Delhi District Court
Smt. Geeta vs Sh. Sanjiv Anand on 10 April, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGEII
(CENTRAL DISTRICT), TIS HAZARI COURT DELHI
CS. No. 335/13
Unique Case ID No.: 02401C0485312009
Smt. Geeta
W/o Sh. Naresh Kumar Gupta,
R/o 109/2H, BlockA,
Near Radha Krishan Mandir,
C.C. Colony, Delhi110007
......... Plaintiff
Versus
Sh. Sanjiv Anand
S/o Late Sh. Prem Anand,
Proprietor of M/s Manoj Industries,
At 13/2 Wazirpur Industrial Area,
Delhi110052.
Also At:
QD1. 1st Floor, Pitampura, Delhi110088.
........... Defendant
Date of institution: 23.10.2009
Date on which orders were reserved: 8.4.2015
Date on which judgment pronounced: 10.4.2015
JUDGMENT (Oral):
(1) The suit for recovery of Rs.5,22,225/ (Rupees Five Lacs Twenty Two Thousand Two Hundred Twenty Five only) has been filed by the plaintiff Smt. Geeta against the defendant Sanjiv Anand. Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 1 of 37 Case of the plaintiff:
(2) The case of the plaintiff is that she is residing at 109/2H, Block A, Near Radha Krishan Mandir, C.C. Colony, Delhi110007 and the defendant who is the proprietor of M/s. Manoj Industries had approached the plaintiff to take temporary loan on 13.07.2009. It is pleaded that the plaintiff accepted the request of the defendant and had given a sum of Rs.
4,95,000/ (Rupees Four Lacs Ninety Five Thousand only) as loan to the defendant at Dena Bank, Subzi Mandi, Delhi on 13.07.2009 after withdrawing the said amount from the said Bank. According to the plaintiff, in order to discharge his above said debt/ liability, the defendant as proprietor of M/s. Manoj Industries signed and issued two cheques bearing No.857915 dated 29.07.2009 for Rs.1,95,000/ (One Lac Ninety Five Thousand only) and 857917 dated 29.07.2009 for Rs.3,00,000/ (Rupees Three Lacs only) both drawn on Account No. 11325 maintained with Canara Bank, Pitampura, Delhi110088, in favour of the plaintiff. (3) It is further pleaded that the aforesaid cheques were presented to the Bank for payment by the plaintiff through her Bank i.e. Dena Bank, Subzi Mandi, Delhi but the said cheques were dishonored due to insufficient fund in the account of the defendant. According to the plaintiff after giving requisite notice, she filed a Criminal Case under Section 138 of the Negotiable Instruments Act, against the defendant which is pending disposal. It is further pleaded that the defendant has failed to pay the Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 2 of 37 principal amount of Rs.4,95,000/ (Rupees Four Lacs Ninety Five Thousand Only) to the plaintiff. It is also pleaded that the defendant is also liable to pay to the plaintiff interest @24 per cent per annum on the principal amount w.e.f. 13.07.2009 till the amount remains illegally withheld which comes to Rs.27,225/ till filing of the suit. According to the plaintiff, the defendant is now liable to pay to the plaintiff a sum of Rs.5,22,225/ (Rupees Five Lacs Twenty Two Thousand Two Hundred Twenty Five only) which the defendant has failed to pay to the plaintiff despite repeated verbal request made by the plaintiff to the defendant as well as written notice dated 07.09.2009 which was sent by registered post and UPC to the defendant at both the addresses. It is pleaded that the notice sent by UPC was served on the defendant on or about on 08.09.2009 as notice not received back as unserved. It is further pleaded that even the notice sent to the defendant by registered post at the addresses of 13/2 Wazirpur Industrial Area, Delhi110052 received back bearing report dated 08.09.2009 as "Refused" which also amounts to service on the defendant in the eyes of law. According to the plaintiff, the notice sent to the defendant by registered post at the addresses of QD1, 1st Floor, Pitampura, Delhi110088 also received back bearing reports as "Addressee not met despite visiting again and again and intimation given" which also amounts to service on the defendant in the eyes of law as he avoided to receive the same.
(4) According to the plaintiff, cause of action for the suit accrued to the plaintiff on 13.07.2009 when the loan was given to the defendant at Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 3 of 37 Dena Bank, Subzi Mandi, Delhi110007; again when the cheques were issued by the defendant in favour of the plaintiff; again when the cheques were dishonoured; again when the notice was issued demanding money under Section 138 of Negotiable Instrument Act; again when legal notice of demand dated 07.09.2009 was served on the defendant on or about 08092009 but inspite of receipt of the same the defendant failed to pay the above said amount to the plaintiff and the said cause action is still subsisting and continuing till date as the defendant has not paid the amount due to the plaintiff.
(5) Therefore, the plaintiff has prayed for a decree for a sum Rs. 5,22,225/ (Rupees Five Lacs Twenty Two Thousand Two Hundred Twenty Five Only) in favour of the plaintiff and against the defendant along with pendentelite interest from the date of suit till the date of decree at the rate of 24% per annum and future interest on the decretal amount till realization at the rate of 24% per annum and the costs of the suit. Case of the defendant:
(6) The defendant has filed his written statement wherein a preliminary objection has been raised that the plaintiff has not come to this court with clean hands and has suppressed the material facts from the Court and she is therefore not entitled to the relief because of her making material concealments. It is pleaded that the plaintiff wants to use the law for oblique purposes by wrongly and illegally filing the present suit and the suit Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 4 of 37 of the plaintiff is liable to be dismisses on this ground alone. It is also pleaded that the present suit is liable to be dismissed as the plaintiff has no cause of action against the defendant and the present suit is misconceived, false and frivolous and liable to be dismissed with exemplary costs. It is further alleged that there is no privity of contract between the plaintiff and the defendant. According to the defendant, the present suit is liable to be dismissed as the plaintiff has committed the offences of cheating, forgery and fraud and using as genuine forged documents in respect of the cheques in question which is punishable under the penal provisions of law.
According to the defendant, the parties to the suit are not known to each other since only the husband of the plaintiff Shri Naresh Kumar Gupta and the defendant are known to each other in the manner that earlier the defendant used to purchase raw iron from Shri Naresh Kumar and during the period of the said transactions the plaintiff used to insist for security cheques from the defendant. It is pleaded that in these circumstances cheques including cheques No. 857915 and 857917 both drawn on Canara Bank, Pitampura, Delhi110088 from Account No 11325. It is further pleaded that the said cheques had only the amount written therein being security cheques but the same were 'blank' otherwise and the name of drawee has been filled up as that of the plaintiff. It is alleged that there is a forgery/ interpolation on the cheque No 847915 in the date column and the initial appended on the side also do not belong to the defendant. According to the plaintiff, the name of the plaintiff has been filled in and the date has Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 5 of 37 also been filled as 29.07.2009 to suit the convenience. It is pleaded that the husband of the plaintiff has misused the cheques by not returning the same to the defendant after the transactions with him and the defendant came to an end after their accounts were settled. According to the defendant, the defendant never had any transaction with the plaintiff what to talk of in July 2009 nor the cheques were given to the plaintiff and it was her husband who had misused the security cheques for oblique purposes by committing the forgery. It is also pleaded that the cheques in question are not for consideration or value and the plaintiff is not the holder thereof in due/usual course.
(7) On merits the defendant has denied all the allegations made against him by the plaintiff and has stated that the defendant was not even in Delhi on 23.07.2009. He has denied that a temporary loan of Rs.4,95,000/ (Rupees Four Lacs and Ninety Five Thousand Only) was ever given by the plaintiff to the defendant as alleged. It is also denied that the alleged amount was withdrawn from the bank as alleged. According to the plaintiff, if the amount was so withdrawn then it would be a ploy to entrap the defendant as is apparent from the false story being cooked up by the plaintiff and her husband. According to the defendant, there is a forgery/ interpolation in the cheque no. 847915 in the date column and initial appended on the side also do not belong to the defendant. It is also pleaded that the bank ought to have compared the signatures on the forgery/ interpolation and returned the cheques due to non matching of the Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 6 of 37 signatures. It is also pleaded that no notice as claimed by the plaintiff was received by the defendant nor any notice from any court as regard the pendency of any case under Section 138 of the N.I. Act has been served upon the defendant. It is denied that the defendant is liable to pay a sum of Rs.5,22,225/ (Rupees Five Lacs Twenty Two Thousand Two Hundred and Twenty Five only) to the plaintiff or any other amount. According to the defendant the plaintiff might have managed the alleged 'refusals' in conspiracy with the brother of the defendant with whom the defendant does not have healthy relations besides the brothers being competitors. (8) Thereafter a replication was filed by the plaintiff wherein she has reaffirmed what she has earlier stated in the main plaint. ISSUES FRAMED:
(9) On the basis of the pleading of the parties the Ld. Predecessor of this court has framed the following issues on 22.03.2010:
1. Whether the plaintiff is entitled to recovery of Rs. 5,22,225/ (Rupees Five Lacs Twenty Two Thousand Two Hundred and Twenty Five Only) against the defendant as alleged?
(OPP)
2. Whether the plaintiff is entitled to interest, if so at what rate and for what period? (OPP)
3. Whether the plaintiff has not approached this court with clean hands and suppressed material facts? (OPD) Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 7 of 37
4. Whether the plaintiff has no cause of action against the defendant? (OPD)
5. Whether there is no privity of contract between the plaintiff and defendant? (OPD)
6. Whether the suit is not maintainable? (OPD)
7. Relief.
EVIDENCE:
(10) The plaintiff Smt. Geeta has examined herself as her sole witness as PW1. She has in her examination in chief by way affidavit Ex.PW1/A corroborated what she has earlier stated in the plaint. She has relied upon the photocopy of her passbook of Dena Bank, showing the entry of withdrawal at Point 'A' which is Ex.PW1/1; certified copies of the record of the Court Ms Charu Aggarwal Ld. MM containing two original cheques certified copies of which cheques are Ex.PW1/2 and Ex.PW1/3; Certified copies of the cheque returning memo which are Ex.PW1/4 and Ex.PW1/5;
Certified copies of the notice dated 17.08.2009 which is Ex.PW1/6; Copy of legal notice dated 07.09.2009 which is Ex.PW1/7; Two postal receipts which are Ex.PW1/8 and Ex.PW1/9; Original UPC receipt which is Ex.PW1/10 and two returning original envelops which are Ex.PW1/11 and Ex.PW1/12.
Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 8 of 37 (11) In her crossexamination by the Ld. Counsel for the defendant, the witness has deposed that she knew the defendant Mr. Sanjeev Anand as he used to visit in her house and he is a good friend of her husband. She is not aware whether he was having the business dealings with her husband and has stated that since the defendant was a family friend and because he was having apprehension that he would not get the loan from her husband, as such he requested her for the loan and as such, her heart felt for him after which she gave him the loan. The witness has further deposed that he (defendant) demanded a sum of Rs.4,95,000/ as loan in cash from her on 13.7.2009 at about 11.30 AM. She has testified that in order to procure the cash for the loan demanded by the defendant, she along with her husband Naresh Gupta accompanied the defendant to Dena Bank, Subzi Mandi Branch, which is at a walking distance from her house. She has admitted that she withdrew the money from the bank by giving a self signed cheque of the above amount in order to withdraw it in cash. The witness has also deposed that in order to discharge the loan liability, he (defendant) issued her two cheques of Rs.3 lacs and another of Rs.1,95,000/ which cheques so given to her were completely filled in by the defendant. According to the witness, she is aware of the cheque bouncing cases happening and she is aware of the gravity of such offences of dishonourment of the cheques and as such she advanced the loan of the said amount. She has further deposed that at the time of giving the cheques to her, every information of the cheques were filled by the defendant himself after which it was handed over Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 9 of 37 to her. According to her, she did not notice anything peculiar about the information so filled in the cheques and has voluntarily explained that she recollected that there was some cutting on the cheque which was subsequently signed. She has also admitted that she has friendly relations with the defendant and she knew the wife of the defendant as she visited with the defendant twice, but she is unable to tell anything about any other relatives of his family. She has further deposed that she only gave a friendly loan and also that she does not have any money lender's licence. The witness has further testified that she has not advanced any friendly loan to any one else. According to the witness, the cheques were given to her and not to her husband as security cheques in the year 2007. She has admitted that the cheque were not returned by her husband once the dealings with the defendant were over and has voluntarily explained that she has no knowledge with respect to the business dealings. She has denied the suggestion that the name of the beneficiary/ plaintiff was filled by her or on her behalf. She has however admitted that she has advanced a loan for which she was given two cheques of the same amount but no pronote or receipt was taken from the defendant once the loan was advanced. She has also admitted that the cheques are not consecutive in number since she is not aware of the same. She is also not aware as to how the consecutive cheques bearing consecutive numbers (857911, 857916, 857919, 857923, 857925, 857931, 857932) to the cheques issued to her, could be cleared in the year 20072008. She has denied the suggestion that the balance on Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 10 of 37 08.07.2009 was Rs.9,349.87/ and the balance on 13.07.2009 was also Rs. 9,349.87/ after giving the alleged loan to the defendant. She has further admitted that the name Manoj Industries in the transaction of 13.07.2009 was added by her to remember the loan given by her to the defendant. She has further denied the suggestion that she has never written or added such an entry by her in any other case. The witness has further admitted that the amount of Rs.4,95,000/ which was the alleged loan amount, was transfered in her account (from mutual funds, etc) on the same day so that the loan of the same amount could be given to the defendant. She has also admitted that the loan given to the defendant was given in cash in the bank as per request of the defendant who was present in the bank as he was in dire need of the said amount.
(12) A specific question was put to the witness as to why the bearer cheques which could be encashed there, were not given to the defendant when easily he could get the cash then only, to which the witness has stated that the defendant has demanded the cash from her and not the bearer cheque. She has denied the suggestion that she has deposed falsely and no loan was advanced to the defendant.
(13) In order to discharge the onus upon him, the defendant has examined two witnesses. The defendant Sanjiv Anand has examined himself as DW1 and in his examination in chief by way of affidavit Ex.DW1/A he has corroborated what he has earlier stated in his written statement.
Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 11 of 37 (14) In his crossexamination by the Ld. Counsel for the plaintiff, the witness has deposed that his affidavit Ex.DW1/1 was drafted by his counsel under his instructions and he is aware of its contents. He does not remember as to where he had signed his affidavit Ex.DW1/A. He has denied that he has taken a loan of Rs.4,95,000/ from the plaintiff on 13.7.2009 at Dena Bank, Subzi Mandi, Delhi and has voluntarily explained that he does not know the plaintiff personally and it is only her husband Shri Naresh Kumar Gupta, whom he know. He has denied the suggestion that in order to discharge the said loan, he had issued two cheques bearing no. 857915 dated 29.7.2009 for Rs.1,95,000/ and another cheque bearing no. 857917 dated 29.7.2009 for Rs.3,00,000/ both drawn on Canara Bank, Pitampura, Delhi from account No.11325, in favour of the plaintiff and has voluntarily explained that as he does not have any relations with the plaintiff, therefore, there is no question of taking any loan from her and issuing any cheques in lieu thereof. The witness has admitted that the said cheques were presented in the bank of the plaintiff and the same were dishonoured on account of insufficient funds. He has also admitted that a criminal case under Section 138 Negotiable Instrument Act is pending against him in the court of Shri Viplav Dabbas, MM, Tis Hazari, Delhi. He has however denied the suggestion that he has failed to pay the principal amount of Rs.4,95,000/ to the plaintiff despite service of the notice and has voluntarily explained that since he has not taken any loan from the plaintiff, therefore the question of Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 12 of 37 liability of repaying Rs.4,95,000/ does not arise. The witness has admitted that the address written as Shri Sanjeev Anand S/o Late Shri Prem Chand Anand, QD1, Pitampura, Delhi110088 is the correct address and has voluntarily explained that the said address is not the correct address as he lives on the second floor whereas the envelope mentions the address of first floor, therefore the envelope of the service could not be effected upon him and he did not receive the said notice. The witness has also denied the suggestion that he has received the notice by UPC that is why he intentionally avoided to take the notice and has voluntarily explained that the said notice was never served upon him, more so, the said notice could not be served upon him because the address mentioned is itself incorrect and he did not reside on the said address. According to him, it is only when the plaintiff's husband Naresh Kumar Gupta informed him about the pendency of the said case, he came to know about the said case. He has also denied the suggestion that he came to know about the pendency of the present case when he received the notices. He has testified that Ex.DW1/P1 is the incorrect report of the Process Server since no copy of the petition was ever affixed outside his premises. He has further denied that he has come to the court because a copy of the plaint was affixed outside his premises. He has further denied the suggestion that he has taken a loan of Rs.4,95,000/ from the plaintiff on 13.7.2009 or that he is liable to pay interest @ 24% per annum with effect from the said date or that any pendentelite or future interest. He has further denied the suggestion that Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 13 of 37 plaintiff and her husband had not committed any forgery or that rather has cheated the plaintiff in not paying the loan taken by him. He has also denied that the cheques were duly filled up when he have issued the same or that the plaintiff and her husband had not misused the aforesaid cheque or that the cheques were not given for security purpose but it was given to discharge the loan.
(15) DW2 Sh. R.K. Malik Manager from Canara Bank, Pitampura, Delhi has deposed that he has been in the above branch as Manager since August 2008 and he has been in the banking profession since the last 39 years. According to the witness, whenever a cheque is presented for encashment before the bank, as a rule, the concerned bank employee is duty bound to see and verify the signatures on the cheque, the amount written, the name of the holder, the date of the cheque and overall the genuineness of the cheque specially whether the cheque is the same bank issued to the same customer form whose cheque book the said cheque has been issued and given to the holder of the cheque. He has deposed that the bank also checks for any cutting/ forgery/ interpolation on the cheque and if in case such a situation arises, where any of the above is found, the cheque is returned. He has testified that the bank after verifying all the above aspects, passes the cheque provided there is balance in the account of the account holder and the validity of a cheque properly dated is not more than six months. He has further deposed that it is not necessary that the cheque should be issued serial number wise and any cheque can be issued at any Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 14 of 37 time. He is unable to comment on the behavior of the account holder as to what he may do to the cheques of the cheque book. He has brought the account statement of Manoj Industries Dated 01.05.2007 to 31.01.2008 duly certified under Bankers Book of Evidence Act, which is Ex.DW2/A. According to him, the said account statement shows the cheques which the bank has received and passed which statement does not show or reflect the number of cheques as per sequence issued from the cheque book. He has also deposed that for the same there is another procedure which has to be employed and on a perusal of the account of the account holder on the computer, it reveals how many cheques in all have been issued from the cheque book, the cheque book was for how many cheques, how many cheques are still pending from the cheque book and when has the account holder got issued a new cheque book.
(16) Further examination in chief of this witness was deferred as certain documents have not been brought by the witness. However, thereafter the witness was not examined and hence his evidence cannot be read into evidence.
FINDINGS:
(17) I have heard the arguments advanced before me and considered the written memorandum of arguments filed by both the parties. I have also through the testimonies of the witnesses and the documents placed on record. My findings on the various issues are as under:
Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 15 of 37 Issue no.3: Whether the plaintiff has not approached this court with clean hands and suppressed material facts?
Issue No.4: Whether the plaintiff has no cause of action against the defendant?
Issue No.5: Whether there is no privity of contract between the plaintiff and defendant?
Issue No.6: Whether the suit is not maintainable? (18) All the above issues are clubbed together for the sake of
convenience being interlinked and involving common discussion. Onus of proving all the above issues was upon the defendant. The case of the defendant is that the plaintiff before this Court has not approached this Court with clean hands having concealed the material facts as her husband Naresh Kumar Gupta and the defendant are known to each other as the defendant used to purchase raw iron from Sh. Naresh Kumar Gupta. It is alleged that during the period of said transaction the plaintiff used to insist for security cheques from the defendant and hence under the given circumstances the defendant had issued many cheques including cheques No. 857915 and 857917 both drawn on Canara Bank, Pitampura, Delhi from account No. 11325 which cheques had only the amount written therein being security cheques but the same were blank otherwise and the name of drawee has been filled up as that of the plaintiff. The case of the defendant is that there is a forgery and interpolation in the cheque No. 847915 in the date column and initial appended on the side which does not belong to the defendant and hence the same is forged. It is further alleged that the name Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 16 of 37 of the plaintiff was filled up and the date has been put as 29.07.2007 to suit the convenience of the plaintiff and it is in fact the husband of the plaintiff who is misusing the cheques by not returning the same to the defendant after the transaction with him and the defendant came to an end and their accounts were settled. It is submitted that the cheques in question are not for consideration or value and the plaintiff is not the holder thereof in due/ usual course.
(19) Ld. Counsel appearing on behalf of the defendant has vehemently argued that the plaintiff has failed to prove or place any documentary evidence to the effect that any loan was taken by the defendant from the plaintiff. It is argued that simply on issuing the two cheques by the defendant (without name) and also without date does not establish that any loan amount was received by the defendant from the plaintiff or any such loan was ever given by the plaintiff to the defendant. It is pointed out that no documents except the two cheques have been placed on record by the plaintiff to support her contentions and even the receipt has not been filed by the plaintiff. It is also argued that in case any loan would have taken by the defendant or would have been given by the plaintiff to the defendant, in that eventuality some sort of receipt would have been executed by the defendant in favour of the plaintiff and in the absence of such receipt, the case of the plaintiff for recovery of the alleged amount of Rs.4,95,000/ is liable to be dismissed. It is also argued that it is an admitted case of the plaintiff that she was not known to the defendant and also the defendant was Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 17 of 37 not knowing the plaintiff and hence under the given circumstances, the defendant shall never approach the plaintiff to give him any such loan. It is further pointed out that if the defendant wanted any such loan for his need, he would have requested the husband of the plaintiff and not to the plaintiff and no prudent person will give any loan to any person who is stranger to him.
(20) I have gone through the testimonies of the witnesses of the defendant and I may observe that at no point of time any suggestion has been made to the plaintiff that there has been a forgery on the cheques and no witness i.e. Handwriting Expert or Forensic Expert has been examined by the defendant to prove the interpolation or forgery. I may also observe that it is an admitted case of the defendant that he was having business dealings with the husband of the plaintiff and hence assuming that he was, there is no reason to disbelieve the plaintiff to the extent that having good relations the loan was given to the defendant in lieu of which the cheques in question were issued. The plaintiff is the holder in due course being the holder of the cheques in question and hence there is a privity of contract between the plaintiff and the defendant and the defendant has not lead any evidence to the contrary, the only evidence being his oral testimony. I may note that the suit filed by the plaintiff is for recovery of loan amount against the defendant based upon dishonour of the cheques issued by the defendant and hence it cannot be said that there is no cause of action in favour of the plaintiff for filing the present suit. I may further note that as per the Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 18 of 37 provisions of Section 118 (g) of the Negotiable Instrument Act even if the plaintiff had put her name on the cheque the said presumption comes to her rescue and confirms that she is the holder of the Negotiable Instrument in due course. Hence, under the given circumstances, I hereby hold that the defendant has miserably failed to prove how the suit of the plaintiff is not maintainable either by way of pleadings or by way of evidence. He has also failed on establish by placing on record the reliable admissible, that the plaintiff has not come to the court with clean hand or had suppressed material facts. He has further failed to establish that there was no cause of action for filing the suit. Rather on the other hand the plaintiff being holder of the Negotiable Instrument i.e. cheques in due course, there is a privity of contract between the plaintiff and the defendant.
(21) All the issues no. 3, 4, 5 and 6 are decided in favour of the plaintiff and against the defendant.
Issue No.1 Whether the plaintiff is entitled to recovery of Rs.
5,22,225/ (Rupees Five Lacs Twenty Two Thousand Two Hundred and Twenty Five Only) against the defendant as alleged?
Issue No.2 Whether the plaintiff is entitled to interest, if so at what rate and for what period?
(22) Both the above issues are clubbed together for the sake of convenience being interlinked and involving common discussion. Onus of Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 19 of 37 proving both the issues was upon the plaintiff. I have considered the rival contentions and gone through the written memorandum of arguments. (23) In order to discharge the onus upon her, the plaintiff Smt. Geeta has examined herself as PW1 whereas the defendant Sanjeev Anand has examined himself as DW1 and also examined the Manager of Canara Bank Pitam Pura namely Sh. R.K. Malik as DW2. Here, I may observe that examination in chief of the witness R.K. Malik was deferred on 16.8.2011 as he had failed to produce certain documents but thereafter did not appear either to complete his examination in chief or to submit for cross examination and hence his testimony is liable to be discarded and the document tendered by him i.e. Ex.DW2/A shall not be read into evidence. (24) Coming now to the testimony of the plaintiff herself who in her examination in chief by way of affidavit has corroborated what she has earlier stated in the main plaint in toto. According to her, she had given a loan of Rs.4,95000/ to the defendant and two cheques dated 27.9.2009 were issued by the defendant to her in order to discharge the liability. She has placed on record the copies of the memo issued by Dena Bank, Pitampura Delhi on 10.08.2009 which are Ex.PW1/4 and Ex.PW1/5 showing that the cheques Ex.PW1/2 and Ex.PW1/3 when presented to the Bank were dishonoured for exceeds arrangements i.e. for want of sufficient funds in the account of the defendant. She has further stated that she got notified the fact of dishonouring of cheques vide notice dated 17.08.2009 which is Ex.PW1/6 and the notice of demand Ex.PW1/7 dated 07.09.2009 Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 20 of 37 was sent to the defendant but despite service of notice of demand the defendant has failed to pay the amount nor replied the same for the reasons best known to him. In her crossexamination no suggestion has been put to her that notice Ex.PW1/7 was not received by the defendant or that the addresses of the defendant given on the plaint are wrong and incomplete. Further, no suggestion has also been put to PW1 that the cheques were blank or that the same have been forged or that there is a forgery or interpolation on cheque no. 857915 in the date column and initials appended on the side also do not belong to the defendant or that the same are forgeries.
(25) It is writ large that the dispute between the parties revolves around Ex.PW1/2 and Ex.PW1/3 i.ethe . cheques dated 29.07.2009 and the factum of issuance of the cheques is also admitted by defendant. The case of the defendant is that the plaintiff cannot claim any relief on the basis of the aforesaid cheques as the same are without consideration. It is alleged by the defendant that he had given those cheques to the husband of the plaintiff i.e. Shri Naresh Kumar Gupta as security since earlier the defendant used to purchase raw iron from Naresh Kumar and during the period of the said transactions, he (Naresh Kumar) insisted upon security cheques from the defendant and hence the defendant issued cheques No. 857915 and 857917 both drawn on Canara Bank, Pitampura, Delhi110088 from account No. 11325 which were blank and only the amount was written therein being security cheques. He has also alleged that the name of the plaintiff has been Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 21 of 37 filled up and the date has also been filled up as 29.07.2009 to suit her convenience and therefore the husband of the plaintiff had misused the cheques by not returning the same to the defendant after the transactions between him and the defendant came to an end and their accounts were settled. It is also the case of the defendant that the said cheques had only the amount written being security cheques otherwise the same were 'blank' and the name of the plaintiff as drawee and the date as 29.07.2009 have been filled up by the plaintiff in those cheques.
(26) On the other hand the case of the plaintiff is that both the cheques dated 29.07.2009 were issued to the plaintiff for encashment and that she had not put any date nor her name in those cheques as the same were already dully filled up by the defendant at the time of handing over the same to the plaintiff. Ld. Counsel for the plaintiff has pointed out that the plaintiff has the absolute authority to complete the cheques in question and in this regard placed his reliance on the provisions of Section 20 of Negotiable Instrument Act, which I reproduce as under:
".......20. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 22 of 37 which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid there under....."
(27) It is evident that as per the provisions of Section 20 of the Negotiable Instrument Act the words used are 'either wholly blank or having written thereon an incomplete negotiable instrument'. Therefore, even if a blank cheque is given, the defendant cannot avoid his liability on such instrument. It is not disputed that as per Section 13 of Negotiable Instruments Act, the cheque is a negotiable instrument and it may be wholly blank or incomplete in particular in either case, the holder has the authority to make or complete the instrument as a negotiable one and hence it is not open to the defendant to take a plea that the cheques in question were blank or that the plaintiff has filled up the dates or her name in those cheques. (28) It is further evident from the testimony of the plaintiff Smt. Geeta (PW1) and also the defendant Sanjeev Anand (DW1) that there is no dispute with regard to the issuance of the cheques. Rather, no suggestion has been made on behalf of the defendant that the cheques were never issued. The defendant has also not raised any dispute regarding the signature and the amount shown in the cheques and hence is deemed to have admitted his signature and also the amount and also the issuance of the cheques. Assuming that the plaintiff had put a date on the cheque or her name, there is a presumption under Section 118 (b) & (g) of the Negotiable Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 23 of 37 Instrument Act, which provides that every negotiable instrument bearing a date was made or drawn on such date and that the holder of a negotiable instrument is a holder in due course. Hence, the burden entirely shifts on the defendant to show that cheques were not supported by any consideration.
(29) I now come to the provisions of Section 6 of the Negotiable Instrument Act which defines cheque as a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. Cheque is an instrument in writing containing unconditional offer signed by the maker directing a specified banker to pay on demand a certain sum of money only to the payee or to the order of certain person or drawer of the instrument. Certain presumptions have been laid by Section 118 of the Negotiable Instrument Act which I reproduce as under:
"......... 118. Presumptions as to negotiable instruments: Until the contrary is proved, the following presumption shall be made
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred, for consideration;
(b) as to date: that every negotiable instruments bearing a date was made or drawn on such date;
(c) .................
(d) ................
Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 24 of 37
(e) ................
(f) ...................
(g) that holder is a holder in due course: that the
holder of a negotiable instrument is a holder in due
course: provide that, where the instruments been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him......."
(30) It is writ large that once the execution of the cheque is admitted, the presumptions under Section 118 of the Negotiable Instrument Act arise, until the contrary is proved. The initial presumption rests on the plaintiff to prove that the cheque was issued by the defendant and as soon as the execution of the cheque is proved, the rule of presumption laid down under Section 118 of the Negotiable Instrument Act applies and therefore once there is an admission of issuance of a cheque or the same is proved to have been issued, the presumption under Section 118 Negotiable Instrument Act is raised that it is supported by consideration. When the plaintiff has been able to discharge the statutory presumption, then the burden shifts to the defendant to show that the cheque, though issued, is not supported by valid consideration. Once the issuance of the cheque is admitted or proved and the presumption is drawn under Section 118 of the Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 25 of 37 Negotiable Instruments Act, the said presumption can be rebutted by adducing reliable admissible evidence.
(31) In this regard the Hon'ble Supreme Court in the case of Hiten P. Dalal Vs. Bratindranath Banerjee, reported in 2001 V AD (SC) 260 observed as under:
"........... 24. Judicial statements have differed as to the question of rebutting evidence required. In Kunden Lal Rallaram Vs. Custodian, Evacuee Property, Bombay AIR 1961 SC 1326, this Court held that the presumption of law under section 118 of Negotiable Instruments Act could be rebutted in certain circumstances, by a presumption of fact raised under section 114 of Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitutional Bench in Dhanwantrai Balwantrai Desai Vs. State of Maharashtra AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras Vs. Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumptions lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent" with the innocence of the accused. On the other hand, in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under section 114 of Evidence Act and can not be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 26 of 37 the contrary is proved which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision can not be said to be rebutted......"
(32) Applying the settled principles to the facts of the present case, it is to be seen whether defendant has rebutted the presumption drawn under Section 118 of the Negotiable Instruments Act. In the present case, the defendant has admitted the issuance of the cheques and there is no dispute regarding the signature and amount etc. but only alleged that the cheques were issued for security purposes. In order to discharge the burden, defendant has to adduce admissible evidence, the only evidence on record being the oral testimony of defendant Sanjeev Anand (DW1). Though the defendant has examined Sh. R.K. Malik, Manager, Canara Bank, Pitam Pura, Delhi as DW2 but the testimony of DW2 as well as the document Ex.DW2/A cannot be read into evidence against the plaintiff since the examinationinchief of R.K. Malik (DW2) was partly recorded after which he did not submit himself for crossexamination and hence the plaintiff did not get opportunity to crossexamine him. It was also necessary for the defendant to prove if no loan was taken by him, then why he did not write a Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 27 of 37 letter to the husband of the complainant for return of the cheques when the business dealing between him and the husband of the plaintiff came to an end and accounts were settled. Unless the defendant had proved that he acted like a normal businessman/ prudent person entering into business transactions he could not have rebutted the presumption under Section 118 of Negotiable Instrument Act. In case if no loan was given but the cheques were retained, then the defendant would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. No evidence has been lead by the defendant to show that there was any business dealing between him and the husband of the plaintiff, more so the settled accounts as alleged have not been placed on record by the defendant. The defendant has also not examined any Handwriting Expert/ Forensic Expert to demonstrate that the name of Geeta or the date are in different inks and different writing or that the appended signature on the cutting of date does not belong to him. No question or suggestion has been put to the plaintiff Smt. Geeta (PW1) that the cheques were blank or that the same have been forged or that there is forgery or interpolation on Cheque No.857915 in the date column and initials appended on the side also do not belong to the defendant or that the same are forgeries. It is evident from the record that the cheques in question have been dishonoured for exceeds arrangements and not for cutting in the date or that the appended signature is not of defendant. Even otherwise, merely because there were some transactions between the Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 28 of 37 husband of the plaintiff and the defendant, the same would not lead to the conclusion that the cheques were not supported by consideration. Therefore, a bald statement of the defendant Sanjeev Anand (DW1) would not lead to the conclusion that the cheques were not supported by consideration. It was necessary for the defendant to have adduced reliable and cogent evidence to rebut the legal presumption under Section 118 of Negotiable Instrument Act, which the defendant has not been able to discharge which relevant portion of the crossexamination of plaintiff is reproduced as under: "......... It is correct that I had advanced a loan for which I was given two cheques of the same amount but no pronote or receipt was taken from the defendant once the loan was advanced.......
....... It is correct to say that the amount of Rs.
4,95,000/which was the alleged loan amount, was transferred in my account from mutual funds etc. on the same day so that the loan of the same amount could be given to the defendant.......
........ It is correct to say the loan given to the defendant was given in cash in the bank as per request of the defendant who was present in the bank as he was in dire need of the said amount......."
(33) It is writ large that the defendant has not denied that the loan was given to him in cash in the bank as he was in dire need of the said amount.
(34) In so far as the aspect of the service of legal notice upon the defendant is concerned, the defendant has denied that notice of demand Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 29 of 37 dated 7.9.2009 was never served on him. In this regard I am in full agreement with the Ld. Counsel for the plaintiff that the defendant is required to deny each and very allegations made in the plaint which he does not specifically admit as per the provisions of Order 8 Rule 5 (1) CPC which I reproduce as under:
"........ Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission....."
(35) In this regard I revert back to the para 7 of the plaint which read as under:
"....... That now the defendant is liable to pay to the plaintiff a sum of Rs.5,22,225/ (Rupees five lacs twenty two thousand two hundred twenty five only), which the defendant has failed to pay to the plaintiff despite repeated verbal request made by the plaintiff to the defendant as well as written notice dated 07092009 which was sent by registered post and UPC to the defendant at both the addresses mentioned above in the memo of parties. The notice sent by UPC was served on the defendant on or about on 08092009 as notice not received back as unserved. Even notice sent to the defendant by registered post at the addresses of 13/2 Wazirpur Industrial Area, Delhi110052 received back bearing report dated 08092009 as "Refused" which Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 30 of 37 also amounts to service on the defendant in the eyes of law. The notice sent to the defendant by registered post at the addresses of QD1, Ist Floor, Pitampura, Delhi110088 also received back bearing reports as "Addressee not met despite visiting again and again and intimation given" which also amounts to service on the defendant in the eyes of law as he avoided to receive the same. Hence, the present suit......."
(36) The reply of the defendant to the above paragraph is quoted as under:
"....... That Para 7 of the plaint is wrong and is denied. It is denied if the Defendant is liable to pay a sum of Rs. 5,22,225/(Rupees five lacs twenty two thousand two hundred twenty five only) to the Plaintiff or any other amount. No request as alleged was made. No notice as being falsely claim was ever served upon the defendant as alleged. It might be that the Plaintiff might have managed the alleged 'refusals' in conspiracy with the brother of the Defendant with whom the Defendant does not have healthy relations besides the brothers being competitors. The Defendant have no knowledge of the alleged notice......."
(37) The case in hand is squarely covered within the provisions of Order 8 Rule 5 CPC. It is therefore unnecessary to examine the question as to where judicial admission could be permitted to be withdrawn or retracted. In the present case, there is no specific denial in the written statement about the two addresses given in the heading of the plaint as well Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 31 of 37 as in Para 7 of the plaint that the addresses of the defendant given by the plaintiff are wrong or incomplete.
(38) Further, the plaintiff in her examination in chief by way of affidavit Ex.PW1/A has specifically stated that the notice sent by UPC was served on the defendant on or about on 08.09.2009 as the notice not received back as unserved and even the notice sent to the defendant by registered post at the addresses of 13/2 Wazirpur Industrial Area, Delhi110052 received back bearing report dated 08.09.2009 as "Refused" which amounts to service on the defendant in the eyes of law. According to the plaintiff, the notice sent to the defendant by registered post at the addresses of QD1, 1st Floor, Pitampura, Delhi110088 also received back bearing reports as "Addressee not met despite visiting again and again and intimation given" which again amounts to service on the defendant in the eyes of law as he avoided to receive the same. She has placed on record the signed copy of notice dated 07.09.2009 bearing the signatures of her Advocate at point "A" which notice is Ex.PW1/7; two original postal receipts which are Ex.PW1/8 and Ex.PW1/9; original UPC which is Ex.PW1/10 and two original returned envelops which are Ex.PW1/11 and Ex.PW1/12. It is, however, evident from her crossexamination that no question or suggestion was put to her by the defendant that the addresses given in the plaint were wrong or incomplete or that notice of demand dated 07.09.2009 was not received or served upon the defendant. In this regard, I Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 32 of 37 may observe that the law is well settled law and once the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true [Ref.: Srichand and Shivan Das Vs. The State reported in 28 (1985) DLT 360 (para 6)]. Further, in the case of Rajinder Prashad Vs. Smt. Darshana Devi reported in JT 2001 (6) SC 400 the Hon'ble Supreme Court has held that there is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you can not impeach his credit (para4). In the present case the defendant has not even stated in his affidavit Ex.DW1/A that his addresses given in the plaint are wrong or incomplete.
(39) I may observe that the notice of demand dated 07.09.2009 which is Ex.PW1/7 was sent by the plaintiff at both the addresses mentioned in the memo of parties and the plaint by UPC and by registered post. The notice sent by UPC (Ex.PW1/10) was served on the defendant at both his addresses on or about on 08.09.2009 as the notice was not received back as unserved and even the notice sent to the defendant by registered post at the addresses of 13/2 Wazirpur Industrial Area, Delhi110052 received back bearing report dated 08.09.2009 as "Refused" which is Ex.PW1/11. Further, the notice sent to the defendant by registered post at the addresses of QD1, 1st Floor, Pitampura, Delhi110088 also received Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 33 of 37 back bearing reports as "Addressee not met despite visiting again and again and intimation given".
(40) It is settled principle of law that if somebody avoids to accept the notice or refused to accept the same then he would be deemed to have been served once it is shown that a notice was sent on the correct address which is the case in the present case. It is not the defence of the defendant that the address on the envelope was wrong and hence it can be presumed that the notice would have been delivered to him if he had not refused or avoided to accept the same. In this regard the Hon'ble Supreme Court in the case of M/s. Madan & Co. Vs. Wazir Jaivir Chand, reported in AIR 1989 SC 630 observed as under:
"........... But as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorized by him......"
(41) Further, in the case of Jain Associate and Ors. Vs Deepak Choudhary and Co. reported in 2000 (2) Crimes 374 (Para 10) the Hon'ble High Court of Delhi has observed as under:
Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 34 of 37 "......... In ordinary course whenever a notice is sent even under certificate of posting it is to be presumed under illustration(b), Section 114 of the Evidence Act that the common course of business has been followed and accordingly such a notice has been duly served in due course unless and until it is proved that the postal communication was disrupted in any manner.........."
(42) Applying the above principles of law to the facts of the present case, it is writ large that the notice ExPW1/7 is deemed to have been served upon the defendant as he refused and avoided to accept the notice of demand nor any reply to the same was given by the defendant. The Hon'ble Division Bench of Delhi High Court in the case of Kalu Ram Vs. Sita Ram reported in 1980 RLR (Note) 44, observed that service of notice having been admitted without reservation and that having not been replied in that eventuality adverse inference should be drawn because he kept quite over the notice and did note send any reply. In the present case also despite receipt of notice defendant did not care to reply nor refuted the averments of demand of the amount in question and hence an adverse inference is drawn against the defendant.
(43) This being the background, I hereby hold that the plaintiff Smt. Geeta is entitled to recovery of Rs.4,95,000/ (Rupees Four Lacs Ninety Five Thousand only) from the defendant Sanjiv Anand.
(44) Coming next to the aspect of Rate of Interest, the argument of the Ld. Counsel for the plaintiff is that the interest cannot be awarded as Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 35 of 37 damages by the Civil Court and has placed his reliance on the provisions of Section 80 of Negotiable Instrument Act and has prayed that interest @ 18% per annum be awarded, which comes to Rs.20,993. However, I may observe that the above rate of interest is unconsciousable and on the higher side. Therefore, I hold that the interest of justice would be met if the interest @ 6% per annum from the date of filing of the suit till the date of decree is awarded on the principal amount.
(45) Both the issues no.1 and 2 are decided in favour of the plaintiff and against the defendant.
Relief:
(46) In view of my above discussion, I hereby hold that the plaintiff is entitled to the recovery of Rs.4,95,000/ (Rupees Four Lacs Ninety Five Thousand only) from the defendant Sanjiv Anand along with interest @ 6% per annum from the date of filing of the suit till the date of decree.
FINAL CONCLUSIONS:
(47) In view of my findings with regard to the various issues, I hereby hold that the plaintiff Smt. Geeta is entitled to the recovery of Rs.
4,95,000/ (Rupees Four Lacs Ninety Five Thousand only) from the defendant Sanjiv Anand along with interest @ 6% per annum from the date of filing of the suit till the date of decree and the costs. Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 36 of 37 (48) Suit of the plaintiff is hereby decreed. Decree Sheet be prepared accordingly.
(49) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 10.4.2015 ADJII (CENTRAL)/ DELHI Geeta Vs. Sanjiv Anand, CS No. 335/2013 Page No. 37 of 37