Delhi District Court
Ajay Sharma vs . Alka Bahal on 7 June, 2023
IN THE COURT OF MS. CHITRANSHI ARORA , CIVIL JUDGE-02,1
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI.
CS SCJ 517/17
AJAY SHARMA VS. ALKA BAHAL
In the matter of :-
Ajay Sharma
S/o Sh. Suresh Sharma
R/o H.no. 215, 2nd Floor,
Gali no. 3, Govind Puri,
New Delhi-110019. ................Plaintiff
Vs.
Alka Bahal
W/o Sh. Rakesh Bahal
R/o H. no. A-11, 3rd Floor,
Lajpat Nagar, New Delhi. ............Defendant
SUIT FOR RECOVERY
Date of institution of the suit : 27.04.2017
Judgment reserved on : 24.05.2023
Date of judgment : 07.06.2023
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs. 1 The undersigned is currently posted as Civil Judge-03, South West, Dwarka, New Delhi as per the order no. 25/DHC/Gaz/G-7/VI.E.2(a)/2023 dated 24.05.2023 of the Hon'ble High Court of Delhi. By virtue of the same order, it has been ordered that the judicial officer shall pronounce judgments in the matters reserved for the same. This judgment is passed in compliance of the above said direction of the Hon'ble High Court of Delhi.
CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 1 of 14
Digitally signed
by CHITRANSHI
CHITRANSHI ARORA
ARORA Date:
2023.06.07
16:10:10 +0530
1,10,000/- (Rupees One Lac Ten Thousand only) along with interest filed by the plaintiff against the defendant.
BRIEF FACTS AS PER THE PLAINT: -
2. The father of the plaintiff and husband of the defendant were close friends and the husband of the defendant called the father of the plaintiff in the second week of May 2015 at his house in Lajpat Nagar, wherein the defendant asked for financial help of Rs. 1,50,000/- from the father of the plaintiff. The defendant assured that he shall return the amount in 4 to 5 months.
3. On 20.05.2015, the defendant and her husband visited the house of the plaintiff and demanded Rs. 1,50,000/-. On such demand, the plaintiff lent Rs. 1,10,000/- in cash to the defendant and paid the same to the defendant in presence of husband of the defendant and father of the plaintiff. The defendant issued a post dated cheque of 21.10.2015, bearing no. 109698 of Rs. 1,10,000/- and assured that she will return the amount on or before 21.10.2015. She also assured that the cheque issued by her will be honoured in time.
4. The defendant requested the plaintiff not to present the cheque on false assurances. However, despite waiting for a long time, the defendant did not make the payment. The plaintiff then issued a demand notice on 09.03.2016, however, inadvertently, the name of the father of the plaintiff was mentioned in place of the name of the plaintiff. Thereafter, the plaintiff sent another notice on 25.03.2017 rectifying the error. Both the notices were served upon CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 2 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:10:19 +0530 the defendant but the defendant failed to reply to the notices. The plaintiff and his father met the defendant in Lajpat Nagar at the residence of the defendant, but the defendant refused to return the loan amount.
5. In the background of these facts, the plaintiff has filed the instant suit for recovery.
WRITTEN STATEMENT :-
6. In the Written statement filed by the defendant, she made the following preliminary objections-
(i) The suit is based on false and frivolous story cooked up by the plaintiff;
(ii) The defendant received two legal notices. The father of the plaintiff and husband of the defendant were never friends. Infact, no one in the family of the defendant knew the plaintiff or his family, before the purchase order;
(iii) The plaintiff never gave any loan to the defendant and the husband of the defendant never asked for financial help of 1.5 lacs.
The defendants business turnover was more then 2.82 crore in the year 2015 and it is highly impractical that defendant would ask for financial help from plaintiff;
(iv) The plaintiff has not placed on record any receipt or counter foil or any loan agreement. Plaintiff has also not placed on record any CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 3 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:10:31 +0530 balance sheet, statement of account which reflects that the cheque was issued for discharge of any loan taken by defendant;
(v) The fact that the plaintiff never presented the cheque raises a serious doubt on the plaintiffs intention.
7. The defendant made the following preliminary submissions:-
(i) The plaintiff runs a business of fabric and clothes and the defendant runs a business of stitching uniforms for corporate clients and customers. Since the defendant had received bulk orders from M/S Livewell Aviation for stitching uniform for it's employees and the defendant had to supply the same within 30 days till 31.10.2015, the defendant placed an oral purchase order with the plaintiff for 1000 meter of suiting cloth at the rate of Rs. 110 per meter. As it was a first deal betwen the parties, the plaintiff demanded a security payment of Rs. 1,10,000/- in advance from the defendant. For the said purpose , the defendant issued the cheque bearing no. 109698 in favour of the plaintiff. The plaintiff promised that he shall not deposit the cheque until the entire order for 1000 meter fabric was delivered. However, after 15 days, the plaintiff requested that he would not be able to supply suiting cloth within the time frame. Since the defendant had a further obligation to supply uniforms to M/S Livewell Aviation, the defendant requested the plaintiff to cancel the said order. The order was cancelled and no fabric was supplied by the plaintiff to the defendant.
CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 4 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:10:43 +0530
(ii) However, the plaintiff never returned the cheque to the defendant. Mr. Vaibhav Thukral, one of the office staff of the defendant, visited the office of the plaintiff twice to collect the said cheque, however, he was asked to return on the pretext that the cheque is not traceable. Since there are a few people involved in fabric business in Delhi, trade is usually done on mutual trust and agreements are seldom entered into. The act of the plaintiff is a criminal breach of trust.
8. In para-wise reply on merits, the defendant denied all the averments of the plaintiff as false and frivolous.
REPLICATION FILED BY PLAINTIFF:-
9. In the replication, the plaintiff reiterated the contents of the plaint and denied the preliminary submissions and averments in the written statement as false and frivolous.
ISSUES:-
10. After completion of pleadings, the following issues were framed by the Ld. Predecessor of this Court vide order dated 16.01.2019.:-
(i) Whether the payment by way of cheque bearing no. 109698 was handed over towards the business dealing to the plaintiff? OPD
(ii) Whether there subsists no liability on behalf of defendant, in CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 5 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:10:51 +0530 view of the request for cancellation of the order as placed by the defendant with the plaintiff due to non- performance? OPD
(iii) Whether the plaintiff is entitled to recover claimed amount from the defendant as loan extended to the latter? OPP
(iv) Whether the plaintiff is entitled to interest, pendent-lite and future, if so, at what rate? OPP
(v) Relief PLAINTIFF'S EVIDENCE:-
11. In plaintiff evidence, Sh. Ajay Sharma, the plaintiff deposed as PW-1, vide affidavit of evidence, exhibited as Ex.PW1/G, bearing his signatures at Point A and Point B, wherein he reiterated the contents of the plaint.
12. For the sake of brevity and to avoid repetition, the contents are not being reproduced again. PW-1 relied upon the following documents i.e.:-
S. no Document Exhibit
1 Original cheque bearing 109698 Ex.PW-1/A
dated 21.02.2015 for a sum of
Rs. 1,10,000/-
2 Legal notice dated 09.03.2016 Ex.PW-1/B
3 Postal Receipt of legal notice Ex.PW-1/C
4 Notice dated 25.03.2016 Ex.PW-1/D
5 Post Receipt of notice dated Ex.PW-1/E
CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 6 of 14
Digitally signed
by CHITRANSHI
CHITRANSHI ARORA
ARORA Date:
2023.06.07
16:11:00 +0530
25.03.2016
6 Tracking report of notice dated Ex.PW-1/F
25.03.2016
13. Thereafter, PW-1 was duly cross examined by the Ld. counsel for the defendant. The plaintiff closed his evidence by way of a separate statement dated 28.02.2020. The matter was then put up for defendant evidence.
DEFENDANT'S EVIDENCE:-
14. In defendant evidence, the defendant Smt. Alka Bahal, deposed as DW-1, vide affidavit of evidence, exhibited as Ex. DW1/A, bearing her signatures at Point A and Point B, wherein she reiterated the contents of the Written statement. DW-1 relied upon her ITR for the year 2016-2017 exhibited as Ex.DW-1/1. DW-1 was duly cross examined by the Ld. counsel for the plaintiff. During cross examination, the defendant stated that she does not know the plaintiff and does not know what business the plaintiff is doing.
15. Thereafter, Sh. Vaibhav Thukral, deposed as DW-2, vide affidavit of evidence, exhibited as Ex. DW-2/A, bearing his signatures at Point A and Point B. He deposed that he was employed with the defendant between the year 2016 to 2020 and that he personally visited the office of the plaintiff twice at Govind Puri, New Delhi to collect the cheque of Rs. 1,10,000/- on the instruction of the defendant, however, he was made to return without the cheque. DW-2 was duly cross examined by the Ld. counsel for the plaintiff.
CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 7 of 14
Digitally signed
by CHITRANSHI
CHITRANSHI ARORA
ARORA Date:
2023.06.07
16:11:07 +0530
During cross examination, he stated that he does not have any appointment letter for the post of field worker with the defendant.
16. The defendant closed his evidence by way of a separate statement dated 12.12.2022. This is the entire evidence adduced in this matter. The matter was then put up for final arguments.
FINAL ARGUMENTS:-
17. Final arguments were advanced at length by the Ld. Counsels for both the parties.
18. Ld. Counsel for the plaintiff argued that the defendant had borrowed Rs. 1,10,000/- from the plaintiff and issued the post dated cheque dated 21.10.2015 assuring that she will make the payment on or before that date.
The plaintiff did not present the cheque only on the false assurance of the defendant that she shall make the payment. The defendant has nowhere in the Written Statement mentioned that the plaintiff did not loan the amount of Rs. 1,10,000/- to the defendant. The defendant has taken a false defence of a business dealing and that the cheque was issued as a security. The defendant has not led any evidence to prove the same and hence, the suit should be decreed in favour of the plaintiff.
19. Per contra, Ld. Counsel for the defendant argued that the defendant being engaged in the business of stitching uniforms had received bulk orders qua which the defendant placed further order of suiting cloth with the plaintiff. In lieu of this, the defendant issued the cheque as advance payment on the assurance that the cheque will not be presented by the plaintiff until CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 8 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:11:14 +0530 the suiting cloth is supplied by the plaintiff. However, the order with the plaintiff had to be cancelled since the plaintiff expressed his inability to supply the orders on time. Thereafter, instead of returning the cheque, the plaintiff misused the cheque and filed the instant case. Therefore, the suit of the plaintiff is without any cause of action and is liable to be dismissed.
20. I have heard the submissions advanced by Ld. counsels for both the parties. I have also perused the entire case record meticulously.
ISSUE-WISE FINDINGS:-
Issue no. 1- Whether the payment by way of cheque bearing no. 109698 was handed over towards the business dealing to the plaintiff? OPD
21. The burden to prove this issue lies upon the defendant. The plaintiff has claimed that since the plaintiff's father and the defendant's husband were close friends, the plaintiff lent Rs. 1,10,000/- to the defendant at reqeust of the defendant. In lieu of the same, the defendant issued a post dated cheque bearing no. 109698 assuring that the said cheque shall be honoured. However, the plaintiff never presented the cheque on false assurances of the defendant that she shall make the payment. However, the defendant never returned the said amount.
22. Per contra, the defendant has asserted that the plaintiff never gave any loan to the defendant and in fact the defendant placed an oral purchase order with the plaintiff for 1,000/- meters of suiting cloth at the rate of Rs. 110 per meter and the said cheque was a security payment made in advance to the plaintiff. However, the order had to be cancelled and no fabric was ever CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 9 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:11:22 +0530 supplied by the plaintiff to the defendant. But instead of returning the said cheque to the defendant, the plaintiff filed this case.
23. The burden to prove that the said cheque was handed over towards business dealing to the plaintiff lies upon the defendant. However, the defendant has not placed on record any document or e-mail communications to prove that there was a business dealing between the parties. Even if the averment of the defendant is believed that in fabric business in Delhi, transactions happen orally based on mutual trust and therefore, an oral purchase order was placed by the defendant to the plaintiff, there has to be some proof of communication between the parties regarding the averments of the defendant that the order was placed by the defendant with the plaintiff, that the plaintiff expressed his inability to supply the goods on time and that the order was cancelled.
24. One Sh. Vaibhav Thukral was examined as DW-2 who deposed in his evidence that he was employed with the defendant from the period 2016 to 2020 and that he visited the office of the plaintiff twice to collect the cheque exhibited as Ex.PW-1/A from the defendant. However, during cross examination, when the witness was asked if he could show any appointment letter proving that he was working for the defendant, he stated that he does not have any appointment letter. Further, a suggestion was also given by the Ld. Counsel for the plaintiff that he was not the employee of the defendant. In such a situation, it was incumbent upon the defendant to prove that DW-2 was actually an employee of the defendant. However, no such evidence has been brought by the defendant. In the absence of any appointment letter or CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 10 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:11:29 +0530 salary slips of DW-2 to prove his identity as an employee of the defendant, the veracity of the deposition of DW-2 remains unproved.
25. Further, during cross examination, the defendant stated that she does not know the plaintiff and she does not know what business the plaintiff is doing. These statements are in direct contrast with the averments in the Written statement where the defendant has asserted that the parties had a business dealing since the plaintiff is engaged in the business of fabric. When the defendant admits that she does not know the plaintiff and his line of business, the entire defence taken by the defendant in the Written statement stands falsified.
26. In view of the above discussion, it is clear that the defendant from her own statement in the cross examination has nullified the stand taken in the Written statement that the cheque in question was issued in favour of the plaintiff towards business dealing with the plaintiff. Consequently, the defendant has failed to discharge her burden. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
Issue no.2- Whether there subsists no liability on behalf of defendant, in view of the request for cancellation of the order as placed by the defendant with the plaintiff due to non- performance? OPD
27. The burden to prove this issue also lies upon the defendant. However, as discussed in issue no. 1, the defendant has failed to prove that there was business dealing between the parties and that the order placed by the defendant was cancelled later on. Therefore, this issue also stands decided in CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 11 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:11:37 +0530 favour of the plaintiff and against the defendant.
Issue no.3- Whether the plaintiff is entitled to recover claimed amount from the defendant as loan extended to the latter? OPP
28. The burden to prove this issue lies upon the plaintiff. The plaintiff has claimed that he is entitled to recovery of Rs. 1,10,000/- for the loan granted by the plaintiff to the defendant. He has asserted that in lieu of the loan granted to the defendant, the defendant had issued a cheque bearing no. 109698 assuring that the said cheque shall be honoured. However, the plaintiff never presented the said cheque on the assurances of the defendant but the defendant never repaid the loan. To prove his case, the plaintiff has placed on record the original cheque exhibited as Ex.PW-1/A, the legal notice dated 09.03.2016 exhibited as Ex.PW-1/B and the legal notice dated 25.03.2016 exhibited as Ex.PW-1/D.
29. It is pertinent to note that the defendant has admitted the issuance of the said cheque. However, she has denied that the said cheque was issued on account of a loan granted by the plaintiff to the defendant. She has averred that it was on account of a business transaction with the plaintiff. However, the said order placed by the defendant with the plaintiff was cancelled and the plaintiff was supposed to return the cheque. It has already been discussed in issue no. 1 & 2 that the defendant has failed to prove the averments made in the Written statement and has in fact falsified her own case by making contrary averments in her cross examination.
30. Therefore, at this stage, I am compelled to look into the law of CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 12 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:11:44 +0530 presumption of Negotiable Instruments as provided u/s 118 of the Negotiable Instruments Act. Section 118(a) of the Negotiable Instruments Act,1881 provides that unless the contrary is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration and that every such Instrument when it has been accepted, indorsed, negotiated or transferred, the same was accepted, indorsed, negotiated or transferred for consideration. Further, section 118(g) of the Negotiable Instrument Act also provides that until the contrary is proved, the holder of a Negotiable Instrument is a holder in due course. In view of this law of presumption, since the defendant has not been able to prove that the said cheque was issued merely as a security and not for consideration and that the plaintiff is not a holder in due course, the presumptions under section 118(a) & (g) of the Negotiable Instrument Act will be applicable in the instant case. Accordingly, it is presumed that the cheque was issued for consideration by the defendant to the plaintiff and the defendant is liable to make the payment of the cheque amount. The defendant has failed to rebut this presumption of law as she has not been able to prove the contrary.
31. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Consequently, the plaintiff is entitled to recover the amount of Rs. 1,10,000/- from the defendant.
Issue no.4- Whether the plaintiff is entitled to interest, pendent-lite and future, if so, at what rate? OPP
32. The plaintiff has claimed pendentelite and furture interest at the rate of 18% per annum. However, this seems to be unreasonable and at a higher CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 13 of 14 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2023.06.07 16:11:51 +0530 rate, therefore, reasonable interest on the principal amount shall be awarded to the plaintiff. The plaintiff is entitled to interest at the rate of 9% per annum from the date of filing of the suit till the date of decree and interest at the rate of 6% per annum from the date of decree till the date of realization.
33. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
RELIEF:-
34. In view of the aforesaid discussion, the facts and circumstances of the case, the findings given on the above issues, documents placed on record and the evidence led, the plaintiff has proved his case on the scale of preponderance of probabilities.
35. Accordingly, the plaintiff is entitled to recover Rs. 1,10,000/- (Rupees One Lac Ten Thousand only) along with interest at the rate of 9 percent per annum from the date of filing of suit till the date of decree and interest at the rate of 6 percent per annum from the date of decree till the date of realization, from the defendant.
36. Cost of the suit is awarded to plaintiff.
37. Decree sheet be prepared accordingly.
38. File be consigned to record room after due compliance. Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2023.06.07 16:12:00 +0530 Pronounced in the open court (Chitranshi Arora) Today on 07.06.2023 CJ-02, South-East, Saket Court, ND CS SCJ 517/17 AJAY SHARMA VS. ALKA BAHAL 14 of 14