Delhi District Court
Rajinder S Chawla Through Power Of ... vs Ramesh Kumar Ramnani on 26 May, 2025
IN THE COURT OF SH. SUNIL BENIWAL,
DISTRICT JUDGE-06
SOUTH DISTRICT, SAKET COURTS, NEW DELHI.
CS DJ NO.376/2022
CNR No.DLST01-005230-2022
Mr. Rajinder S. Chawla
R/o 1143, Mississauga Road,
Mississauga, Ontario, L5H 2J1,
Canada
Through Power of Attorney Holder,
Mr. Rajeev Malhotra
R/o D-130, Panchsheel Enclave,
New Delhi 110017.
Phone Number: (+91) 9811035001
Email address: rajeevmalhotra130gmail.com .....Plaintiff
VERSUS
Mr. Ramesh Kumar Ramnani
R/o 7-D, Pocket J,
Sheikh Sarai Phase 2,
New Delhi 110017.
Phone number: (+91) 9911405099
Email address: [email protected] .....Defendant
CS DJ No.376/2022 page 1 of 66
Date of Institution : 07.06.2022
Date of arguments conclusion : 17.05.2025
Date of Judgment : 26.05.2025
SUIT FOR RECOVERY OF RS.51,26,860/-
JUDGMENT
BRIEF FACTS & AVERMENTS
1. As pleaded, the plaintiff is a citizen of Canada and is a director of Fritz Marketing Inc., a company incorporated in Canada. The present suit under disposal has been filed by the plaintiff seeking recovery of Rs.51,26,860/- (Rupees Fifty One Lac Twenty Six Thousand Eight Hundred and Sixty Only) along with pendente-lite and future interest against the Defendant.
2. In the year 2014, the Defendant approached the Plaintiff for a personal loan, for which the Plaintiff advanced an amount of Rs.32,72,260/- (Rupees Thirty Two Lacs Seventy Two Thousand and Two Hundred and Sixty Only) to the Defendant as loan vide wire transfer and bank advise dated 30.12.2014.
3. Thereafter, in the year 2017, the Defendant again requested the Plaintiff for a further loan amount of Rs.26,24,600/- (Rupees Twenty Six Lac Twenty Four Thousand and Six Hundred Only) and the same was advanced by the Plaintiff vide a wire transfer and bank advice dated 08.02.2017.
4. The Plaintiff provided further amounts to the Defendant of Rs.7,79,000/- (Rupees Seven Lac Seventy Nine Thousand Only) vide wire and bank transfer advice dated 05.09.2018; an CS DJ No.376/2022 page 2 of 66 amount of Rs. 35,00,000/- (Rupees Thirty Five Lac Only) to the Defendant's brother (which amount was transferred by way of a cheque in favour of the Defendant) and to his son a loan amount of Rs. 23,00,000/- (Rupees Twenty Three Lac Only).
5. As averred on behalf of the plaintiff, he was periodically helping not only the Defendant, but also his entire family. For instance, the Plaintiff loaned interest free amounts/ friendly loans to the daughter of the Defendant to purchase a house in Canada with the knowledge, and the approval of the Defendant.
6. In the year 2018, the Plaintiff asked the Defendant to return the amount which had been loaned to him over the years. As averred further, Upon repeated requests, the son of the Defendant returned Rs.18,00,000/- (Rupees Eighteen Lac Only) to the Plaintiff., thereby explicitly admitting his liability, and returning the amount due and payable to the plaintiff.
7. The Defendant again requested the Plaintiff for friendly loans and the Plaintiff loaned to the Defendant Rs.21,09,000/- (Rupees Twenty One Lac Nine Thousand Only) vide wire and bank transfer advice dated 10.03.2020. Further, Rs.15,00,000/- (Rupees Fifteen Lac Only) was withdrawn by the Defendant from the Plaintiff's account.
8. As alleged, it was decided between the parties that in the event the Defendant was unable to repay as and when demanded, then the defendant will pay an interest of 12% per annum on the said amount. As averred, the said fact was suggested by the defendant himself.
CS DJ No.376/2022 page 3 of 66
9. The total loan amount due from the Defendant to the Plaintiff amounted to Rs.1,60,84,860/- (Rupees One Crore Sixty Lac Eighty Four Thousand Eight Hundred and Sixty Only).
10. It has been pleaded on behalf of the plaintiff that the Defendant has admitted and acknowledged the above receipt of the amounts with respect to the Plaintiff in his ledger and balance sheet as well as in his Income Tax Return Statements and in his cross examination.
11. Thereafter, the Defendant repaid the Plaintiff part of the loan amount in several instalments which were deposited into the Plaintiff's bank accounts in India, totalling to Rs. 1,09,58,000/-, thereby, as averred, unconditionally accepting his liability to repay the said amount, else, there exists no other reason for the defendant, who is a retired government servant from NAFED, and a pensioner, to arrange and pay such large sums to the plaintiff.
12. The defendant informed the plaintiff that the remaining amount shall be paid over a short period. However, as averred, the plaintiffs requests fell on deaf ears, and the defendant started ignoring the requests of the plaintiff and had been evading his liability ever since.
13. Therefore, the Defendant is liable to pay the Plaintiff an amount of Rs. 51,26,860/- (Rupees Fifty One Lac Twenty Six Thousand Eight Hundred and Sixty Only) along with interest at the rate of 12% per annum up till the date of final payment.
CS DJ No.376/2022 page 4 of 66
14. The Plaintiff sent a legal notice dated 30.04.2022 seeking recovery of the outstanding loan amount. It is pertinent to note that the said legal notice was duly received by the Defendant, however, the same was not replied to, which establishes the fact that the defendant has unconditionally accepted the contents of the legal notice without any protest and/or demur.
WRITTEN STATEMENT OF THE DEFENDANT:
15. The defendant filed his written statement vehemently opposing the pleadings of the plaintiff.
16. The defendant filed his written statement. The defence pleaded by the defendants is that no loan was granted to the defendant. It has been submitted on behalf of the defendant that he retired from NAFED, in 2008 after taking voluntary retirement due to his disabilities as he had undergone surgery for Bilateral THR (Total hip replacement for both the hips).
17. It has been pleaded on behalf of the defendant that it was very difficult for the defendant to even commute daily to his office. His wife, who was working retired from Govt. of India in 2014.
18. It has also been submitted on behalf of the defendant that the defendant and his family were living comfortably on their pension and rental income.
19. As averred by the defendant, the plaintiff visits India every year in winter. The defendant, all this while, has been organizing the stay of the plaintiff in Sainik Farms, taking care of hospitality and hosting various get together parties, for CS DJ No.376/2022 page 5 of 66 which he was given a free hand to set menu, besides purchase of essentials, groceries and all kind of daily needs. During his stay almost every day arrangement for 20 to 35 people were to be made for their food right from Breakfast to Dinner beside 2- 3 big parties during his 20 days stay.
20. As averred, the defendant had also been taking care of financial matters, had been hosting and looking after the guests of the plaintiff to the best of his capabilities, diligently and honestly. For this he was promised Rs.50,000/- per month by the plaintiff.
21. It has been stressed on behalf of the defendant that he never approached the plaintiff for a personal loan for any purpose, much less to start a business relating to investments in financial market. The defendant has categorically stated that he never took any financial help from the plaintiff.
22. The amount of Rs.32,71,760/-(Rupees Thirty Two Lac Seventy One Thousand Seven Hundred and Sixty) was never advanced to the defendant as a 'loan', as stated by the plaintiff. The said money was sent to the defendant by the plaintiff for purpose of investment.
23. It has been submitted on behalf of the defendant that out of Rs.32,71,760/-(Rupees Thirty Two Lac Seventy One Thousand Seven Hundred and Sixty), the defendant was instructed by the Plaintiff to send Rs.13,00,000/-(Rupees Thirteen Lac) to his own niece namely Ms. Shweta Chawla. The said amount was to be deposited in a Fixed Deposit so that, with the interest CS DJ No.376/2022 page 6 of 66 generation thereon, Ms. Shweta Chawla could meet the day to day expenses of C-66 Naraina Vihar Property and pay the salary of the Lady Caretaker of the Plaintiffs 95 years old father Mr.TC Chawla.
24. Accordingly, the plaintiff sent Rs.13,00,000/-(Rupees Thirteen Lac) to Ms. Shweta Chawla. (Rs.8,00,000/- on 09.01.2015 and Rs.5,00,000/- on 10.01.2015). The remaining amount, as per instructions of the plaintiff, was invested in mutual funds. The mutual funds were redeemed, out of which an amount of Rs.10,00,000/-(Rupees Ten Lac) was paid to one of the common friends of the parties ie Sh. Sushil Kumar Makhija, allegedly on the instructions of the plaintiff.
25. It has also been averred by the defendant that Rs.5,00,000/-
(Rupees Five Lac) was transferred on 10.04.2018 and another amount of Rs.5,00,000/ (Rupees Five Lac) was transferred on 21.04.2018. The defendant has also stated that Rs.16,00,000/- (Rupees Sixteen Lac) was transferred to the NRO account of the plaintiff on 12.06.2019. Thus a total amount of Rs.39,00,000/- (Rupees Thirty Nine Lac) was transferred to/ for the plaintiff in lieu of Rs.32,71,760/- (Rupees Thirty Two Lac Seventy One Thousand Seven Hundred and Sixty.
26. It has also been stated by the plaintiff that Rs.26,24,600/-
(Rupees Twenty Six Lac) was never advanced to the defendant as a 'loan'. The said amount was specifically sent to the defendant on 10.02.2017, to be given to the said Lady CS DJ No.376/2022 page 7 of 66 Caretaker for services rendered by her for looking after the plaintiffs' 95 years old father.
27. It has been submitted by the defendant that he accordingly on the instructions of the plaintiff, settled one Sushil Makhija's account for his old dues. An amount of Rs.10,00,000/- (Rupees Ten Lac) was paid to Sushil Kumar Makhija on 02.04.2017.
28. The defendant has also submitted that he further paid Rs.6,00,000/-(Rupees Six Lac) on 08.04.2017 to Mr. Sushil Kumar Makhija.
29. The defendant has also stated that he paid Rs.50,000/- (Rupees Fifty Thousand) on 04.04.2017, Rs.1,50,000/-(Rupees One Lac Fifty Thousand) 06.04.2017; Rs.1,00,000/- on 07.06.2017 (Rupees One Lac), and Rs.1,00,000/- (Rupees One Lac) on 22.08.2017 to one Shanti Devi.
30. The defendant paid Rs.31,000/- (Rupees Thirty One Thousand) to Mr Sunil Rastogi, Chartered accountant of Plaintiff, RAS Foundation for Tax consultancy, on the instructions of the plaintiff. The defendant has stated that he further paid to Crosslink Hospitality Pvt Ltd a company of Vipin Chawla, Rs.2,00,000/- (Rupees Two Lac) and Rs.4,00,000/- (Rupees Four Lac) on 08.09.2017 for purchase of Dollars on the instructions of the plaintiff which were delivered to the Plaintiff in Canada.
31. The defendant has also submitted that Rs.7,79,000/- (Rupees Seven Lac Seventy Nine Thousand) was never advanced to him as a 'loan'. On the contrary, Rs.7,78,410/- (Rupees Seven Lac CS DJ No.376/2022 page 8 of 66 Seventy Eight Thousand Four Hundred and Ten) was actually transferred from Fritz Marketing INC, ie the Plaintiffs company in Canada, to be paid to the son of the Defendant Kapil Ramnani, making it a total of Rs.8,00,000/- (Rupees Eight Lac), in addition to another sum of Rs.10,00,000/- (Rupees Ten Lac) which was also given to the son of the defendant Kapil in 2014.
32. Further, another sum of Rs.5,00,000/-(Rupees Five Lac) was given to by the plaintiff to the son of the defendant in 2015, thus making it a total of Rs. 23,00,000/- (Rs Twenty Three Lac).
33. It has been submitted on behalf of the defendant that out of Rs.
23,00,000/- (Rupees Twenty Three Lac), his son has already paid back Rs.18,00,000/- (Rupees Eighteen Lac). It has been stated by the defendant that Rs. 5,00,000/- (Rupees Five Lac) is to be paid back by his son.
34. However, for the purposes of this suit, Kapil, s/o the defendant is not a party herein. The transaction between the plaintiff and him are separate transactions which cannot be agitated in this suit.
35. It has been stated by the defendant that Rs.35,00,000/- (Rupees Thirty Five Lac) stated to be given by plaintiffs brother Virender Shekhar Chawla, was never advanced to the defendant as a 'loan'.
36. As averred by the defendant, Rs.35,00,000/- (Rupees Thirty Five Lac) as given by the brother of the plaintiff Virender CS DJ No.376/2022 page 9 of 66 Shekhar Chawla, was to be invested, and was actually invested by the defendant in ICICI Mutual Fund, which matured to Rs.44,81,619.45/- (Rupees Forty Four Lac Eighty One Thousand Six Hundred Nineteen, and forty Five Paisa).
37. The defendant has stated that he transferred Rs.48,00,000/-
(Rupees Forty Eight Lac) to the NRO account of the plaintiff ie Rs.10,00,000/- (Rupees Ten Lac) each on 14.04.2019, 15.04.2019, 16.04.2019 and 18.04.2019, and Rs.8,00,000/- (Rupees Eight Lac) on 25.04.2019. Apart from this, the defendant further transferred Rs.5,25,000/- (Rupees Five Lac Twenty Five Thousand) on 24.04.2019 and Rs.2,20,000/- (Rupees Two Lac Twenty Thousand) on 06.05.2019 making it a total of Rs.55,45,000/- (Rupees Fifty Five Lac Forty Five Thousand).
38. It has been submitted by the defendant that Rs.21,09,000/-
(Rupees Twenty One Lac Nine Thousand) dated 10.03.2020 vide wire transfer were never advanced to the defendant as a 'loan', instead it was specifically sent to the defendant for investing and in order to take advantage of the Fallen Equity market at that period of time.
39. As averred, out of the said amount, Rs. 1,00,000/- (Rupees One Lac) was paid to one Sushil Kumar Makhija for meeting the day to day expenses for Sainik Farm property. The remaining Rs.20,00,000/- (Rupees Twenty Lac) was to be invested in the Share Market.
CS DJ No.376/2022 page 10 of 66
40. It has been submitted by the defendant that as the Plaintiff was in a hurry to repatriate his funds, the plaintiff instructed the defendant to work out its repatriation. Hence after many deliberations and discussions with HDFC NRI Branch, and with due diligence, it was decided by the plaintiff that he shall send the permissible money which can be repatriated to Canada.
41. It has been submitted by the defendant that an amount of Rs.3,40,000,00/ (Rupees Three Crores and Forty Lakhs) was transferred on 25.07.2019 from the NRO Account to the NRE Account.
42. Hence, finally after repatriation of Rs.3,40,00,000/- (Rupees Three Crores Forty Lakhs) a balance of about Rs.18,23,368/- (Rupees Eighteen Lac Twenty Three Thousand Three Hundred Sixty Eight) was lying idle.
43. The plaintiff asked the defendant to take Rs.15,00,000/-
(Rupees Fifteen Lac) from his balance in the NRO account, and asked the defendant to invest the said amount along with Rs. 20,00,000/- (Rupees Twenty Lac) balance from Rs. 21,09,000/- (Rupees Twenty Lac Nine Thousand) and invest it in Equity Market.
44. Hence, accordingly, Rs. 35,00,000/- (Rupees Thirty Five Lac) was invested in the Equity Market which became Rs.36,13,000/- (Rupees Thirty Six Lac Sixteen Thousand).
45. It has been submitted by the defendant that he remitted to the NRO Account Rs.36,13,000/ (Rupees Thirty Six Lac Thirteen CS DJ No.376/2022 page 11 of 66 Thousand) ie Rs. 10,00,000/- (Rupees Ten Lac) on 10.11.2020, Rs.10,00,000/- (Rupees Ten Lac) on 11.11.2020, Rs.10,00,000/- (Rupees Ten Lac) on 12.11.2020 and another amount of Rs 6,13,000/- (Rupees Six Lac Thirteen Thousand) on 13.11.2020, making it a total of Rs.36,13,000/- (Rupees Thirty Six Lac Thirteen Thousand).
46. It has been submitted by the defendant that the plaintiff has falsely claimed Rs.51,26,860/-(Rupees Fifty One Lac Twenty Six Thousand Eight Hundred and Sixty Rupees) along with interest @12% per annum thereon, on account of personal loans allegedly given on different dates by way of wire transfers ie on 30.12.2014, 8.2.2017, 5.9.2018, 10.3.2020, 20.5.2020 and a cheque for Rs.35,00,000/-(Rupees Thirty Five Lac) and a Bank Transfer of Rs.23,00,000/-.
47. It has been submitted by the Ld. Counsel for the defendant that there was never any question of any personal loan being demanded by the defendant, or consequently being given by the plaintiff.
REPLICATION:
48. The Plaintiff filed his replication to the Written Statement refuting the claims of the Defendant and reiterated the stand taken by him in the Plaint.
CS DJ No.376/2022 page 12 of 66
ISSUES
49. After the completion of pleadings, the following issues were framed by this Court vide its order dated 17.04.2023:
i. Whether the Plaintiff is entitled to recovery of any amount from the Defendant? If yes, what amount? OPP ii. Whether the Plaintiff is entitled to interest on the amount? If yes, at what rate and for which period? OPP iii. Whether the claim of the Plaintiff has been barred by limitation? OPD iv. Whether the suit has not been properly signed, verified or instituted as per law? OPD v. Whether the defendant was instructed by the Plaintiff to disburse the amount to different persons as mention in para 4 to 12 of the WS? If yes, its effect? OPD vi. Whether the defendant had transferred the said amounts as per instructions of the Plaintiff? If yes, its effect? OPD vii. Relief.
EVIDENCE:
50. PW-l Rajinder S. Chawla, aged about 68 years S/o Late Sh.T.C. Chawla r/o 1143, Mississauga road, Mississauga ,Ontario L5H CS DJ No.376/2022 page 13 of 66 211, Canada, Presently at New Delhi, entered the witness box on 05.02.2024, and tendered his evidence. The plaintiff sought to place reliance on the below mentioned documents namely:
(1)EX.PW-1/A(OSR)- Special Power of attorney dated 30.05.2022.
(2)EX.PW-1/B- Bank Advise/by transfer dated 30.12.2014. (3)EX.PW-1/C- Bank Advise/ by transfer dated 08.02.2017. (4)EX.PW-1/D- Bank Advise/by transfer dated 05.09.2018. (5)EX.PW-1/E- Bank Advise/by transfer dated 10.03.2020. (6)EX.PW-1/F- Copy of Legal notice dated 30.04.2022. (7)EX.PW-1/G- Speed Post receipt and Courier receipt. (8)EX.PW-1/H- Print out of tracking report dated 02.05.2022.
51. The Ld. Counsel for the defendant duly cross examined PW-1 as per law. The cross examination was completed on 22.02.2024.
52. Defendant examined himself as DW-1 and entered the witness box on 21.09.2024.
53. Ramesh Kumar Ramnani S/o Late Sh. P.C. Ramnani aged about 72 years R/o 7-D, Pocket-I, Sheikh Sarai, Phase-II, New Delhi-110017, tendered his evidence by way of affidavit, and relied upon the below mentioned documents:
(1)EX.DW-1/1 (page no.25 of WS) i.e. bank statement for 01.01.2015 to 15.01.2015 duly certified by HDFC Bank (2)EX.DW-1/2 (page no.27-28 of WS) ie statement for 01.02.2017 to 30.09.2017 duly certified by HDFC Bank.
CS DJ No.376/2022 page 14 of 66 (3)EX.DW-1/3 (page no.48 of WS) i.e. bank statement for 06.02.2018 duly certified by HDFC Bank.
(4)EX.DW-1/4 (page no.47 of WS) i.e. bank statement 10.04.2018 to 21.04.20 I 8 duly certified by HDFC Bank. (5)EX.DW-1/5 (page no.37 of WS) i.e. bank statement for 07.09.2018 to 08.09.2018 (6)EX.DW-1/6 (page no.44 of WS) i.e. bank statement for 0l.04.2019 lo 25.04.2019 duly certified by HDFC Bank. (7)EX.DW-1/1 (page no.46 of WS) i.e. bank statement for 07.04.2019 lo 08.04.2019 duly certified by HDPC Bank. (8)EX.DW-1/8 (page no.45 of WS) ie bank statement for 24.04.2019 duly certified by HDFC Bank.
(9)EX.DW-1/9 (page no.42 of WS) i.e. bank statement for 06.05.2019 duly certified by HDFC Bank.
(10)EX.DW-1/10 (page no.40 of WS) i.e. bank statement for 12.03.2020 to 31 .03.2020 duly certified by HDFC Bank. (11)EX.DW-1/11 (page no.41 of WS) i.e. bank statement for 07.04.2020 to 08.04.2020 duly certified by HDFC Bank. (12)EX.DW-1/12 (page no.43 of WS) i.e. my statement for 10.11.2020 to 13.11.2020 duly certified by HDFC Bank.
54. On 03.03.2025 DW2 Rajiv Das Gupta, (Employee ID No:
R29640) Branch Operation Manager at HDFC Bank Ltd., Panchsheel Park Branch, New Delhi-110017, aged about 45 years entered the witness box as summoned witness and relied on the below mentioned documents:
CS DJ No.376/2022 page 15 of 66 (1)EX.DW-2/A (01 PAGE)- Statement for the period of 01.01.2015 to 15.01.2015 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.02481570004806. (2)EX.DW-2/B (02 PAGES)- Statement for the period of 01.02.2017 to 30.09.2017 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.02481570004806. (3)EX.DW-2/C (01 PAGE)- Statement for the period of 06.02.2018 to 06.02.2018 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.50100071567100. (4)EX.DW-2/D (01 PAGE)- Statement for the period of 10.04.2018 to 21.04.2018 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.02481570004806. (5)EX.DW-2/E (01 PAGE)- Statement for the period of 07.09.2018 to 08.09.2018 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.50100071567100. (6)EX.DW-2/F (01 PAGE)- Statement for the period of 01.04.2019 to 25.04.2019 in thename of Mr. Ramesh Kumar Ramnani for A/c bearing No.02481570004806. (7)EX.DW-2/G (01 PAGE)- Statement for the period of 07.04.2020 to 08.04.2020 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.50100071567100. (8)EX.DW-2/H (01 PAGE)- Statement for the period of 06.05.2019 to 06.05.2019 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.02481570004710.
CS DJ No.376/2022 page 16 of 66 (9)EX.DW-2/I (01 PAGE)- Statement for the period of 12.03.2020 to 31.03.2020 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.50100071567100. (10)EX.DW-2/J (01 PAGE)- Statement for the period of 10.11.2020 to 13.11.2020 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.59179911405091. (11)EX.DW-2/K (01 PAGE)- Statement for the period of 24.04.2019 to 24.04.2019 in the name of Mr. Ramesh Kumar Ramnani for A/c bearing No.02481570004710.
(12)EX.DW-2/L (02 PAGES)- Certificate by the officer/manager in charge of the computer system. (13)EX.DW-2/M (01 PAGE)- Certificate u/s 63(l) of BSA 2023.
(14)EX.DW-2/N (03 PAGES)- Copy of FIRC dated 23.02.2024 issued by standard charted bank in the name of Sh. Ramesh Kumar Ramnani.
(15)EX.DW-2/O (02 PAGES)- Copy of PIRC dated 27.05.2024 issued by standard charted bank in the name of Sh. Ramesh Kumar Ramnani.
55. The Ld. Counsel for the plaintiff duly cross examined DW-1 and DW-2 as per law. The cross examination was completed on 03.03.2025.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF:
56. In regards to Issues No. 1 and 3 i.e. (1) Whether the Plaintiff is entitled to recovery of any amount from the Defendant? If yes, CS DJ No.376/2022 page 17 of 66 what amount? OPP and (3)Whether the claim of the Plaintiff has been barred by limitation? OPD:
57. It has been submitted on behalf of the plaintiff that it is an admitted fact that the amount of Rs.1,60,84,860/- (Rupees One Crore Sixty Lac Eighty Four Thousand Eight Hundred and Sixty) was received by the Defendant from the Plaintiff through Fritz Marketing Inc. It is also an admitted fact that the Defendant has repaid an amount of Rs.1,09,58,000/- till 13.11.2020.
58. The Defendant was cross examined on 21.09.2024 and 13.11.2024. The Defendant in his cross examination has stated as under:
"Q. 21- Are you aware that your daughter took loan from the Plaintiff in order to purchase a house in Canada? A-Yes, I am aware.
Q. 22- Did your daughter seek permission prior to taking loan from the Plaintiff?
A- Yes.
Q. 29- Will it be correct to suggest that your son had taken a loan from the Plaintiff with your permission and consent? A-Yes, I am aware that it was between my son and the Plaintiff. Q. 36- Will it be correct to suggest that you have never invested any amount in any mutual fund in the name of the Plaintiff? A- It is correct.
CS DJ No.376/2022 page 18 of 66 Q. 37- Is it correct to suggest that the money was received in your account from the Plaintiff through its company Fritz Marketing. What do you have to say?
A- Yes, money was received in my account."
59. Defendant in his cross examination on 13.11.2024 has stated as under:
"Q. 46 In answer to Q. No. 39, you had stated that you will check whether the Plaintiff used to send money to you through his firm Fritz Marketing, what do you have to say? A-I have checked and the amount received by me from the Plaintiff was through wire transfer in question from Fritz Marketing.
Q. 47 I put it to you that all the payments through these wire transfers from Fritz Marketing Inc. were made to you on behalf of the plaintiff. What do you have to say? (The question has been explained in vernacular by Mr. Kapil Ramnani, son of the witness, and after understanding the same, the witness replies as under:
A. It is correct.
Q. 48 I put it to you that an amount of Rs.7,79,000/- was received by you in your own account from the plaintiff and you had thereafter given the loan to Mr. Kapil Ramnani from your own account. What do you have to say?
CS DJ No.376/2022 page 19 of 66 A. It is correct that the money used to come in my account only. Upon the instructions of plaintiff I transferred the money in the account of Mr. Kapil Ramnani.
At the stage the witness is shown Ex.DW-1/5 and asked to answer the following question:
Q.49 I put it to you that as per Ex.DW-1/5 on 08.09.2018 you had advanced a loan of Rs.8 Lacs to Mr. Kapil Ramnani from your own account. What do you have to say? After looking at the document the witness states as under: Ans. It is correct that I had given the loan. (Vol. whatever amount I had received from the plaintiff was transferred in the accounts of the individual as instructed by him). Q.53 Can you bring your ITR for the assessment years 2014 till 2021?
Ans. No I don't want to bring. It has no relevance with this case and wire transfers.
It is wrong to suggest that I do not want to bring the ITRs for the assessment year 2014 to 2021 as the same have been forged and fabricated by me and has entries which may implicate me in the present case.
At this stage the witness is shown Ex.DW-1/6, DW-1/8, DW-1/9 & DW-1/12 from the judicial file and asked to answer the following question:
Q.54 I put it to you that the entries of "re-payment of loan" in the above said exhibits are towards part discharge of the CS DJ No.376/2022 page 20 of 66 liability of loan taken by you from the plaintiff. What do you have to say?
After looking at the documents witness replies as under: Ans. The said entries were not towards the re-payment of loan. The language used in the documents i.e. "re-payment of loan" in Ex.DW-1/6, Ex.DW-1/8 & Ex.DW-1/9 and "re- payment of loan Rajinder S. Chawla" in Ex.DW-1/12 is mentioned by the bank on the instructions of the CA who was instructed by the plaintiff.
Q.55 Are you saying that the entries in your bank account statements were not made on your instructions? Ans. I have written the entries myself as per the instructions of the CA. I used to transfer on my own through Net Banking on the instructions of Raj Chawla as I was working as his employee. I used to follow his instructions as an employee without putting my mind.
Q.57 Is it correct that you had paid Income Tax on all the investments made by you including mutual fund, shares, stock and all the dividends received and the interest received, in your name?
Ans. Naturally if everything is happening from my account I have to pay.
Q.58 Is it correct that the Income Tax amount that you allegedly paid, you did not claim the same from the plaintiff at any point of time?
CS DJ No.376/2022 page 21 of 66 Ans. It is incorrect. I have claimed on his investments because my personal income was not within the taxable bracket. Only in the year 2019-2020 I had claimed the Tax to the tune of Rs.1,20,000/- from the plaintiff upon the investments made on his behalf. A sum of Rs.65,000/- was received as refund from the IT department which I did not pay to the plaintiff due to the pending dispute. I was advised by the CA to pay more Tax to remain on the safer side, as in case the Tax so deposited would be refunded by the department in case the same is in excess.
Q.59 Is it correct to suggest that Rs.35 Lacs were separately given to you by the plaintiff to run day to day expenses of Sainik Farm property?
Ans. Yes.
Q.63 Is it correct that the interest from the amount transferred in your account on behalf of the plaintiff was shown as your income in your Income Tax Return?
Ans. Yes it is natural. (Vol. whatever amount I received from the plaintiff was kept in a separate account meant for Sainik Farm).
Q.64 Is it correct that the interest accrued from the fixed deposits in your account was shown as your income in your Income Tax Return?
Ans. Yes it is natural.
CS DJ No.376/2022 page 22 of 66 At this stage the witness is shown Ex.PW-1/F, Ex.PW-1/G & Ex.PW-1/H from the judicial file and asked to answer the following question:
Q.69 I put it to you that all your ITR are manipulated, fabricated and forged in order to evade tax from the tax authorities. What do you have to say?
Ans. It is incorrect.
Q.70 Do you rely upon the ITRs from assessment years 2013- 14 to 2021-22 filed by you as been correct even today?
Ans. It is correct. I rely upon the same even today. Q.71 I put it to you that the last payment made by you towards repayment of outstanding loan was made on 13.11.2020. What do you have to say?
Ans. Yes it is correct."
60. It has been submitted on behalf of the plaintiff that after perusing the cross examination of the defendant It can safely be said that the Defendant has admitted the receipt of the money from the Plaintiff and has also admitted that the defendant has himself made entries with regard to the repayment of loan to the Plaintiff as it was a clear understanding between the parties that the Defendant had been taking the loan from the Plaintiff which was to be repaid.
61. It has also been submitted that the fact that the Defendant had taken money from the Plaintiff for his own use is also corroborated from the admission that he has paid income tax on CS DJ No.376/2022 page 23 of 66 all the investment made by him including mutual funds, shares, stocks and has received dividends and interest in his own name as the investments were made in his own name.
62. That the Plaintiff and the Defendant have been friends for the last over 40 years and the Defendant had been working at NAFED till the year 2014. Consequent to the Defendant's retirement, it is an admitted fact that the only source of income of the Defendant was his pension amounting to Rs. 1605/- and rental income of Rs. 20,000/-. It is further an admitted position that the Defendant does not own any property in his name.
63. Further, the defendant has admitted that he had received a refund to the tune of Rs. 65,000/- from the Income Tax department which he has kept for himself.
64. It has been stressed by the plaintiff that more importantly, the Defendant has clearly admitted that the amount received from the Plaintiff was shown as his income in the Income Tax returns as well as the interest accrued from the fixed deposited was also shown as his income. In fact, he relies upon the Income Tax returns from assessment years 2013- 2014 up to 2021- 2022 as being correct even today.
65. It has also been submitted on behalf of the plaintiff that the defendant has further admitted that he has made the last payment towards repayment of outstanding loan on 13.11.2020, which in itself is an admission that the loan was in fact advanced to the Defendant by the Plaintiff and the Defendant was repaying the same upon being asked by the Plaintiff.
CS DJ No.376/2022 page 24 of 66
66. The Ld. Counsel for the plaintiff has also submitted that the Defendant has also stated in his written statement that the defendant has made payments to various persons and has invested money received from the Plaintiff in various mutual funds, on the instructions of the Plaintiff.
67. It has been stressed by the plaintiff that none of the persons have been produced as witnesses to substantiate the said claims nor has the Defendant placed on record any mutual fund or investment in the name of the Plaintiff.
68. The Ld. Counsel for the plaintiff has also submitted that on the contrary, the Defendant, in his cross examination, has deliberately refused to bring his income tax returns before this Court.
69. The Ld. Counsel for the plaintiff has stated that after taking into account the totality of evidence given on behalf of the defendant, both oral and documentary, it is abundantly clear that no cogent or coherent case has been made out, by the defendant as to how the loan with interest has been repaid.
70. The burden of proof to show repayment of loan lies on the defendant and the onus has not been discharged by the defendant.
71. It is submitted that the burden of proof in establishing that loan has been repaid invariably rests on the borrower defendant. It has been stated on behalf of the plaintiff that the Court can draw an adverse inference in view of reluctance and failure on CS DJ No.376/2022 page 25 of 66 part of the Defendant to come forward and give evidence in the form of Income Tax Returns or any other form.
72. In fact the Defendant has failed to bring any witness to substantiate the averments made by the Defendants in his Written Statement. The plaintiff has also submitted that the case made out both in the Written Statement is that all money/ loan/ payments were given to persons known to the Plaintiff, on Plaintiff's instructions, which was for the Defendant to prove, and has remained unproved.
73. It is also submitted that when a creditor sues a debtor for payment of a debt, if the debtor pleads payment to an agent of the creditor, it is for the debtor to prove that the other person had, or had been held out to debtor by the creditor as having had, the authority of the creditor to receive payment of the debt on behalf of the creditor. The Defendant herein has failed to prove such authorization in the present case.
74. The Ld. Counsel for the plaintiff has submitted that the Plaintiff is entitled to the recovery of an amount of Rs. 51,26,860/- and therefore Issue No. 1 and 2 may be adjudicated in favour of the Plaintiff.
75. In respect of Issue No. 2 Whether the Plaintiff is entitled to interest on the amount? If yes, at what rate and for which period? OPP;
76. It is submitted that the parties had orally agreed that the Defendant would pay an interest @ 12% per annum on the amount outstanding in the event that the Defendant was unable CS DJ No.376/2022 page 26 of 66 to pay the entire amount loaned to him by the Plaintiff within fifteen (15) days after receiving the demand notice. Further, as averred, the said assurance was given by the defendant on his own accord.
77. The Defendant also got examined the DW-2, one Rajiv Das Gupta, Branch Operation Manager, HDFC Bank, Panchsheel Park, New Delhi, on 03.03.2025, to prove statement of accounts filed by the Defendant and also the FIRC dated 23.02.2024 and FIRC dated 27.05.2024. It has been stated by the Ld. Counsel for the plaintiff that the said witness has miserably failed to prove the above said documents.
78. DW 2 IN HIS CROSS EXAMINATION HAS STATED AS UNDER;
"Q. 2- Have you brought your authority letter to depose before this Hon'ble Court today?
A-Separately I have not brought.
Q. 3- I put it to you that HDFC Bank Ltd. Panchsheel Park Branch has not authorized to you to depose on behalf of HDFC Bank Ltd. Today. What do you have to say?
A- I have not brought any authorization letter separately. Q. 6- I put it to you that as per Ex. DW- 2/M Point A to A of the document exhibited today have been allegedly printed out from the computer system which is under the control of Mr. Jatin Bandula and not you. What do you have to say? A- These statements are old and they have been generated by the HDFC Bank concerned statement team I have only taken CS DJ No.376/2022 page 27 of 66 out the printouts from my system to be presented at court being branch operation manager. I am taking care of the entire branch operational activity.
Q.7- Will it be correct to suggest that this certificate of Mr. Jatin Bandula Ex. DW- 2/M is a false and fabricated document. What do you have to say?
A- The Ex. DW-2/M is not false and fabricated document and I have also affixed my signature and stamp on the document. At this stage, attention of witness is drawn to Ex. DW-2/O and Ex. DW-2/N and asked the following questions:
Q. 13- Are these documents generated by HDFC Bank Ltd.?
A- No Q.14- Who is the author of these documents? A- Standard Chartered Bank.
Q.15- What is your email ID?
A- [email protected] Q.16- Were these document was marked you on your email ID by Standard Chartered Bank and when?
A- Yes, these were marked to me on 28.02.2025. Q.17- Did Standard Chartered Bank provided you with the password for opening of the encrypted file on 28.02.2025?
A- No. Q.19- Are you trying to say that the IT Department can take over your system?
A- Yes CS DJ No.376/2022 page 28 of 66
79. It has been submitted by the Ld. Counsel that where there is a continuing breach of contract or a continuous tort, a fresh period of limitation begins to run at every moment during which the breach continues. Reliance has been placed on section 22, Limitation Act.
80. The Ld. Counsel for the plaintiff has also averred that the last payment i.e. admitted payment qua the part payment of the loan amount was made in the year 2020, and the suit was filed in 2022. Further, the period of limitation from March 2020 till July 2022 has to be excluded while computing limitation period, because of the Covid 19 pandemic, in light of the judgement of The Hon'ble Supreme Court of India in RE: COGNIZANCE OF EXTENSION OF LIMITATION.
81. The Ld. Counsel has submitted that as per law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it.
JUDGMENTS RELIED UPON BY THE PLAINTIFF:
82. It has been submitted on behalf of the plaintiff as follows:
83. The Hon'ble Supreme Court of India in R.V.E. VENKATACHALA GOUNDER V ARULMIGU VISWESARASWAMI & V.P. TEMPLE & ANOTHER, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, CS DJ No.376/2022 page 29 of 66 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists.
84. As per the judgement of A. RAGHAVAMMA & ANOTHER V CHENCHAMMA & ANOTHER, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
85. It was observed in RANGAMMAL V KUPPUSWAMI AND OTHERS, CIVIL APPEAL NO 562 OF 2003 AIR 2011 SUPREME COURT 2344, 2011 AIR SCW 3428, that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true.
86. In ANIL RISHI V GURBAKSH SINGH, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
87. The Ld. Counsel for the plaintiff has reproduced S.114 of The Indian Evidence Act 1872 in his written submissions, which reads as follows:
"114. Court may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common CS DJ No.376/2022 page 30 of 66 course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations. The Court may presume--
"..............
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration ................"
88. Further, The Hon'ble Supreme Court in BHARAT BARREL & DRUM MFG. CO. V. AMIN CHAND PAYRELAL [(1999) 3 SCC 35] has observed that:
"12. 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 a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a 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 disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence 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 CS DJ No.376/2022 page 31 of 66 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 nonexistence of the consideration, the plaintiff would 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 the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt."
89. The Ld. Counsel for the plaintiff has submitted that the standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which a party relies.
90. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be evidence even for the purpose of drawing presumption under another.
91. The object of the judicial process is to find the truth from the pleadings, documents and the evidence led before the Court. IN MARIA MARGARIDA SEQUERIA FERNANDES V ERASMO JACK DE SEQUERIA, (2012) 5 SCC 370, it was observed that the truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice.
92. It is settled law that if the plaintiff, before filing the suit, makes serious assertions in the Notice to the defendant, then the CS DJ No.376/2022 page 32 of 66 defendant must not remain silent by ignoring to reply, if he does so, an adverse inference may be raised against him. In METROPOLIS TRAVELS AND RESORTS (I) PVT. LTD. VS. SUMIT KALRA & ANR. 98 (2002) DLT 573 (DB), The Hon'ble Division Bench of our The 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."
93. The Ld. Counsel for the plaintiff has also cited the below mentioned judgements in support of his contention, and has reproduced the relevant paragraphs in his written submissions as follows;
94. HON'BLE HIGH COURT OF DELHI AT NEW DELHI HARISH DUBEY VS ANKUR JAIN RSA 279/2015 "10. After going through the records of this case and hearing the parties, this Court is of the opinion that only because there was no written agreement with respect to grant of loan, the claim of the respondent/plaintiff could not have been discarded. The respondent, PW-1 and his wife, PW-2 have categorically stated that because of the friendly relation existing between the CS DJ No.376/2022 page 33 of 66 respondent/plaintiff and the appellant/defendant, Rs.1 lakh loan was given to the appellant. The complaint discloses that initially the appellant demanded financial help of Rs.5 lakhs but later agreed for accepting even Rs.1 lakh for bailing himself out of financial difficulties. More often than not, such friendly loans are given without taking resort to documentation and, therefore, no written agreement need be insisted for in all cases of friendly loan.
11. Once the respondent/plaintiff proved his claim of having advanced loan of Rs.1 lakh, in cash, to the appellant/defendant through his oral evidence and the evidence of his wife, PW-2, it would not matter if source of collection of amount for the sum to be disbursed to the appellant/defendant is not disclosed. The judgment of the First Appellate Court reveals that there was no challenge to the capacity or the lack of it of the respondent/plaintiff to advance loan to the appellant/defendant.
12. The relationship between the appellant and the respondent were friendly as they were neighbours and residing in the same building. The appellant has admitted before the Court below that he attended the house warming ceremony at the respondent's house and was also a witness to the documentation for issuance of passport in favour of the respondent/plaintiff. These are sufficient indices of good and cordial relations between the parties. When the aforesaid factors are proved, now, it would be a matter of common knowledge that in a friendly relationship loans are advanced without documentation CS DJ No.376/2022 page 34 of 66 and without the same being reflected in the Income Tax Returns. The amount, as stated by the respondent was paid in cash."
95. HON'BLE HIGH COURT OF DELHI AT NEW DELHI COMMISSIONER OF INCOME TAX VERSUS MIRDU HARI DALMIA, [1982]133 ITR 550 "15. A transaction of a loan implies an agreement to repay the money that is borrowed. Shri Harihar Lal cited a definition of "loan" from Corpus Jurisdiction Secundum (Vol. 54, p. 654). According to this passage a loan of money is defined as "a contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows"; and again as "the delivery by one party and the receipt by the other party of a given sum of money on an agreement, express or implied, to repay the sum lent with or without interest". These definitions can be accepted as succinctly summarizing or analysing the ingredients of a loan. They are in line with the definitions enunciated by our Supreme Court (vide K. M. S. Lakshmanier and Sons v. CIT , Badridas Daga v. CIT and other Cases). They make it clear that a loan involves an enforceable agreement between two parties, one of whom is the lender and the other the borrower. The former lends monies to the latter. The latter receives the sum and promises to repay it by an equivalent amount at a future date with or without interest."
96. Other Case Laws Relied upon by the plaintiff:
CS DJ No.376/2022 page 35 of 66 Indian Chain Private Limited v. Ajit Narain (2014) 4 ICC 665; Shri Ramesh Chander Goel v. Master Chirag Goel(Minor) 2022/DHC/004760 in CS(OS) 1239/2008 decided on 11.11.2022; Y.P.Ganesan v. T.N. Supplies Corpn Ltd. (2006) 1 CTC 277 (Mad) - for interest.
SUBMISSIONS OF THE DEFENDANT:
97. Per Contra, it has been submitted on behalf of the defendant that, the plaintiff, in his cross examination, has admitted in answer to Q. no 4 that the defendant was taking care of the property of the plaintiff. Further, Sushil Kumar Makhija was taking care of the property before the defendant.
98. The plaintiff has admitted in the reply to Q.no 5 that whatever was needed was being done by defendant. The plaintiff further admitted that all the wire transfers were made from the account of Fritz Marketing INC.
99. It has been submitted by the defendant that Fritz Marketing INC is a company. The plaintiff is a director of the same. No Resolution or authorization of the company has been filed. No Memorandum of association or articles of association of the said company has been filed on record.
100. Q. Nos. 65 to 70 are in relation to the Company. The plaintiff has admitted that there is no written authorisation in his favour nor has he filed the same on record. He admitted that Memorandum of Association is there, but he has not filed the same.
CS DJ No.376/2022 page 36 of 66
101. The plaintiff has admitted that all wire transfers were from Fritz Marketing INC. The plaintiff has stated in reply to Question No.72 that wire transfers were made from the company on his directions.
102. Suit filed by the plaintiff in individual Capacity is therefore not maintainable. A Company is a separate legal entity. No resolution, No authorisation has been filed by the plaintiff.
Further, the Company has not been impleaded as party to the suit.
103. In Question No.76, the plaintiff was asked as to the purpose for which the wire transfers were made at the time of filling up the form. The plaintiff has admitted that the wire transfers were for travel expenses that he had incurred.
104. It is submitted that the answer to the above mentioned question is sufficient to collapse the case of the plaintiff. No accounts, bank statements, ITR of the company, have been filed by the plaintiff.
105. The plaintiff has also admitted in the answer to Q.No. 94 that no rate of interest was agreed. Further, in the answer to Q.No 95, the plaintiff admitted that no mail was sent by the plaintiff stating that a loan was given to the defendant.
106. Further, in response to Q. no. 96, the plaintiff has admitted that no running account of the defendant was kept by him. In reply to Q.No 98, the plaintiff has admitted that he had no documents to show that the wire transfers were towards the loan.
CS DJ No.376/2022 page 37 of 66
107. The Ld. Counsel for the defendant has submitted that it is also relevant to point out that during his cross examination the defendant put various e-mails as exchanged between him and the plaintiff. The said e-mails were exhibited as on the record of the Court.
108. It has also been submitted on behalf of the defendant that the said documents would show that the defendant had been regularly sending the ledgers to the plaintiff regarding the amount spent by him on the plaintiffs instructions.
109. It has been submitted by the defendant that the plaintiff admitted that Shanti Devi was a caretaker at Q.No 100. In the answer to Q.No 121 to 125, the payments made to Shanti Devi were put to the plaintiff, to which the plaintiff repeated the answer that the same were not made on his instructions.
110. In response to Q.No 127, the plaintiff has admitted that he never asked the defendant why he incurred the said expenditures despite no instructions. The plaintiff has also admitted in reply to Q.No 130 that Kapil Ramani returned the amount of Rs. 18,00,000/-(Rupees Eighteen Lac) to him.
111. It has also been stated that the plaintiff admitted that Ms. Shweta Chawla is his niece. Further, the plaintiff also stated that he does not recall if the payments of Rs. 8,00,000/- (Rupees Eight Lac) and Rs. 5,00,000/- (Rupees Five Lac) were made to Shweta Chawla.
112. The Ld. Counsel for the defendant has also stated that the plaintiff did not specifically deny that payments were remitted CS DJ No.376/2022 page 38 of 66 to him on 10.11.2020, 11.11.2020, 21.11.2020 and 13.12.2020, for Rs. 10,00,000/- (Rupees Ten Lac), another one for Rs. 10,00,000/- (Rupees Ten Lac), another one for Rs. 10,00,000/- (Rupees Ten Lac), and for Rs 6,13,000/- (Rupees Six Lac Thirteen Thousand), respectively.
113. In Q.104, the plaintiff has answered that Sushil Kumar Makhija is 'living for him'. In response to Q.No 105, interestingly the plaintiff answered that Sushil Kumar Makhija was doing the same thing which defendant was doing for him. Q.No. 105.
114. In response to Q.No 126, the plaintiff was asked if he ever asked the defendant why he was incurring expenditure when no instructions were there from the plaintiff to which he replied NO.
115. It has been submitted by the defendant that the answers to Q.Nos 131 to 137 are interesting. The plaintiff did not deny the amounts sent to him or the investments made on his behalf.
116. It has also been submitted on behalf of the defendants that the present case of the plaintiff is of a loan to the defendant. As such, there was no need for the defendant to send any statements to the plaintiff as to how and in what manner he was utilizing the amount given to him, if it was loan. It is submitted that this is not a suit for rendition of accounts.
117. In reply to Q.No.138, the plaintiff admitted that there was no wire transfer of Rs.15,00,000/- (Rupees Fifteen Lac). Q.Nos.141 and 142 are in regards to the alleged payment of Rs 35,00,000/- (Rupees Thirty Five Lac). The plaintiff admitted CS DJ No.376/2022 page 39 of 66 that the amount was not paid by him. The plaintiff has stated that the cheque was issued by his brother Virender Shekar Chawla.
118. The Defendant examined himself as DW-1 and Bank witness as DW-2. The Bank statements for the period 01.01.2015 to 15.01.2015 duly certified by HDFC Bank were exhibited as EX.DW-1/1, and the Bank statement for the period 01.02.2017 to 30.09.2017 duly certified by HDFC Bank were exhibited as EX.DW-1/2, Bank statement dated 06.02.2018 duly certified by HDFC Bank is exhibited as EX.DW-1/3, Bank statement for 10.04.2018 to 21.04.2018 duly certified by HDFC Bank is exhibited as EX.DW-1/4, Bank statement for 07.09.2018 to 08.09.2018 duly certified by HDFC Bank is exhibited as EX.DW-1/5, Bank statement for 01.04.2019 to 25.04.2019 duly certified by HDFC Bank is exhibited as EX.DW-1/6, Bank statement for 07.04.2019 to 08.04.2019 duly certified by HDFC Bank is exhibited as EX.DW-1/7, Bank statement for 24.04.2019 duly certified by HDFC Bank is EX.DW-1/8. The defendant exhibited his own bank statement dated 06.05.2019 duly certified by HDFC Bank as EX.DW-1/9. Bank statement for 12.03.2020 to 21.03.2020 duly certified by HDFC Bank has been exhibited as EX.DW-1/10. Bank statement for 07.04.2020 to 08.04.2020 duly certified by HDFC Bank is exhibited as EX.DW-1/11. Bank statement for 10.11.2020 to 13.11.2020 duly certified by HDFC Bank is EX.DW-1/12. It has been submitted by the Ld. Counsel for the defendant that the above CS DJ No.376/2022 page 40 of 66 mentioned exhibits i.e. EX.DW-1/1 to Ex.DW-1/12 prove the payments made to the plaintiff from time to time.
119. It is therefore submitted that the plaintiff has failed to prove his entitlement to the claims made in the suit. It has been submitted by the Ld. Counsel for the defendant that what the plaintiff has executed wire transfers in order to Claim the amount sent from the company towards expenses, and has got rebate in the company and now filed a suit claiming the same to be loan to the defendant.
120. It has been submitted by the defendants that had the plaintiff filed the documents regarding the company, wherein the wire transfers would have been shown as expenses, even the summons would not have been issued in this present case.
121. It has also been submitted by the defendant that the plaintiff having concealed these facts from this court is not entitled to any relief. The suit is false and is liable to be dismissed.
122. I have heard final arguments and perused the record.
OBSERVATIONS & REASONING
123. The Ld. Counsels representing the parties have advanced their arguments at length, and have made the submissions which have been mentioned herein above.
124. Opportunities were extended to the parties to file their written submissions. The parties have filed their respective written submissions on the record of this Court.
CS DJ No.376/2022 page 41 of 66
125. The Ld. Counsel for the plaintiff has placed reliance on the above stated judgements in support of his case and contentions. The physical copies of the relied upon judgements have been filed on the record of this Court.
126. No Judgements have been cited/ relied upon on behalf of the defendant.
127. At this juncture, it is imperative to go back the basic tenets of the law.
128. Essentials of pleadings A pleading should :
(a) state material facts and not the evidence on which the party seeks to rely on, (b) state such facts in a concise form, and (c) provide all particulars where they are required.
129. These conditions are contained in Order VI Rule 2 of the CPC, and the requirement to state all material facts has time and again been emphasized by the Supreme Court. For instance, in Udhav Singh v Madhav Rao Scindia AIR 1976 SC 744, wherein it was clarified that all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are material facts.
130. The failure to disclose material facts can even attract the grave consequence of the suit being dismissed in its entirety, making the observations of the Supreme Court in Virender Nath v. Satpal Singh 2007 (3) SCC 617 pivotal:
"...it is however absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish CS DJ No.376/2022 page 42 of 66 existence of a cause of action or defence are material facts and must be stated in the pleadings by the party."
131. In the case of UDHAV SINGH V. MADHAV RAO SCINDIA AIR 1976 SUPREME COURT 744 following observations were made:
"28. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice, "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election-petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge leveled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of sec. 83(1)(a). "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of clause (b) of s. 83(i) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). Particulars serve the purpose of finishing touches to the basic contours of a picture CS DJ No.376/2022 page 43 of 66 already drawn, to make it full, more detailed and more informative.
29. The distinction between material facts and material particulars" was pointed out by this Court in several cases, three of which have been cited at the bar. It is not necessary to refer to all of them. It will be sufficient to close the discussion by extracting what A. N. Ray J. (as he then was) said on this point in Hardwari Lals case (supra):
"It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to de fend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words "any assistance" were full statement of material fact. The submission is fallacious for the simple reason that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material CS DJ No.376/2022 page 44 of 66 facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the court have given a verdict in favour of the election petitioner. The answer is in the negative because the allegations in the petition did not disclose any cause of action."
132. For all reasons legal, a loan is considered to be an agreement enforceable by law, which turns it into a Contract as per S.2(h) of The Indian Contract Act, 1872.
133. This Court seeks to mention the essentials of a Contract/ Agreement enforceable by the law:
134. The Indian Contract Act of 1872 governs contracts in India and outlines the basic elements and general rules of a contract. A contract is legally binding if it meets the following essentials:
Offer and acceptance: One party makes an offer, and the other party accepts it. Acceptance can be express or implied. Consideration: There must be something of value in return, or "quid pro quo". The consideration must be lawful, and not illegal, immoral, or against public policy. Capacity: The parties must be legally competent to enter into the contract. This means they must be of the age of majority, have a sound mind, and not be disqualified by law. Intention to create legal relations: The parties must intend for the agreement to be legally binding and create legal obligations.
Certainty of meaning: All parties must agree on the same thing in the same sense.
CS DJ No.376/2022 page 45 of 66 Lawful object: The contract must have a lawful object. Possibility of performance: The contract must be possible to perform.
Legal formalities: The contract can be entered into in writing or orally
135. The Indian Evidence Act, 1872 (BSA 2023 As amended upto date) Relevant Provisions:
101. Burden of proof.
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a)A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b)A desires a Court to give judgement that he is entitled to certain land in the possession of B, by reason of facts which he asserts and which B denies, to be true. A must prove the existence of those facts.
102. On whom burden of proof lies.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations
CS DJ No.376/2022 page 46 of 66
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
103. Burden of proof as to any particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
104. Burden of proving fact to be proved to make evidence admissible.
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(a)A wishes to prove a dying declaration by B. A must prove B's death.
(b)A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
CS DJ No.376/2022 page 47 of 66
(b)A is charged with travelling in a railway without a ticket. The burden of proving that he had a ticket is on him.
109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.
136. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.
110. Burden of proof as to ownership.
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
111. Proof of good faith in transactions where one party is in relation of active confidence.
137. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
138. This Court is inclined to observe that the Plaintiff sent a legal notice dated 30.04.2022 seeking recovery of the outstanding loan amount. The said legal notice was duly received by the Defendant, however, it was not replied to by the defendant.
CS DJ No.376/2022 page 48 of 66
139. It has been submitted on behalf of the plaintiff that it is an admitted fact that the amount of Rs. 1,60,84,860/- (Rupees One Crore Sixty Lac Eighty Four Thousand Eight Hundred and Sixty) was received by the Defendant from the Plaintiff through Fritz Marketing Inc. It is also an admitted fact that the Defendant has repaid an amount of Rs.1,09,58,000/- till 13.11.2020.
140. This Court is inclined to observe the contents of the cross examination of the Defendant, wherein on oath, the Defendant in his cross examination has stated as under:
"Q. 21- Are you aware that your daughter took loan from the Plaintiff in order to purchase a house in Canada? A-Yes, I am aware.
Q. 22- Did your daughter seek permission prior to taking loan from the Plaintiff?
A-Yes Q. 29- Will it be correct to suggest that your son had taken a loan from the Plaintiff with your permission and consent? A.-Yes, I am aware that it was between my son and the Plaintiff.
Q. 36- Will it be correct to suggest that you have never invested any amount in any mutual fund in the name of the Plaintiff? A- It is correct.
Q. 37- Is it correct to suggest that the money was received in your account from the Plaintiff through its company Fritz Marketing. What do you have to say?
CS DJ No.376/2022 page 49 of 66 A- Yes, money was received in my account."
Q. 47 I put it to you that all the payments through these wire transfers from Fritz Marketing Inc. were made to you on behalf of the plaintiff. What do you have to say?
(The question has been explained in vernacular by Mr. Kapil Ramnani, son of the witness, and after understanding the same, the witness replies as under:
A.-It is correct.
Q. 47 I put it to you that all the payments through these wire transfers from Fritz Marketing Inc. were made to you on behalf of the plaintiff. What do you have to say?
(The question has been explained in vernacular by Mr. Kapil Ramnani, son of the witness, and after understanding the same, the witness replies as under:
A.-It is correct.
At the stage the witness is shown Ex.DW-1/5 and asked to answer the following question:
Q.49 I put it to you that as per Ex.DW-1/5 on 08.09.2018 you had advanced a loan of Rs.8 Lacs to Mr. Kapil Ramnani from your own account. What do you have to say? After looking at the document the witness states as under: Ans.-It is correct that I had given the loan. (Vol. whatever amount I had received from the plaintiff was transferred in the accounts of the individual as instructed by him). Q.53: Can you bring your ITR for the assessment years 2014 till 2021?
CS DJ No.376/2022 page 50 of 66 Ans.-No I don't want to bring. It has no relevance with this case and wire transfers.
It is wrong to suggest that I do not want to bring the ITRs for the assessment year 2014 to 2021 as the same have been forged and fabricated by me and has entries which may implicate me in the present case.
At this stage the witness is shown Ex.DW-1/6, DW-1/8, DW-1/9 & DW-1/12 from the judicial file and asked to answer the following question:
Q.54 I put it to you that the entries of "re-payment of loan" in the above said exhibits are towards part discharge of the liability of loan taken by you from the plaintiff. What do you have to say?
After looking at the documents witness replies as under: Ans.-The said entries were not towards the re-payment of loan. The language used in the documents i.e. "re-payment of loan" in Ex.DW-1/6, Ex.DW-1/8 & Ex.DW-1/9 and "re-payment of loan Rajinder S. Chawla" in Ex.DW-1/12 is mentioned by the bank on the instructions of the CA who was instructed by the plaintiff.
Q.55: Are you saying that the entries in your bank account statements were not made on your instructions? Ans.-I have written the entries myself as per the instructions of the CA. I used to transfer on my own through Net Banking on the instructions of Raj Chawla as I was working as his CS DJ No.376/2022 page 51 of 66 employee. I used to follow his instructions as an employee without putting my mind.
Q.57-Is it correct that you had paid Income Tax on all the investments made by you including mutual fund, shares, stock and all the dividends received and the interest received, in your name?
Ans.-Naturally if everything is happening from my account I have to pay.
Q.58: Is it correct that the Income Tax amount that you allegedly paid, you did not claim the same from the plaintiff at any point of time?
Ans.-It is incorrect. I have claimed on his investments because my personal income was not within the taxable bracket. Only in the year 2019-2020 I had claimed the Tax to the tune of Rs.1,20,000/- from the plaintiff upon the investments made on his behalf. A sum of Rs.65,000/- was received as refund from the IT department which I did not pay to the plaintiff due to the pending dispute. I was advised by the CA to pay more Tax to remain on the safer side, as in case the Tax so deposited would be refunded by the department in case the same is in excess. Q.59 Is it correct to suggest that Rs.35 Lacs were separately given to you by the plaintiff to run day to day expenses of Sainik Farm property?
Ans.-Yes.
CS DJ No.376/2022 page 52 of 66 Q.63: Is it correct that the interest from the amount transferred in your account on behalf of the plaintiff was shown as your income in your Income Tax Return?
Ans.-Yes it is natural. (Vol. whatever amount I received from the plaintiff was kept in a separate account meant for Sainik Farm).
Q.64 Is it correct that the interest accrued from the fixed deposits in your account was shown as your income in your Income Tax Return?
Ans.-Yes it is natural.
Q.71 I put it to you that the last payment made by you towards repayment of outstanding loan was made on 13.11.2020. What do you have to say?
Ans.-Yes it is correct."
141. This Court is also inclined to observe that the answers given by the defendant do not inspire the faith of The Court. The witness has given contradictory answers at several instances. The defendant has also not been able to substantiate his claims with credible evidence.
142. It is also observed that the defendant has further admitted that he has made the last payment towards repayment of outstanding loan on 13.11.2020.
143. During defence evidence, the defendant mentioned the names of certain person namely Sushil Kumar Makhija, Smt. Shanti Devi, Virender Shekar Chawla, Kapil Ramnani, in support of his case.
CS DJ No.376/2022 page 53 of 66
144. It is observed that none of the said persons have been produced as witnesses to substantiate the said claims nor has the Defendant placed on record satisfactory evidence in support of the alleged mutual fund investments.
145. The defendant sought to lead DW-2, one Rajiv Dasgupta, Branch Operation Manager, HDFC Bank, Panchsheel Park, New Delhi on 03.03.2025, to prove statement of accounts filed by the Defendant and also the FIRC dated 23.02.2024 and FIRC dated 27.05.2024.
146. This Court is inclined to observe his below mentioned answers:
Q. 3- I put it to you that HDFC Bank Ltd. Panchsheel Park Branch has not authorized to you to depose on behalf of HDFC Bank Ltd. Today. What do you have to say?
A- I have not brought any authorization letter separately. At this stage, attention of witness is drawn to Ex. DW-2/O and Ex. DW-2/N and asked the following questions:
Q. 13- Are these documents generated by HDFC Bank Ltd.? A- No. Q.14- Who is the author of these documents? A- Standard Chartered Bank.
Q.15- What is your email ID?
A- [email protected] Q.16- Were these document was marked you on your email ID by Standard Chartered Bank and when?
A-Yes, these were marked to me on 28.02.2025.
CS DJ No.376/2022 page 54 of 66 Q.17- Did Standard Chartered Bank provided you with the password for opening of the encrypted file on 28.02.2025? A- No. Q.19- Are you trying to say that the IT Department can take over your system?
A- Yes
147. The defendant was always at liberty to seek production, and/or inspection of the documents of the company, and could have filed for interrogatories.
148. The plaintiff has lead material evidence to show that there was an agreement between the plaintiff and the defendants in respect of the nature of transactions pertaining to the suit property. It has nowhere been proven that the said amounts, alleged to be transferred, were not received by the defendant. On the contrary, the receipt has been admitted by the defendant.
149. The defendant has also admitted the fact the plaintiff has given friendly loans to his daughter, as well as to his son.
150. The only plausible defence, as mentioned by the defendant, is that the said amounts were not transferred as loan, but were for investment purposes, expenses of the property at Sainik Farm (belonging to the plaintiff), for the salary/ expenses of the care- taker of the father of the plaintiff. The defendant has stated on oath that none of the investments were made in the name of the plaintiff, hence it cannot be established that the amounts transferred by the plaintiff to the defendant were actually CS DJ No.376/2022 page 55 of 66 utilised by the defendant for investment purposes, at the behest and on behalf of the plaintiff.
151. The defendant has not filed any documents/ lead satisfactory evidence vis-à-vis the alleged utilization of the said money as transferred to him. The defendant could have sought liberty to seek the examination of the said care-taker, and/or could have filed documents depicting the transfer of the amounts as given to the care-taker.
152. It also seems to be highly improbable that the plaintiff would need to send amounts to the defendant, so that the defendant could transfer the said amounts in favour of a care-taker who is eventually taking care of the father of the plaintiff.
153. The plaintiff could have always transferred the amount directly to the said care-taker, as already, the plaintiff was making transfers via bank/ wire/ online, and the element of cash transfers is not there.
154. The defendant has failed to substantiate his claims and contentions.
155. The defendant is a formal Public Servant, and as such, is expected to be aware of the law. The defendant cannot plead ignorance, and be allowed to take the benefit of his inactions.
156. It is an admitted fact that the only source of income of the Defendant was his pension amounting to Rs. 1605/- and rental income of Rs. 20,000/-. It is further an admitted position that the Defendant does not own any property in his name.
CS DJ No.376/2022 page 56 of 66
157. It has also been submitted on behalf of the defendant that the defendant and his family were living comfortably on their pension and rental income. On the contrary the defendant has submitted that the son of the plaintiff had taken a loan from the plaintiff, and the defendant was aware of the same.
158. This Court is also inclined to observe that the defendant gave his son Rs.8,00,000/- (Rs Eight Lac), from his own account, and the funds were transferred by the plaintiff into the account of the defendant.
159. Since there have been direct transactions between the plaintiff and the son of the defendant, as such, there was no need for the plaintiff to transfer an amount of Rs.8,00,000/- (Rupees Eight Lac) to the defendant.
160. Upon being asked to produce his ITR for the assessment years 2014 till 2021, the defendant stated that he does not wish to bring his ITRs as they have no relevance to the present suit. The inference cannot be drawn in favour of the defendant.
DECISION:
161. This Court is seeking to refer to a judgement of The Hon'ble Apex Court of the land which states as follows:
162. NARAYAN BHAGWANTRAO GOSAVIBALAJIWALE V. GOPAL VINAYAK GOSAVI AND OTHERS AIR 1960 SC 100 ; [1960] 1 SCR 773 ; 1960 (1) SCJ 263 ; [1990] 76 STC 183:
"11...
CS DJ No.376/2022 page 57 of 66 In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous....."
"20. In view of these admissions, the question of burden of proof, as we have already pointed out, is really academic, and if any burden lay upon any party, it was upon the appellant to displace by cogent and convincing evidence that these admissions were erroneous and need not be accepted in proof. "
163. Section 115 of The Indian Evidence Act provides talks about the law of Estoppel:
S. 115. Estoppel.-
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.
CS DJ No.376/2022 page 58 of 66
164. Section 115 lays down that when one person has, either in word or by conduct, intentionally caused a person to believe to a thing to be true and to act upon such belief or to alter his position, neither he nor his representative in any suit or proceeding will be allowed to say that the representation was false.
165. Estoppel is a principle of law by which a person is held bound by the representation, made by him or arising out of his conduct.
166. J. Coke, classified estoppels into three kinds, viz., (i) estoppel by matter of record; (ii) estoppel by matter in writing; and (iii) estoppel by matter in pais.
167. The main ingredients of estoppel as defined in section 115 i.e., estoppel in paiis are:
(1)there must be some representation, (2)the representation must be made with the intention to be acted upon, (3)the representation must have been acted upon.
168. Essential conditions for the Application of section 115
169. The following eight conditions must be satisfied to bring a case within the scope of estoppel as defined in section 115;
CHHAGANLAL KESHAVLAL MEHTA V. PATEL NARANDAS HARIBHAI, : (1982) 1 SCC 223: AIR 1982 SC 121:
CS DJ No.376/2022 page 59 of 66
(i)There must have been a representation by a person to another person, which may be in any form - a declaration or an act or an omission.
(ii)Such representation must have been of the existence of a fact, and not of future promises or intention.
(iii)The representation must have been meant to have been relied upon.
(iv)There must have been belief on the part of the other party in its truth.
(v)There must have been some action on the faith of that declaration, act or omission. In other words, such declaration, etc., must have actually caused the other person to act on the faith of it and to alter his position to his prejudice or detriment.
(vi)The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice.
(vii)The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. There can be no estoppel if such a person was aware of the true state of affairs or if he had means of such knowledge.
(viii)Only the person to whom the representation was made or for whom it was designed, can avail of the doctrine. The burden of proving estoppel lies on such person.
170. In order to dispose of the present matter in accordance with the established law, this Court is also seeking to find strength, and place reliance on the below mentioned judgements.
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171. Reliance is placed upon UNION OF INDIA V.
IBRAHIMUDDIN, (2012) 8 SCC 148:
"5. We have considered the rival submissions made by learned counsel for the parties and perused the record. Presumption under Section 114(g) of the Evidence Act : 6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide:Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors., AIR 1953 SC 225 ; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136 ; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024 ; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126 "
"20. Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is CS DJ No.376/2022 page 61 of 66 what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission."
"21. In Nagubai Ammal & Ors. v. B.Shama Rao & Ors., [AIR 1956 SC 593] , this Court held that admission made by a party is admissible and best evidence, unless it is proved that it had been made under a mistaken belief. While deciding the said case reliance has been placed upon the judgment in Slatterie v. Pooley, (1840) 6 M & W 664, wherein it had been observed What a party himself admits to be true, may reasonably be presumed to be so."
172. VED PARKASH AND ANOTHER V. M/S. MARUDHAR SERVICES LIMITED AND ANOTHER 2000 5 AD (DELHI) 845; 2000 (54) DRJ 654; HMJ VIKRAMJIT SEN
173. " 7......Failure to plead facts which constitute a valid defence, must be read as admissions made as contemplated by Rule VI of Order 12. To hold otherwise would-be an emasculation of judicial powers to dispense complete justice. Justice delayed is justice denied."
174. Reliance is placed upon PENTAKOTA SATYANARAYANA V. PENTAKOTA SEETHARATNAM (2005) 8 SCC 67 ; 2006 -2-LW 658 ; AIR 2005 SC 4362:
CS DJ No.376/2022 page 62 of 66
"11.
......Burden of proof is distinct from onus of proof. In this regard the decision of Apex Court reported in AIR 2006 SC 1971 in the case "Anil Rishi vs. Gurbaksh Singh" is relevant, wherein at head note B that "There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to show the circumstances, if any, which would disentitle the plaintiff to the same." When the parties adduce evidence, the burden of proof looses its importance, in this regard, the decision of Apex Court reported in AIR 2006 SC 3626 - "Standard Chartered Bank vs. Andhra Bank Financial Services Ltd." is relevant.
175. The object of the judicial process is to find the truth from the pleadings, documents and the evidence led before the Court. IN CS DJ No.376/2022 page 63 of 66 MARIA MARGARIDA SEQUERIA FERNANDES V ERASMO JACK DE SEQUERIA, (2012) 5 SCC 370, it was observed that the truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice.
176. The issues framed, are answered accordingly herein under.
Issue No.(i):Whether the Plaintiff is entitled to recovery of any amount from the Defendant? If yes, what amount? OPP
177. Issue no.(i) has been answered in the affirmative in favour of the plaintiff. The plaintiff has led satisfactory evidence in order to discharge his onus and burden of proof. This Court finds the plaintiff to be entitled to the recovery of amount of Rs.51,26,860/-, as prayed.
Issue No.(ii)Whether the Plaintiff is entitled to interest on the amount? If yes, at what rate and for which period? OPP
178. Issue no.(ii) is answered in the affirmative in favour of the plaintiff. As per the understanding between the parties, the agreed rate of interest has been mentioned as 12% per annum. However, this Court deems it appropriate to fix the rate of interest at 9% per annum.
Issue No.(iii)Whether the claim of the Plaintiff has been barred by limitation? OPD
179. Issue no. (iii) is answered in the negative, against the defendant. The defendant has failed to lead any evidence, and/or cite any precedents which could assist this Court into CS DJ No.376/2022 page 64 of 66 reaching the conclusion that the suit is barred by the law of limitation.
Issue No.(iv)Whether the suit has not been properly signed, verified or instituted as per law? OPD
180. Issue no.(iv) is answered in the negative, against the defendant.
Procedure is the hand-maid of justice. Procedural law is aimed towards advancing the cause of justice. As held by The Hon'ble Supreme Court of India in a catena of judgements, a suit cannot be held to be defective on hyper-technical issues.
Issue No.(v):Whether the defendant was instructed by the Plaintiff to disburse the amount to different persons as mention in para 4 to 12 of the WS? If yes, its effect? OPD
181. Issue no.(v) is answered in the negative, against the defendant.
The defendant has not lead any satisfactory evidence to discharge either his onus, or burden of proof.
Issue No.(vi)Whether the defendant had transferred the said amounts as per instructions of the Plaintiff? If yes, its effect? OPD
182. Issue no.(vi) is answered in the negative, against the defendant.
The defendant has not lead any satisfactory evidence to discharge either his onus, or burden of proof.
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Relief.
183. Based on the facts of the matter, pleadings of the parties, submissions of the Ld. Counsels for the parties, coupled with the judgments as cited herein above in the preceding paragraphs, this Court has come to the decision that the plaintiff is entitled to the relief of recovery of money by way of a money decree for Rs.51,26,860/- along with 9% interest per annum, which shall be calculated from the date of the filing of the suit, till the actual realization of the decreetal amount. Suit of the plaintiff is accordingly decreed in favour of plaintiff and against the defendant.
184. Ordered accordingly.
185. Decree sheet be drawn up accordingly upon payment of deficit court fees, if any.
186. Parties to bear their own Costs.
187. File be consigned to record room.
Copy of the Judgement be given Dasti.
Announced in the open Court on 26.05.2025.
Digitally
signed by (Sunil Beniwal)
Sunil Sunil beniwal
Date:
beniwal 2025.05.27
11:37:45
District Judge-06(South),
+0530
Saket Courts, New Delhi
CS DJ No.376/2022 page 66 of 66