Delhi District Court
Dharam Pal vs M/S Jaap Finance & Investment Pvt. Ltd on 26 November, 2015
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In the court of Anubhav Jain, Civil Judge-05, Central District, Tis Hazari
Courts, Delhi
CS No. 619/14
Unique ID No. 02401C0691202006
Dharam Pal
S/o Sh. Hari Singh
R/o Vill & PO Kherwa,
District & Teh. Sonepat,
Haryana ..............Plaintiff
Versus
1.M/S Jaap Finance & Investment Pvt. Ltd.
Through its Director/Incharge/Partner etc. Address 301, IIIrd Floor, Priyanka Tower, Kirti Nagar, Behind Natraj Cinema, New Delhi.
2. Mr. T.S. Chadha, Director, M/s. Jaap Finance & Investment P. Ltd Address 301, IIIrd Floor, Priyanka Tower, Kirti Nagar, behind Natraj Cinema, New Delhi. ........... Defendants Date of Institution: 27.04.2006 Date of Final Decision: 26.11.2015 CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
21. Present suit for declaration with consequential relief with mandatory, permanent injunction and recovery and damages is filed by the plaintiff against the defendant.
2. It is stated by the plaintiff in his plaint that plaintiff is doing the business in the name of Kishan Aaloo company from its office at D-395, Azadpur, Subzi Mandi, Delhi and for the business purpose plaintiff had taken a loan of Rs. 80,000/- from the defendant company by hypothecating his Maruti Car bearing No. HR 26G 8690 in favour of the defendant company. It is stated that at the time of taking the above said loan defendant had taken signatures of the plaintiff as well as his guarantor namely Sh. Surender, S/o Sh. Rishal Singh, R/o Vill & PO Puth Delhi on many blank papers/printed documents and had also taken the cheques of monthly installments from the plaintiff without any date and promised to return the documents at the time of clearance of the loan to the plaintiff. It is further stated that the plaintiff had paid all the dues and the amount as agreed between the plaintiff and the defendant in the month of February 2006. It is further stated that when plaintiff requested for the NOC and the other documents necessary for canceling the endorsement of Hypothecation from R. C of the vehicle bearing No. HR 26G 8690 however defendant refused to give the same stating that same will not be given without making the penalty as well as late charges by the plaintiff. It is further stated that plaintiff make the payment of late charges as well as penalties to the defendant in consideration of which the defendant through its authorized person had issued the NOC as well as Form-35 to the plaintiff for getting the endorsement of hypothication canceled from the R.C of Maruti Car bearing No. HR 26G 8690. It is further stated that plaintiff again approached the defendant in the end of the February 2006 for obtaining a loan of Rs. 6,00,000/- and defendant was ready to disburse the said loan amount on the condition that the plaintiff had to put his truck make Tata 2525, bearing No. HR 38A 4196, CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
3under hypothecation with defendant and plaintiff agreed to the same. It is further stated that as per the assurance of the defendant, plaintiff signed many blank documents/printed proforma in blank and also signed promissory note along with his guarantor Sh. Sunder, S/o Sh. Deep Chand, R/o Vill & PO Khewra, District- Sonepat Haryana in presence of his son Rajesh. It is further stated that plaintiff had also deposited an amount of Rs. 24,000/- in cash with the defendant towards file charges and Rs. 4,300/- in cash towards charges of the registration for getting hypothication endorsement on RC of truck bearing No. HR 38K 4196. It is further stated that defendant also directed plaintiff to issue 12 blank signed cheques to him towards the monthly installments and the plaintiff had issued 12 blank signed cheques bearing No. 857761 to 857772 of Delhi State Co-operative Bank, Azadpur, Subzi Mandi, Delhi to the defendant as per requirement for disbursing said loan amount. It is further stated that after receiving of abovesaid signed documents defendant asked the plaintiff to come on 07.03.2006. It is further stated that when on 07.03.2006 the plaintiff reached at the office of the defendant and defendant handed over RC of Truck bearing No. HR 38K 4196 to the plaintiff in which the name of the defendant no. 1 was mentioned in the column of hypothecation. It is further stated that when the plaintiff again asked the defendant for payment of Rs. 6,00,000/-defendant asked him to come on 12.03.2006. It is further stated that defendant again asked the plaintiff to make payments of late charges of the earlier loan taken by him. It is further stated that again on 12.03.06 plaintiff again visited the office of defendant no. 2 but defendant no. 2 was not available at that time and the plaintiff thought that as he had not made the payment of the penalties of the last loan, defendant is avoiding him and plaintiff made the full and final payment on 28.03.2006. It is further stated that plaintiff try his level best to meet the defendant but defendant does not respond to call of the plaintiff. It is further stated that after waiting for long period plaintiff send legal notice on 28.03.06 to the defendant whereby plaintiff asked the defendant to CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
4return signed blank papers, cheques, promissory note etc along with Rs. 28,300/- with interest @ 24% per annum and also call upon the defendants to issue NOC or to get the endorsement of hypothecation cancelled from RC of the truck bearing No. HR 38M 4196 however defendant does not pay any heed to the demand of the plaintiff. By way of present suit plaintiff has sought:-
1) Decree of declaration for declaring the promissory note got signed in blank from the plaintiff by the defendants, 12 blank signed cheques bearing No. 857761 to 857772 of Delhi State Cooperative Bank, Azad pur, Subzi Mandi, Delhi and other documents/ printed performa got signed in blank from the plaintiff by the defendants are invalid documents.
2) Decree of mandatory injunction directing the defendants to get the H.P endorsement canceled from the registration authority on the original R.C. of Truck bearing No. HR 38K 4196 of the plaintiff.
3) Decree of mandatory injunction that defendants be directed to return all the cheques i.e. cheque bearing No. 857761 to 857772 of Delhi State Cooperative Bank, Azad pur, Subzi Mandi, Delhi, promissory note, signed blank papers/ printed proforma etc to the plaintiff.
4) Decree of permanent injunction that the defendants, its agent, employees, attorney, legal heirs be restrained from repossessing the Truck bearing No. HR 38 K 4196 make Tata-2515 of the plaintiff.
5) Decree of permanent injunction that defendants their agents, employee, attorney, legal heirs be restrained from using the promissory note, cheques bearing No. 857761 to 857772 of Delhi State Co-operative bank, Azad pur, Subzi Mandi, Delhi, other blank signed papers/printed proforma in their favour or creating any third party interest on these documents.
6) Recovery of amount of Rs. 28,300/- and further for the amount of Rs. 25,000/- as damages from the defendants along with interest @ 18 % per annum till the date of CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.5
its realization.
3. In reply thereof, written statement was filed by defendants wherein it is stated that plaintiff has suppressed the material facts and has not come with clean hands before this court. It is stated that plaintiff approached the defendants to make payment of Rs. 2.25 lacs on his behalf to M/S Sundram Finance Ltd against his payment in respect of vehicle bearing No. HR 55A 5671 so that the said vehicle can be released and defendant no. 1 released a sum of Rs. 2,25,000/- directly to M/S Sundram on behalf of plaintiff through cheque in the month of June and July 2004 and subsequently thereafter plaintiff keep on postponing the payment of defendant no. 1 and interest and finally on 31.03.2006 plaintiff entered into an agreement with the defendants whereby he agreed to pay the aforesaid principal amount along with interest. It is further stated that plaintiff also hypothecated truck bearing No. HR 38K 4196 with the defendant no. 1 till the last EMI is paid. It is further stated that said agreement also bears the signature of Sh. Surender Singh as guarantor for the plaintiff. Defendant denied all other averments as made by the plaintiff in his plaint and prayed for dismissal of the suit.
4. In reply to the written statement, replication was filed by the plaintiff wherein plaintiff denied all the averments as made by the defendants in their written statement and reiterates those as made by him in plaint.
5. On the basis of pleadings filed by the parties following issues were framed by the court vide its order dated 09.09.2010:
i) Whether the suit is not maintainable on the ground that the agreement between the parties contains arbitration clause? OPD
ii) Whether the plaintiff is entitled for decree of declaration as prayed for? OPP.
Iii) Whether the plaintiff is entitled for a decree of mandatory injunction, thereby
CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
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directing the defendants to get he HP lease endorsement canceled from the registration authority on the vehicle in question? OPP.
iv) Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants for returning all the cheques in dispute to the plaintiff? OPD
v) Whether the plaintiff is entitled for a decree of permanent injunction for re- possession of the truck, as prayed for? OPP.
vi) Whether the plaintiff is entitled for a decree of permanent injunction for using the promissory notes and cheques in disputes, as prayed for? OPP. Vii) Whether the plaintiff is entitled for a decree for recovery of Rs. 28,300/- and Rs. 25,000/- as charges? OPP.
Viii) Whether the plaintiff is entitled for interest, as prayed for? OPP.
ix) Relief
6. Plaintiff in support of his case has filed affidavit of Sh. Dharampal Ex C-1 and relied upon the documents i.e. notarized copy of the RC is Ex PW-1, photocopy of NOC dated 28.03.2006 Ex. PW-1/B, Photocopy of Form 35, dated 28.03.06 Ex. PW- 1/C, notice dated 28.03.06 CW-1/D, Postal Receipts Ex. CW-1/E. Plaintiff further filed affidavit of Sh. Surender Singh, Ex. PW-2/A and Sh. Rajesh Kumar Ex. C3 in support of his case.
7. Defendant in support of his defence has filed affidavit of defendant no. 2 in evidence Ex. DW-1/A and relied upon authorization letter Ex. DW-1/1, agreement dated 31.03.2006 Ex. Dx1, copy of reply to the notice dated 05.04.2006 Ex. Dx2, letter dated 28.03.2006 Mark A, Voucher No. 7/33 dated 09.06.2004 Mark B, Voucher No. 6/51 dated 09.06.2004, Mark C.
8. I have heard counsel for the parties and perused the case file carefully. My issue wise findings are as follows:
CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
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Issue No. 1:
Whether the suit is not maintainable on the ground that the agreement between the parties contains arbitration clause? OPD
9. It is pertinent to state in here that that application under section 8, 11 and 15 (A) of the Arbitration Act 1996 was filed by the plaintiff and the same was dismissed by the court vide its order dated 25.01.2006. Considering the fact that the said application of the defendant is already dismissed, present issue is decided against the defendant and in favour of plaintiff.
Issue No. 2, 4, 6 to 8:
ii) Whether the plaintiff is entitled for decree of declaration as prayed for? OPP.
iv) Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants for returning all the cheques in dispute to the plaintiff? OPD
vi) Whether the plaintiff is entitled for a decree of permanent injunction for using the promissory notes and cheques in disputes, as prayed for? OPP.
vii) Whether the plaintiff is entitled for a decree for recovery of Rs. 28,300/- and Rs. 25,000/- as charges? OPP.
viii) Whether the plaintiff is entitled for interest, as prayed for? OPP.
10. As above said issues required common discussion of law and facts as these issues are disposed off jointly.
11. It is the case of the plaintiff that the plaintiff approached the defendants for the loan of Rs. 6,00,000/- for which defendant made plaintiff to sign several blank CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
8documents and further got HP endorsement on the RC of Truck bearing No. HR 38K 4196 of the plaintiff and further obtained 12 blank singed cheques bearing No. 857761 to 857772 from the plaintiff however defendant never disbursed the loan of Rs. 6,00,000/- to the plaintiff. On the other hand it is stated by the defendant that defendant no. 1 disbursed an amount of Rs. 2,25,000/- to M/S Sundram Finance on behalf of plaintiff and for that purpose an agreement was signed by the plaintiff whereby he agreed to pay said amount in installments and is further hypothecated his said Truck bearing No. HR 38K 4196 in favour of the defendant.
12. Considering the averments made by the plaintiff in his plaint burden lies upon the plaintiff to prove that fraud has been played by the defendants upon the plaintiff and that plaintiff was made to sign blank documents by the defendants.
13. It is pertinent to state in here that application under Order XI Rule 14 CPC was filed by the plaintiff whereby plaintiff prayed that defendant be directed to produce the documents as well as cheques signed by the plaintiff which were in possession of the plaintiff and defendant in reply to the said application denied of having possession of any of the such documents and said application of the plaintiff was dismissed by the court vide order dated 09.12.09.
14. Plaintiff in order to prove his case has examined as Witness Rajesh Kumar. During the cross examination of witness has stated that:
" I am not aware if Dharam Pal had taken two loan of Rs. 2,25,000/- and Rs. 6,00,000/- from the defendant. Vol. I am aware of only car loan taken by Dharampal.........."
15. Plaintiff has also examined one Surender Singh as PW-2. Said witness during his cross examination has stated:
" I do not know how much amount plaintiff had taken loan from defendants CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.9
but I know that one car of plaintiff was hypothecated with the defendants. I do not remember the registration number of that car. It was Maruti 800. I do not know if the plaintiff has given any declaration in favour of defendants at the time of taking loan. I do not remember if the defendants got signed blank documents but I had signed many documents at the relevant time. I know Dharampal as he belongs to the village where I got married. I am not aware of all the transactions. I am not aware if Dhrampal had taken any loan of Rs. 2,25,000/-. The agreement dated 31.03.2006 Ex DX-1 seems to bear my signature at point A. It is incorrect to suggest that I and Dharampal had signed the loan documents when they were duly filled in. Dhrampal had not taken any loan of Rs. 6,00,000/- from the defendants. Vol. We had taken some car loan from the defendant. I do not remember if the car loan was of Rs. 80,000/-. It is wrong to suggest that my affidavit is false and I am deposing falsely".
As such none of the plaintiff witnesses deposed to the effect that plaintiff had approached the defendant for a loan of Rs. 6 lac and that plaintiff was made to sign several blank documents/proforma by the defendants and further that plaintiff handed over 12 blank singed cheques to the defendants.
16. It is further pertinent to state in here that Ld. Predecessor Court on 08.09.2006 recorded the statement of the plaintiff under Order X CPC wherein plaintiff states that he can read English language and Ld. Predecessor Court directed the plaintiff to read few para of the application filed in the suit and as per court observation plaintiff can read English language flawlessly however plaintiff during cross examination of which was conducted on 19.11.2012 as stated:
" I do not understand English Language as such I did not read the contents of the loan file."
17. The plaintiff for the reasons best known to him has stated two different facts qua his knowledge about English Language on two different days however as Ld. Predecessor Court has observed that plaintiff can read and understand English language after considering/checking his knowledge about the same, same shall be CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
10considered by this court. In such circumstances, it is hard to believe that defendants make the plaintiff to sign blank documents.
18. It is further pertinent to state in here that pleadings of the plaint appears to be contradictory as in para 9 of the plaint it is stated by the plaintiff that the plaintiff make payment of penalties of last loan on 28.03.2006 again and defendant issued NOC as well as Form 35 against vehicle Maruti bearing No. HR 26G 8690 however in para 13 of the plaint it is stated by the plaintiff that he send a legal notice on 28.03.2006 to the defendants.
19. Be that as it may, none of the witnesses appeared on behalf of the plaintiff corroborate the averments made by the plaintiff. Further there is no documentary evidence on record to support the averements made by the plaintiff that he was made to sign blank/printed documents and that he handed over 12 blank singed cheques to the defendants. Further there is nothing on record proved by the plaintiff that he had paid the amount of Rs. 28,300/- to the defendants.
Considering the observations made above, all the abovesaid issues are decided against the plaintiff and in favour of defendants.
Issue No. 3 & 5 :
iii) Whether the plaintiff is entitled for a decree of mandatory injunction, thereby directing the defendants to get he HP lease endorsement canceled from the registration authority on the vehicle in question? OPP.
v) Whether the plaintiff is entitled for a decree of permanent injunction for re-
possession of the truck, as prayed for? OPP.
20. As both the abovesaid issues required common discussion of law and facts, both CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
11the said issues are dealt with together. Burden to prove both the said issues lies upon the plaintiff. It is the case of the plaintiff that he approached the defendant for loan of Rs. 6,00,000/- and the defendant got signed blank paper and blank printed documents from the plaintiff and he further obtained 12 blank signed cheques from the plaintiff. It is further stated by the plaintiff that defendant in RC of Truck bearing No HR 38K4196 of the plaintiff has got his name endorsed in the column of hypothecation in lieu of said loan amount however defendant never disbursed the said loan amount in favour of the plaintiff.
21. Per contra, it is stated by the defendant that the plaintiff approached him for loan of Rs. 2,25,000/-which defendant pay to Sundram Finance on behalf and at the behest of plaintiff and for the same an agreement was entered into between plaintiff and the defendant on 31.03.2006 and the plaintiff in lieu of the said loan amount had got the name of the defendant endorsed in RC of Truck bearing No HR38 K4196, of the plaintiff, in the column of hypothecation.
22. Considering the averments made by the parties in the pleadings it is admitted that in RC of Truck bearing No HR38 K4196 name of the defendant has been endorsed in the column of hypothecation. Defendant in order to prove his averments has placed on record an agreement dated 31.03.2006 Ex DX-1 which bears the signature of the plaintiff, guarantor Surinder Singh and other witness. Once it is stated by the defendant that he had disbursed an amount of Rs. 2,25,000/- in favour of Sundram Finance on behalf and at the behest of the plaintiff and agreement dated 31.03.2006 qua the same was executed between the parties, onus of prove shifted upon the defendant to prove the same.
23. However, after considering the documents as well as pleadings said agreement dated 31.03.2006 so filed by the defendant cannot be relied upon for the reasons CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
12mentioned below:
i) That it is the case of the plaintiff that he has issued legal notice dated 28.03.2006 upon defendant which was posted by him 30.03.06 and reply of the same given by the defendant on 05.04.2006. Said reply is placed on record by the defendant. Reply dated 05.04.2006 to the said notice does not even whisper about the said agreement dated 31.03.2006 which is stated, by the defendant, to be executed between the parties.
ii) That defendant for the reasons best known to him does not examine any of the attesting witness to the said agreement. Furthermore, said agreement merely bears the signature of the attesting witness and neither complete name nor address of the said witness is mentioned.
iii) That it is stated by defendant that loan of Rs. 2,25,000/- was disbursed to Surndram Finance on behalf and at the behest of the plaintiff by the defendant however defendant for the reasons best known to him has failed to summon any witness from said Sundram Finance in support of his averments.
iv) That it is stated by defendant that he had disbursed an amount of Rs. 2,25,000/- on behalf of plaintiff however said agreement dated 31.03.06 is for the sum of Rs.
3,04,920/-. It is no where mentioned as to how defendant reached to amount of Rs. 3,04,920/-.
v) As stated above it is the defence of the defendant that he had disbursed the sum of Rs. 2,25,000/- in favour of Sundram Finance on behalf of plaintiff and the plaintiff in order to secure the sum plaintiff get his name endorsed in the column of hypothecation in RC of Truck bearing No. HR38K4196 of the plaintiff however bare perusal of the said agreement reveals that said agreement is hier purchase agreement wherein it is stated that defendant is owner of the Truck bearing No. HR 38 K 4196 and that said Truck is hier out to the plaintiff at the request of the plaintiff. It is also stated in the said agreement that plaintiff and defendant have signed "owner proposal CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
13Form ( which basis of its agreement) with respect to the Hire means" however no such proposal form is placed on record by the defendant".
vi) It is further pertinent to state in here that plaintiff has to repay complete loan amount as stated by 31.05.2007 however defendant till date has not stated to have filed any suit or counter claim for the said amount of Rs. 2,25,000/-despite fact that period of 3 years has already elapsed.
24. Considering the same defendant has miserable failed to show that any sum of Rs. 2,25,000/-was disbursed by him on behalf and at the behest of the plaintiff and as such it cannot be believed that said Truck was hypothecated as Security towards said loan. In view of the same defendant is hereby directed to issue NOC to the plaintiff for removing the name of the defendant from column of hypothecation of Truck bearing No. HR 38K 4196. Defendant is further restrained from taking possession of the said vehicle from the plaintiff.
In view of the same both the issues are decided in favour of plaintiff and against the defendants.
Relief:
Considering the law and facts discussed above, suit of the plaintiff is partly decreed. Defendants are hereby directed to issue no objection certificate to the plaintiff for removing the name of the defendants in the RC of the Truck bearing No. HR 38K 4196 from column of hypothecation. Defendant is further restrained from taking possession of the said vehicle from the plaintiff. Considering the present circumstances of the case,no order as to cost. Decreesheet be prepared accordingly.
File be consigned to record room after due compliance. Pronounced in open court on 26.11.2015.
( Anubhav Jain ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 13 pages and each page is signed by me.
CS No. 619/14 M/S Jaap Finance & Investment Pvt. Ltd.
CS. No. 619/14
26.11.2015
Present: None.
Vide my separate judgment of even date, suit of the plaintiff is partly decreed. Defendants are hereby directed to issue no objection certificate to the plaintiff for removing the name of the defendants in the RC of the Truck bearing No. HR 38K 4196 from column of hypothecation. Defendant is further restrained from taking possession of the said vehicle from the plaintiff. No order as to cost. Decreesheet be prepared accordingly.
File be consigned to record room after due compliance.
( Anubhav Jain ) Civil Judge-05, Central District Tis Hazari Courts, Delhi 26.11.2015