Delhi District Court
Renu Verma vs Saurabh Gupta on 21 November, 2023
1
Renu Verma Vs. Saurabh Gupta
IN THE COURT OF VIVEK KUMAR AGARWAL,
CIVIL JUDGE-03,
SHAHDARA DIST., KKD COURTS, DELHI
Civil Suit No:- 1103/2019
Date of Institution: 17.09.2019
Date of Decision: 21.11.2023
Renu Verma
W/o Late Sh. Chandra Prakash
R/o House No. 19, First Floor,
East And Enclave, Near Sai Baba Temple,
Laxmi Nagar, Delhi-110092
.... Plaintiff
Versus
Sh. Saurabh Gupta
S/o Sh. Ved Prakash Gupta,
H.no. 1/11426, Street No.1,
Near Kirti Temple,
Subhash Park Extension,
Shahdara,
North East, Delhi-32.
.... Defendant
SUMMARY SUIT FOR RECOVERY OF RS. 2,50,000/-
Present:- None.
JUDGMENT:-
1. The present suit has been filed by the plaintiff as a summary suit under Order XXXVII CPC, seeking recovery of Rs. 2,50,000/- along with pendente lite and future interest @ 18 % p.a. from the defendants Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 2 Renu Verma Vs. Saurabh Gupta and to award the cost of suit and other reliefs by this Court in favor of the plaintiff.
Plaintiff's version :-
2. Succinctly, as per the plaint, the case of plaintiff is that plaintiff is a widow lady and resides in Delhi. That defendant is the husband of Shefali Gupta, who is niece of plaintiff. That after the death of husband of plaintiff, defendant and his wife started paying regular visits at plaintiff's house. That thereafter, defendant and his wife Shefali Gupta approached the plaintiff and requested for financial assistance of Rs.2,50,000/- with the assurance to return the same. That on 29.03.2018, plaintiff lent a loan of the said amount to defendant. That Rs.2,00,000/- was given by the plaintiff through cheque bearing no. 480353 drawn on PNB and Rs.50,000/- in cash. That previously also, defendant took loans from plaintiff from time to time, however, some loans were returned to the plaintiff. That in discharge of his liability, defendant issued a cheque bearing no. 020471 dated 06.04.2019 for amount of Rs.1,00,000/- drawn on Axis Bank. That when plaintiff presented the said cheque for encashment, it got dishonored due to 'Insufficient funds' vide return memo dated 08.04.2019 and 02.07.2019. That defendant also entered into an agreement with the plaintiff on 24.04.2019 vide which defendant undertook to return the loan amount to the plaintiff on or before 23.06.2019. That despite repeated requests and reminders of the plaintiff, defendant failed to return the loan amount. That defendant is now liable to pay Rs.2,50,000/- to the plaintiff along with interest @ 18 % p.a. and hence the present suit.
Civil Suit No: 1103/2019 Renu Verma
Vs.
Saurabh Gupta (Vivek Kumar Agarwal)
CJ03/Shd./KKD/Delhi
3
Renu Verma Vs. Saurabh Gupta
3. Summons were sent to the defendant in the prescribed format of summary suit and on appearance, summons for judgment were also served. The application for leave to defend moved on behalf of defendant was allowed by the court vide order dated 20.09.2022, subject to condition of filing of FDR by the defendant for amount of Rs.1 lakh. Said FDR was filed on behalf of the defendant in the name of court along with WS and since thereafter, the suit was proceeded further as an ordinary suit.
WS OF DEFENDANT:-
4. In the WS, preliminary objections were taken stating that plaintiff has not come to the court with clean hands and has suppressed material facts. It is further stated that plaintiff is trying to extract money from the defendant by way of the present suit and that defendant is not liable to pay even a single penny to plaintiff as defendant had returned the entire amount of Rs.2,50,000/- to plaintiff. In reply on merits, contents of para 1 and 2 are admitted. Contents of para 3 are denied. The contents of para 4 are stated to be true to the effect that defendant had borrowed the loan of Rs.2,50,000/- from plaintiff on 29.03.2018 and that amount of Rs.2,00,000/- was given by way of cheque and amount of Rs.50,000/- was paid in cash, however, it is denied that defendant used to borrow loan from the plaintiff from time to time. It is submitted that in October 2018, plaintiff asked the defendant to return the loan amount as she required the same for her treatment and accordingly, defendant had borrowed Rs.1,00,000/- (One lakh only) from one of his friend namely Sunny Khan in November 2018 and the said amount as Rs.50,000/- each was transferred in the bank account of the plaintiff on 02.11.2018 and 04.11.2018 from the bank account of friend of the defendant. That the Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 4 Renu Verma Vs. Saurabh Gupta remaining outstanding of Rs.1,50,000/- was returned by the defendant by borrowing the same from his father Ved Prakash. That Rs.50,000/- was sent to the plaintiff in her bank account on 12.11.2018 and Rs.1,00,000/- was transferred to the plaintiff on 13.11.2018 from the bank account of defendant's father. It is further denied that defendant issued any cheque to the plaintiff to clear his liability. It is further submitted that said cheque was given by the defendant to plaintiff to give her a loan of Rs.1 lakh as she was in urgent need of money for her treatment and for that purpose, defendant hd to take a loan of Rs.1 lakh from a society to give the same to the plaintiff but as the loan could not be sanctioned, cheque in question could not be encashed. Contents of para 6 and 7 are denied. In reply to para 8 of the plaint, it is stated that the alleged agreement dated 24.04.2019 was got executed at the request of the plaintiff's brother,who told the defendant that he should have proof of return of the said loan amount to the plaintiff, so as the friend and father of the defendant could not claim the said amount from the plaintiff and it was only a namesake document, whereas, defendant had already paid the loan amount of Rs.2,50,000/- to the plaintiff. All the other averments of the plaint are denied and it is prayed that suit may be dismissed with cost.
REPLICATION
5. In reply to the WS of the defendants, plaintiff filed the replication in which averments of plaint are reiterated. The plaintiff has made the details of the other alleged loan amount taken by the wife of the defendant from the plaintiff and it is also pleaded that one other suit filed Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 5 Renu Verma Vs. Saurabh Gupta by the plaintiff against the defendant and his wife is also pending in the court of Ld. ADJ Distt Shahdara, KKD Courts, Delhi. It is further stated that the defendant and his wife were residing with the plaintiff only for the period of two years and that they were running an NGO at a premise owned by her daughter namely Ruchika Verma and defendant had paid Rs.2,50,000/- as rent in advance and security into the account of the plaintiff in November 2018 for running the said NGO. All other averments of WS are denied.
ISSUES:-
6. From the pleading of the parties following issues were framed vide order dt. 09.11.2022:-
1. Whether the defendant had repaid the amount of Rs.2,50,000/ to the plaintiff? (OPD)
2. Whether the plaintiff is entitled for recovery of Rs.2,50,000/ from the defendant along with interest, as prayed for? (OPP)
3. Relief.
PLAINTIFF'S EVIDENCE:
7. To prove her case, the plaintiff examined herself into the witness box as PW-1 and tendered her affidavit Ex. PW-1/A and relied upon the documents from Ex.PW1/1 to Ex.PW1/4 and Mark A to Mark C including Copy of original cheque no. 020471 dated 06.04.2019, Copy of original return memo dated 08.04.2019 and 02.07.2019, Copy of Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 6 Renu Verma Vs. Saurabh Gupta original agreement dated 24.04.2019, Copy of agreement dated 16.04.2019, Copy of medical documents of the deponent, Copies of NGO documents of defendant. Thereafter, she was cross examined by counsel for defendant. Again, another witness namely Harish Kumar, brother of plaintiff was examined as PW2 tendering his affidavit as Ex.PW2/A and he was duly cross examined by counsel for defendant. Thereafter, PE was closed vide statement of plaintiff dated 13.07.2023.
DEFENDANT'S EVIDENCE:-
8. On the other hand, to prove his own version and to controvert the case of plaintiff, defendant stepped into the witness box as DW1 and tendered his affidavit Ex.DW-1/A and relied upon one document Mark DX which is photocopy of passbook of plaintiff. He was duly cross examined on behalf of plaintiff and thereafter DE was closed vide his statement dated 09.08.2023.
9. Arguments advanced on behalf of Ld. Counsel for both the parties have been heard and file has been carefully and minutely perused. My issue wise findings are as follows:-ISSUE NO. 1
10. The burden to prove this issue was upon the defendant only. It has been argued by Ld. Counsel for defendant that plaintiff/PW1 has duly admitted in her cross-examination that she had received the amount of Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 7 Renu Verma Vs. Saurabh Gupta Rs.50,000/- each on 02.11.2018 and 04.11.2018 in her account from the account of one Sunny Khan. That from the account statement Mark DX, it can be further seen that on 13.11.2018, the amount of Rs.1,50,000/-
was credited in the bank account of the plaintiff from the bank account of one Ved Prakash, who is the father of the defendant. That defendant has led sufficient evidence to prove that he had already repaid the borrowed amount. Regarding the explanation given by the plaintiff, with respect to the said amount received by her, it is argued that property in which NGO was being run by the defendant, belonged to the daughter of the defendant and then why rent would have been paid to the plaintiff. That the agreement in question/Ex.PW1/4 was a namesake document which was prepared only at the request of the brother of the plaintiff to ensure that in future any demand is not made by the father and friend of defendant from the plaintiff.
11. On the other hand, it has been argued by the Ld. Counsel for plaintiff that firstly, the defendant had failed to prove the bank account statement of the plaintiff and said document was not exhibited and that even if said document is taken into consideration by the court, it is not mentioned in the said account statement that payments received from the bank account of Sunny Khan and Ved Prakash were made towards the repayment of loan by the defendant. That in the cross-examination of plaintiff/PW1, suggestion has been given on behalf of the defendant himself to draw inference that the rent of the premises, in which NGO was running, was to be paid by the defendant and therefore, the explanation given on behalf of the plaintiff with respect to the receipt of Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 8 Renu Verma Vs. Saurabh Gupta the above mentioned amount is duly satisfied. Again, the version of the defendant regarding the cheque dated 06.04.2019 Ex.PW1/1 is falsified by the fact that said cheque given for the treatment of plaintiff is dated 06.04.2019, however, as reflected from the discharge summary of the plaintiff at Sharda Hospital i.e. Mark C, it can be seen that plaintiff was already discharged from the hospital on 30.01.2019 after her surgery. It is further contended that if defendant had already repaid the loan amount of Rs.2,50,000/- in November 2018, why he would have executed the document Ex.PW1/4 dated 24.04.2019. that said document has been duly proved by the plaintiff from the testimony of PW2 and as per the said document the loan amount in question was to be repaid by the defendant till 23.06.2019. Accordingly, it is submitted that the defendant had completely failed to prove that he had repaid the loan amount of Rs.2,50,000/- to the plaintiff.
12. Heard. File perused. After having considered the contentions made by Ld. Counsel for both the parties and after minute appreciation of evidence, I come to the conclusion that defendant had completely failed to discharge his burden to prove the present issue in his favor and I come to this conclusions for the reasons discussed in succeeding paragraphs. Firstly, the defendant had taken the plea that he had repaid the amount of Rs.2,50,000/- in the bank account of the plaintiff in November 2018 through his friend namely Sunny Khan and through his father namely Ved Prakash, however, no evidence has been led on behalf of the defendant to prove the said fact. At the very outset, the defendant failed to get summoned the bank account statement of the plaintiff from the Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 9 Renu Verma Vs. Saurabh Gupta concerned bank and again, same has also not been admitted on behalf of the plaintiff and therefore, the document Mark DX is not admissible in evidence. Going one step further, even if said document is taken into consideration, it nowhere reflects that it pertains to the plaintiff only and moreover, it is not mentioned anywhere that amounts of money transferred from the from bank account of Sunny Khan and Ved Prakash in the bank account of the plaintiff was towards the repayment of loan availed by the defendant from the plaintiff. The defendant also failed to examine his own friend namely Sunny Khan and his own father namely Ved Prakash to support his version in this regard. On the other hand, explanation of plaintiff in this regard in her cross-examination that same was received with respect to the advance payment of rent and security, inspires more confidence as admittedly the defendant along with his wife was running an NGO in the premises owned by the daughter of plaintiff on the rental basis and therefore, possibility cannot be ruled out that advance rent of the same would have been paid to plaintiff herself as her daughter resides abroad.
13. Secondly, it is observed that admittedly, the document Ex.PW1/4 was executed between both the parties to the suit. Said document has been produced in original before the court and on perusal of the same, it is very clear that on 24.04.2019, the defendant had agreed to repay the amount of Rs.2,50,000/- till 23.06.2019 borrowed by him on 29.03.2018. Said document was signed by two witnesses including the wife of the defendant namely Shefali Gupta and the brother of the plaintiff namely Harish Kumar, who was also examined before the court as PW2. The Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 10 Renu Verma Vs. Saurabh Gupta only plea taken on behalf of the defendant with respect to such document is that it was a namesake document to save the plaintiff from any future liability towards the friend and brother of the defendant, however, said plea is self contradictory. If the defendant had allegedly already repaid the loan amount from the bank account of his friend and father, why same was not mentioned in the said document. It is not the case of the defendant that same was got executed by playing any fraud with him and rather same has been duly signed by his wife only as an attesting witness in the presence of Notary Public. Even otherwise, it can be observed that no prudent person would have signed the document creating his own liability with the alleged object to absolve the other person from the liability. Therefore, the plea taken on behalf of the defendant seems to a white lie, just to mislead the court. Moreover, the oral evidence given by the plaintiff himself in his own favor to contradict the contents of a document is not admissible as per Section 91/92 of IEA.
14. Last but not the least, it is observed that the credibility of the defendant is further falsified by the fact that as mentioned in his WS, he had given the cheque dated 06.04.2019 i.e. Ex.PW1/1, to return the loan amount to the plaintiff, whereas, he categorically denied the same in his cross-examination and again in his statement recorded by the court for admission/denial of document on 09.11.2022, he had stated that said cheque was issued by him to plaintiff on her request for a loan of Rs.1 lakh. On the one hand the version of the defendant is that he was repaying the loan of the plaintiff and on the other hand the defendant had taken the stand that he himself was lending the money to the plaintiff.
Civil Suit No: 1103/2019 Renu Verma
Vs.
Saurabh Gupta (Vivek Kumar Agarwal)
CJ03/Shd./KKD/Delhi
11
Renu Verma Vs. Saurabh Gupta
15. In view of the aforesaid discussion, it is concluded that defendant has not repaid the loan amount of Rs.2,50,000/- to plaintiff till date and Issue no. 1 is decided accordingly in favour of the plaintiff and against the defendant.
ISSUE NO. 216. As discussed above, it is an admitted case that defendant had availed the loan of Rs.2,50,000/- from the plaintiff. Again, in the finding of issue no.1, it is clearly established that defendant has not repaid the same till date. Accordingly, plaintiff is certainly entitled for recovery of the said amount from the defendant.
17. Regarding the interest claimed @ 18 % p.a. it is to observe that as reflected from the document i.e ExPW1/4, there was no agreed rate of interest on the delayed payment and accordingly, being on the higher side, I am not inclined to grant said rate of interest and same is awarded @ 9% p.a. on the amount of Rs.2,50,000/ with effect from date of institution of the suit till date of decree and future interest @ 6 % p.a. on the decreetal amount.
ISSUE NO. 3 RELIEF
18. In view of findings of issue no. 1 & 2, suit of the plaintiff is hereby partly decreed with cost to the effect that the defendant is liable to pay the amount of Rs.2,50,000/- to the plaintiff along with simple interest Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi 12 Renu Verma Vs. Saurabh Gupta pentente lite @ 9 % p.a. with effect from date of institution of the suit till date of decree and future interest @ 6 % p.a. on the decreetal amount, within 01 month from date of decree.
19. It is further observed that as defendant had deposited the FDR dated 04.10.2022 for amount of Rs.1,00,000/- in the name of the court, the defendant shall pay the remaining amount of Rs.1,50,000/- to the plaintiff along with simple interest pentente lite @ 9 % p.a. with effect from date of institution of the suit till date of decree and future interest @ 6 % p.a. on the decreetal amount. The defendant will also pay the simple interest pentente lite @ 9 % p.a. with effect from date of institution of the suit calculated till 03.10.2023 on the amount of Rs.1,00,000/. The defendant shall pay the entire due amount within 01 month from date of decree.
20. It is further directed that maturity amount of the said FDR be released by the concerned Branch Manager of the bank to the plaintiff at earliest. Decree sheet be prepared accordingly. File be consigned to Digitally signed record room thereafter. VIVEK by VIVEK KUMAR KUMAR AGARWAL Pronounced in open court: AGARWAL (Vivek Kumar Agarwal) Date: 2023.11.21 16:28:21 +0530 Dated: 21.11.2023 Civil Judge-03, Shahdara KKD Courts, Delhi Note :-This Judgment contains twelve pages and all the pages have been Digitally signed by VIVEK checked and signed by me. VIVEK KUMAR KUMAR AGARWAL AGARWAL Date:
2023.11.21 (Vivek Kumar Agarwal) 16:28:26 +0530 Dated: 21.11.2023 Civil Judge-03, Shahdara KKD Courts, Delhi Civil Suit No: 1103/2019 Renu Verma Vs. Saurabh Gupta (Vivek Kumar Agarwal) CJ03/Shd./KKD/Delhi