Delhi District Court
Smt. Daljit Kaur vs Shri Subhash Sharma on 22 September, 2007
IN THE COURT OF SH. M.R. SETHI,
ADDITIONAL DISTRICT JUDGE, DELHI.
Date of Institution: 5.8.04
Arguments Heard On: 11.9.07
Date of Judgment: 22.9.2007.
Suit No. 239/04
Smt. Daljit Kaur,
W/o Shri Maninder Singh Bawa,
R/o Pocket-B, Flat No. 41-A,
Siddhartha Extension,
New Delhi 110 014
..... Plaintiff.
Versus
Shri Subhash Sharma,
Proprietor M/s Shiv Enterprises,
B-5, South Anarkali,
Delhi.
..... Defendant
SUIT FOR RECOVERY OF RS.4,08,316/-
1
JUDGMENT:
1 Present is a suit for recovery of Rs.4,08,316/- alongwith cost and future and pendentilite interest filed by plaintiff Daljit Kaur against defendant Subhash Sharma.
2 Succinctly stated, allegations of plaintiff are to the effect that in the 4th week of March, 2001, defendant had approached husband of plaintiff seeking loan of more than Rs.3,00,000/- when husband of plaintiff assured the defendant to arrange the money within a year. It was claimed that husband of plaintiff had informed the plaintiff about said requirement of defendant and it was agreed that the amount required by defendant would be given as and when plaintiff received the money. Defendant was claimed to have acknowledged the receipt of money in a diary maintained by the plaintiff. The loan amount was to be arranged from the 1st week of March, 2001 onwards till 2 31.12.01 and the repayment was to start from June, 2002. As per case of the plaintiff, at instance of her husband, plaintiff had provided financial assistance to the defendant from time to time during period 1.4.01 to 13.9.01 by way of cheque and cash amounting to Rs.3,07,216/-. The defendant was claimed to have recorded the amount received by him in a diary maintained by husband of plaintiff, in handwriting of the defendant. As per case of the plaintiff, prior to 5.4.2001 defendant had received sum of Rs.25,330/-; from 5.4.2001 to 1.5.2001 a sum of Rs.62086/-; from 25.5.2001 till 6.7.2001 sum of Rs.90,300/- and from 3.8.01 to 13.9.01 sum of Rs.1,29,500/-. It had been further claimed that out of this amount, a sum of Rs.3500/- and a further sum of Rs.1,00,000/- had been received by the defendant in cheuqe and the remainder in cash. As defendant failed to pay the amount despite verbal promise, plaintiff was claimed to have issued legal notice dated 12.10.02 to the defendant calling upon him to pay the due amount. The said notice was claimed to have been replied vide 3 reply dated 2.12.02 wherein it was alleged that the defendant had falsely claimed having only received a sum of Rs.2,10,000/- which he claimed had been repaid by him. It was claimed that reply sent by defendant was false and that as the defendant had failed to repay the loan amount, the present suit was filed.
3 In the written statement filed on behalf of defendant, all the allegations made in the plaint were denied. As per defence of the defendant, as made out in the written statement, husband of plaintiff had become a sleeping partner in business of the defendant and had invested some amount on profit and loss basis in the said business of the defendant. It was further claimed that husband of plaintiff had also stood as guarantor/co-borrower in loan transactions wherein the defendant had taken loan/over draft limit from the bank in his firm's account. It was claimed that as defendant had failed to repay the bank, the bank had issued notices to defendant and husband of plaintiff, 4 which led to filing of present false and frivolous suit against the defendant. Defendant specifically denied the allegation of having received any loan from the plaintiff or her husband and also denied having received any notice or having sent any reply to the same. It was claimed that no amount was due and payable by the defendant to the plaintiff. Dismissal of the suit was prayed.
4 Subsequently, replication was filed on behalf of plaintiff wherein averments made in the plaint were reaffirmed and allegations made in the written statement of defendant were denied.
5 On basis of pleadings of parties, following issues were framed in this case on 11.7.05.
ISSUES:
i) Whether the plaintiff is entitled to suit amount as claimed? OPP.
ii) If yes, at what rate of interest? OPP. 5
Iii) Relief. 6 After the issues were framed, evidence had
been led on behalf of plaintiff and plaintiff's evidence was closed in affirmative on 17.4.07. On the same day, Ld. Counsel for defendant made a statement to the effect that as per instructions of the defendant, he did not want to lead any evidence on behalf of defendant.
Thereafter, final arguments were advanced by Ld. Counsel for parties and hence, the present judgment. 7 During course of her evidence, plaintiff had examined herself as PW-1, her husband as PW-2, Shri B.M. Bharti Advocate as PW-3, one Shri Jasbir Singh from Punjab & Sind Bank as PW-4 and Shri Hans Raj Kumar from Syndicate Bank as PW-5.
8 Evidence by way of affidavit of plaintiff was filed and was proved as Ex. PW-1/A. Plaintiff in her affidavit had reiterated allegations as had been mentioned in the plaint. Entries in the diary made by 6 the defendant were proved as Ex. PW-1/1, notice dated 12.10.02 as Ex. PW-1/2 and its postal receipt as Ex. PW-1/3. Reply of defendant to the said notice sent through Shri B.M. Bharti Advocate was proved as Ex. PW-1/4. Certificates issued by Bank showing encashment of cheques were proved as Ex. PW-1/5 & PW-1/6.
8-A During course of cross examination by Ld. Counsel for defendant, plaintiff claimed that she was a house-wife but was doing business of Crockery, bed sheets, suits, sarees etc. from her house. She claimed that during festival days her income varied from Rs.10,000/- to Rs.15,000/-. It was claimed that defendant came in last week of March, 2001 when he demanded about Rs.3,00,000/-. She admitted that her husband had stood surety for a loan taken by defendant from Syndicate Bank. It was claimed that cash payment was given to the defendant from the money lying with her at home. She denied the suggestion that defendant had never asked for a loan 7 from her husband or that she or her husband had never given any loan to the defendant. She denied the suggestion that defendant had not taken any money from them as reflected in diary Ex. PW-1/1. She further denied the suggestion that she had not taken any receipt from the defendant for the money given to him and claimed that the receipts were the entries in the diary Ex. PW-1/1. She further denied the suggestion that the defendant was carrying on a business with her husband or that whatever money was taken by the defendant, was for business purpose. She denied the suggestion that her husband was sleeping partner with the defendant. It was further denied that they had not given any money to defendant for his personal use or that defendant had neither recorded nor acknowledged having taken any money or loan from them in the diary entry Ex. PW-1/1 as a loan to be repaid by him. She denied the suggestion that whatever transaction had taken place with the defendant had taken place with her husband in her presence.
8 9 PW-2 Maninder Singh Bawa also filed his evidence by way of affidavit which as proved as Ex. PW- 2/A. In the affidavit, the witness had reiterated facts as mentioned in the plaint.
9-A During course of cross examination by Ld. Counsel for defendant, he claimed that he was working in Punjab & Sind Bank and had stood guarantee for the loan taken by defendant from the bank. It was claimed that as it was not required, he himself had not taken any permission from his bank for standing guarantee. He claimed that he had even not given any information to the bank about his having stood guarantee for the loan. Witness admitted that suit for repayment of the said loan had been decreed against him alongwith the defendant, but he had not intimated his bank about the decree against him. He denied the suggestion that he had neither informed nor taken permission from his bank as he was sleeping partner in the firm of the defendant. As per this witness, he first stood guarantee for defendant in March/April, 2001 9 and thereafter had also executed guarantee for the defendant in 2002 on enhancement of the loan amount. It was claimed that the loan was enhanced from Rs.1,00,000/- to Rs.1,50,000/- in 2002 on his guarantee. He denied the suggestion that defendant was not in financial crises or had never asked him for loan. He further denied the suggestion that he had not made any payment to the defendant as loan. He further denied the suggestion that he used to draw profit from the firm of defendant in cash as a sleeping partner. It was claimed that cheques for Rs.1,00,000/- and for Rs.3,500/- had been given in the name of Shiv Enterprises. He denied the suggestion the said cheques were given in the name of the firm as he was a sleeping partner in the firm. To a question as to why the loan was given in amounts like Rs.62,086/- from 5.4.01 to 1.5.01 instead of a round figure, the witness stated that it was the total amount taken by defendant during that period. He admitted that the amount shown in Ex. PW-1/1 was titled as second and third tour and volunteered that the defendant had stated that he had 10 wanted the money for business tour. He further claimed that they had given money to the defendant as and when he asked for it. He denied the suggestion that the account given by defendant was for expenses met by him on tour or that the said account was taken by him from the defendant as he himself was a sleeping partner in the firm. He denied the suggestion that defendant had not taken loan from them for his personal use or that the defendant was not in any financial crises or had not asked any loan from them as he was already having credit limit from the bank. Witness admitted that defendant used to go out on tour for doing their business of scooter parts. He denied the suggestion of having manipulated the entries Ex. PW-1/1 after the suit for repayment of money by the bank was decreed against him. He denied the suggestion that he used to take account from the defendant on his return from the tour as he himself was a partner in the firm. He denied the suggestion that Ex. PW-1/1 was part of the accounts. He further denied the suggestion that he himself had retained the 11 accounts books of the defendant or had failed to deliver the account books despite demand. He denied the suggestion that defendant was not liable to pay any amount to them. He further denied the suggestion that he had given guarantee on enhancement of the loan amount in the year 2002 for the defendant as he himself was business partner of the defendant. Witness admitted that he had not verified the credentials of defendant before standing as his guarantor. He denied the suggestion that he was deposing falsely.
10 PW-3 Shri B.M. Bharti Advocate stated that Subhash Sharma (Defendant) had placed notice Ex. PW-1/2 before him whereupon he sent reply (Ex. PW-1/4) to the said notice on instruction of Subhash Sharma. Witness identified his signature on the reply. 10-A During course of cross examination by Ld. Counsel for defendant, witness admitted that no vakalatnama was given by Subhash Sharma to him for 12 giving reply to the notice. He did not remember the amount charged for the reply. However, subsequently he claimed having received Rs.11,000/- for issuance of the reply and other charges for advice and consultancy. Witness claimed that he was an Income-tax payee and has shown the amount received from defendant in his Income-tax return. He claimed having charged the said amount in December, 2002 and stated that the same was shown in his Income-tax return for the year 2002- 03 as his income. He denied the suggestion that defendant had not got the reply sent through him or that he had sent the reply in collusion with the plaintiff. Witness admitted that the receipt of Rs.11,000/-from the defendant was not specifically mentioned in his Income-tax return for the year 2002-03.
11 PW-4 Shri Jasbir Singh Senior Manager, Punjab & Sind Bank claimed that Account No. 4911 in the bank was maintained by plaintiff Daljit Kaur and cheque for Rs.3500/- in the name of M/s Shiv 13 Enterprises was issued by Mrs. Daljit Kaur and payment of the same was made to M/s Shiv Enterprises. He claimed having brought statement of account maintained by bank in regular course of business. The statement of account was proved as Ex. PW-4/1, certified copy of cheque as Ex. PW-4/2. He further claimed that the certificate Ex. PW-1/5 was issued by the bank.
11-A During course of cross examination by Ld. Counsel for defendant, witness admitted that he could not say as to who had signed the certificate Ex. PW-1/5. He claimed that he had not brought copy of the certificate. He could not say if any charges were levied on the customer for issuing Ex. PW-1/5. He claimed that he could say that the certificate had been issued by his Bank only on basis of stamp at Point-A on the certificate. He admitted that he was the Branch Manager in Punjab & Sind Bank, M-Block, Cannaught Place Branch since 2004 and the certificate had been issued during his tenure.
14 12 PW-5 Hans Raj Kumar, Assistant Manager Syndicate Bank, Nirman Vihar, Delhi claimed that the summoned record was not available. He further claimed that certificate Ex. PW-1/6 had been issued by his branch and the cheque for Rs.1,00,000/- was debited to account of Mrs. Daljit Kaur and credited to over draft account in the name of M/s Shiv Enterprises on 23.8.01.
12-A During course of cross examination by Ld. Counsel for defendant, witness claimed having joined the branch on 20.7.06. He claimed that he did not know as to who had signed the certificate Ex. PW-1/6. He could not even say if the relevant record was available on 12.4.05 when the certificate Ex. PW-1/6 was issued. He denied the suggestion that certificate Ex. PW-1/6 had not been issued by their Branch. He denied the suggestion that they were purposely not producing the record or that the records were still available in their branch or Head Office. He claimed 15 that no letter had been written to Head Office for return of the records to the branch. He denied the suggestion that the certificate was a bogus certificate or that the same had been issued in collusion with the plaintiff. 13 During course of arguments it was submitted by Ld. Counsel for plaintiff that Ex. PW-1/1 duly proved claim of the plaintiff to the effect that the defendant had taken loan from plaintiff. It was further submitted that as the defendant had not led any evidence, facts stated by plaintiff which could not be rebutted during course of cross examination have remained unchallenged. It was further submitted that amounts were paid to defendant in piece meal as and when the same were required by the defendant. Ld. Counsel pointed out that no suggestion had been given to PW-1 that Ex. PW-1/1 was not in handwriting of the defendant and no evidence was led on behalf of defendant to show that the money taken was for business tour and not of loan amount.
16
The arguments advanced by Ld. Counsel for plaintiff were rebutted by Ld. counsel for defendant who submitted that mere entries in Ex. PW-1/1 did not show any loan transaction. It was further pointed out that the figures or amounts mentioned in Ex. PW-1/1 belied the same as being the loan transaction. Ld. counsel further submitted that it was not for the defendant to show that the money taken was not for loan but it was for the plaintiff to prove that the money given was loan. It was reiterated that Ex. PW-1/1 was a rough account given, of expenses incurred during various tours by the defendant, and had been so given to the husband of plaintiff as he was a sleeping partner.
14 On basis of pleadings of parties and the evidence led on record, as has been mentioned herein- above, my findings on issues framed are as under:-
ISSUE No.1 The first issue framed was as to whether the 17 plaintiff was entitled to the suit amount as claimed. It was for the plaintiff to prove if she was entitled to suit amount as claimed. In order to prove her claim, plaintiff has placed explicit reliance on Ex. PW-1/1 i.e. diary entry allegedly in handwriting of defendant. Admittedly, during course of evidence led on record, defendant has nowhere disowned the entries in Ex. PW- 1/1. Not even a suggestion has been given to any of the witnesses that entries thereof were not in handwriting of defendant. All that had been suggested by defendant to PW-1 during course of her cross examination was that defendant had not taken any money from plaintiff as reflected in Ex. PW-1/1 and that whatever money was taken by defendant was for business purposes. It had further been suggested to PW-2 that Ex. PW-1/1 was part of account of partnership business in which PW-2 was a sleeping partner and that it reflected expenses made by defendant on tour, and had been so taken by PW-2 being sleeping partner of the business. 18
All this goes only to show that defendant has not disputed Ex. PW-1/1 being in his handwriting, although he has vehemently disputed claim of plaintiff to the effect that Ex. PW-1/1 depicted loan amounts taken by defendant from plaintiff from time to time.
A perusal of Ex. PW-1/1 makes an interesting reading. This admittedly is the basis of case of the plaintiff who has claimed that loan installments taken by defendant had been depicted in Ex. PW-1/1 by defendant in his own handwriting as and when he took loan installments from plaintiff.
As per case of the plaintiff, defendant had approached the plaintiff for loan in fourth week of March, 2001 and prior to 5.4.01, defendant had received a sum of Rs.25,330/- from the plaintiff. The said amount, as per Ex. PW-1/1, had allegedly been received by defendant in four installments, but Ex. PW- 1/1 does not mention any date on which each of these installments had been paid.
19
Furthermore, as per claim of plaintiff, defendant had received a sum of Rs.62,086/- from 5.4.01 to 1.5.01. as per Ex. PW-1/1, the said amount had been received by defendant in 14 installments, some of which are for Rs.40/-; Rs.41/-; Rs.3,655/-;
Rs.950/-, besides other. In this regard, plaintiff wants this court to believe that defendant had been taking loan installments even to the tune of Rs.40/- and Rs.41/- from plaintiff, and significantly, both the installments were taken on 5.4.01 besides two other installments of Rs.2,000/- and Rs.3,500/- each on same day.
This, in considered opinion of this court is too much to be believed. It appears that defendant was a pauper who used to borrow even Rs.40/- and Rs.41/- from the plaintiff as and when required by him. Certainly, there is more to it than meets the eye and true facts have not been brought on record by the plaintiff in this regard.
20
It would not be out of place to mention herein that entries in Ex. PW-1/1 are demarcated in four groups which are independently termed as I) Tour; II tour; IIIrd tour and IV th tour. No explanation could be given in this regard by Ld. Counsel for plaintiff during course of his arguments except that the money was taken as loan by defendant as and when he went on tours, and as and when need arose.
There does not appear to be any merit in these submissions made, because, in case the entries depicted installments taken by defendant from plaintiff for the respective tours, then how come the entries bear different dates and payments more than once on one day. If defendant was on a tour, how could he be making entries in diary kept by plaintiff. Moreover, in case defendant was in need of money for tour or during tour, how and why would he receive cheque payments as has been alleged and depicted in Ex. PW-1/1. Although no explanation has come forward on behalf of 21 defendant in respect of the two cheques entries (for sum of Rs.3,500/- and Rs.1,00,000/- respectively), as onus of proof in this regard was upon the plaintiff, it was for the plaintiff to have discharged the onus in this regard, and, as is apparent, plaintiff has miserably failed to discharge the onus.
In this regard, this court finds itself in agreement with submission made on behalf of defendant that entries in Ex. PW-1/1 belie the same being entries of a loan transaction or being proof of receipt of money by defendant from the plaintiff. Submission of Ld. Counsel for defendant that every cheque given cannot be termed as being a loan also finds approval of this court.
It had been claimed on behalf of defendant that husband of plaintiff had joined as a sleeping partner in firm of the defendant. Although the same was denied by plaintiff when she appeared as PW-1, and by her husband when he appeared as PW-2, but 22 facts that have come on record during course of testimony of PW-1 & 2 have a different story to tell.
Husband of plaintiff i.e. PW-2 is a Bank employee. He had denied the suggestion that he was a sleeping partner in firm of the defendant. However, during course of his cross examination, he had admitted that he had stood guarantor for defendant. He admitted that he had hidden the fact from the bank as he had neither sought permission from the bank, nor had informed the bank in this regard. He further admitted that suit for repayment of loan instituted against him and defendant had been decreed, and that he had also not informed his Bank about the same. This conduct of the husband of plaintiff apparently shows that he had intentionally hidden all these facts from his employer bank. This, by necessary implication gives credence to claim of defendant that he was a sleeping partner in firm of the defendant as he could not have come out in open being a bank employee. 23
Husband of plaintiff standing surety for defendant was not a one off act. He had admitted that he had first stood guarantee for the defendant in March/April, 2001 and executed guarantee for him in 2002 on enhancement of loan amount. The loan was claimed to have been enhanced from Rs.1 Lac to Rs.1.5 Lac on his guarantee in 2002. Now, defendant was admittedly not related to plaintiff or her husband. He happens to be brother in law of a friend of husband of plaintiff. So, what prompted the plaintiff to advance a sum of Rs.3 Lacs to defendant and that too without any security or execution of a loan document, and why her husband stood guarantee for defendant on two different occasions and that too without informing or without seeking permission from his bank. All this makes it obvious, that there is more to it then meets the eye. Facts speak for themselves.
Plaintiff admittedly is a house wife and deals in crockery, bed sheets etc. from her house. She had claimed that during festival days, her income varied 24 from 10,000/- to Rs.15,000/-. Now, no festivals fell during April - September. Husband of plaintiff was a Bank employee. Nothing has been brought on record on behalf of plaintiff to to show as to how she could arrange a sum of more then Rs.3 Lacs to be given to defendant from April to September on loan as claimed.
Upon consideration of all the aforesaid facts and circumstances of the case, this court is of considered opinion that plaintiff has failed to discharge the onus which lay upon her to prove Issue No.1. Plaintiff, in opinion of this court failed to show that she infact had advanced a sum of Rs.3,00,000/- as loan to the defendant and consequently has failed to show that she is entitled to recover the said sum or any other amount from the defendant. Issue No.1 is accordingly decided against the plaintiff.
ISSUE No.2 In view of my finding on issue No.1, Issue No.2 does not require any discussion. Plaintiff would only have been entitled to interest, in case she could 25 have proved that she is entitled to suit amount as claimed. This issue accordingly is decided against the plaintiff.
ISSUE No.3 Accordingly, the court is of considered opinion that plaintiff is not entitled to any relief as is being claimed. Suit of plaintiff is accordingly dismissed. No order as to cost. File be consigned to record room.
Announced in open court ( M.R. SETHI )
on 22.9.07. ADDL. DISTRICT JUDGE
DELHI.
26