Delhi District Court
Arun Ahuja vs Narender Goswami on 16 August, 2024
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Sh. Himanshu Raman Singh
Civil Suit No. 1057/18
CNR No. DLWT03-002041-2018
Sh. Arun Ahuja
S/o. Sh. M. G. Ahuja
R/o. D-76, 3rd Floor,
Vikas Puri, New Delhi - 18. ....Plaintiff
Versus
Sh. Narender Goswami
S/o. Sh. Sardar Ban
R/o. H. No. F-68, Street No. 7,
Khajuri Khas, Tukhmirpur,
North-east, Delhi - 110094. ....Defendant
SUIT FOR RECOVERY OF Rs. 1,00,000/- (RUPEES ONE LAKH)
Date of Filing : 28.08.2018
Date of Judgment : 16.08.2024
Decision : Dismissed
JUDGMENT
1. The present suit was originally instituted by the plaintiff seeking recovery of Rs.1,00,000/- under Order XXXVII CPC. Thereafter, leave to defend was granted vide order dated 06.04.2021 and written statement was filed. The suit was treated an an ordinary suit.
Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 1 of 17FACTS IN THE PLAINT
2. It has been stated that the defendant and plaintiff were known to each other and having friendly/close relationship for a long time. It has been further stated that in the month of October, 2017, the defendant was in dire need of money for meeting the personal requirements and on 05.10.2017, defendant visited the house of plaintiff and asked Rs.1,00,000/- (Rupees one lac) as financial assistance for meeting the personal difficulties due to financial crisis. Keeping in view the friendly relation, facts and circumstances, plaintiff had extended / gave Rupees One lakh from all his sources and means and at the time of taking friendly loan, the defendant had executed a hand written note duly signed by the defendant on 05.10.2017.
3. It has been further stated that in the month of January, 2018, plaintiff demanded from defendant to return the friendly loan and the defendant had given a post-dated cheque bearing no.000803 of his bank i.e., ICICI Bank, Rohtash Nagar Branch, B- 1526, Babarpur Road, Shahdara, Delhi-32, of an amount of Rs. 1,00,000/- (Rupees one lac only), dated 02.04.2018, and assured/promised that the same will be encased on its presentation. It has been further stated that the plaintiff had presented the cheque with his banker i.e., HDFC Bank, A-338, Outer Ring Road, Meera Bagh, New- Delhi on its due date but the said cheque was returned unpaid with the remark "payment stopped by drawer". It has been further stated that plaintiff told the defendant, about the fate of dishonoured Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 2 of 17 cheque, but defendant assured plaintiff and requested for some time to wait with mala fide intention and bad motive but defendant kept the matter pending on false excuses and promises.
4. It has been further stated that defendant at time of issuing of the said cheque assured to plaintiff that the said cheque will be cleared and encashed at the time of its presentation. It has been further stated that defendant has caused wrongful gain to himself and wrongful loss to the plaintiff, therefore, the defendant is legally bound and liable to pay the said due amount of Rs. 1,00,000/- (Rupees one lakh only) to plaintiff.
5. It has been further stated that the suit of the plaintiff is based on written negotiable instruments i.e., hand written note & cheque issued by the defendant and hence, the said liability of Rs. 1,00,0000/- is very much admitted by the defendants.
6. It has been further stated that the cause of action for filling the present suit arose in favour of plaintiff and against the defendant, firstly on 05.10.2017, when the defendant visited the house of the plaintiff and asked Rs.1,00,000/- as financial assistance for meeting the personal difficulties due to financial crisis, and executed a hand written note duly signed by defendant. It further arose in January, 2018, when the cheque in question was issued in favour of Plaintiff towards the legal recoverable liability. It further arose when the said cheque was presented for the encashment and 03.04.2018, and Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 3 of 17 lastly it got dishonoured on 10.07.2018. The plaintiff sent a legal demand notice but the defendant did not comply with the demand.
7. Summons in the prescribed format under Order XXXVII CPC were were issued to the defendant. Thereafter, the defendant was duly served and filed leave to defend which was allowed vide order dated 06.04.2021. Thereafter, the WS was filed by the defendant and the present suit was treated as an ordinary suit.
WRITTEN STATEMENT
8. It has been stated that the the present suit filed by the plaintiff is a sheer abuse of the process of law as the same is without any cause of action and is based on misleading and twisted facts, based solely on conjectures and surmises of the plaintiff. It is stated that the plaintiff is grossly misleading the Court by abusing the process of law, hence the suit deserves to be dismissed with exemplary costs in favour of the defendant for his unnecessary harassment. It has been stated that the the plaintiff has not approached this Court with clean hands and has concealed materials facts which make the present case non-maintainable before this Court. It has been averred that the the entire cause of action for the present suit is based upon fraud and cheating done by the plaintiff against the defendant.
9. It has been averred that the the present suit is a sheer abuse of the process of law and a mere tactics of the plaintiff to arm-twist and extort from the defendant, as the money that the plaintiff claims to Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 4 of 17 have given to the defendant was actually never given to the defendant, as the cheque for Rs. One lakh (Rs. 1,00,000/-) that was given by plaintiff to the defendant, was refused by the bank stating that the same was an invalid cheque (Out of Use) as per the RBI (Reserve Bank of India) guidelines as the same not only lacked security features prescribed but also did not have the issuers name printed on it.
10. It has been averred that the the plaintiff has deliberately not disclosed as to how he gave the money to the plaintiff. It is stated that the plaintiff and the defendant do not share any friendly/close relationship as falsely stated in the plaint and the plaintiff, used to have a business of wholesale garments in Karol Bagh in the name and style of Riya Creation and the defendant Narender Goswami and his brother Guddu Goswami, who are retailers of garments by the name and style of 'Mod Collection' in Rohtash Nagar, Shahdara, used to purchase garments from him for their shop. During the course of business, the plaintiff called the brother of the defendant, namely Guddu Gosawami, to his office somewhere in Vikaspuri, to settle the accounts in September, 2017 and during that process he told him that he was into personal finance as well and in case he or his brother needed money for business purposes the plaintiff could help. In the next month, with the festival of Diwali approaching, the defendant and his brother Guddu (needed money to maintain more stock as festival was approaching, so they approached the plaintiff for a loan of Rs. 2,00,000/- (Rupees two Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 5 of 17 lakhs only). But, the plaintiff told them that he could only give them Rs. One lakh. When the defendant and his brother agreed to take Rs. One lakh, the defendant assured them that he will send his office boy, namely 'Raju', with the money on 05.10.2017, all they had to give him was two blank cheques (Cheque no 200802 and 000803) drawn on ICICI Bank, sign on ten blank papers and also execute a promissory note. When, the next day the office boy of plaintiff, Raju came he gave them a cheque dated 05.10.2017 (Cheque no. 079780 drawn on Central Bank of India) issued by the plaintiff for One lakh rupees, issued in the name of the defendant. It is stated that the very same day the defendant gave Raju two cheques (No. 000802, 000803, drawn on ICICI Bank, Rohtash Nagar, Shahdara Branch), but by way of abundant caution he filled one cheque for the exact same amount i.e. Rs. One lakh, but the second cheque was given blank and the instead of signing on blank papers he wrote that he was taking a friendly loan from the plaintiff and that he would return the same in 2-3 months and one promissory note as well, as demanded by the plaintiff. It is averred that the defendant went to present the cheque as he needed the money urgently, issued by the plaintiff to his bankers the Central Bank of India, but he was shocked to know that the bankers refused to accept the cheque saying that the cheque issued by the plaintiff was an invalid cheque (Out of Use) as per the RBI (Reserve Bank of India) guidelines as the same not only lacked security features prescribed but also did not have the issuers name printed on it. The bank officials refused to take the cheque and also warned the Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 6 of 17 defendant that if he insisted on depositing the same, he would invite penalty. The defendant came back with the cheque and thus the plaintiff did not give any money whatsoever to the defendant. It is stated that when the defendant informed the plaintiff about the outdated, out of use, cheque issued by him, he told the defendant to tear the cheque and send him a picture of the same and after receiving the picture of torn cheque, he would send the money by RTGS. The defendant did as he was told, but despite of sending the picture of torn cheque the RTGS was never done.
11. It has been averred that the the plaintiff has mis-used one of the two cheques issued by the defendant as a security for the alleged loan that the plaintiff promised to advance to him, but never did. The plaintiff presented the said cheque despite the defendant's requests to return the same. It is averred that when despite numerous follow- ups by the defendant to take his cheques and other documents back, the plaintiff threatened to present the cheques, the defendant was left with no option but to file a complaint dated 07.04.2018 with the concerned Police Station and informed his Bankers, the very same day to immediately stop the payment of the said cheques as the plaintiff had obtained the said cheques by playing a fraud on the defendant.
12. It has been averred that the the brother of the defendant, namely Guddu Goswami, tried several times to get the documents, including cheques, undertaking and a promissory note back, since Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 7 of 17 the plaintiff had failed to advance the promised loan in the first place, but the plaintiff just refused to give them and is now misusing those documents which he fraudulently acquired to extort money from the defendant by misusing the legal procedure. It has been averred that the despite all the requests by the defendant and his brother, the plaintiff, in a most shameless and brazenly illegal manner presented both the cheques issued by the defendant in the month of April, 2018 and he is misusing one of the cheques as a cause of action for the present suit.
13. It has been averred that the the very fact that the plaintiff did not file a Criminal Complaint under Section 138 of the Negotiable Instruments Act, when the cheques issued by the defendant bounced, also goes on to show that the defendant does not owe any legal liability to the plaintiff, as liability under Section 138 of the Negotiable instruments Act arises only when the dishonoured cheque was issued against any legally enforceable debt, but in the present case the plaintiff has played a fraud upon the defendant and thus, he could not have filed the complaint under Section 138 of the Negotiable Instruments Act.
ISSUES
14. From the pleadings, following issues were framed on 11.10.2022 by Ld. Predecessor :-
1. Whether the defendant is liable to pay Rs. 1,00,000/- along with interest to the plaintiff? OPP
2. Whether the defendant is liable to make payment of Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 8 of 17 pendentelite and future interest? If yes, then at what rate and for which period? OPP
3. Relief.
EVIDENCE ADDUCED
15. In order to prove his case, Sh. Arun Ahuja, plaintiff examined himself as PW-1, who filed his evidence by way of affidavit Ex.PW-1/A. He has relied upon the following documents:-
1. Ex. PW-1/1 is the photocopy of Aadhar card (OSR)
2. Ex. PW-1/2 is the post dated cheque dt. 02.04.2018 issued on ICICI Bank, Rohtash Nagar Branch, Shahdra Delhi given by the defendant.
3. Ex. PW-1/3 is the return memo dt. 04.04.2018
4. Ex. PW-1/4 is the photocopy of pass book of the plaintiff
5. Ex. PW-1/5 is the legal notice dt. 10.07.2018 (colly)
6. Ex. PW-1/6 is the postal receipts (colly)
7. Ex. PW-1/7 is the Tracking reports
8. Ex. PW-1/8 is the hand written note (receipt) duly signed by the defendant
16. PW1 was cross-examined at length by the Learned Counsel for the defendant. Thereafter, the plaintiff evidence was closed
17. In order to prove his case, the defendant examined Sh. Narender Goswami as DW-1, who filed his evidence by way of affidavit Ex.DW-1/A. He has relied upon the document i.e. Copy of cheque issued by the plaintiff to defendant dated 05.10.2017 bearing cheque no. 079780 Exhibited as DW1/1, Copy of Account details of Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 9 of 17 defendant Ex.DW1/2 (Colly 16 Pages) and Copy of Complaint made by defendant against plaintiff to S.H.O. Shahdra Police Station as well as Branch Manager ICICI bank Rohtas Nagar, Shahdra dated 07.04.2018 Ex.DW1/3.
18. DW1 was cross-examined at length by the Counsel for the plaintiff.
19. I have heard the arguments at length and gone through the record carefully. The issue-wise findings are as under:-
ISSUE WISE FINDINGS Issue No. 1 Whether the defendant is liable to pay Rs. 2,55,431/- to the plaintiff? OPP
20. The onus to prove this issue was on the plaintiff. The plaintiff examined himself as PW1 and deposed on the same lines as that of the plaint. He filed on record the copy of his passbook Ex.PW1/4. A perusal of the copy of the passbook reveals that the plaintiff filed only the first page of the passbook. The plaintiff filed on record the cheque bearing number 000803 Ex.PW1/2. The said cheque was issued by Mr Narinder Goswami, the defendant in the present case, to the plaintiff.
21. The case of the plaintiff is that the plaintiff had given some of ₹1,00,000/- to the defendant, however, the defendant failed to repay the same. The defence of the defendant is that the cheque Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 10 of 17 issued by the plaintiff for giving the loan got bounced from the bank, and therefore, in fact, no money was transferred in the account of the defendant.
22. PW1 was cross examined at length by the Learned Counsel for the defendant. In his cross examination, the PW1 admitted that he knows the defendant since the year 2015, and the defendant has visited his shop many times for buying the articles on credit basis. The witness further deposed that the that he had given a cheque of ₹1,00,000/- bearing number 079780 central bank of India dated 5 October 2017 and on presentation of the same, the defendant was informed by the bank that the cheque could not be processed due to introduction of new banking rules. The witness admitted that he was informed of the same by the defendant immediately. The witness was further cross examined on 14 March 2023. In his cross examination, it is recorded that the witness has admitted that the handwritten note relied upon by him was executed only in respect of the cheque which he had given to the defendant. He further admitted that the cheque bearing number 0000803 dated 2nd April 2018 was not in his handwriting. The witness further deposed that he does not know as to why he did not file the cheque bounce case against the defendant under section 138 of the Negotiable Instruments Act. The witness was specifically asked regarding as to whether mode of payment is disclosed in the plaint or not to which the witness replied that no such mode has been mentioned.
Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 11 of 1723. On the other hand, the defendant examined himself as DW1 and filed on record a copy of cheque issued by the plaintiff to the defendant dated 5th October 2017 bearing cheque number 079780. The witness also proved the copy of the complaint made by him against the plaintiff to the station house officer, Shahdara police station dated 7th April 2018. The witness was cross examined at length by the learned counsel for the plaintiff. The witness stated that he has studied up to class 12th in Hindi medium and he knows only little English language. He deposed that he never met Mr Arun Ahuja, the plaintiff personally and they used to talk over the phone. He deposed that his relationship with the plaintiff was confined only to business purposes. He also supported the contents of the written statement and his testimony could not be taken by the plaintiff in the cross examination. He deposed that when he was in financial need, then the plaintiff offered him to lend some money and thereafter office boy, namely Raju came with the cheque and interested the same to him, and he received the security cheque from him. He deposed that he never contacted the plaintiff for seeking financial help. He also deposed that he had not given any other thing, except the security cheque to the said Raju. He deposed that when he received the cheque from the plaintiff, he visited the bank where the bank officials denied to encash it as they said cheque was outdated. The witness immediately called the plaintiff and informed him about the fate of the cheque and thereafter the plaintiff assured him that he will transfer the amount online.
Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 12 of 1724. The issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research vs. Jaspal Singh , (2009) 7 SCC 330 which reads as under:
"17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction between negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt".
25. In Dr. N.G. Dastane Vs. Mrs. S. Dastane on 19th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either either believes it to exist or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 13 of 17 lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue "Per Dixon, J. In Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth (1966) 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
26. The burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Evidence Act, 1872 dealing with burden of proof are produced as under:-
"Burden of proof:-
101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.-
The burden of proof as to any particular fact lies on that Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 14 of 17 person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
27. The Hon'ble Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 decided on 13th May, 2011 by the Hon'ble Supreme Court observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 15 of 17 Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
28. The case of the plaintiff broadly hinges on two main documents.
The first document is Ex.PW1/8, which is the handwritten note duly signed by the defendant. In his cross examination, the plaintiff has admitted that the said handwritten note was executed when the cheque was issued in favour of the defendant. The defendant has been able to prove that the said cheque was dishonoured when presented. The plaintiff has nowhere been able to prove that further an amount of ₹1,00,000/- was ever transferred to the defendant. Therefore, in the considered opinion of this court, the handwritten note loses its relevance. Another important document on which the plaintiff has placed reliance is the return memo and the post dated cheque issued by the defendant. The defendant has been able to prove that the said cheque was issued as security. The plaintiff in his cross examination has admitted that it does not contain the handwriting, of the defendant. In the facts and circumstances of the case, this court is of the considered view that the plaintiff has failed to prove his case on the scale of preponderance of probabilities. Issue No. 1 is accordingly decided against the plaintiff.
Issue no. 2.
Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 16 of 17Whether the defendant are liable to make payment of pendentelite and future interest? If yes, then at what rate and for which period? OPP
29. The onus to prove this issue was upon the plaintiff. In light of the above detailed discussion on the issue no. 1, the issue no. 2 is also decided in favour of the defendant and against the plaintiff.
Relief:
30. In view of the above detailed discussion, the suit of the plaintiff is dismissed. No order as to costs.
31. Decree sheet be prepared accordingly.
32. File be consigned to record room after necessaryDigitally compliance.
signed
HIMANSHU by HIMANSHU
RAMAN RAMAN SINGH
SINGH Date: 2024.08.16
Announced in open Court (Himanshu Raman Singh)
16:45:56 +0530
on 16.08.2024. SCJ-cum-RC (West)
Tis Hazari Courts, Delhi
16.08.2024
Civil Suit No. 343/20 M/s. Emporio Fabrics Store Vs. M/s. Bentwood Seating System Pvtl Ltd. Page 17 of 17