the period between year 2011 till 2017, plaintiff
and her husband requested the defendant several times for
repayment of loan amount however, defendant always
avoided to refund the amount on one pretext or the other.
Further, it was argued that finally on 10.03.2017, when the
plaintiff again requested the defendant with the folded
hands for repayment of loan amount, then defendant filled,
signed and handed over the post dated cheque bearing no.
00005 dated 06.04.2017 of Rs. 68,250/- drawn on Andhra
Bank, branch office Bhiwani, Haryana in favor of plaintiff
and promised while issuing the cheque that it will be
honoured upon it's presentation before the bank.
Furthermore, it was stated that the plaintiff presented the
aforesaid cheque for encashment however the same got
bounced due to insufficient funds, and when the same was
conveyed to the defendant, he expressed his regret and
asked the plaintiff to present the same again. It was further
submitted that thereafter upon the request of defendant,
plaintiff presented the aforesaid cheque on two other
separate occasions however, it was bounced on each
occasion. Hence the plaintiff was constrained to file the
present suit for the recovery of said amount.
23.Per contra, all the contentions raised on the behalf plaintiff
were contested by the defendant's side. It was argued that
the defendant had invested his hard earned money in the
PACL Company and purchased a plot situated at Bhiwani
road, Haryana and as per the terms of the agreement with
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 15 of 36
the company, the entire amount of the said plot was to be
paid by way of installments and by the purchase of the said
plot, defendant also became the market agent of the PACL
India Limited, which authorized him to act on the
company, in order to spread the scheme of the purchasing
the land / plot of the company among the buyers on profit
sharing basis. Further, it was submitted that in the year
2011, Sh. Om Prakash, husband of plaintiff had
approached the defendant for the purpose of getting the
scheme of PACL and on 31.10.2011, he also purchased a
plot/ land which was situated at Bhiwani for an
consideration amount of Rs. 62,500/- which was required
to be paid in installments and also became an agent of the
PACL Company. It was further submitted that in the year
2013, the PACL India Limited was taken by or under the
control of SEBI for the purpose of refunding the hard
money of the investors and working of the company was
stopped, therefore plaintiff and her husband started
taunting the defendant for the loss and also started to
threaten that because of defendant, they had invested in the
aforesaid company, therefore defendant is responsible for
said loss of Rs. 68,250/-. Also, it was argued that since
plaintiff was the cousin sister of defendant therefore she
had access to his house and she knew where defendant
keeps his important documents such as cheque, passbook
etc., therefore sensing opportunity she stole the blank
signed cheque of defendant, which defendant came to
know when the legal proceedings on the basis of cheque
was commenced against him. Hence, the defendant
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 16 of 36
contested the claim raised by the plaintiff in the present
suit on these grounds.
24.At this juncture, it is relevant to refer the landmark
judgment of Hon'ble Supreme Court of India passed in the
case titled as Dr N.G Dastane v Mrs S Dastane in AIR
1975 SCC 1534, wherein it discussed the concept of
burden of proof in the Civil law and relevant paragraph is
reproduced herein as under:
"...24.The normal rule which governs civil proceedings is
that a fact can be said to be established if it is proved by a
preponderance of probabilities. This is for the reason that
under the Evidence Act, Section 3, a fact is said to be
proved when the court either believes it to exist or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists. The belief regarding
the existence of a fact may thus be founded on a balance of
probabilities. A. prudent man faced with conflicting
probabilities concerning a fact-situation will act on the
supposition that the fact exists, if on weighing the various
probabilities he links that the preponderance is in favour of
the existence of the particular fact. As a prudent man, so
the court applies this test for finding whether a fact in
issue can be said to be proved. The first step in this
process is to fix the probabilities, the second to weigh
them, though the two may often intermingle. The
impossible is weeded out at the first stage, the improbable
at the second. Within the wide range of probabilities the
court has often a difficult choice to make but it is this
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 17 of 36
choice which ultimately determines where the
preponderance of probabilities lies. Important issues like
those which affect the status of parties demand a closer
scrutiny than those like the loan on a promissory note :
"the nature and gravity of an issue necessarily determines
the manner of attaining reasonable satisfaction of the truth
of the issue" Per Dixon, J. in Wright v. Wright (1948) 77
C.L.R. 191 at p. 210; or as said by Lord Denning, "the
degree of probability depends on the subject-matter. In
proportion as the offence is grave, so ought the proof to be
clear" Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But
whether the issue is one of cruelty or of a loan on a
pronote, the test to apply is whether on a preponderance of
probabilities the relevant fact is proved. In civil cases this,
normally, is the standard of proof to apply for finding
whether the burden of proof is discharged...."
25.Keeping the aforesaid said principles of law of evidence in
the mind, I humbly give my findings issue-wise as under:
1)Whether the plaintiff is entitled to a decree of
Rs.68,250/- alongwith interest pendente-lite and future @
24% p.a. against the defendant towards the payment of
dishonoured cheque?.....OPP.
2) Whether the amount of cheque which is Rs.68,250/- is
the same recovery of amount paid in PACL India Ltd.
Company in 2011?.....OPD.
3) Whether the blank signed cheque stolen from the
defendant by the plaintiff from the house of the
plaintiff?........OPD.
26.The issues no. 1 to 3 are taken up together as they are
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 18 of 36
interconnected with each other. In order to avoid repetition
and confusion, all issues are decided together. The onus of
proof to prove issue no.1 was upon plaintiff and the onus
of proof to prove issue no.2 and issue no3 were upon
defendant.
27.Present suit is a suit for recovery of money. In order to
prove its case on a better footing, it is imperative for the
plaintiff to lead a convincing evidence to show that
plaintiff is entitled to recover the money from defendant. It
was also imperative to show that it is a legally recoverable
money. Further the plaintiff has to prove her plaint by way
of oral or document evidence or both.
28.During trial, the plaintiff has examined herself as PW1.
During her examination in chief, the plaintiff deposed the
contents of her plaint in her evidence affidavit. Further,
plaintiff has also remained consistent in her cross-
examination to the extent of events relating to the lending
of loan amount to defendant, since defendant' side failed to
elicit even a single contradictory statement from her in
respect of facts relating to advancement of loan, thus failed
to impeach her credibility to that extent. Further, plaintiff
also able to establish and prove her documentary evidence
as well i.e. certified copy of cheque Ex.PW 1/1, certified
copy of returning cheque bank memo Ex.PW1/2, certified
copy of legal demand notice Ex. PW1/3, certified copy of
legal demand notice Ex. PW1/4 and copy of the tracking
report Mark C. The basic premise of plaintiff's suit was
that defendant being a cousin and both having cordial
relations with each other, she extended the friendly loan of
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 19 of 36
Rs 68,250/- in cash upon the request of defendant in the
month of April, 2011 and defendant promised that he will
return the aforesaid amount after 15 days. Further, despite
several requests and reminders through personal visits as
well, finally defendant gave the post dated cheque dated
06.04.2017 on 10.03.2017 for the repayment of loan
amount. Thereafter, the aforesaid cheque was presented
three times by the plaintiff before her bank but it bounced
each time and defendant didn't made the payment despite
service of legal demand notice which led to filing of
present case.
29.Further, though defendant has admitted the factum of
signature on the aforesaid cheque in his Written Statement
as well as in his cross examination dated 16.10.2023.
However, he contested the claim of handing over the
cheque to plaintiff qua discharge of his liability to the
defendant on the ground that the aforesaid cheque was
stolen by the plaintiff from his house.( defence qua stolen
cheque has been dealt in the later part of judgment). It is
relevant to mention here that once the fact that the
signature on cheque is admitted then it attracts the
presumption of S. 118 of NI Act. The relevant extract is
reproduced herein as under:
Section 118(a) in The Negotiable Instruments Act, 1881
"(a) of consideration --that every negotiable instrument
was made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 20 of 36
30.At this juncture, reliance is upon the landmark judgment
passed by the Hon'ble Apex Court of India in the case
titled as "Bharat Barrel And Drum Manufacturing vs Amin
Chand Payrelal AIR 1999 SCC 1008" wherein it has
discussed the evidentiary value of presumption as given in
Section 118(a) of NI Act and relevant paragraph is
reproduced as under:
"......Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that
once execution of the promissory note is admitted, the
presumption under Section 118(a) would arise that it is
supported by consideration. Such a presumption is
rebuttable. The defendant can prove the non-existence of
consideration by raising a probable defence. If the
defendant is proved to have discharged the initial onus of
proof showing that the existence of consideration was
improbable or doubtful or the same was illegal, the onus
would shift to the plaintiff who will be obliged to prove it
as a matter of fact and upon its failure to prove would dis-
entitle him to the grant of relief on the basis of the
negotiable instrument. The burden upon the defendant of
proving the non-existence of the consideration can be
either direct or by bringing on record the preponderance of
probabilities by reference to the circumstances upon which
he relies. In such an event the plaintiff is entitled under
law to rely upon all the evidence led in the case including
that of the plaintiff as well. In case, where the defendant
fails to discharge the initial onus of proof by showing the
non-existence of the consideration, the plaintiff would
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 21 of 36
invariably be held entitled to the benefit of presumption
arising under Section 118(a) in his favour. The court may
not insist upon the defendant to disprove the existence of
consideration by leading direct evidence as existence of
negative evidence is neither possible nor contemplated and
even if led is to be seen with a doubt. The bare denial of
the passing of the consideration apparently does not
appear to be any defence. Something which is probable
has to be brought on record for getting the benefit of
shifting the onus of proving to the plaintiff. To disprove
the presumption the defendant has to bring on record such
facts and circumstances, upon consideration of which the
court may either believe that the consideration did not
exist or its non-existence was so probable that a prudent
man would, under the circumstances of the case, shall act
upon the plea that it did not exist. We find ourselves in the
close proximity of the view expressed by the Full Benches
of the Rajasthan High Court and Andhra Pradesh High
Court in this regard...."
31.In the light of given findings by Hon'ble Supreme Court of
India, since it is admitted case of defendant that the cheque
bears his signature therefore the presumption has been
raised in the favor of the plaintiff that the cheque in
question was issued for consideration by the defendant in
her favour and fact it has been stolen and misused has to
be proved by the defendant only.
32.Further, Plaintiff in order to prove her case has also relied
upon the certified copy of legal notice dated 02.06.2017 Ex
PW1/3 which was stated by her that same was served upon
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 22 of 36
the defendant and has also placed on record certified copy
of postal receipt and copy of tracking report which are
exhibited as PW1/ 4 and Mark C respectively. Though the
defendant has denied the factum of legal demand notice to
him, however defendant in his cross examination dated
16.10.2023 admits that the address mentioned on the plaint
is correct. Further, upon the perusal of addresses
mentioned on legal notice and plaint, both matches with
each other, hence it can be said legal notice was posted at
the correct address of the defendant. Moreover, upon the
perusal of postal receipt and tracking report, it can said that
legal demand notice was delivered to defendant at the
given address.
33.At this juncture, it is relevant to refer the landmark
judgment of Hon'ble Apex Court of India passed in the
landmark judgment of the C.C. Alavi Haji vs Palapetty
Muhammed & Anr on 18 May, 2007 AIR SCW 3578 . It is
clarified here that though the aforesaid judgment was
passed in the complaint case u/s 138 Negotiable
Instruments Act 1882, however it is relevant here, because
it precisely deals with the law point pertaining to the effect
of service of legal notice on the correct address of the
opposite party. The relevant paragraph is reproduced as
under:
"14. Section 27 gives rise to a presumption that service of
notice has been effected when it is sent to the correct
address by registered post. In view of the said
presumption, when stating that a notice has been sent by
registered post to the address of the drawer, it is
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 23 of 36
unnecessary to further aver in the complaint that in spite of
the return of the notice unserved, it is deemed to have been
served or that the addressee is deemed to have knowledge
of the notice. Unless and until the contrary is proved by
the addressee, service of notice is deemed to have been
effected at the time at which the letter would have been
delivered in the ordinary course of business. This Court
has already held that when a notice is sent by registered
post and is returned with a postal endorsement #refused#
or #not available in the house# or #house locked# or #shop
closed# or #addressee not in station#, due service has to be
presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of
M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs.
P.Subbarama Naidu & Anr. ] It is, therefore, manifest that
in view of the presumption available under Section 27 of
the Act, it is not necessary to aver in the complaint under
Section 138 of the Act that service of notice was evaded
by the accused or that the accused had a role to play in the
return of the notice unserved."
34.Hence, in the light of aforesaid principle laid down by the
Hon'ble Supreme Court of India, it can be said that
presumptions are again in the favor of the plaintiff that she
served the legal notice upon the defendant at the correct
address and now the onus of proof is upon the defendant to
prove he was not served with the legal notice, however he
failed in that duty. It is pertinent to mention here that not
even a single question/ suggestion has been put to the
plaintiff by the defendant when she entered into witness
box as PW1 qua the factum of legal notice, thus testimony
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 24 of 36
of plaintiff went unrebutted to that extent.
35.Further, It is settled law that if the plaintiff, before filing
the suit, makes serious assertion in the notice to the
defendant, then the defendant must not remain silent by
ignoring to reply, if he does so, an adverse inference may
be raised against him.
36.In Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit
Kalra & Anr. 98 (2002) DLT 573 (DB), wherein, Hon‟ble
Division Bench of our Hon‟ble High Court of Delhi
quoted with approval the authority Kalu Ram Vs. Sita
Ram, 1980 RLR (Note) 44, of our own Hon‟ble High
Court which is as follows:-
"Observations of Kalu Ram's case (supra) apply on all
force to the facts of this case. In the case in hand also
despite receipt of notice respondent did not care to reply
nor refuted the averments of demand of the amount on the
basis of the invoices / bills in question. But the learned
Trial Court failed to draw inference against the
respondents."
37.In the light of above findings, it can said that from
discussion above, it is apparent that legal notice was
served upon defendant still he didn't replied the same
rather he tried to deny it, thus adverse inference can be
drawn against the defendant in the present case. Thus, it
can be said that plaintiff has able to establish the prima
facie case in her favour that she lent the friendly loan of
Rs. 68,250/- to the defendant.
38.Now, coming to the defence of defendant which has two
limbs. It has been argued on the behalf of the defendant
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 25 of 36
that no loan amount was given to him by the plaintiff
rather the amount of Rs. 68,250 was invested by the
plaintiff's husband in the PACL India Limited Company,
after defendant purchased the plot upon investing his
savings in the aforesaid company and became agent of that
company as well. It was argued that plaintiff's husband
approached him and also showed interest in making the
investment in the PACL company, thereby he also
purchased a plot/ land which was situated at Bhiwani for
an consideration amount of Rs. 62,500/- which was
required to be paid in installments and also became an
agent of the PACL Company. It was further submitted that
in the year 2013, the PACL India Limited was taken by or
under the control of SEBI for the purpose of refunding the
hard money of the investors and working of the company
was stopped, therefore plaintiff and her husband started
taunting the defendant for the loss and also started to
threaten that because of defendant, they had invested in the
aforesaid company, therefore defendant is responsible for
said loss of Rs. 68,250/-. Also, it was argued that since
plaintiff was the cousin sister of defendant therefore she
had access to his house and she knew where defendant
keeps his important documents such as cheque, passbook
etc., therefore sensing opportunity she stole the blank
signed cheque of defendant, which defendant came to
know when the legal proceedings on the basis of cheque
was commenced against him.
39.During trial, the Defendant has examined himself as DW1
and called formal witness ie Sh. Ajit Kumar, Union Bank
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 26 of 36
of India branch official, Bhiwani, Haryana as DW2.
Further, Defendant/DW1 had led following documentary
evidence in order to prove his case ie Copy of complaint in
the police station by the defendant Mark DW1/A (colly),
copy of postal receipt Mark DW1/ B, Copy of Aadhar Card
Ex. DW1/C (OSR), Copy of ID Card issued by PACL
Limited Company in favor of defendant Ex.DW1/E (OSR),
Copy of ID Card issued by PACL Limited Company in
favor of plaintiff Ex.DW1/F (OSR) and Copy of payment
receipts Mark DW1/G. Further, DW-2 also brought bank
account statement of the Defendant for period from
01.01.2017 to 31.12.2020 Ex DW2/A.
40.It is relevant to mention here that the version of defendant
is full of contradictions, thus fails to inspire confidence of
this Court. Further, although defendant was able to
contradict the plaintiff testimony qua the investment made
by the plaintiff's husband in the PACL Limited by virtue of
documents brought on record since plaintiff had denied
having made any investment in the PACL Company as
upon the perusal of documents brought on record, it can be
said that the plaintiff's husband had invested in the PACL
company. Despite that, defendant has fallen short in
dislodging the presumptions raised in the favor of the
plaintiff due to glaring contradictions in the version of
defendant's defence.
41.Pertinently, Defendant has filed a complaint dated
10.12.2020 which was addressed to SHO against plaintiff
and her husband for offences such as theft, cheating, fraud
and criminal intimidation. It is relevant to mention here, in
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 27 of 36
that complaint, he asserts his knowledge of the Court
proceedings from the month of February, 2020 when he
received summons of Dwarka District Courts whereas the
complaint is dated 10.12.2020, therefore this complaint
and story of stolen cheque appears to be afterthought and
attempt to create alibi. Interestingly, when the right of
defendant to file WS was closed by then Ld. Predecessor
of this Court on 27.03.2021 with the observations that
despite service of summons through dasti was done on
05.02.2020 and before that and after that also notices were
sent to defendant which were refused by him, hence
service of summons was deemed upon the defendant.
Further, again defendant took somersault in his application
dated 26.10.2021 wherein he prayed for setting aside of
Ex-parte order 27.03.2021 and specifically pleaded that he
came to know about the present proceedings when the
counsel of defendant was searching for orders in complaint
filed u/s 138 NI Act by the plaintiff against defendant, then
he came to know that about present civil proceedings.
Hence, these apparent contradictions in the version of the
defendant suggests that he is concealing material facts
from this Court.
42.Further, there are many contradictions in the versions of
the defendant, whether the plaintiff was frequently visiting
the defendant or not in the relevant period. It is relevant to
mention here that as per para 8 of the plaint, it is
specifically pleaded by the plaintiff that she and her
husband visited the defendant several times and also
mentioned specific months and year also. Whereas, the
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 28 of 36
defendant generally denied all the contents of para 8 of the
plaint in his WS. On the contrary, defendant in his cross
examination dated 23.08.2024 admitted that plaintiff was
visiting continuously his house and was demanding the
amount in question. Thus, it again suggests that defendant
has contradicted himself.
43.Further, as per the defendant, plaintiff being his cousin,
had access to his house therefore she knew where
defendant keeps his important documents such as cheque
etc. Furthermore, it was submitted that the plaintiff upon
sensing the opportunity, she stole defendant's cheque from
his house and also has apprehension that she has taken
away the cheques of his mother as well. It is relevant to
mention here that in cases where the defence of stolen
cheque is taken by the party, then subsequent conduct of
that party becomes relevant and material in determining
whether the aforesaid plea is genuine or an afterthought.
Further, as discussed in afore going paras of this judgment
that complaint lodged by the defendant appears to be
afterthought as it is filed after a considerable delay from
the alleged date of notice of said facts by the defendant.
Further, although from defendant evidence on record, it
can be said that defendant had filed the complaint to SHO
ie Mark DW1/A against the plaintiff and her husband but it
is apparent from record that he never followed up that
complaint which seems irrational. Moreover, defendant in
his cross examination dated 16.10.2023, also states that he
does not want to file any case against the plaintiff for
misusing the cheque, which again appears to be illogical,
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 29 of 36
considering the bad relations between the parties and
especially when he apprehends that plaintiff has stolen
cheque of his mother as well.
44.Further, as per the version of the defendant, he came to
know about his stolen cheque has been bounced when the
plaintiff commenced the legal proceeding him. Pertinently,
defendant in his cross examination dated 18.09.23 admits
that cheque in question belongs to him and bears his
signature. Further, he also admits that he was operating
aforesaid bank account from year 2010 till date. However,
again defendant to his contradiction, states in his cross
examination dated 16.10.2023 that he didn't operate his
bank account from year 2017 to 2020, therefore his bank
account was closed due to non operating reasons. Further,
on next date of cross-examination ie 14.03.24, he himself
contradict his last version, when he brings his bank
documents qua account in question on record ie account
ledger enquiry Ex DW1/P1 and Ex. DW1/P2 and again
admits that he was using the aforesaid bank account.
45.In the light of these reasons, it can be concluded that the
defendant failed to dislodge the presumption raised in the
favor of plaintiff that she is a holder of cheque against
consideration and could not prove that the cheque in
question was stolen by the plaintiff and misused for filing
present false case. Hence, defendant also failed to prove
that the amount of cheque is recovery of same amount
which was paid in PACL India Ltd Company in the year
2011. Consequently, the issue no.1 is decided in favor of
plaintiff and issue no. 2 and 3 are decided against the
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 30 of 36
defendant.
46.Issue 5: Whether the present suit of the plaintiff is barred
by limitation....OPD
The onus to prove the aforesaid issue was upon the
defendant.
47.It was argued on the behalf of the defendant that the
present suit is hit by the law of limitation. For arguendo, it
was submitted by the defendant that as per plaintiff's
version, she lent the loan amount in the year 2011 to the
defendant whereas the cheque in question was handed over
to her in the year 2017, therefore, clearly the present suit is
barred by the law of limitation since the alleged cheque
was issued for time barred debt, therefore the present suit
fails solely on this ground only.
48.At this juncture, it is relevant to refer the judgment of
Hon'ble High Court of Delhi passed in the case titled as
Rajeev Kumar vs The State NCT Of Delhi & Anr. dated
11th September, 2024 in CRL.L.P. 212/2021 & CRL.M.A.
20429/2021. It is clarified here that though the aforesaid
judgment was passed in the complaint case u/s 138
Negotiable Instruments Act 1882, however it is relevant
here, because it precisely deals with the law point
pertaining to the issuance of cheque after the loan being
barred by the law of limitation. The relevant paragraphs of
the aforesaid judgment are reproduced as under:
"21. The law relating to a time-barred debt and the revival
by virtue of furnishing a cheque by the drawer, is well
settled. This is based upon the concept that a promise to
pay wholly or in part a debt which cannot be enforced by
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 31 of 36
the creditor being barred by the law of limitation, is a valid
agreement, if it is made in writing and signed by the
person. This is encapsulated in Section 25(3) of the Indian
Contract Act, 1872 ('the ICA') which when read along with
Illustration (e), crystallizes the concept clearly. The said
provisions are extracted as under:
"25. Agreement without consideration void, unless it is in
writing and registered, or is a promise to compensate for
something done, or is a promise to pay a debt barred by
limitation law. --An agreement made without
consideration is void, unless--
.....
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. ......
(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt. This is a contract."
22. The Division Bench of Kerala High Court in Dr. K.K. Ramakrishnan v Dr. K.K. Parthasaradhy & Anr. 2003 SCC OnLine Ker 420 in dealing with a similar issue stated as under:
"10. Learned counsel for the petitioner submits thatSection 25(3) of the Contract Act cannot be invoked to interpret the provisions of Section 138 of the Negotiable Instruments Act.
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 32 of 36
11. The contention cannot be accepted. Section 138provides for a penalty in a case where a cheque is dishonoured on account of insufficiency of funds. The cheque has to be by way of payment of a "legally enforceable debt or aliability". The liability may arise out of a contract or otherwise. Thus, to determine as to whether or not a liability is legally enforceable, the provisions of the Contract Act cannot be said to be irrelevant. These can provides a cause for a legal liability. Resultantly, when a person writes a cheque and delivers it to a person, the drawee not only gets the civil right to present the cheque and recover the amount, but in the event of the cheque being dishonoured the person who has issued the cheque becomes liable for prosecution under Section 138. In other words, the issuance of a cheque becomes a promise to pay under Section 25(3) of the Contract Act. The delivery of the cheque to the drawee creates a right to recover the money. On the cheque being dishonoured the person concerned becomes liable for prosecution. The execution of the cheque is an acknowledgment of a legally enforceable liability and when it is dishonoured the consequences of prosecution and punishment follow.
13. Mr. Benny Gervacis contended that under Section 18of the Limitation Act the acknowledgement has to be made before the expiry of the period of limitation. In the present case, the cheque was executed after the limitation had already expired. Thus, it cannot amount to an extension of limitation.
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 33 of 36
14. For the purpose of the present case, it does not appear to be necessary to go into this matter in detail. It may, however, be mentioned that under Section 25(3), a promise can be made even in a case where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. When a cheque is delivered to the payee, the person is entitled to present the cheque to the bank and seek payment. In such an event, if the cheque is dishonoured, the liability under Section 138 would arise. It would not be permissible for the accused to contend that the liability was not legally enforceable. ... .......
31.In the opinion of this Court, the provisions of Section 25(3)of ICA are squarely applicable. A cheque as per section 6 of the NI Act is a "bill of exchange", which in turn is defined in section 5 of the NI Act as an instrument in writing signed by the maker directing payment of certain sum of money to a certain person. The maker of the cheque is the 'drawer' and the person to be paid is the 'drawee' as per section 7 of the NI Act.
32.Therefore, a priori the cheque itself becomes a promise made in writing signed by the person to pay wholly or in part debt, which otherwise, may not be payable due to law of limitation. Per section 25(3) of the ICA, this would be an agreement in itself. Section 139 presumption under the NI Actwhich presumes that the cheque is in discharge in whole or part liability of any debt or liability would therefore, actually come into play. The contrary position of Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 34 of 36 the accused that no debt or liability subsists having extinguished by the law of limitation, would be then unmerited and untenable, since a fresh agreement comes into operation by the tendering of the cheque. By issuing the cheque, the drawer is acknowledging a legally enforceable liability and he ought not be entitled to claim that the debt had become barred by limitation."
49.In the light of aforesaid findings given by the Hon'ble High Court of Delhi, it can be concluded that the present suit is within limitation, since the issuance of cheque for past debt is considered valid consideration and the present suit was filed within three years from it's dishonorment. Therefore in the light of above, the judgment dated 29.04.2024 passed by the Ld. MM, Dwarka District Courts in the favor of the defendant in the complaint case filed u/s 138 NI Act bearing no. 15582/2017 titled as Rajesh Kumari vs Pradeep Singh on the specific aforesaid point of limitation will not help his cause. Hence the aforesaid contention of limitation raised by the defendant is also dismissed. Therefore, the aforesaid issue is decided in favour of plaintiff and against the defendant. Relief:
50.The suit of the plaintiff is therefore decreed in the favour of the plaintiff and against the defendant, the Defendant is directed to pay Rs.68,250/- to the plaintiff with the interest @ 8 % p.a. from the date of filing of the suit till the date of actual realization of the decreetal amount.
51.Costs of the suit are also awarded in favour of the plaintiff.
52.Decree sheet be prepared accordingly.
Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 35 of 36
53.File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN COURT ON 20.01.2025 Digitally signed by ANKIT ANKIT MITTAL Date:
MITTAL 2025.01.20 17:23:50 +0530 (ANKIT MITTAL) CIVIL JUDGE-01(SW)/DWARKA COURTS NEW DELHI Civil Suit No. 655/17 Judgment dt. 20.01.2025 Page no. 36 of 36