Delhi District Court
Sh. Sanjeev Singh vs Sh. Dinesh Kumar Tawar on 27 February, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No.15150/2016
CNR No.SW010011012013
IN THE MATTER OF:
Sh. Sanjeev Singh
S/o Late Sh. Karam Singh
At Shop No. 53, LSC
A Block, DDA Market
Naraina Vihar, New Delhi- 110028 ... Plaintiff
v.
Sh. Dinesh Kumar Tawar
S/o Sh. Jaipal Singh
R/o WZ-911/1, Ring Road
Naraina, New Delhi - 110028 ...
Defendant
Date of institution of suit: 09.01.2013
Date of judgment reserved: 21.03.2023
Date of pronouncement of judgment: 27.02.2023
JUDGMENT
1. The plaintiff has preferred the present suit under Order XXXVII of the Code of Civil Procedure,1908 (hereinafter "CPC") for recovery of ₹3,00,000/- (Rupees three lakh only) together with interest at the rate of 2% per month calculated w.e.f 15.01.2012 to 14.09.2012 i.e. Rs. 48,000/- (Forty eight thousand only) and thus, for total recovery of Rs. 3,48,000/-(Rupees Three CS DJ ADJ No.50214/13 Page No. 1/11 lakh forty eight thousand only), on the basis of promissory note (pronote), against the defendant.
2. Briefly stated, it is the case of the plaintiff that defendant is known to him being his distant relative. It is further averred that defendant approached the plaintiff for a loan of Rs. 4,00,000/- on interest @ 2% per month on the ground that he suffered business losses in his lucky draw scheme and was also in urgent need for construction of his building and on the said request plaintiff arranged and called the defendant at his house and handed over a sum of Rs.3,00,000/- to the defendant on 15.01.2012 and in lieu of that defendant executed promissory note in favour of plaintiff.
3. It is further averred that on 25.09.2012 a legal demand notice was issued to the defendant for demanding sum of Rs. 3,00,000/- alongwith interest at the rate of 2% through registered AD/ Courier and the same was served upon him but despite of receiving the aforesaid notice, defendant did not pay the amount of pronote and receipt to the plaintiff.
4. On the basis of above pleadings, the present summary suit under Order XXXVII CPC was filed.
5. The Ld. Predecessor of this Court allowed the leave to defend application filed by the defendant vide order dated 06.11.2015 subject to deposit of 50% of the principal amount by way of FDR and on 08.02.2016 FDR of Rs. 1,50,000/- dated 03.02.2016 drawn on Punjab National Bank was filed by the defendant.
6. Thereafter, defendant filed his written statement wherein he has taken more or less the same grounds as taken in the application for leave to defend. It is the case of the defendant that CS DJ ADJ No.50214/13 Page No. 2/11 he has never taken any money from the plaintiff due to loss in lottery business or construction of the house due to shortage of money as alleged by the plaintiff and he never signed any pronote or receipt in favour of the plaintiff and the same is forged and fabricated. The defendant denied his liability to pay the suit amount. The defendant however, admitted that he was doing the business of lucky draw scheme in the year 2000 and thereafter, the said draw was closed by him due to personal reasons. It is contended by the defendant that he never took any money from the plaintiff and the defendant never signed any promissory note and receipt in favour of the plaintiff and the said promissory notie and receipt were prepared by the plaintiff and the same is deemed to be infructuous and false. It is further contended that defendant never took any money from the plaintiff for construction against shortage of money.
7. Thereafter, plaintiff filed the replication to the written statement of the defendant and he denied the contentions raised by the defendant in the written statement and reiterated and reaffirmed the stand taken by him in the plaint.
8. On the basis of the pleadings of the parties, the following issues were framed on 03.01.2017:-
(i) Whether plaintiff had paid a sum of Rs.3,00,000/- to the defendant as loan? ... OPP
(ii) Whether pronote-cum-receipt dated 15.01.2012 was duly executed by the defendant in favour of plaintiff in respect of loan? ... OPP CS DJ ADJ No.50214/13 Page No. 3/11
(iii) Whether the plaintiff is entitled for the principal amount of Rs. 3,48,000/- alongwith interest @2% per month? ... OPP
(iv) Relief
9. In order to prove his case, plaintiff examined three witnesses.
10. On 13.07.2017 plaintiff tendered his evidence by way of affidavit - Ex. PW1/1. As per the Ex. PW1/1, the plaintiff proved the following documents:
(i) Promissory note - Ex. PW1/A,
(ii) Legal notice, postal receipt and courier receipt - Ex. PW1/B to Ex.
PW1/D, respectively.
(iii) Acknowledgment - Ex. PW1/E
11. Mr. Rajeev and Mr. Rakesh tendered their evidence by way of affidavit Ex. PW2/1 and Ex. PW3/1, respectively and reiterated the facts of plaint in toto.
12. Thereafter plaintiff's evidence was closed and case was fixed for defendant evidence.
13. In order to prove his case, defendant examined two witness.
14. On 21.03.2018 defendant appeared in the witness box and tendered his evidence by way of affidavit - Ex. DW1/A.
15. Mr. Vijender Singh appeared in the witness box and tendered his evidence by way of affidavit Ex. DW2/A. Arguments CS DJ ADJ No.50214/13 Page No. 4/11
16. It is argued by the learned counsel for the plaintiff that the plaintiff has duly proved his case by proving the promissory note Ex. PW1/1 dated 15.01.2012 by calling both the witnesses of the promissory note in the witness box. He further argued that the defendant failed to cause any dent in the case of the plaintiff and prays for decree of the suit as per the reliefs prayed for.
17. Per contra, the Ld. Counsel for the defendant argued that the plaintiff not only failed to prove the source of funds out of which he has paid the alleged loan amount to the defendant but also plaintiff failed to prove the due execution of the promissory note and he thus prays for dismissal of the present suit with exemplary costs.
18. I have heard the arguments and have gone through the judicial file.
Issue-wise finding
19. All the three issues are taken up and are being discussed together as they are inter connected and finding on one will have bearing on other.
ISSUE NOS. 1 TO 320. Coming to the point that whether the plaintiff proved the payment of Rs. 3,00,000/- to the defendant and also the due execution of the promissory note dated 15.01.2012. In the plaint as well as in his evidence by way of affidavit, it is claimed by the plaintiff that on the demand raised by the defendant for a loan of Rs. 4,00,000/-, he only managed to arranged a sum of Rs. 3,00,000/- and informed the defendant that money is ready and CS DJ ADJ No.50214/13 Page No. 5/11 the defendant came to his house and he handed over the same to the defendant and the defendant in lieu of that executed promissory note Ex. PW1/A in his favour.
21. However, neither in the plaint and nor in his evidence by way of affidavit, the plaintiff has divulged the details of source of arrangement of Rs. 3,00,000/- and in whose presence the same was handed over by him to the defendant and in whose presence the defendant executed the promissory note.
22. It came for the first time in the cross examination of the plaintiff that his two brothers were present in his house when he gave the loan amount to the defendant and the promissory note was signed by the defendant at that time. He further deposed that the contents of the promissory note were already written and the defendant had only signed it in their presence and he did not write anything on the promissory note after the same was handed over to him. As far as the source of the loan amount is concerned it is deposed by the plaintiff that he has been doing business since 2005 from a shop situated at DDA Complex which is owned by his wife and sister. He further deposed that the loan amount was earned through profits while doing the business as a private limited company and the same was lying at his home. He also deposed that Vinod Kumar Tanwar is the son of my bua and he has not talked to him regarding the demand of loan by the defendant. He further deposed that even the defendant has taken the loan for construction of his house but he never visited the house of the plaintiff to see whether he was constructing his house or not.
CS DJ ADJ No.50214/13 Page No. 6/1123. Sh. Rajeev one of the attesting witness to the promissory note entered in the witness box as PW-2 and apart from the reiteration of the averments made by the plaintiff in the plaint, he deposed that the promissory note was executed by the defendant in his presence and the same bears his signature at point 'A'. In cross examination he deposed that he do not know the loan amount sought by the defendant from the plaintiff as the request was not made in his presence. He further deposed that in the year 2010 the house of the defendant was single storey building probably and he do not know the number of stories as on date. Similarly, Sh. Rakesh entered in the witness as PW-3 and he also apart from reiterating averments made by the plaintiff in the plaint has deposed that the promissory note was executed in his presence on which his signature bears at point 'B'. The only material deposition of the witness in cross examination is that before the defendant left, my brother asked me to sign the promissory note as a witness and I signed it. He also deposed that the defendant did not sign the promissory note in his presence.
24. After going through the testimony of PW-1 to PW-3, as far as the source of the arrangement of loan amount is concerned, the plaintiff has not filed any document to show his financial capacity. In cross examination he admitted that even though he is an income tax assesses but in his income tax return he has not reflected the loan amount given to the defendant.
25. As far as the execution of the promissory note by the defendant is concerned, even though the plaintiff as well as Sh. Rajeev (PW-2) have deposed that the promissory note was signed CS DJ ADJ No.50214/13 Page No. 7/11 by the defendant in their presence however, none of them identified the signatures of the defendant on the promissory note and whereas PW-3the another attesting witness has deposed that he signed as a witness on the promissory note before the defendant left the house of the plaintiff but he deposed that the defendant never signed the promissory note in his presence, which is quite a contradictory statement. Interestingly, both the witnesses have also not identified the signatures of each other on the promissory note. It is also relevant to mention that even in their examination in chief they have not deposed that they both were simultaneously present alongwith the plaintiff at the time of alleged loan and execution of promissory note by the defendant.
26. Thus, the primary requirement as envisaged by Section 67 of the Indian Evidence Act, 1872 has not been fulfilled by the plaintiff which provides as follows:-
67. Proof of signature and handwriting of a person alleged to have signed or written document produced- if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting.
27. The Hon'ble High Court of Madhya Pradesh in L.S. Trading Company, Gwalior v. Manish Mishra (2010) 93 AIC 838 MP, while examining the scope of Section 67 of the Evidence Act has held that the following are the modes for proving a document:
(a) by calling a person who signed or wrote a document;CS DJ ADJ No.50214/13 Page No. 8/11
(b) by calling a person in whose presence the documents are signed or written;
(c) by calling handwriting expert;
(d) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
(e) by comparing in Court, the disputed signatures or handwriting with some admitted signatures or writing;
(f) by the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person;
(g) A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant;
(h) by other circumstantial evidence.
28. However, plaintiff has not adopted any of the methods mentioned above to prove the signatures of the defendant on the promissory note. Therefore, once the signatures on the promissory note was denied by the defendant on the ground that the same is a forged and fabricated document, the initial burden was upon the plaintiff to prove that the promissory note bears the signature of the defendant and it is only thereafter, the onus to prove plea of forgery and fabrication could have shifted on the defendant. It is relevant to mention that rather it is the defendant who filed an application to get his signatures examined for CFSL Rohini in order to prove that same are forged and fabricated but the CFSL Rohini failed to give any satisfactory report after examining the disputed and admitted signatures of the defendant.
29. The fact that the both the attesting witness to the promissory note are related to the plaintiff i.e. son of his brother in law and the wife and thus, their testimony must be of CS DJ ADJ No.50214/13 Page No. 9/11 impeccable a nature that it can repose confidence before the Court but this Court has no hesitation to observe that the both the witnesses have miserably failed to do so.
30. Further, the plaintiff failed to create any contradiction or elucidate any favorable statement from the testimony of defendant who in his evidence by way of Ex. DW1/A reiterated the stand taken by him in the written statement. In his cross examination he has deposed that he is an income tax assesses and have two building in Village Naraina. He is also the owner of WZ-165, Village Naraina consisting of 3-1/2 floors and also owner of half portion of building No. WZ-911/1 Ring Road, Naraina and have given them on rent and receiving a total rent of Rs.70,000/- to Rs.80,000/- per month since 2010. He further deposed that WZ-165 was constructed in the year 2005 and 2½ storey of WZ-911/1 was constructed in the year 1992. He further deposed that he built the WZ-165 out of the funds taken from his father. He denied all the suggestion with respect to taking of loan from the plaintiff for the construction of the house and repayment of the loan amount taken by him from other people etc.
31. Thus, in totality of the discussion and observations made above, after going through the relevant pleadings and evidence of the parties this Court is of the considered view that the plaintiff has miserably failed to prove his case by preponderance of probabilities as not only the plaintiff himself and through the witnesses produced by him failed to prove the payment of Rs. 3,00,000/-to the plaintiff but also failed to prove the promissory note alleged to be executed by the defendant.
CS DJ ADJ No.50214/13 Page No. 10/1132. Accordingly, the issue Nos. 1 to 3 are decided against the plaintiff and in favour of the defendant.
Relief
33. On the basis of my finding on issue Nos. 1 to 3, the suit of the plaintiff is hereby dismissed with no orders as to costs.
34. The original FDR of Rs. 1,50,000/- placed on record by the defendant be returned to him after taking on record the certified copy of the same against acknowledgment and the concerned bank is directed to release the FDR amount alongwith accrued interest as on date in favour of the defendant.
35. Decree sheet be drawn accordingly, as per Rules.
36. File be consigned to record room, after due compliance Digitally signed and necessary action, as per Rules. SACHIN by SACHIN JAIN JAIN Date:
2023.02.28 15:41:29 +0530 Pronounced in the open (Sachin Jain) Court on 27.02.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No.50214/13 Page No. 11/11