Delhi District Court
Sushila Kashyap vs Raj Nandan Khewat & Ors. (Deceased) on 7 May, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL): TIS HAZARI COURTS: DELHI
RCA No. 151/2013
Unique Case ID No. 02401C0111212013
1. Sushila Kashyap
W/o Madan Pal Kashyap
2. Sh. Madan Pal Kashyap
S/o Sh. Bhan Singh Kashyap
Both R/o A68, Budh Vihar Extension,
PhaseII, Shyam Colony, Delhi.
...... Appellants
VERSUS
Raj Nandan Khewat & Ors. (Deceased)
Through LRs.
1. Trithesh Kumar
2. Ratnesh Kumar
3. Brahmesh Kumar
4. Pramesh Kumar
All Sons of Late. Sh. Raj Nandan Khewat
All R/o 164, Rajender Park Extn.,
Nangloi, Delhi.
...... Respondents
Date of Institution : 07.03.2013
Reserved for orders on : 07.05.2015
Date of Decision : 07.05.2015
JUDGMENT :(Oral)
1. This appeal has been filed by the appellant who is the defendant before the Trial Court in a suit filed by the respondent who Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.1 to 9 was the plaintiff before the Trial Court for recovery of Rs.82,280/ on various grounds which are not being repeated for the sake of brevity.
2. Brief facts of the case are that appellants are husband and wife and have been running a finance company under the name and style of M/s Kashyap General Finance and Investment Co. and Kashyap (Cooperative) General Finance and Investment Co. at premises no. A47, Budh Vihar Extension, PhaseII, Shyam Colony Delhi. The appellant no. 1 was the proprietor of above finance company while the appellant no. 2 her husband has been managing the said companies as Managing Director / Managers. The deceased father of the respondents on the persuation of the appellants had invested a sum of Rs.50,000/ on 31.05.1998 in the above referred finance companies of the appellants for a period of 12 months and as per the assurance / agreement between the deceased father of the respondents and appellants, the said amount was to carry interest @ 36% p.a. A receipt acknowledging the investment by the deceased father of the respondents with the appellants was Ex.PW1/1. The investment of Rs.50,000/ made by deceased father of the respondents matured on 30.05.1999 and appellant no. 1 issued a cheque dated 31.05.1999 bearing no. 542929 drawn on State Bank of India, Rithala branch for Rs.68,000/ towards the repayment of above referred investment. The plaintiff accordingly on maturity of his investments with the appellants deposited the said cheque with his banker M/s Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.2 to 9 Syndicate Bank, South Block, Defence Head Quarter, Delhi but the said cheque was returned dishonoured twice by the banker of appellant no. 1 as the amount in the account of the appellant no.1 was not sufficient to honour the cheque which fact was brought to the notice of the appellants but inspite of promising to pay the cheque amount, the appellants did not make payment of the above said cheque amount. The appellant were served with the legal notice dated 11.02.2001.
3. The appellant in their written statement admitted that they were running the aforesaid firm and also admitted that investment of Rs.50,000/ by the deceased father of the respondent. The appellant no. 1 also admitted issuing cheque for Rs.68,000/ which was dishonoured. The appellants however alleged that there were some other accounting / liabilities of the deceased father of the respondents, which were sorted out by the intervention of the fatherinlaw of appellant no. 1, DW2 and a sum of Rs.45,000/ was paid to the deceased father of the respondents who executed a pronote and receipt Ex.PW1/D1 in full and final settlement of all the claims of the deceased father of the respondents.
4. Various issues were framed after which opportunity was given to both the parties to lead their evidence on the basis of which the suit of the plaintiff had been decreed. According to the appellants there was no cause of action for filing the present suit and the Issue Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.3 to 9 No. 1 had been wrongly decided in favour of respondents. It is argued by the counsel for appellant that the appellant / defendants have proved the same by adducing evidence Ex.PW1/D1 (the pro note as well as the receipt, through which the plaintiff received the recovery amount as full and final settlement of the cheque amount in respect of which the case is pending) by giving witnesses of the DW1 (defendant no.1) and DW2 (a documentary attesting witness in whose presence the said document executed by the plaintiff). It is further argued on behalf of the appellant that as per law only the person having knowledge about execution of the document can give evidence which would become admissible, as per Indian Evidence Act. The plaintiff (i.e. predecessor in interest of the respondents) after filing his evidence before crossexamination expired. His LRs were later on examined, who had no knowledge about the transactions going on between the plaintiff and the defendant no.1, because the LR was minor and a school going student at the relevant time. After stepping into the shoes of the plaintiff, the Legal Representative should have taken appropriate steps to disprove the signature shown to be made by the plaintiff namely Raj Nandan Khewat but the respondents (i.e. Plaintiff before the Trial Court) failed to do so. It is argued that whether or not the court requires the plaintiff to prove the cause of action in any suit, it always lies on the shoulders of the plaintiff as per Section 20 of the CPC, because every fact which is necessary to Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.4 to 9 establish to support a right to obtain a judgment is cause of action. It is further argued that now if the plaintiff has received the consideration of the cheque amount in full and final by executing Ex.PW1/D1, then the present suit becomes without cause of action. It is argued that when the appellant i.e. defendants before the Trial Court have categorically stated in their written statement that the plaintiff had executed the pronote and the receipt, meaning thereby that there is no cause of action in the present suit. It is also argued that the plaintiff i.e. predecessor in interest of the respondent had suppressed the material fact of the execution of the pronote and receipt, in order to an illegal gain by abusing judicial process and has harassed the appellants.
5. Ld. Counsel for the appellant has placed her reliance upon the judgment in the case of "Om Prakash Srivastava Vs. Union of India" copy of which however not placed on record wherein it had been observed that "..... by "cause of action" it is meant every fact that, which if transversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit....."
6. On the other hand it is argued by the Ld. Counsel for the respondent that in so far as the present suit is concerned it was Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.5 to 9 individually filed by the father of the respondent and he died in January 2009, however, at no point of the Ex.PW1/D1 was put for admission and denial and the alleged signatures were never put to him. It is submitted that PW1 was asked about the signatures of the deceased father of the respondents on Ex.PW1/D1 which he denied. According to the respondent the case of the deceased father of the respondents was admitted as the appellants admitted the investment of Rs.50,000/ by the deceased father of the respondents and issuance of the cheques for Rs.68,000/ which was dishonoured. It is submitted that the appellants had failed to prove their case and the Ld. Trial Court rightly passed the decree in favour of the respondents and there is no illegality or grounds for interference in the judgment and decree passed by Ld. Trial Court.
7. I have given my careful consideration to the rival contentions and I may very Outset observe that it is the case of the appellant that the respondent had also executed a promissory note and receipt for Rs.45,000/ on 25.08.1999 vide receiving on behalf of the account pertaining to the payment of impugned cheque which document has been brought on record by the appellant as Ex.PW1/D1. I may observe that in his cross examination PW1 has specifically stated that he can identify his father's signatures and has thereafter denied the signatures of his father at part A and B after Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.6 to 9 which appellant did not prove the Ex.PW1/D1 by any other means whether it was by producing any witness in whose presence the documents had been executed or by calling the Handwriting Expert.
8. Secondly I may observe that the appellant has admitted the fact that the respondent had made an investment of Rs.50,000/ on 31.5.1998 the receipt of which amount by the appellant is Ex.PW1/1. DW1 in her cross examination has neither admitted nor denied the said document but has failed to recognize the signatures of her husband on the said document. She has not only admitted the cheque in question Ex.PW1/2 but also admitted that same was the maturity amount deposited by him with the appellant and it is this which defeats the arguments of the appellant that the respondent had executed the document Ex.PW1/D1 as it is otherwise not probable that both the promissory note and the receipt would bear the same date. There is no explanation forthcoming to this effect that on the one hand the appellant talks about the receipt of Rs.45,000/ by receipt in lieu of cheque amount for Rs.68,000/ but the promissory note dated 25.8.1999 forming part of the same document i.e. Ex.PW1/D1 apparently reveals that the plaintiff therein promises to pay the defendant no. 2 an amount of Rs.45,000/ at 5% rate of interest in lieu of the cheque amount. In fact, this could not have happened in case if the amount of Rs.45,000/ had been already Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.7 to 9 receipt by the respondent.
9. Thirdly it is also not probable that while on the one hand as denied by the Appellant No. 2 that he had no dealing or concern with the company run by Appellant No.1 whereas on the other hand the document Ex.PW1/D1 was executed by respondent in favour of Appellant no. 2. The perusal of the testimony of DW2 shows that he had admitted that he used to assist the respondent no. 1 in running of the finance business and also further deposed that he was told about the dispute of Rs.5,000/ with defendant no. 2. It is this, which makes the version of the appellant unbelievable.
10. Lastly I may observe that the acknowledgment of payment of Rs.50,000/ by the plaintiff to the defendant has also been made by the defendant no. 2 only and the same has been proved on record as Ex.PW1/1 by the plaintiff and it is this which clearly confirms that Rs.50,000/ were received by the appellant from the plaintiff / respondent in cash and hence defeats the version of the appellant that the respondent (plaintiff before the trial court) had taken loan from the defendant / (appellant before this court) and thereafter finally settled the cheque amount for Rs.45,000/.
11. In view of my above discussions, I do not find any error in the impugned order of Ld. Trial Court dated 21.12.2012 warranting any interference.
Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.8 to 9
12. The appeal is hereby dismissed. No orders as to costs. Copy of this order be placed on the Trial Court record. Appeal file be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 07.05.2015 ADJII(CENTRAL)/ DELHI Sushila Kashyap Vs. Raj Nandhan Khewat (RCA No. 151/13) Page No.9 to 9