Delhi District Court
Gurdayal Singh vs Jaipal Giri on 20 October, 2015
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 253/15
Gurdayal Singh
...... Plaintiff
Vs.
Jaipal Giri
...... Defendant
O R D E R:
1. Vide this order I shall dispose of leave to defend application moved by the defendant.
2. Brief facts necessary for disposal of the application are that the plaintiff has filed the present suit under order 37 CPC for recovery of Rs. 8,50,000/ against the defendant. It is stated that the plaintiff and defendant are known to each other and the defendant used to take loan from the plaintiff and used to return the same. In the month of July, 2014, the defendant approached the plaintiff for a loan of Rs. 8,50,000/ and assured the plaintiff to return the same within two months along with interest @ 24% per annum. Upon the assurance of the defendant, the plaintiff gave a loan of Rs. 8,50,000/ in cash to the defendant on 05.07.2014 and defendant executed an undertaking dated 05.07.2014 in this regard in favour of the plaintiff. At the time of taking the loan, the CS No. 253/15 Gurdayal Singh Vs. Jaipal Giri Page 1 of 7 defendant assured that he is the owner of House No. I248, situated in Gali No. 9, Hari Nagar Extension, Badarpur, New Delhi having purchased the same from his wife vide sale documents viz. GPA, Agreement to sell, affidavit, receipt, possession letter,Will, all dated 06.06.2008. The defendant handed over the original GPA etc. dated 06.06.2008 to the plaintiff as security of the aforesaid loan amount. As per the undertaking dated 05.07.2014, the defendant was required to return the aforesaid loan amount with interest on or before 06.09.2014 but he failed to do so despite repeated request of the plaintiff. The plaintiff sent a legal/demand notice dated 15.09.2014 asking the defendant to pay the loan amount of Rs. 8,50,000/ along with interest within 30 days from receipt of notice, but despite service the defendant failed to make the payment of aforesaid loan amount. Hence, the present suit.
3. Summons of suit under order 37 CPC were served upon the defendant. After service of summons, the defendant put in appearance. Thereafter, the plaintiff served the summons for judgment on the defendant. The defendant after service of summons for judgment filed leave to defend application contending that present suit is not maintainable under order 37 of CPC as there is no such instrument which entitles the plaintiff to file the present suit under order 37 CPC. It is contended that the defendant has nether taken any loan from the plaintiff nor has signed the alleged document i.e. undertaking. The CS No. 253/15 Gurdayal Singh Vs. Jaipal Giri Page 2 of 7 plaintiff has not mentioned the mode of payment made to the defendant, if any. It is stated that the plaintiff is engaged in the business of property dealing and the defendant used to work with the plaintiff as freelancer associate on sharing of remuneration/commission received from the parties introduced through him. The defendant used to look for the parties who were either interested in selling or buying properties and after that parties were introduced to plaintiff and deals were finalized. It is further averred that the defendant is a totally illiterate person and cannot read and write any language. He only puts his thumb impression wherever is required and he cannot sign in any language. It is stated that plaintiff used to obtain thumb impressions of defendant on various papers on the pretext of inducting him as witness in the property deals which were of his introduction. It is further averred that in the month of June, 2014 the defendant refused to work with the plaintiff as he is more than 70 years and due to his growing age he is not in a condition to work and continue with the job due to which plaintiff got irked and created the forged documents to take revenge of his refusal to work with him and has raised false claim of Rs. 8,50,000/. It is stated that the plaintiff has misappropriated the blank documents and got a false undertaking dated 05.07.2014. The said undertaking is in English language and the defendant being illiterate person cannot read English and even cannot put his name or signature. It is further averred that during the period when the defendant was in full confidence with the plaintiff, he handed CS No. 253/15 Gurdayal Singh Vs. Jaipal Giri Page 3 of 7 over original documents in respect of his property for safe custody and when in the month of June, 2014 the defendant requested the plaintiff to return the original documents, he kept on ignoring on one pretext or the other. It is stated that there are various triable issues which entitle the defendant for leave to contest the suit.
4. The plaintiff has filed reply to the application denying that he is engaged in business of property dealing. It is stated that the plaintiff is a farmer and has never dealt in any business of property dealing and therefore, question of working of defendant with him as commission agent does not arise. The plaintiff has admitted that the defendant is illiterate person and he only put his thumb impression wherever required, but he contended that the defendant put his thumb impression upon the undertaking dated 05.07.2014 after understanding the same in presence of two attesting witnesses namely Raju and Dalbir Singh. It is denied that plaintiff used to obtain thumb impression of defendant on various papers on the pretext of inducting him as witness in the property deals. The defendant has not filed any document to show that he was the witness in any property deal of the plaintiff nor has disclosed the name of the person in whose deal he was the witness. It is reiterated by the plaintiff that the property documents were handed over by the defendant to him as security of the loan in question and this fact has also been mentioned in the undertaking given by the defendant. The plaintiff has not misappropriated any blank documents of the defendant. CS No. 253/15 Gurdayal Singh Vs. Jaipal Giri Page 4 of 7 The other contents of the application are stated to be wrong and denied and it is stated that defendant has failed to raise any triable issue entitling him for leave to contest the suit. The plaintiff has prayed for dismissal of the application.
5. I have heard the Ld. Counsel for the parties and perused the record carefully.
6. In the present case, the plaintiff has claimed that he had advanced a loan of Rs. 8,50,000/ to the defendant on 05.07.2014 and the defendant also executed an undertaking dated 05.07.2014 to the said effect in his favour. The loan was advanced for a period of two months but the defendant did not refund the loan amount after lapse of two months and even despite service of legal notice. The defendant in leave to defend application has taken a categorical stand that he is an illiterate person and cannot read or write in any language. He only puts his thumb impression wherever is required. The said fact has not been disputed by the plaintiff in reply to the application. Rather the plaintiff admits that defendant is illiterate person and puts only thumb impression wherever is required. The defendant has also taken a plea that the plaintiff is engaged in the business of property dealing and he used to introduce the clients to the plaintiff and the plaintiff used to obtain his thumb impression in blank documents on the pretext of inducting him as a witness in the property deal.
CS No. 253/15 Gurdayal Singh Vs. Jaipal Giri Page 5 of 7
7. The plaintiff though has relied upon the undertaking dated 05.07.2014 given by the defendant, but the said undertaking is in English language. Admittedly, the defendant is an illiterate person who can neither understand nor can sign in English language. Only thumb impressions are affixed on the undertaking dated 05.07.2014. Except the undertaking, which the defendant has claimed to be forged and fabricated by the plaintiff, there is nothing on record to show that the plaintiff has advanced a sum of Rs.8,50,000/ to the defendant as loan. When the defendant has taken a plea that document i.e. the undertaking has been forged and fabricated by the plaintiff and he has not taken any loan from the plaintiff, it raises a triable issue, in the absence of any document to show disbursement of loan to the defendant. Whether the plaintiff has in fact advanced a loan of Rs. 8,50,000/ to the defendant and the defendant has executed the undertaking dated 05.07.2014 towards receipt of loan as claimed by the plaintiff or that the undertaking dated 05.07.2014 has been forged and fabricated by the plaintiff are the contentious issues which require trial.
8. The defendant has also alleged that he had handed over his original property documents with the plaintiff for safe custody which has been misused by the plaintiff as thumb impression were obtained by the plaintiff on blank documents, which are again disputed question of fact and cannot be decided at this stage.
9. In view of aforesaid discussions, in my considered opinion, CS No. 253/15 Gurdayal Singh Vs. Jaipal Giri Page 6 of 7 the defendant has raised aforesaid triable issues which require trial and matter cannot be decided at this stage. Hence, defendant is granted leave to contest the suit.
Announced in open Court (Balwant Rai Bansal)
on 20th October, 2015 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 253/15
Gurdayal Singh Vs. Jaipal Giri Page 7 of 7
CS No. 253/15
Gurdayal Singh Vs. Jaipal Giri
20.10.2015
Present: None.
Vide my separate order of even date, the leave to defend application moved by the defendant is allowed.
Let WS be filed within four weeks with advance copy to the counsel for plaintiff, who may file replication to the same.
Put up on 18.12.2015 for WS, replication, if any, admission/denial of documents and framing of issues.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 20.10.2015 CS No. 253/15 Gurdayal Singh Vs. Jaipal Giri Page 8 of 7