Delhi District Court
Mohd Zamiruddin vs Haji Mohsin Qureshi on 27 September, 2024
Mohd Zamiruddin vs. Haji Mohsin Qureshi
IN THE COURT OF SH. JITEN MEHRA: DISTRICT JUDGE -
10: TIS HAZARI COURTS: DELHI.
CS DJ NO. 609577/16
CNR NO. DLCT01-000016-2012
In the matter of:
Mohd. Zamiruddin
S/o Sh. Sh. Alimuddin,
R/o House No. 6368, Gali Chhatanki,
Qasabpura, Sadar Bazaar, Delhi - 110006.
......Plaintiff
Versus
Haji Mohsin Qureshi
S/o Sh. Aziz-ur-Rehman,
7399, Gali Gurudwara, Qasab Pura,
Sadar Bazaar,
Delhi - 110006.
.....Defendant
Date of institution: 02.04.2012
Date on which reserved for judgment: 27.09.2024
Date of decision : 27.09.2024
SUIT FOR RECOVERY OF RS.10,37,000/- (RUPEES
TEN LAKHS THIRTY THOUSAND ONLY) ALONGWITH
INTEREST PENDENTE LITE AND FUTURE INTEREST @
18% P.A.
JUDGMENT
1. The plaintiff, Mohd. Zamiruddin, has filed the present civil CS DJ No. 609577/16 Page No.1/35 suit seeking recovery of Rs. 10,37,000/- (Rupees Ten Lakhs and Thirty Seven thousand Only) alongwith interest pendente lite and future interest @ 18 % against the defendant Haji Mohsin Qureshi.
Plaintiff's version as per the plaint
2. The plaintiff has stated that he carries on the business of repair of refrigerators and air conditioners etc. from his shop located in Sadar Bazar, Delhi and the defendant is his distant relative who carries on the business of wholesale trading of meat at Gazipur Mandi.
3. In the month of April, 2011 the defendant approached the plaintiff seeking financial assistance of Rs. 5,00,000/- as he had suffered heavy business losses and his creditors were pressurizing him to return money to them. The plaintiff agreed to loan an amount of Rs. 3,00,000/-, which was given to the defendant on 10.5.2001. The defendant also executed a receipt on stamp paper purchased on 11.5.2001 acknowledging that he had taken a loan of Rs. 3 lakhs from the plaintiff and would pay an CS DJ No. 609577/16 Page No.2/35 amount of Rs. 10,000/- per month as commission/interest on the said amount.
4. As per the plaintiff, the defendant made payment of Rs. 10,000/- per month for the months of May and June, 2001. However the defendant did not make any payment for the month of July, 2001 onwards. When contacted by the plaintiff, the defendant sought some time to pay the same.
5. In August and September 2011, the defendant only paid a sum of Rs. 5,000/- for each month to the plaintiff and stated that his financial condition was very poor at the time. In the subsequent months, the defendant switched off his mobile phone and remained out of communication with the plaintiff. Further, despite repeated requests by the plaintiff, no amount was paid by the defendant.
6. The plaintiff was ultimately able to contact and meet the defendant on 3.7.2005. The defendant again gave excuses for non-repayment of the loan and interest and agreed to execute an CS DJ No. 609577/16 Page No.3/35 undertaking for repayment of the loan amount. The plaintiff also purchased a stamp paper on 5.7.2005 for this purpose. However, when the defendant was asked to execute the undertaking, he took a complete somersault and requested the plaintiff to give him a further time of 3-4 years for the repayment and reduce the rate of interest. It was then agreed between the parties that till July, 2005 the defendant shall pay interest at the rate of Rs. 10,000/- per months and from August, 2005 the defendant will pay interest @ 12% p.a.
7. On 10.7.2005 the defendant executed a written undertaking which stipulated that the plaintiff shall not put any pressure on the defendant till July 2008 for return of money. Further, the defendant undertook to repay the entire money between August 2008 to July 2009 in the following manner:
(i) Principal : Rs. 3,00,000/-
(ii) Interest for the period
August 2005 to July 2009 : Rs. 5,00,000/-
(interest calculated @ Rs. 10,000/- p.m.)
(ii) Interest for the period
August 2005 to July 2009 : Rs. 1,44,000/-
(interest calculated @ 12% p.m.)
TOTAL : Rs. 9,44,000/-
CS DJ No. 609577/16 Page No.4/35
8. As agreed, the plaintiff did not put any pressure on the defendant for repayment of the loan till July, 2008. However, the defendant again did not adhere to the undertaking dated 10.7.2005 and did not clear his liability till 31.7.2009.
9. As per the plaintiff, in view of the default of the defendant, the plaintiff was also entitled to recover the interest @ 12% from August 2009 to February, 2012 which comes to Rs. 93,000/-. The total liability of the defendant as on 1.03.2012 comes to Rs. 10,37,000/-. Despite repeated requests of the plaintiff, the defendant has not made any payment to the plaintiff
10. As per para no.20 of the plaint, the cause of action is stated to have arisen on the following dates:
20. That the cause of action to file the present suit firstly arose in the month of April, 2001 when the defendant approached the plaintiff for a friendly loan. The cause of action further arose, when a friendly loan to the tune of Rs. 3,00,000/- was advanced to the plaintiff and the undertaking dated 10.5.2001 was executed by the defendant. The cause of action further arose in the month of August / September 2001, when a meager sum of Rs. 5,000/- was returned to the plaintiff in lieu of interest. The cause of action further arose on various occasions, when the plaintiff tried to contact the defendant through various sources. The cause of action further arose on 3.7.3005 when the plaintiff personally met the defendant and demanded his money back along with interest from the defendant. The cause of action CS DJ No. 609577/16 Page No.5/35 further arose on July 10, 2005 when the defendant executed another undertaking thereby acknowledging his liability to make the payment in terms of the Agreement dated 1-.5.2001. The cause of action further arose in the month of August 2009 when the defendant failed to make the payment to the plaintiff in terms of his Undertaking dated 10.7.2005. The cause of action arose on each and every date when the defendant failed to make the payment thereby committing gross violation of his undertaking dated 10.7.2005. The cause of action is still subsisting as the Defendant failed to pay even a single penny to the Defendant till date and hence the present suit.
11. The plaintiff thus seeks a decree for recovery of a sum of Rs.
10,37,000/- along with interest pendente lite and future interest @ 18% p.a. from the date of filing of the suit till its realization along with costs of the suit Defendant's version as per the written statement
12. The defendant raised the preliminary objections that the plaintiff's claim was barred by limitation and has also not placed on record the original documents. The defendant denied having entered into any transaction with the plaintiff and claimed that the suit of the plaintiff was based upon forged documents.
13. In the reply on merits, the defendant admitted that he and the plaintiff were acquaintances and did not specifically deny that CS DJ No. 609577/16 Page No.6/35 they were related. The defendant denied seeking any financial assistance from the plaintiff and stated that even otherwise the claim of the plaintiff was barred on account of limitation. It was stated that since no loan was advanced by the plaintiff, the defendant had also not made any monthly payments to him. It was further alleged that the documents dated 3.7.2005 and 10.7.2005 were false and fabricated documents. The defendant sought for dismissal of the present suit.
Replication of the plaintiff
14. In the replication, the plaintiff denied the version of the defendant as stated in his written statement and reiterated the version of the plaint as being true and correct. Issues framed
15. Vide order dated 28.7.2012, the following issues were framed in the present suit:
1. Whether the plaintiff is entitled to recovery of Rs.
10,37,000/- along with interest @ 18% p.a. from the defendant as alleged? OPP CS DJ No. 609577/16 Page No.7/35
2. Whether the suit has not been properly verified as per law as alleged? OPD
3. Whether the suit is barred by limitation as alleged? OPD
4. Whether there is no cause of action against the defendant and in favour of the plaintiff as alleged? OPD
5. Relief Evidence adduced by the plaintiff
16. The plaintiff examined himself as PW-1 and deposed through his evidence by way of affidavit Ex. PW-1/A, in which the contents of the plaint were reiterated. The plaintiff relied upon the following documents:
(a) Original receipt dated 10.5.2001 signed by the defendant was relied upon as Ex. PW-1/1.
(b) written undertaking dated 10.7.2001 signed by the defendant was relied upon as Ex. PW-1/2.
17. The plaintiff/PW-1 was cross-examined on 22.2.2013 during which he deposed that he was 10th pass in Urdu and Hindi medium and was working as a repairman of refrigerators and air conditioners. He stated that the stamp papers on which Ex. PW- CS DJ No. 609577/16 Page No.8/35 1/1 and Ex. PW-1/2 were executed were brought by the defendant and he saw the stamp paper of Ex. PW-1/1 on 10.5.2001 in the afternoon in the shop of one Sh. Nasim who was his friend and brother of the defendant. He deposed that at that time, the defendant was also present. He deposed that the stamp paper was already written upon when he saw it and could not tell who had written it. He further deposed that he did not instruct the defendant what to write in the said document and wrote it on his own. He deposed that he did not ask his friend Nasim to sign it. He admitted that earlier he did not want to get the said document executed from the defendant and volunteered to state that he had more faith on the words of the defendant. He stated that he did not affix any revenue stamp and denied the suggestion that he had prepared a forged document. He deposed that the document was not filled in his presence, but was signed in his presence. He admitted that his religion prohibited him from charging commission/interest on the loan, however he volunteered to state that he had given proposal to the defendant that he would be 25% partner in his business of selling chicken meat which the defendant had refused and instead stated that he would give the CS DJ No. 609577/16 Page No.9/35 plaintiff Rs. 10,000/- per month instead. He stated that these negotiations took place for about 10-15 days prior to 10.5.2001. The plaintiff admitted that there was no question of payment of commission/interest on the principal amount of Rs. 3 lakhs. He further admitted that the sum of Rs. 10,000/- per month was not paid in exchange of interest but was paid as commission. He deposed that the words interest and commission may be read as one or in the alternative. He admitted that he did not issue any acknowledgment or receipt for the payments of Rs. 30,000/- made to him by the defendant. He further deposed that the stamp papers for Ex. PW-1/2 were not procured by him and the same was already typed out but the defendant signed in his presence. He admitted that he did not sign either the Ex. PW-1/1 or Ex. PW-1/2. He stated that the contents of Ex. PW-1/1 and Ex. PW- 1/2 were decided 4-5 days prior. He stated that he met the defendant on the road and discussed the matter and nobody else witnesses the same. He again stated that there were 1-2 other persons with him, however he did not remember their name. It was agreed on that day that the first agreement Ex. PW-1/1 would remain alive. He deposed that on 10.7.2005, he went to CS DJ No. 609577/16 Page No.10/35 Sadar Bazaar and reached his shop. He deposed that his brother Mohd. Samiuddin was a medical representative and had a travelling job. He deposed that his other brother Shiajuddin was a meat seller and had business dealings with the defendant. He deposed that that he had not demanded any interest from the defendant on 6.7.2005 prior to execution of Ex. PW-1/2 and volunteered to state that he had done so 4-5 days prior to Ex. PW-1/2. He also admitted that he did not mention about receiving Rs. 30,000/- from the defendant in Ex. PW-1/2. He deposed that despite the fact that he had agreed not to charge any interest, he had agreed for execution of Ex. PW-1/2 seeing the poor condition of the defendant. He stated that on 10.7.2005 he had gone to the defendant's godown along with his two brothers, however he did not ask them to sign the document Ex. PW-1/2 as he did not feel it necessary. He deposed that as per Ex. PW-1/1 he had given the amount of Rs. 3 lakhs to the defendant 1-2 days prior at his house in the presence of his family. He denied the suggestion that he had not given any amount to the defendant at any point of time.
18. The plaintiff next examined his younger brother Mohd. CS DJ No. 609577/16 Page No.11/35 Samiuddin as PW-3, who deposed through his evidence by way of affidavit Ex. PW-2/A that the plaintiff had advanced a friendly loan of Rs. 3,00,000/- to the defendant on Rs. 10,000/- per month as commission/interest, against which a Receipt dated 10.5.2001 Ex. PW-1/1 was executed. He reiterated the other averments of the plaint and further deposed that at the time of execution of the undertaking dated 10.7.2005, he was present along with the plaintiff and other brother.
19. PW-3 was further cross-examined on 6.6.2013 during which he deposed that he was in the class 10 in the year 2001. He deposed that he first came to know about Ex. PW-1/1 in the year 2003-2004. He deposed that his brother PW-3 was not literate. He deposed that he came to know about Ex. PW-1/2 at the time of its preparation and it was signed in his presence. He stated that he was not asked to sign the said document. He deposed that the discussions in regard Ex. PW-1/2 were not carried out in his presence. He further admitted that the transaction of Rs. 3 lakhs as stated in his affidavit did not take place in his presence. He also admitted that none of the alleged payment of CS DJ No. 609577/16 Page No.12/35 interest/commission were paid by the defendant in his presence. He denied the suggestion that his deposition was based on hearsay and that he was deposing falsely.
20. The plaintiff examined his other brother Sh. Shiazuddin as PW-3 who deposed through his evidence by way of affidavit Ex. PW-3/A that the plaintiff had advanced a friendly loan of Rs. 3,00,000/- to the defendant on Rs. 10,000/- per month as commission/interest, against which a Receipt dated 10.5.2001 Ex. PW-1/1 was executed. He reiterated the other averments of the plaint and further deposed that at the time of execution of the undertaking dated 10.7.2005, he was present along with the plaintiff and other brother.
21. PW-3 was cross-examined on 20.2.2014 during which he stated that he was illiterate and did not know how to read Hindi or English and that he had personally not even read his evidence by way of affidavit Ex. PW-3/A. He deposed that the contents of Ex. PW-3/A were not even explained to him. He stated that he first came to know about the case in 2005 and admitted that no CS DJ No. 609577/16 Page No.13/35 documents pertaining to this case were signed in his presence in 2005.
Evidence adduced by the defendant
22. The defendant only examined himself as DW-1 and deposed through his evidence by way of affidavit Ex. DW-1/A that he had never entered into any business transaction with the plaintiff and the suit had been filed on the basis of forged documents. He stated that there was inconsistency in the case of the plaintiff as on the one hand he talked about Rs. 5,00,000/- and on the other hand Rs. 3,00,000/-. He denied making any monthly payment to the plaintiff as no loan was ever advanced to him. He further deposed that documents dated 5.7.2005 and 10.7.2005 were false and fabricated and never gave any undertaking.
23. DW-1 was cross-examined on 19.11.2014 during which he deposed that he was having three shops in Karol Bagh of meat products and was also working as a commission agent in the poultry market. He deposed that the business had been running since the time of his father and he was doing the said business in CS DJ No. 609577/16 Page No.14/35 2001 as well. He deposed that he knew the plaintiff as both stayed in the same locality in Qureesh Nagar and also belonged to the same community. He deposed that he did not face any financial difficulty during the year 2001. He deposed that his wife was seriously ill since the last 7 years due to kidney failure. He stated that he did not approach the plaintiff in April, 2001 to seek any loan and had also not received any loan from the plaintiff. He did not admit his signatures on points X and Y on Ex PW-1/1 and Ex. PW-1/2 respectively. He stated that he had not approached anyone to request the plaintiff to give him a loan. He deposed that he was seventh class fail and knew how to read and write Hindi language.
Relevant proceedings in the suit
24. On 20.2.2014, after the plaintiff had closed his evidence, the defendant filed an application under section 33, 35 and 38 of the Indian Stamp Act.
25. The defendant also moved an application dated 2.1.2015 under section 45 of the Indian Evidence Act, after the defendant CS DJ No. 609577/16 Page No.15/35 had closed his evidence, seeking to send Ex. PW-1/1 and Ex. PW-1/2 to the Forensic Science Laboratory (FSL) for comparison of the signatures and thumb impression of the defendant. The said application was allowed vide order dated 23.9.2017 and the defendant was directed to provide his specimen signatures and thumb impressions for comparison and the Ex. PW-1/1 and Ex. PW-1/2 were sent to the FSL, Rohini to determine the genuineness of the signatures and thumb impression of the defendant.
26. On 27.4.2018, the following order was passed in which it was recorded that the specimen signatures and thumb impressions of the defendant had been taken and further the certified copies of Ex. PW-1/1 and Ex. PW-1/2 were ordered to be sent to the Controller of Stamps for payment of proper stamp duty:
CS No.609577/2016 Zamiruddin Vs. Mohsin Qureshi
27.04.2018 Present: Ms. Laxmi Gupta, counsel for plaintiff. Mr. Sanjeev Manchanda, counsel for defendant In compliance of order dated 23.09.2017, today specimen signatures and thumb impression of the defendant are taken, as there is thumb impression and signature of defendant on Ex. PW 1/1 an Ex. PW 1/2. Therefore, thumb impression and signatures of the defendant as well as finger prints of plaintiff are also taken on CS DJ No. 609577/16 Page No.16/35 separate sheet and said sheets alongwith original documents be sent to FSL Rohini for comparison of the signatures with the signatures at point X and Y on document Ex. PW 1/1 and Ex. PW 1/2 and for comparison of the finger prints with the finger print at point Y on Ex. PW 1/2.
The application for sending the document to Controller of Stamp is pending disposal In view of the said application, let certified copy of the said two documents under the signature of the Ahlmad be sent to Controller of Stamp, so that proper stamp duty is paid on the same.
(Emphasis supplied)
27. Perusal of the record reveals that despite the above direction in the order dated 27.4.2018, the certified copy of the two documents, i.e. Ex. PW-1/1 and Ex. PW-1/2 were never sent to the Controller of Stamps. Further, on 21.9.2022, the plaintiff filed his reply to the said application under sections 33, 35 and 38 of the Indian Stamp Act, which was taken on record subject to cost. The application was ultimately dismissed vide order dated 18.4.2023 with cost.
28. With respect to the FSL report, it is recorded in order dated 30.9.2019 that a letter had been received from the FSL, Rohini asking the defendant to submit his admitted signatures from the period of 2001 and the defendant was accordingly ordered to provide the same. In order dated 6.12.2019 however, it was CS DJ No. 609577/16 Page No.17/35 recorded that no such signatures of the defendant from the said period was available and hence could not be provided. The FSL was also directed to be intimated of the same.
29. The FSL finally filed its report dated 30.1.2020 with respect to its opinion on the signature of the plaintiff on Ex. PW-1/1 and Ex. PW-1/2. It was opined that no opinion on the same could be expressed due to absence of admittedly genuine signatures of the defendant from the year 2001. With respect to the thumb impression of the defendant on Ex. PW-1/2 it was opined that as it was partial, faint and smudged, it was unfit for comparison. The said FSL reports were not exhibited in evidence or proved. Arguments of the parties
30. Ld. counsel for the plaintiff Ms. Laxmi Gupta has argued that the plaintiff has duly proved his case against the defendant as disbursal of the loan of Rs. 3 lakhs has been proved by way of Ex. PW-1/1 dated 10.5.2001. Further, the defendant executed undertaking dated 10.7.2005, Ex. PW-1/2 whereby he further undertook to repay the amount from August, 2008 till July, 2009. CS DJ No. 609577/16 Page No.18/35 The defendant also agreed to pay Rs. 10,000/- per month till July, 2005 and from August 2005 he undertook to pay interest @ 12% p.a. She argued that in view of the undertaking Ex. PW-1/2, the limitation to file the present suit also stood extended and the suit was within time. It is also argued that the Ex. PW-1/1 was executed on stamp papers of Rs. 20/- and was also affixed with revenue stamps of Rs. 2/-. Similarly, Ex. PW-1/2 was also affixed with revenue stamps of Rs. 2/-. The said documents were thus duly stamped as per the provisions of section 2(23) and Article 53, Schedule 1 to section 3 of the Indian Stamp Act. The Ld. counsel for the plaintiff relied upon a judgment of the Hon'ble High Court of Madras in A. Mohammad vs A. Mohammad, AIR 1966 Mad 359 to argue that where a defendant acknowledges receipt of money, the same is considered to be a receipt and not an acknowledgment and would be admissible in evidence on payment of penalty. Ld counsel for the plaintiff has further argued that the Ex. PW-1/1 and Ex. PW-1/2 also fulfill all the ingredients of a promissory note as per section 2(22) and article 49 of section (3) of the Indian Stamp Act and under sections 13,14,15 and 16 of the Negotiable Instruments Act, 1881. Ld. CS DJ No. 609577/16 Page No.19/35 counsel for the plaintiff has further argued that the defendant has only made simple denials of the averments of the plaint and specifically denied the same and as per Order 8 rule 5 CPC had admitted the plaintiff's version. The decisions of the Hon'ble High Court of Karnataka in M. Jeetendar Gandhi vs Huthappa and Ors, 1999 SCC Online Kar 225 and the decision of the Hon'ble High Court of Rajasthan in Smt. Roopi Bai vs Mahaveer and Ors, 1993 SCC Online Raj 14 were also relied on. It is further argued that no issue had been framed in this regard and no plea had been taken by the defendant as well. Further, the presumption of law as per section 118(a) of the Negotiable Instruments Act, 1881. The judgment of the Hon'ble Supreme Court in Union of India vs Surjit Singh Atwal, MANU/SC/0025 and Mallavarapu Kasivisweswara Rao vs Thadikonda Ramulu Firm and Ors, (2008) 7 SCC 655 were relied on.
31. Sh. Lakshay Sharma, Ld. counsel for the defendant has argued that the suit of the plaintiff is hopelessly barred on account of limitation as the suit has been filed on 2.4.2012 after almost 11 years from the date of allegedly advancing the loan of CS DJ No. 609577/16 Page No.20/35 Rs. 3,00,000/- given on 10.5.2001. The plaintiff has also allegedly given the same in cash of which no proof has been produced. Further, PW-2 and PW-3, who are the brothers of the plaintiff have themselves not witnessed the advancement of the loan, which fact has been admitted by them during their cross- examination. He has further argued that the Ex. PW-1/1 and Ex. PW-1/2 were sent to the FSL and compared with the admitted signatures and thumb impressions of the defendant. As per the report received, no opinion on the signatures of the defendant could be expressed in the absence of admittedly genuine signatures. Further, with respect to the thumb impression of the defendant on Ex. PW-1/2, as the same was partial, faint and smudged it was unfit for comparison. Hence, it was not proved that the Ex. PW-1/1 and Ex. PW-1/2 had been executed by the defendant. Hence, it was argued that the suit of the plaintiff deserved to be dismissed.
Issue-wise findings Issue no.2
32. I shall first decide issue no.2, which is reproduced below for the sake of convenience:
CS DJ No. 609577/16 Page No.21/35
2. Whether the suit has not been properly verified as per law as alleged? OPD
33. The onus of the above issue was on the defendant, however the defendant has not led any evidence or advanced any arguments to show as to in what manner the suit of the plaintiff has not been properly verified. No question on this aspect has been put to the plaintiff/PW-1 during his cross-examination dated 22.2.2013 by the defendant. Further, the defendant has not led any evidence on this aspect in his evidence by way of affidavit Ex. DW-1/A. Even in para no.2 of the written statement, it is simply stated that the suit deserves to be rejected since it has not been verified in accordance with law, without specifying anything further.
34. Perusal of the plaint reveals that the same is duly signed by the plaintiff and verified. It is also supported by an affidavit duly sworn and attested. Even otherwise, the Hon'ble High Court of Bomaby has held in All India Reporter Ltd. v. Ramchandra Dhondo Datar, AIR 1961 Bom 292, that defects, if any, in the signatures or verification on a plaint were curable defects and the CS DJ No. 609577/16 Page No.22/35 suit is still deemed to be validly instituted. It has been held as follows:
"16. It is open to the Court or to the Officer of the Court authorized to receive plaints to refuse to admit a plaint if it is not properly signed or properly verified. It is also open to the Court at any subsequent stage, on its own initiative or upon objection being taken by the defendant, to require the plaintiff to sign and verify the plaint, and if the plaintiff refuses to do so, the Court can refuse to take any further steps. But that does not mean that if the Court requires the plaintiff to sign the plaint subsequently, the original plaint ceases to be a plaint. In Basdeo v. John Smidt it was held that the mere fact that the plaint is not signed by the plaintiff or by a person duly authorized by him will not make the plaint void and that a plaint does not cease to be a plaint if it is unsigned or if the signature is defective. A similar view was taken in Netram v. Bhagwan, In the Matter of the Petition of Bisheshar Nath, Ali Muhammad Khan v. Ishaq Ali Khan, Ramgopal Ghose v. Dhirendra Nath Sen, Govindoss v. Muthiah Chetty, [[1925] A.I.R. Mad. 660.] Shib Deo Misra v. Ram Prasad, Rajit Ram v. Katesar Nath [(1896) I.L.R. 18 All. 396.] and Educational Book Depot v. Rabindra Nath Tagore. [(1933) I.L.R. 55 All. 564.] The last three cases are cases of irregularity in regard to verification of the plaint. See also Qanajat Husain v. Sajidunnisa Bibi, [[1949] A.I.R. All. 499.] a case where a person holding a power-of-attorney signed and verified the plaint not in his own name but in the name of the plaintiff. That the defects in regard to signature on the plaint can be cured subsequently and even in appeal was the view taken in Subbiah Pillai v. Sankarapandiam Pillai. In the Matter of the Petition of Bisheshar Nath and Netram v. Bhagwan. In Subbiah Pillai v. Sankarapandiam Pillai plaintiff had not signed the plaint. It was held that the omission could be cured and should be CS DJ No. 609577/16 Page No.23/35 corrected in the interests of justice, that the omission to sign or verify a plaint is not such a defect as would affect the merits of a case or the jurisdiction of the Court, that if the defect is not discovered until the case comes up for hearing before the appellate Court, the appellate Court may order an amendment to be made in that Court and that the appellate Court ought not to dismiss the suit or interfere with the decree of the lower Court merely because the plaint had not been signed. Reliance was placed on the Privy Council decision in Mohini Mohun Das v. Bungsi Buddan Saha Das and on Basdeo v. John Smidt. The suit must be deemed to have been duly instituted in spite of defects in regard to the signature or verification or presentation of the plaint. Ali Muhammad Khan v. Ishaq Ali Khan, Shib Deo Misra v. Ram Prasad, and Ramgopal Ghose v. Dhirendra Nath Sen.
(Emphasis supplied)
35. Hence, in view of the above, the issue no.2 is decided against the defendant.
Issue no.1
36. I shall decide issue no.1, which is reproduced below for the sake of convenience:
1. Whether the plaintiff is entitled to recovery of Rs.
10,37,000/- along with interest @ 18% p.a. from the defendant as alleged? OPP CS DJ No. 609577/16 Page No.24/35
37. The case of the plaintiff is that he loaned an amount of Rs. 3,00,000/- to the defendant in cash on 10.5.2001 and executed a receipt on stamp paper purchased on 11.5.2001 Ex PW-1/1. The said document has been executed on stamp paper of Rs. 20 and is in handwritten in Hindi. The document is in a declaratory language and refers to the plaintiff and the defendant in the third person. It provides that today, i.e. on 10.5.2001, the defendant had taken from the plaintiff a sum of Rs. 3 lakhs for which the defendant would pay a commission of Rs. 10,000/- per month. The defendant would be responsible for any loss and the plaintiff would be entitled to seek return of the amount of Rs. 3 lakhs as per his need. The said document Ex. PW-1/1 is allegedly signed only by the defendant at point X. The plaintiff has also deposed that at that time his friend Nasim was also present, however he has not been examined as a witness. Further, the plaintiff has not signed on the said document and it is also not signed by any witness.
38. During his cross-examination dated 22.2.2013, the plaintiff has stated that he saw the stamp paper on 10.5.2001 in the CS DJ No. 609577/16 Page No.25/35 afternoon. The same is not possible since the stamp paper itself was purchased on 11.5.2001. Further, the plaintiff has deposed that the stamp paper had already been written on but he did not know who wrote the same. He deposed that the defendant had written the document on his own and he did not tell the defendant what to write in the exhibit. However, later during the cross- examination the plaintiff contradicts himself by deposing that "The terms as stated in Ex. PW-1/2 were agreed upon four or five days prior to the execution of this agreement and I had asked the defendant to incorporate the same". The witnesses DW-2 and DW-3 have also admitted during their cross-examination that they were not present during the execution of Ex. PW-1/1 and hence their testimony on this aspect can be discarded.
39. The aforementioned loan amount was also allegedly given by the plaintiff to the defendant in cash and no proof of the same has been led by the plaintiff. The plaintiff has also not been able to prove payment of the interest/commission of Rs. 10,000/- by the defendant for May and June, 2001. No receipt or any documentary evidence with respect to the same has been placed CS DJ No. 609577/16 Page No.26/35 on record by the plaintiff. The plaintiff admitted during his cross- examination dated 22.2.2013 that he did not issue any acknowledgment or receipt for the interest of Rs. 30,000/- paid by the defendant.
40. Hence, I find that the plaintiff has failed to prove the execution of the document Ex. PW-1/1 by the defendant and the disbursal of the loan of Rs. 3,00,000/- by him to the defendant is doubtful on account of the above contradictions.
41. Further, it is the version of the plaintiff that the defendant only paid a total of Rs. 30,000/- as interest/commission till September, 2001 and thereafter as per paras no. 8-11 of the plaint, the plaintiff "tried to approach the defendant in order to remind him of his obligation to pay the interest as also the principal amount taken by him from the plaintiff". Further, the defendant was not available at home and his mobile used to be switched off and no answer was given by the defendant's family. As per the plaintiff, this state of affairs continued for almost four years, when suddenly on 3.7.2005 the plaintiff managed to meet CS DJ No. 609577/16 Page No.27/35 thee defendant. The version of the plaintiff seems incredulous and improbable that the defendant, who was his friend and distant relative would simply vanish for such a long time, despite running a business in the same city. Further, there is no averment in the plaint that the plaintiff visited the shop/business of the defendant in order to find out his whereabouts. There is also no explanation on the part of the plaintiff as to why, during this period of almost four years, the plaintiff did not file any suit for recovery or even issue any legal notice to the defendant demanding repayment.
42. Further, the plaintiff's version is that the defendant executed an undertaking dated 10.7.2005, Ex. PW-1/2 whereby he acknowledged that he owed an amount of Rs. 3 lakhs and he would pay Rs. 10,000/- per month for the period from 10.5.2001 till July 2005 amounting to Rs. 1,44,000/-. From August, 2005 the defendant would pay interest of 12% p.a. on the amount of Rs. 3,00,000/-. The plaintiff would give time to the defendant till July 2008 to repay the principal amount. The said Ex. PW-1/2 is witnessed by Shijauddin who was examined as PW-3. During his CS DJ No. 609577/16 Page No.28/35 cross-examination dated 20.2.2014, he deposed that he was the elder brother of the plaintiff and was "totally uneducated" and did not know how to read Hindi or English language. The testimony of PW-3 has to be appreciated in the context of the other evidence placed on record by the plaintiff and not in isolation. In view of the fact that the plaintiff has failed to prove the payment of the loan of Rs. 3 lakhs itself, the testimony of PW-3 with respect to the plaintiff having signed the Ex. PW-1/2 is to be taken with a pinch of salt. Further, the witness is also admittedly the brother of the plaintiff and not an independent witness and does not add much weight to the evidentiary scales in the favour of the plaintiff.
43. Further, admittedly the defendant did not adhere to Ex. PW- 1/2 dated 10.7.2005 and represented that he would pay the amount and interest by August 2008 till July 2009. Again, the plaintiff seems to have sat idle during this period. No legal notice or suit has been filed by the plaintiff during this period as well.
44. Hence, given the totality of the facts and the broad CS DJ No. 609577/16 Page No.29/35 probabilities of the case, the plaintiff has failed to prove that he had extended a loan of Rs. 3,00,000/- to the defendant on 10.7.2001. Hence, the issue no. 1 is decided against the plaintiff. Issue no.3
45. I shall next decide issue no.3, which is reproduced below for the sake of convenience:
3. Whether the suit is barred by limitation as alleged? OPD
46. As per the plaintiff, the loan of Rs. 3 lakhs was given to him on 10.5.2001. Admittedly, no date of repayment of the principal amount has been provided in the Ex. PW-1/1 and it is specifically recorded that the plaintiff would be entitled to seek repayment of the amount when the need for the same arose i.e. "zaroorat padne par". Although in para no.5 of the plaint, the plaintiff describes the amount given to the defendant as a 'friendly loan', the true nature of the transaction is to be gathered from the Ex. PW-1/1 dated 10.5.2001 along with the surrounding circumstances of the transaction. Ex. PW-1/1 records that the defendant was to pay Rs. 10,000/- per month as commission and would be responsible for any losses ("saare nuksaan ke liye bhai mohsin khud jimmedaar CS DJ No. 609577/16 Page No.30/35 honge). The plaintiff has also deposed during his cross- examination dated 22.2.2013 that "it is correct that my religion prohibits me from charging commission/interest on loan extended. Vol., it is stated that I had earlier I had given proposal to the defendant that I shall be 25% partner in his business of selling chicken-meat. Defendant refused to take me as partner in his business. Defendant told me that I shall give you Rs. 10,000/- per month and I shall have no interest in the profit and loss of the business".
47. The Hon'ble Supreme Court has held in the decision of V. E. A. Annamalai Chettiar & Anr. v. S. V. V. S. Veerappa Chettiar , AIR 1956 SC 12, that the answer to the question as to whether an amount given is a loan or deposit would not depend merely on the terms of the document but had to be judged from the intention of the parties and the circumstances of the case. It has also been held in the decision of Ram Janki Devi & Anr vs M/s Juggilal Kamlapat, 1971 AIR 2551, as follows:
12. The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the CS DJ No. 609577/16 Page No.31/35 transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction.
13. The Judicial Committee in Nawab Major Sir Mohammad Akbar Khan v. Attar Singh [63 IA 279] spoke of the distinction between the deposit and loan to be that the two terms were not mutually exclusive but that a deposit not for a fixed term did not seem to impose an immediate obligation on the deposited to seek out the depositor and repay him."
48. In the present case, there was a clear intention in the Ex.PW- 1/1 that the amount of Rs. 3 lakhs was not to be repaid immediately. The plaintiff himself admits that the transaction was in the nature of a deposit made with the defendant for running his meat business. The plaintiff was entitled to receive Rs. 10,000/- per month and did not assume any risk of the business, which was borne by the defendant. No fixed period of repayment is provided in Ex. PW-1/1 and the same is repayable on the demand of the plaintiff. Hence, I find that the amount in question given to the defendant, as alleged by the plaintiff, was in the nature of a deposit.
49. The Hon'ble High Court of Delhi has held in the decision of Shree Lakshmi Venkatesh Cargo Movers and Consultants v. Ambuja Cement Rajasthan Ltd., 2011 SCC OnLine Del 954 :
(2011) 122 DRJ 497 that in case of deposits, the period of limitation of three years runs from the date of demand as per CS DJ No. 609577/16 Page No.32/35 Article 22 of the limitation Act.
5. I am afraid the findings, conclusions and the legal position as enunciated by the trial Court is wholly illegal and perverse. In law, there is a vital difference between an amount paid as a deposit without a fixed date of repayment and other amounts which are otherwise payable to the plaintiff either towards loan or otherwise. By the very nature of a deposit the same is not repayable on a specific date and therefore it becomes repayable only on a demand being issued. The crucial difference between a deposit and any other amount which is payable is that the entitlement for refund of the security amount given as a deposit is that since the security deposit is deposited without any repayment date being fixed, it is necessary to raise a demand to seek repayment of the deposit..."
(Emphasis supplied)
50. The Hon'ble High Court of Delhi had held in the decision of Sh. Virender Kumar Jain vs M/s. Alumate (India) Pvt. Ltd, 2012 SCC OnLine Del 1313 that where the loan was given without any date of repayment, the limitation of three years would commence from date when the demand was made.
51. As per para no.8 of the plaint, the plaintiff has stated that in August, 2001 the plaintiff tried to approach the defendant for repayment of the interest and the principal amount as well. However, he could not get in touch with the defendant for almost four years till 3.7.2005. I find the version of the plaintiff difficult to believe. Any prudent person who has made up his mind to CS DJ No. 609577/16 Page No.33/35 recover a loan from his debtor would atleast send a legal notice to the defendant if he was unable to trace him. The plaintiff cannot take advantage of his own delay in extending the period of limitation. The plaintiff was required to institute the present suit for recovery within three years of August, 2001 i.e. by 1.9.2004. However no such steps were taken by the plaintiff. Further, the alleged acknowledgment dated 10.7.2005, Ex. PW- 1/2 also does not confer any benefit on the plaintiff under section 18 of the Limitation Act as it was made much after the expiry of the period of limitation.
52. However, as per section 25(3) of the Indian Contract Act, the Ex. PW-1/2 dated 10.7.2005 would have the effect of reviving the said debt. As per the said document, the defendant allegedly undertook to pay the principal amount and interest due to the plaintiff by 31.7.2009. The limitation for the plaintiff to file the suit would run from three years of this date and the suit was to be filed by 1.8.2012, whereas the present has been filed on 1.4.2012 within the period of limitation.
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53. Hence I find that the present suit had been instituted within the period of limitation and the issue no. 3 is decided in favour of the plaintiff.
Issue no.4
54. Lastly, I shall decide issue no.4, which is reproduced below for the sake of convenience:
4. Whether there is no cause of action against the defendant and in favour of the plaintiff as alleged? OPD
55. In view of the issue no.1 having been decided against the plaintiff, the present issue no.4 is decided in favour of the defendant.
Relief.
56. That in view of the aforementioned reasons, the suit of the plaintiff is dismissed with no order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (JITEN MEHRA)
on 27.09.2024 DJ-10/Central/THC
Delhi.
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