Delhi District Court
Anand Kaushik vs Ashok Sharma on 20 April, 2011
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 19.03.2004
Judgment reserved on : 18.04.2011
Judgment delivered on : 20.04.2011
Suit No. 80/11/07/04 Unique Case ID No. 02401C0046972007
Anand Kaushik
S/o S. Ram Darshan
R/o I3/93, First Floor,
Sector16, Rohini, Delhi85. .... Plaintiff
Versus
1. Ashok Sharma
S/o Late Sh. Ram Nath Sharma,
2. Smt. Raj Sharma
W/o Sh. Ashok Sharma
Both R/o A72, Gali No.5, Nehru Gali,
Mandawali , Delhi110092. ... Defendants
J U D G M E N T
1. This is a suit for recovery of a sum of Rs.4,58,750/.
2. In nutshell, the case of the plaintiff as set out in the plaint, is that the plaintiff Sh. Anand Kaushik has advanced a loan of Rs.3,50,000/ on Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 1 23.09.2001 to the defendants Sh. Ashok Sharma & Smt.Raj Sharma, who are husband and wife for construction of their house, which they intended to sell after the constructions and promised to repay the loan within a year, but they failed to do so, and thereafter plaintiff served a legal notice on 03.06.2003 demanding back his money which included principal amount of Rs.3,50,000/ and interest @12% per annum w.e.f. 23.09.2001 to 07.03.2004 amounting to Rs.1,03,250/ besides and notice charges of Rs.5,500/, thus totaling a sum of Rs.4,58,750/.
3. Initially, the suit was filed under Order 37 CPC, however as the defendants had failed to enter the appearance within the time prescribed, judgment/decree U/o 37 CPC was passed, against which the defendants preferred RFA No.29091/2005 before the Hon'ble High Court, which stood decided as per orders dated 15.11.2006, vide which the case was remanded back for trial, subject to deposit of the suit amount by the defendants, and accordingly on depositing the amount with the Court, the suit was proceeded further as an ordinary suit.
4. The defendants through contra pleadings had taken a preliminary objection that the suit of plaintiff is neither maintainable nor sustainable in the eyes of law and is liable to be dismissed. Defendants Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 2 have also raised an objection that there was no cause of action and the suit is liable to be dismissed under Order 7 Rule 11 CPC. On merits it was submitted that the defendants had never taken any loan amount, nor executed any promissory notecumreceipt.
5. The replication to the written statement was filed by the plaintiff reiterating the facts as stated in the plaint and denied the averments of the defendants.
6. On the basis of the pleadings vide order dated 08.10.2008, the following issues were framed :
1. Whether the plaintiff advanced a loan of Rs.3,50,000/ to the defendants on executing a demand promissory note and receipt? OPP.
2. Whether the plaintiff is entitled to interest @ 12% per annum on the principal amount? OPP.
3. Whether the plaintiff is entitled to a decree of Rs.4,58,750/ against the defendants? OPP.
4. Relief.
7. For proving the case, the plaintiff has examined four witnesses in all. He has examined himself as PW1 and produced his evidence by Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 3 way of an affidavit Ex.PW1/A and exhibited the documents Ex.PW1/1 to 7. The document Ex.PW1/1 is the original written agreement dated 23.09.2001 and Ex.PW1/2 is the original promissory notecumreceipt dated 23.09.2001. Ex.PW1/3 is the original copy of legal notice and Ex.PW1/4 & 5 are the postal receipts. Ex.PW1/6 & 7 are the acknowledgment cards.
In support of his testimony, the plaintiff has also examined Sh.Surender Kaushik as PW2, Sh. Tilak Raj Sharma as PW3 and Sh.Krishan Kumar as PW4 who were alleged witnesses of documents Ex. PW1/1 and Ex.PW1/2 and they produced their evidences in affidavits as Ex.PW2/A, Ex.PW3/A and Ex.PW4/A respectively.
8. To counter the plaintiff's case, the defendants have examined Defendant No.1, Ashok Sharma as DW1 who exhibited his affidavitin evidence as Ex.DW1/A and proved certain documents i.e. receipts dated 27.01.2000 as Ex.DW1/1 and the notice dated 09.04.2003 as Ex.DW1/2.
9. I have heard Ld. Counsel Malaya Chand for the plaintiff and Ld. Counsel Sh.J.D. Sharma for the defendants on all the issues and have gone through the records placed with the file.
Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 4
10. Now, my issue wise findings and observations as observed are as under :
Issue No.1 Whether the plaintiff advanced a loan of Rs.3,50,000/ to the defendants on executing a demand promissory note and receipt? OPP.
Onus of proving this issue was laid on the plaintiff as his claim for recovery of Rs.4,58,750/ depends on the plea that he advanced a loan of Rs.3,50,000/ to the defendants.
11. To discharge the burden, the plaintiff has produced his evidence as PW1 exhibited his affidavit Ex.PW1/A along with three witnesses Sh.Surender Kaushik PW2, Sh. Tilak Raj Sharma PW3 and Krishan Kumar Sharma PW4. Whereas defendants have contested such plea by leading the evidence of the sole witness i.e. DW1.
12. The plaintiff as PW1 has deposed that the defendants have borrowed a sum of Rs. 3,50,000/ during construction of their house bearing No. A72, Gali No. 5, Nehru Gali, Mandawali, Delhi and the said amount was advanced to the defendants, who had promised to return the said amount within one year or on the sale of the house, which fact was Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 5 reduced to writing vide agreement dated 23.09.2001 Ex. PW1/1 in presence of four witnesses, and that the defendants had also executed a demand promissory notecumreceipt on 23.09.2001, original copy of which was Ex.PW1/2. Also that an interest @12% per annum was agreed to be paid.
13. It is further deposed that despite demand, the defendants had not paid the loan amount after completion of one year, and tried to avoid making of such payment on one or the other pretext, and a legal notice Ex.PW1/3 was served vide postal receipt Ex. PW1/4 & 5 and acknowledgment card Ex. PW1/6 & 7, leaving an amount of Rs.4,58,750/ due on the date of filing of the suit, which includes the loan amount of Rs.3,50,000/ and an interest amount of Rs.1,03,250/ plus miscellaneous charges.
14. It is observed that this witness stood unrebutted on the point of execution of the document Ex.PW1/1 & 2, despite crossexamination and also about presence of the witnesses, at the time of execution of the said documents, though he has admitted that the document Ex.PW1/1 was written by him, but signed by defendants and all the witnesses except one Sh. Ashok Sharma, one of the attesting witnesses has not put his Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 6 signatures on such document. This witness has denied the suggestion that the amount was not advanced to the defendants.
15. PW2 Sh. Surender Kaushik has corroborated the testimony of PW1 on the point that on 23.09.2001 in his presence and of other witnesses and relatives of both the families, both the parties to the suit had executed the written agreement Ex.PW1/1 and on the same day the defendants had executed the promissory notecumreceipt Ex.PW1/2.
It is observed that during crossexamination, this witness also stood totally unrebutted on the point of execution of these two documents Ex.PW1/1 & 2 on 23.09.2001. On the point of signing of these documents by both the defendants, this witness was not crossexamined nor he was not crossexamined, on the point that a loan amount of Rs.3,50,000/ was advanced by the plaintiff to the defendants for the construction of their house. However, it is admitted that no amount was given on 23.09.2001 voluntarily clarifying that the total sum of Rs.3,50,000/ had already been paid by the plaintiff to the defendants as on 23.09.2001, and that the defendants executed the promissory note cumreceipt and written agreement on 23.09.2001 in the presence of witnesses Sh. Krishan Kumar and Tilak Raj Sharma.
Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 7
Similarly, PW3 Sh. Tilak Raj Sharma and PW4 Sh. Krishan Kumar Sharma, through their ocular evidence testified that the documents Ex.PW1/1 and Ex.PW1/2 were executed on 23.09.2001 and document Ex.PW1/1 bears their signatures at point B and D, respectively. During crossexamination, these witnesses clearly testified that both the defendants Nos. 1 & 2 have signed the document Ex. PW1/1. However, PW4 has shown his ignorance about the date, when the said amount was taken by the defendants from the plaintiff.
Thus, from the evidence led by the plaintiff, it is established on record that an amount of Rs. 3,50,000/ was advanced as loan by the plaintiff to the defendants for the purpose of construction of the house of the defendants and on 23.09.2001 an agreement Ex.PW1/1 was written by both the parties, which was duly signed by 3 witnesses, Sh. Surender Kaushik PW2, Tilak Raj Sharma PW3 and Sh. Krishan Sharma PW4. Also that, on 23.09.2001 a promissory notecumreceipt Ex.PW1/2 was executed by defendants No.1 & 2.
16. So far as document Ex. PW1/1 is concerned, it is observed that it is a written document, which bears signatures of defendant No. 1 at point X, and of the defendant No. 2 at point X1, whereas witnesses Tilak Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 8 Raj Sharma, Krishan Sharma and Surender Kaushik have signed at point A, C & D. However, against the name of witness Ashok Sharma, there are no signatures.
17. Also, document Ex.PW1/2 has two parts, one is the promissory note, the other is the receipt, and it is established by the plaintiff that both the documents are duly signed by both the defendants.
18. In contra evidence the defendant No.1 Ashok Sharma in his affidavit Ex.DW1/A has deposed that he has never taken any type of loan from the plaintiff and signatures were obtained by the plaintiff on the promissory notecumreceipt by fraudulent means, under coercion and threats, as the plaintiff is a man of means, and have links with police officials and muscle man, and for taking of the signatures of the defendants by forcible means, they have ample proof to that effect.
19. He has also deposed that the plaintiff has concealed certain facts and was guilty of supressovari. It is deposed that on purchase of the property bearing No. A72, Gali No.5, Nehru Gali, Mandawali, Delhi 110092, on 15. 09.1999, the plaintiff used to supply the building material from his known shop for constructions to which they made all the Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 9 payments, one of the receipts was Ex.DW 1/1, and that in the month of July, 2001, the plaintiff started demanding an amount of Rs.25,000/ as balance for such raw material, and filed a false complaint with PS Mandawali on 01.09.2001 wherein the defendants were called in the police station by one S.I. who threatened him to be implicated in a henious crime: It was deposed that on 23.09.2001, the signatures of the defendant and his wife were obtained on promissory notecumreceipt forcibly by the plaintiff and his colleagues, Krishan Kumar, Manju Surender etc. and they were threatened to pay an amount of Rs.3,50,000/. It was further deposed that a notice under Section 160 Cr.P.C. was received from one Sh. R.S. Chahal, Inspector, on the complaint made to police. The notice was Ex.DW1/2.
20. Ld. Counsel for the defendants has submitted that not only the signatures of the defendants were obtained forcibly on both the documents Ex.PW1/1 and 2, the document Ex.PW1/1 does not bear any signatures of Sh. Ashok Sharma, who was also the alleged witness to the execution of such document.
21. Further, it was argued that the document Ex.PW1/2 cannot be treated as promissory notecumreceipt, as such document bears a Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 10 condition of sale of property in case of failure of making of payment within one year, in view of the law settled in a case titled as Krishna Janardhan Bhat Vs. Dattatraya G. Hegde cited as II (2008) BC 44 (SC), and that it was not properly stamped thus, not admissible in evidence, in view of the law settled in Kallappa Pundalik Reddi Vs. Laxmi Bai Dattoba Vellaram and Ors, AIR 1995 Bombay 160.
Ld. Counsel has raised another contention that the plaintiff has not proved his source of income for advancing the loan and therefore, taking of such loan was taken was highly improbable, in view of the law settled in 2007 (1) Acquittal 546.
22. During the crossexamination of DW1 Sh. Ashok Sharma, he has admitted certain facts that were contrary to his depositions in chief on number of counts. It is observed that DW1 has admitted that documents Ex.PW1/1 and Ex.PW1/2 were executed by him and his wife on 23.09.2001 in the presence of the witnesses named therein. It is also admitted that Ex.PW1/1 bears his signatures at point X and the signatures of his wife, the defendant No.2, at point X1 similarly on Ex.PW1/2 his signatures are at point Y & Z and of his wife were at points Y1 and Z1. Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 11
23. The relevant portions of the testimony of DW1 is reproduced, as below: "It is correct that Sh. Tilak Raj Sharma my cousin along with Sh. Krishan Sharma and Mrs. Manju my real sister were present on that day when the promissory note and receipt were written. It is correct that the defendant no.2 was also present on that day when the meeting took place and promissory note and receipt along with the letter dated 23.09.2001 was written. I can identify my signature and signature of my wife. Letter dated 23.09.2001 Ex.PW 1/1 bears my signature at point X and signature of my wife at point X1 and promissory note and receipt Ex.PW1/2 bears my signature at point Y and Z and signature of my wife at point Y1 and Z1."
24. Thus, it is explicitly clear that the execution of the documents Ex.PW1/1 and Ex.PW1/2, at the relevant date, time and place, in the presence of the witnesses and the signatures of defendants on such documents are not disputed, as being admitted.
25. Now come to as to whether the signatures of the defendant as such were obtained forcibly. For establishing the plea of 'forcible' signatures, on the document the onus automatically shifts on the defendants.
On appreciation of evidence on record, it is observed that DW1 has deposed at one place that such signatures were obtained by the Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 12 plaintiff using his means of links with the police officials and muscle men and that for taking of the signatures in such manner, the defendants had ample proof to that effect.
But, no such 'ample proofs' were produced in the Court, to prove such matrix of facts on record, nor any particular time and place and the presence of any police person or muscle man was named. At another place of the depositions, the defendant no. 1 has deposed that the signatures were obtained on such promissory notecumreceipt forcibly by the plaintiff and his 'colleagues', 'associates' Krishan Kumar, Manju & Surender Kaushik etc, but to the contrary during crossexamination, he admits that he was a relative of the plaintiff and Sh.Krishan Sharma was his real brother, Tilak Raj Sharma was his cousin brother and Mrs. Manju, wife of Surender Kaushik, was his real sister.
Further, he has also admitted that both the defendants No.1 and 2 were present on the date when the meeting took place, and the promissory notecumreceipt and receipt along with the letter of agreement dated 23.09.2001 (Ex.PW1/1 & 2) were written.
Thus, it is observed that the documents Ex.PW1/1 &2 were duly executed by the defendants in a meeting at the residence of their near relatives and all the witnesses present at that time were also his relatives, and thus the witnesses prepared the document Ex.PW1/1 & 2 cannot be Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 13 stated as 'associates and colleagues' of plaintiff, as testified by the defendant No.1 on his affidavit Ex.DW1/A. It is also clear on record that at the time of execution of the documents Ex.PW1/1 & 2, except the parties and the witnesses, no other person either the police man or the muscle man was present, that proves that the stand taken by the defendants that the signatures were obtained on such documents by fraud or forcible means, was contrary to the facts, admitted on record. Thus, no element of force could be established on record.
26. It is also observed that defendants have raised a contention that there was no occasion of advancing of the loan in September, 2001 when the house has already been constructed in 1999 and that in the month of 2001, a police complaint has already been lodged by the plaintiff against the defendants in the month of July, 2001. The defendant No.1 had produced documents Ex.DW1/1 & 2.
27. It is observed that document Ex.DW1/1 & 2 that is a bill of purchase of the raw material for an amount of Rs.18,150/, but it dates for 27.01.2000, that itself falsifies the stand of the defendants that the construction of the property has already been completed in the year 1999.
Also the document Ex.DW1/2, is a notice under Section 160 Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 14 Cr.P.C. issued by one Sh.R.S.Jain, the Inspector of P.S. Ashok Vihar, that dates as 09.04.2003 that again falsifies the stand of the defendant to the effect that under the garb of the complaint to the police, the documents Ex.PW1/1 & 2 were executed under threats, exercised by the police man on such complaint. This is beyond imagination as to how, a notice dated 09.04.2003 issued under Section 160 Cr.P.C., can be used as threats for executing the documents on 23.09.2001.
Thus, the defendants have miserably failed to establish that the signatures of the defendants on such documents Ex.PW1/1 & 2 were obtained either forcibly or fraudulently under threats or by using any policemen or muscle men. The controversy sets at rest when DW1 admits that his relations with his brother Krishan Sharma were cordial even on the date of examination. It was also admitted that the plaintiff used to supply building material to him for construction of his house, but he had made the payments in this respect, but the defendants have not produced or exhibited any evidence to prove that such payments were made, whereas the document Ex.PW1/1 admittedly executed and signed by the defendants, explains that during the construction of the house in the year 19992000, a total sum of Rs.3,50,000/ was taken by the defendants from the plaintiff, with the promise of making the repayment within one year and also on the assurance that the said amount would be returned Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 15 after the house was constructed. The document clarifies the relations of all the witnesses with the defendants, which are also duly admitted by DW1 in his testimony.
28. It is further observed that only because signatures of one of the four witnesses were not on the document, does not disprove the documents, when the execution and signatures of defendants on such documents have duly been admitted by DW1, and thus the documents Ex.PW1/1 & 2 are duly proved.
29. So far as the document Ex.PW1/2 is concerned, it has two parts, one is the promissory note and the other is the receipt. The execution and the signatures of the parties, particularly the executant defendants No.1 and 2 are duly admitted, and their stand for forcible obtaining of such signatures could not be established.
30. Further only for the discrepancy that at the place of interest, it was mentioned as @12% per month that makes it @144% per annum, but it has come on record in the testimony of PW1 that the parties were intended to mention an interest @12% per annum, and not 12% per month, thus it appears a typological mistake printed on such document Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 16 that mentions 'PM' rather than 'PA'. It is specifically denied by PW1 that interest was @ 144% p.a. The testimony of PW1 is unrebutted even on this aspect that the interest was @12% per annum and not @12% per month.
31. Ld. Counsel for the defendants has raised another contention that such document cannot be treated as promissory notecumreceipt as it mentions a 'condition' that the payment would be made within one year, and on 'sale of the house A72, Gali No.5, Nehru Gali, Mandawali, Delhi 110092'. To this effect on bare reading of this document, it is clear that the document does not mention the sale of the house as a condition, whereas such word does not effect the nature of promise, made for the payment to be made within one year. Moreover on such aspect, neither any pleadings have been placed on record by the defendants nor any evidence to dispute the addition of such words after the promise to pay such amount after one year. Thus, such contentions are declined, on the face of record, if read in totality.
32. Ld. Counsel for the defendants has also raised a contention that such document mentions that an amount of Rs.3,50,000/ was received in cash on 23.09.2001, whereas it has come on record in the evidence of Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 17 witnesses that on 23.09.2001 no such payment in cash was made by the plaintiff to the defendants.
33. I have gone through the words used on the document Ex.PW 1/2 i.e. the promissory notecumreceipt, it reads that the executants Ashok Sharma and Raj Sharma, promise to pay to Sh. Anand Kaushik on demand or order the sum of Rs.3,50,000/ with interest @ 12% for the value received in cash on or before dated 23.09.2001, within one year.
34. If the totality of evidence of the plaintiff is taken into account that includes the ocular evidence of PW1 to 4 and the documentary evidence Ex.PW1/1 to 2, it is made clear that a total sum of Rs.3,50,000/ was received in cash on or before 23.09.2001 i.e. due by that date and that was promised to be paid within one year.
35. So far as the nature of document i.e. promissory notecum receipt is concerned, the document Ex.PW1/2 is a promissory notecum receipt admissible in law as such document i.e. a negotiable instrument defines as below.
Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 18
Definition of a promissory note 'A promissory note is an unconditional promise in writing made by one person to another signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to, or to the order of, a specified person or to bearer'.
36. The basic ingredients needed for a document to be a promissory note are this: The promissory note :
i). must be in writing;
ii). must be signed by the maker;
iii). must contain an undertaking to pay;
iv). must be a promise to pay unconditionally on demand or at a fixed or determinable future time;
v). payee must be certain;
vi). maker must be certain;
vii). sum payable must be certain;
viii). must contain a promise to pay money and money only;
ix). must be payable to or to the order of a certain person or to the bearer.
37. As per such ingredients the Ex.PW1/2 is a promissory note, it is a well settled principle of law settled in Jai Rajanna Vs. Patel Thimmegowda II (1998) BC 343 (1998 ISJ (Banking) 728), wherein it is held :
`The defendant after admitting his signature on the promissory note cannot escape his Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 19 liability in view of Section 20 of Negotiable Instruments Act, 1881, by saying that he signed blank note.' Further it is also well settled principle of law on promissory note that:
`Once the defendant admit signature, his liability cannot be denied.' As held in Mohd. Ali Vs. Abdul Sind, II (2000) BC 188 (Mad).
38. As per the law settled in Jai Rajanna Vs. Patel Thimmegowda II (1998) BC 343 (1998 ISJ (Banking) 728) and Mohd. Ali Vs. Abdul Sind, II (2000) BC 188 (Mad), once the signatures on the document are admitted by the executant/executants for the promise made by the executant/executants, it does not matter who has filled up the other contents of the document.
39. Thus, not only the facts regarding advancement of the loan of Rs.3,50,000/ has been proved by the plaintiff, but the negotiable instrument i.e. the promissory notecumreceipt Ex.PW1/2 is duly established on record to make the defendants liable for payment of such amount along with interest @12% per annum, i.e. the contractual rate of interest from the date it became due, till its realization. Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 20
40. So far as the law settled in the cases of Krishna Janardhan Bhatt vs. Dattatraya G. Hegde, II (2008) BC 44 (SC), case is concerned the facts and law discussed therein were on absolutely different footings, as of the facts of the present case where the source of income of the plaintiff was not in question at any point of time and what was disputed in the transaction was the signatures on the documents Ex.PW1/1 and Ex.PW1/2. Thus, the judicial opinion and the observations made in the case cited, have no application to the present case and thus, the contentions of Ld. Counsel for the defendant in this regard are declined.
41. Similar is the observations on judicial opinion expressed in Kallappa Pundalik Reddi Vs. Laxmibai Dattoba Vellaram and Ors, AIR 1995 Bombay 160, case that deals with insufficiency of the stamps as per Article 49 (B) of the Schedule I of the Stamp Act, that was related to the duty payable on a bond and the admissibility of the promissory notecum receipt was questioned on different footings to the facts in question in this case wherein not only the execution of the promissory notecumreceipt was admitted, but the document was duly proved and admitted on record and such document was bearing the revenue stamps to its requirements, Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 21 that not to call for any query further in this regard. Thus, the law settled in the case of Kallappa Pundalik Reddi Vs. Laxmibai Dattoba Vellaram and Ors, AIR 1995 Bombay 160, is not applicable to the present case.
42. So far as the judicial opinion of Santosh Manikrao Gundale vs. Rameshwar Wamanrao Tak & Another, 2007 (1) Acquittal 546 case is concerned, that also relates to a criminal case where the accused has taken a defence in a criminal complaint regarding the source of income of the complainant. The present case has distinguishably different facts wherein the defendants have admitted of receipt of building raw material during the construction of their house, during the year 19992000 at the instance of the plaintiff and it was on the defendants to prove that they discharge their liability of such payments and it was not on the plaintiff to prove his ability/source of advancement of the loan to the defendants. Thus, on the factual matrix of the case, the instant case is different from the case cited, having no application of such opinion, in this case.
43. Therefore, on the basis of above findings on law and facts it is observed that the plaintiff has duly established on record that he has advanced a loan of Rs.3,50,000/ to the defendants on executing a demand Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 22 promissory notecumreceipt and receipt and defendants have failed to establish the contrary.
44. Therefore, the issue No. 1 is decided in favour of plaintiff and against the defendants.
45. Issues No. 2 & 3
2. Whether the plaintiff is entitled to interest @ 12% per annum on the principal amount? OPP.
3. Whether the plaintiff is entitled to a decree of Rs.4,58,750/ against the defendants? OPP.
In view of the findings in issue no. 1 these two issues are decided in favour of the plaintiff, but issue No.3 is decided for entitlement to the extent of the principal amount of Rs.3,50,000/ plus simple interest @ 12% per annum since 23.09.2001 till the date of its realization.
46. Relief In view of the above observations and findings on the issues above discussed, the suit of the plaintiff is decreed. Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 23
Accordingly, the plaintiff is entitled for a money decree against the defendant for :
i). For the release of the principal amount of Rs.3,50,000/ already deposited.
ii).Also for an interest @ 12 % per annum on such principal amount from 23.09.2001 till its realization.
iii).Along with a cost to the extent of court fees plus Rs.10,000/ towards litigation expenses.
Decree sheet be drawn accordingly.
File be consigned to Record Room.
Announced In the open Court (Dr. Archana Sinha)
on 20.04.2011 Addl. District Judge,
Centl.04, Tis Hazari Courts,
Delhi. 20.04.2011
Suit No. 80/11 Anand Kaushik Vs. Ashok Sharma & another Page No. 24