Delhi District Court
Pratap Singh vs Khurshid on 25 October, 2023
IN THE COURT OF Dr. KAMINI LAU: DISTRICT JUDGE
(COMMERCIAL COURT)02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS (COMM.) No. 3931/2021
CNR No. DLCT010131942021
Pratap Singh
Sole Proprietor
M/s. Pratapshree Finance Company
2717, Kashmere Gate,
Delhi110006
......Plaintiff
Versus
Khursheed
S/o Roozdaar
R/o Village Tapkania Ki Dhani,
Nimbhaheri, Tehsil Tijara,
District Lawar, Rajasthan
......Defendant
Date of filing of suit: 05.10.2021
Judgment Reserved on: 03.10.2023
Date of Judgment: 25.10.2023
TABLE OF CONTENTS
Sr. No. Title Page No.
1 Brief facts/ Case of the petitioner 25
2 Case of the Defendant 58
3 Issues 8
4 Evidence & List of Documents 919
5 Findings & Observations 1935
6 Conclusion/ Relief 3536
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021
Judgment dated 25.10.2023 Page No. 1 of 36
Present: Sh. Gyanesh Saini Advocate for the Plaintiff.
Sh. Santosh Kumar Advocate for the Defendant.
JUDGMENT:
(1) This Civil Suit has been filed by the plaintiff Pratap Singh seeking recovery to the tune of Rs.26,16,000/ (Rupees Twenty Six Lacs, Sixteen Thousand only) along with pendent elite and future interest from the defendant Khursheed.
BRIEF FACTS:
Case of the plaintiff:
(2) The plaintiff Pratap Singh is the Sole Proprietor of the firm M/s. Pratapshree Finance Company which is engaged in the business of finance.
(3) Here, I may note that initially the present suit was filed by the plaintiff under Order XXXVII CPC. However, on 14.03.2022 on request of the Counsel for the plaintiff, the Ld. Predecessor of this Court treated the present suit as an ordinary recovery suit.
(4) The case of the plaintiff is as under:
➢ That one Nawab son of Kalu Khan had approached and persuaded the plaintiff to finance a vehicle bearing registration No. HR55S0170 and after negotiations the plaintiff had financed the said vehicle pursuant to which a loan cum hypothecation agreement was executed between the plaintiff and Nawab.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 2 of 36 ➢ That said Nawab had agreed to return the loan advanced in his favour in easy monthly installments and also hypothecated the said vehicle with the plaintiff.
➢ That the defendant Khursheed had signed the said loan cum hypothecation agreement as a Guarantor for repayment of the said loan and it was agreed by the defendant that in case of non payment of monthly installments by Nawab, he (defendant Khursheed) would make the payment of the same in favour of the plaintiff.
➢ That after availing he said loan facility, Nawab failed to maintain financial discipline and committed defaults in making the payment of monthly installments as a result of which huge amount was due and outstanding against him in respect of the said loan transaction in respect of which litigation is already going on between the plaintiff and Nawab.
➢ That during the course of the said litigation, the defendant Khursheed had approached the plaintiff and informed that he had taken the possession of the financed vehicle from Nawab and he would make the payment of monthly installments in favour of the plaintiff.
➢ That the defendant had also furnished an affidavit/ declaration to the plaintiff in this regard and the plaintiff agreed to the said proposal of the defendant.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 3 of 36 ➢ That the amount in question was financed by the plaintiff in favour of Nawab for purchasing a commercial vehicle which was lateron possessed and owned by the defendant and the said vehicle is being used by the defendant for commercial purposes and hence, the transaction between the parties is commercial in nature.
➢ That the defendant approached the plaintiff and requested for one time settlement and after negotiations, it was agreed that the defendant would make a payment of Rs.24,00,000/ against the said loan transaction and after receiving the payment, the plaintiff would issue a No Objection Certificate in the name of the defendant for getting the said vehicle transferred in his name with the Transport Department. ➢ That pursuant to the said settlement, the defendant had issued a cheque of Rs.24,00,000/ vide cheque bearing No. 000076 dated 09.09.2020 drawn on HDFC Bank, Alwar Bypass, Opposite Post Office, Tapukera, Rajasthan.
➢ That when the plaintiff presented the above cheque for encashment with his bank, the same was received back vide returning memo dated 23.09.2020 with the remarks "The Instrument cannot be Scanned under UV Lamp as the Logo of Drawee Bank (HDFC) is not visible".
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 4 of 36 ➢ That on receipt of the dishonored cheque, the plaintiff contacted the defendant and apprised him of the same, but the defendant avoided the issue on one pretext or the other and failed to make the payment against the dishonored cheque.
➢ That the plaintiff got issued a legal demand notice to the defendant through his counsel vide notice dated 01.02.2021 thereby calling upon him to make the payment of the dishonored cheque in favour of the plaintiff along with interest @ 18% per annum.
➢ That the said notice was duly served upon the defendant but the defendant has failed to comply with the said notice till date.
➢ That the defendant is liable to pay the principal amount of Rs.24,00,000/ along with interest @ 18% per annum w.e.f. 09.09.2020 till 08.03.2021 which comes to Rs.2,16,000/ and accordingly, the total amount comes to Rs.26,16,000/ which the plaintiff is entitled to recover from the defendant.
Case of the defendant:
(5) The defendant Khursheed has filed his detailed written statement to the suit of the plaintiff. The case of the defendant is as under:
➢ That the plaintiff has not approached this Court with clean hands and has concealed the material facts.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 5 of 36 ➢ That the suit of the plaintiff is bad for nonjoinder of necessary parties since the plaintiff has not arrayed Nawab as party to the present suit and it was Nawab who had taken loan from the plaintiff whereas defendant was only a guarantor to the said loan. ➢ That the plaintiff has filed a case under Section 138 of NI Act against Nawab in the year 2015 which is still pending before the court of Sh. Robinjeet Singh, Ld. MM (NI Act), Tis Hazari Courts, Delhi vide Case No. 2125/2015 (New Case No. 515981/2016). ➢ That the plaintiff had financed the defendant from 2010 to 2013 when defendant purchased seven vehicles bearing No. HR742970, HR744311, HR55N 9870, HR55N3870, HR27D1398, HR55P2770 and RJ40UA2100.
➢ That whenever the plaintiff financed the defendant, the plaintiff had taken security cheques against the said loans and the defendant has already repaid the loan amount to the plaintiff has no other liability towards the plaintiff.
➢ That after clearing all the loan amounts, the defendant asked from the plaintiff to return the said security cheques given to the plaintiff but the plaintiff refused to return the said cheques on one pretext or the other. ➢ That on 01.04.2013 the defendant's friend namely Nawab took loan from the plaintiff in which the Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 6 of 36 defendant was made Guarantor and the financed vehicle bearing No. HR55S0170 was handed over to the plaintiff by Nawab through defendant. ➢ That the plaintiff has misused the security cheque of the defendant which were given by the defendant to the plaintiff as security cheques at the time of loan agreement between plaintiff and the defendant. ➢ That the defendant has not issued any cheque to the plaintiff as guarantor of Nawab and the defendant has never agreed nor gave his consent either in writing or oral that he will repay the loan amount in case if Nawab failed to repay the loan amount.
➢ That the alleged affidavit/ declaration dated 05.04.2016 which the plaintiff has filed, is false, forged and fabricated document.
➢ That the agreement entered between the plaintiff and Nawab has an Arbitration clause at Para No. 10.14 stating that "....Any and all disputes, differences and/ or claims arising out of or in connection with this Agreement or its performance shall be settled by Arbitration to be held in New Delhi/ Delhi in accordance with the provision of Arbitration and Conciliation Act, 1996...." despite which the plaintiff referred the present dispute to any arbitrator and hence, the suit of the plaintiff is liable to be dismissed. ➢ That the suit of the plaintiff does not disclose any cause of action and is liable to be rejected under Order Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 7 of 36 7 Rule 11 CPC.
➢ That the defendant has neither approached and agreed to repay the loan amount at any point of time nor approached the plaintiff for one time settlement nor issued the cheque in question in pursuance to the alleged one time settlement.
(6) On merits the defendant has denied all the allegations made by the plaintiff.
ISSUES:
(7) The plaintiff has filed his Replication to the written statement filed by the defendant, wherein the plaintiff has reaffirmed what has been earlier stated in the plaint. (8) On the basis of pleadings of the parties, vide order dated 26.04.2023 this Court settled the following issues:
i. Whether the present suit is bad for nonjoinder of necessary parties, as alleged by the defendant in Para
2 of Written Statement? (OPD) ii. Whether the plaintiff is entitled to the recovery of the principal amount, as asked for in the plaint? (OPP) iii. In case if issue no.2 is decided in affirmative, whether the plaintiff is entitled for any interest, as asked for in the plaint? (OPP) iv. Relief.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 8 of 36 EVIDENCE & LIST OF DOCUMENTS:
(9) Here, I may note that after settling the issues, vide order dated 19.07.2023 this Court fixed the Schedule of Case Management Hearing and appointed a Court Commissioner for purposes of recording the evidence of the parties. (10) Pursuant to the same the plaintiff Pratap Singh has examined himself as his sole witness as PW1. On the other hand, the defendant Khursheed has examined himself as his sole witness as DW1.
(11) Before coming to the testimonies of the witnesses examined by the parties, the documents relied upon by the them are hereby put in a tabulated form as under:
List of documents:
Sr. Exhibit No. Details of document Proved by No. Documents relied upon by the plaintiff:
1. Ex.PW1/1 Cheque bearing No. 000076 dated Pratap 09.09.2020 Singh
2. Ex.PW1/2 Original cheque returning Memo (PW1) dated 23.09.2020
3. Ex.PW1/3 Affidavit of defendant dated 05.04.2016
4. Ex.PW1/4 Original Loan Agreement running into eight pages
5. Ex.PW1/5 Demand Notice dated 01.02.2021
6. Ex.PW1/6 Original Postal receipt dated 02.02.2021 in respect of Demand Notice In so far as the defendant's witness namely Khursheed is concerned, he has not placed his reliance upon any document.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 9 of 36 (12) Now coming to the individual testimonies of the witnesses examined by the parties, for the sake of convenience the same are put in a tabulated form as under:
S. Details of the Deposition
No. Witness
Plaintiff's Witness:
1 Pratap Singh PW1 Pratap Singh is the plaintiff himself who in his
(PW1) examinationinchief by way of affidavit Ex.PW1/A
has corroborated what has been earlier stated in the main plaint. He has placed his reliance upon the following documents:
1. Cheque bearing No. 000076 dated 09.09.2020 which is Ex.PW1/1.
2. Original cheque returning Memo dated 23.09.2020 which is Ex.PW1/2.
3. Affidavit of defendant dated 05.04.2016 which is Ex.PW1/3.
4. Original Loan Agreement running into eight pages which is Ex.PW1/4.
5. Demand Notice dated 01.02.2021 which is Ex.PW1/5.
6. Original Postal receipt dated 02.02.2021 in respect of Demand Notice which is Ex.PW1/6.
In his cross examination by the Ld. Counsel for the defendant, the witness has deposed under under:
➢ That he has financed 3 or 4 vehicles to the defendant earlier.
➢ That he cannot tell the details of the vehicles financed by him.
➢ That he does not have any idea about the loan amount which was financed by him. ➢ That he does not remember if he had financed seven vehicles to the defendant bearing registration numbers i.e. HR74 2970, HR744311, HR55M9870, HR 55M3870, HR27D1398, HR55P2770 and RJ40UA2100.
➢ That he has financed Nawab for 2 to 3 vehicles but he does not remember the Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 10 of 36 details of the said vehicles nor does he remember the amount of the said vehicles. ➢ That the vehicle which is financed by him are already kept by him with reference number. ➢ That the agreement which was filed with the plaint and the original agreement Ex.PW1/4 are not same.
➢ That he signs all documents after careful reading of the same.
➢ That the documents which are placed on record from Page No. 27 to 42 bear his signatures and his stamp.
➢ That he financed the vehicle bearing No. HR55S0170 to Nawab either in 2013 or 2014 and Khursheed was the Guarantor. ➢ That the loan agreement Ex.PW1/4 was executed in his office on 01.04.2023 in the presence of his office staff as well as the parties and the Guarantor.
➢ That the details of the parties which were filled in the Agreement was made by his staff but he does not remember the names of the staff.
➢ That he cannot recall as to who had filled up the details in the first page of the agreement (Ex.PW1/4) and last page i.e. page no. 15 of the agreement and Schedule1.
➢ That he does remember who had filled up the blank space of page 1, 15 and 16 of the aforesaid agreement by use of pencil. ➢ That it is wrong that the space has been filledup by staff by using pencil. ➢ That the signatures on all the pages of the aforesaid agreement were put in his presence.
➢ That the adhesive stamp on the Loan Agreement (Ex.PW1/4 ) on the top side of first page was done in the Court by his staff. ➢ That he cannot tell the date and time when the stamp was put on the Loan Agreement. ➢ That the entire contents of the Loan Agreement (Ex.PW1/4) were already filled up when it was signed.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 11 of 36 ➢ That the space at Page No.2 in Clause (c) and Page No.6 Clause 2.1 sub clause (ii) of the Loan Agreement are blank but has voluntarily explained that the entire details are mentioned in the Schedule attached with the agreement and party has agreed, read over, understood and signed the same. ➢ That he had financed Rs.24,00,000/ to Nawab Khan.
➢ That he had deposited the same amount of Rs.24,00,000/ in the account of Nawab Khan and has voluntarily explained that he paid the same amount to the Truck Dealer as instructed by him (Nawab).
➢ That he does not remember the name of the Truck Dealer but he has carried receipt of the Truck Dealer concerned.
➢ That he transferred the aforesaid amount through cheque on the very next date of the execution of aforesaid agreement. ➢ That he has not filed any document related to the aforesaid amount of Rs.24,00,000/ in the case file.
➢ That he does not remember as to how many installments have been paid to him by Nawab Khan but he can tell the balance amount when he stopped making the payment. ➢ That he has given the details of the loan amount and receipts of the installments with the Income Tax Department.
➢ That he has got the Books of Account audited by the competent Chartered Accountant but he has not filed the same on record. ➢ That the defendant approached him somewhere in August 2020 for one time settlement of the loan amount.
➢ That Ex.PW1/3 was prepared in Kashmere Gate, Delhi.
➢ That it is wrong that Ex.PW1/3 is a false and fabricated which has been filed in the Court. ➢ That it is wrong that the defendant never approached him for one time settlement. ➢ That the cheque was given to him in the first week of September 2020 by the defendant Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 12 of 36 when he approached him for one time settlement.
➢ That it is wrong that the cheque Ex.PW1/1 was given as Security by the defendant at the time of finance of vehicles in 2010 to 2013. ➢ That it is wrong that he (witness) had filled the particulars of the cheque and had misused the cheque.
➢ That he does not have any other cheque except the cheque Ex.PW1/1 pertaining to the defendant.
➢ That there is a clause of Arbitration in the aforesaid Loan Agreement(Ex.PW1/4) but he did not invoke the arbitration clause against Nawab Khan since Nawab Khan had given the cheque which was dishonoured. ➢ That he did not initiate any proceedings of arbitration against the guarantor i.e. Juber and Khursheed.
➢ That Nawab Khan had given him a cheque in the year 2015 but he does not remember the day or month when it was given to him. ➢ That he has filed a case under Section 138 of NI Act against Nawab Khan.
➢ That the outstanding amount was Rs.17,54,000/ plus interest at the time of handing over the cheque by Nawab Khan to him and has explained that the cheque amount of Rs.21,65,000/ includes the interest also on the late payment of the installment.
➢ That it is wrong that vehicle bearing No. HR55S0170 was returned to him by Nawab Khan through Khursheed.
➢ That he had disclosed the rate of interest in the schedule of the agreement Ex.PW1/4 at the time of finance.
➢ That after going through the Agreement Ex.PW1/4 the witness could not show the rate of interest but has pointed out the interest amount in Schedule1 and explained that the rate of interest is immaterial since the interest amount is there.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 13 of 36 ➢ That he has not taken any License of Money Laundering and has voluntarily explained that it is not required in the case of proprietorship.
➢ That he has no license of NBFC (Non Banking Finance Company).
➢ That he did not sign on the Legal Notice dated 01.02.2021 (Ex.PW1/5) but the same was sent by his Advocate under his instructions.
➢ That it is wrong that the Legal Notice dated 01.02.2021 is forged, fabricated and manipulated document.
➢ That he does not remember the place where the affidavit Ex.PW1/A was signed by him but it could in his office.
➢ That the notice dated 01.02.2021 (Ex.PW1/5) and the original notice (which was permitted to be filed by this Court vide order dated 02.09.2023), are same.
➢ That it is wrong that there is no liability of Khursheed towards the loan amount (voluntarily explained that he had given cheque for the balance amount).
➢ That it is wrong that he has not annexed with the plaint, the postal receipt of the notice dated 01.02.2021 and Tracking Report of the same.
Defendant's Witness:
2 Khursheed DW1 Khursheed is the defendant himself who in his (DW1) examinationinchief by way of affidavit Ex.DW1/A has corroborated what has been earlier stated in the written statement.
In his cross examination by the Ld. Counsel for the plaintiff, the witness has deposed under under:
➢ That para 1 of his affidavit wherein gross abuse of process of law is written, is prepared by his counsel.
➢ That he does not understand the meaning of the sentence mentioned in para1 i.e. the Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 14 of 36 plaintiff has not approached this Court with clean hands.
➢ That the factum of the cheque given as security with respect to the finance of vehicle in 2013 has been concealed.
➢ That this case does not relate to the vehicle which was financed in the year 2013. ➢ That the vehicle was got financed by Nawab from the plaintiff and he (witness) was Guarantor of Nawab in the said finance but he did not say that in case of his default he will repay the amount.
➢ That the documents regarding the said agreement were executed.
➢ That he is not aware if Nawab had signed on the agreement.
➢ That the witness has denied his signature on the Loan Agreement dated 01.04.2013 and claimed that he is not known to Juber. ➢ That at the time of financing, the Loaner get the signatures of the Loanee on the loan documents.
➢ That he had signed the loan documents when he got financed the vehicles. ➢ That Nawab had also got financed the vehicle but he does not remember the registration number of the vehicle. ➢ That he did not accompany Nawab when this vehicle was financed.
➢ That Nawab might have signed the loan documents when he took the loan, but he is not aware of the same.
➢ That he (witness) stood guarantor for Nawab's Loan for the vehicle bearing registration No. HR55S0170 for which Nawab took loan from the plaintiff. ➢ That Guarantors also sign the loan documents and he might have signed the loan documents of Nawab when he stood guarantor for him.
➢ That it was 1st April 2013 when the loan was sanctioned for Nawab.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 15 of 36 ➢ That page 13 of the Written Statement as well as the Vakalatnama filed on his behalf, bear his signatures.
➢ That he had given security cheques to the plaintiff against the loan which was financed to him for his vehicles. ➢ That he had given 100 cheques of two accounts to the plaintiff but he does not remember the accounts number of the said cheques though they were of HDFC Bank. ➢ That there are two branches of the HDFC bank one at Sohna, Mewat and other branch is at Tapukara, District Alwar.
➢ That the aforesaid 100 cheques were signed only by him whereas rest of the particulars were filledup by the plaintiff. ➢ That he cannot tell the number of cheques relating to Sohna Branch of HDFC bank but the number of cheques given of Tapukara branch, HDFC Bank might be of 20 to 40. ➢ That he had paid the installments sometimes in cash and sometimes by way of cheques, in respect of the loan financed to him. ➢ That he did not fill the particulars of the said cheques except his signature.
➢ That the installments paid by him through cheque used to be some time Rupees one lacs and some times Rupees Ninety Three Thousand but he cannot recall rest of the amount of the installments paid by him. ➢ That it is wrong that the amount of the cheque used to be filled in cheque at the time of giving it for payment of installments. ➢ That he has not mentioned in the Written Statement about issuing 100 blank cheques to the Plaintiff and also about the two branches of the Bank, which facts are also not mentioned in his affidavit of evidence which is Ex.DW1/A. ➢ That he had cleared his last loan repayment within two and half years of 2013 but he does not remember the exact date, month and year though it was 2016 or 2017 (again stated that he asked for return of said Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 16 of 36 cheques till the year 2019 but the said cheques were not returned.
➢ That the plaintiff told him that the said cheques were deposited in his (plaintiff's) Bank.
➢ That when the cheques which were deposited by the Plaintiff in his account, the amounts were debited from his (witness's) account. ➢ That all the said cheques were given by him for payment of installments of the loan advanced to him.
➢ That he did not serve any notice upon the Plaintiff asking him to return the security cheques mentioned in para 4 of his evidence affidavit.
➢ That he did not lodge any complaint in police regarding not returning the said cheques.
➢ That he did not report to his Bank not to encash the said cheques.
➢ It is wrong that he did not lodge any complaint because no security cheques had been taken by the Plaintiff.
➢ That he did not handover the vehicle bearing No. HR 55S 0170 financed to Nawab to the Plaintiff but it was handed over by Nawab to the Plaintiff.
➢ That the said vehicle was not handed over through him (witness).
➢ That the vehicle was handed over by Nawab through him (witness) as mentioned in para 5 of Evidence Affidavit.
➢ That his statement given on the date of his crossexamination is correct.
➢ That the said cheques were indeed misused. ➢ That when Nawab had handed over the vehicle to the Plaintiff, there was no question of using the security cheques given to the Plaintiff.
➢ That it is wrong that he visited the Plaintiff on 05.04.2016 and told him that the vehicle financed to Nawab had been taken by him (witness) from him (Nawab) and he (witness) will be responsible for the remaining Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 17 of 36 installment of the said vehicle.
➢ That it is wrong that he had given an Affidavit (Declaration) Ex.PW1/3 to the Plaintiff on 05.04.2016 taking responsibility of the remaining installments of the said vehicle.
➢ That it is wrong that Ex.PW1/3 bears his signatures at point A and he is deliberately denying giving of the said Affidavit and his signatures thereon.
➢ That the installments dated 12.04.2016, 29.06.2016, 01.08.2016, 16.03.2017, 21.10.2016, 14.02.2017, 30.05.2017, 25.07.2017 and 08.09.2017 were paid by him out of which four were paid in cash and five were paid through cheques from his account. ➢ That the said vehicle was engaged at his crusher plant installed at his land by somebody, therefore the said proceed of the vehicles involved in the loading and unloading of the stones used to be credited in his account hence, the aforesaid payments of cash and his cheque were credited from his account.
➢ That he did not pay any installment after the installment of 08.09,2017.
➢ That it is wrong that the financed vehicle by Nawab was not returned by him (witness) to the Plaintiff.
➢ That it is wrong that after the payment of installments dated 08.09.2017, the plaintiff many times requested him to clear the remaining amount of the finance.
➢ That it is wrong that he (witness) visited to Plaintiff in September 2020 and handed over a cheque of Rs.24 lacs of the remaining amount of finance to the Plaintiff.
➢ That his account is in HDFC Bank Branch at Tapukara, District Alwar with account number 25981000002183 in the said Bank.
➢ That Ex.PW1/1 is his cheque.
➢ That his address is Village Nibhaheri, Tapkania ki Dhani, Tehsil Tijara, District Alwar, Rajasthan.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 18 of 36 ➢ That any letter sent to this address would be received by him, if sent.
➢ That he did not receive Ex.PW1/5.
➢ That he cannot say if any writing was effected regarding handing over the vehicle to the Plaintiff.
FINDINGS AND OBSERVATIONS:
(13) I have heard the arguments advanced before me by the Ld. Counsel for the plaintiff and considered the written memorandum of arguments filed on behalf of the plaintiff. In support of his arguments, Ld. Counsel for the defendant has placed his reliance upon the following judgments:
A) Suman Goel & Anr. Vs. Sanjeev Kumar Jain, RFA No. 98/2018 decided on 05.02.2018 (Delhi High Court).
B) Renu Aggarwal & Anr. Vs. Baldev Raj Sachdeva, RFA No. 474/2017 & RSA No. 30/2018, decided on 16.10.2018 (Delhi High Court).
C) Sudhir Jain Vs. R.P. Mittal, Civil Suit (OS) No. 386/2012 decided on 04.08.2023 (Delhi High Court). D) A. Gangadhara Rao Vs. G. Gangarao, reported ini AIR 1968 Andhra Pradesh 291.
E) Moinuddin Vs. Imam Uddin reported in AIR 1972 Allahabad 25.
F) S. Rathinaswamy & Ors. Vs. Smt. S. Bhanumathi & Ors. reported in AIR 2006 Madras 221.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 19 of 36 G) M/s. Alliance Infrastructure Project Pvt. Ltd. & Ors. Vs. Vinay Mittal in Crl. MC No. 2224/2009 decided on 18.01.2010.
(14) I have gone through the above judgments. My findings on the various issues are as under:
Issue No.1: Whether the present suit is bad for nonjoinder of necessary parties, as alleged by the defendant in Para 2 of Written Statement? (OPD) (15) Onus of proving this issue was upon the defendant Khursheed who in his written statement has raised a preliminary objection that the suit of the plaintiff is bad for nonjoinder of necessary parties i.e. Nawab who took the loan from the plaintiff whereas the defendant was only the Guarantor in the said loan. (16) In this regard, I may observe that admittedly the loan was taken from the plaintiff by one Nawab and the defendant Khursheed along with one Juber stood as Guarantors in the loan.
The defendant has admitted having signed the loan agreement as Guarantor. It is also evident from the record that in so far as Nawab is concerned, the plaintiff has filed a case under Section 138 of NI Act against Nawab in the year 2015 vide Case No. 2125/2015 (New Case No. 515981/2016). It is a settled law that the liability of the Guarantor is joint and several along with the principal debtor for whom he stands as Guarantor. It is the choice of the plaintiff to seek recovery either from the principal borrower or the Guarantor or from both. Therefore, I hold that Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 20 of 36 the suit of the plaintiff is not bad for nonjoinder of necessary party.
(17) Issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue No.2: Whether the plaintiff is entitled to the recovery of the principal amount, as asked for in the plaint?
(OPP) Issue No.3: In case if issue no.2 is decided in affirmative, whether the plaintiff is entitled for any interest, as asked for in the plaint? (OPP) (18) Both the above issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the plaintiff.
(19) The case of the plaintiff Pratap Singh is that he is the Sole Proprietor of the firm M/s. Pratapshree Finance Company which is engaged in the business of finance and one Nawab son of Kalu Khan had approached him to finance a vehicle bearing registration No. HR55S0170 and after negotiations the plaintiff had financed the said vehicle pursuant to which a loan cum hypothecation agreement was executed between the plaintiff and Nawab. According to the plaintiff, the defendant Khursheed had signed the said loan cum hypothecation agreement as a Guarantor for repayment of the said loan and it was agreed by the defendant that in case of non payment of monthly installments by Nawab, he (defendant Khursheed) would make the payment of the same in favour of the plaintiff. It is also the case of the Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 21 of 36 plaintiff that after availing he said loan facility, Nawab failed to maintain financial discipline and committed defaults in making the payment of monthly installments and the defendant Khursheed approached the plaintiff informing him that he had taken the possession of the financed vehicle from Nawab and he would make the payment of monthly installments in favour of the plaintiff. According to the plaintiff, the defendant had also furnished an affidavit/ declaration to the plaintiff in this regard and the plaintiff agreed to the said proposal of the defendant. The case of the plaintiff is that the defendant approached him and requested for one time settlement and after negotiations, it was agreed that the defendant would make a payment of Rs.24,00,000/ against the said loan transaction and after receiving the payment, the plaintiff would issue a No Objection Certificate in the name of the defendant for getting the said vehicle transferred in his name with the Transport Department and pursuant to the said settlement, the defendant had issued a cheque of Rs.24,00,000/ vide cheque bearing No. 000076 dated 09.09.2020 drawn on HDFC Bank, Alwar Bypass, Opposite Post Office, Tapukera, Rajasthan. According to the plaintiff, when he presented the said cheque for encashment with his bank, the same was received back vide returning memo dated 23.09.2020 with the remarks "The Instrument cannot be Scanned under UV Lamp as the Logo of Drawee Bank (HDFC) is not visible". It is further the case of the plaintiff that thereafter the defendant avoided the issue on one pretext or the other and failed to make the payment against the dishonored Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 22 of 36 cheque after which the plaintiff got issued a legal demand notice dated 01.02.2021 to the defendant but the defendant has failed to comply with the said notice till date and hence, the present suit. (20) On the other hand the case of the defendant Khursheed is that the plaintiff had financed seven vehicles bearing No. HR 742970, HR744311, HR55N9870, HR55N3870, HR27D 1398, HR55P2770 and RJ40UA2100 for him from 2010 to 2013 and whenever the plaintiff financed the defendant, the plaintiff had taken security cheques against the said loans. According to the defendant, he has already repaid the loan amount to the plaintiff has no other liability towards the plaintiff and clearing all the loan amounts, when he asked the plaintiff to return the said security cheques the plaintiff refused to return the said cheques on one pretext or the other. It is also the case of the defendant that on 01.04.2013 his friend Nawab took loan from the plaintiff in which the defendant was made Guarantor and the financed vehicle bearing No. HR55S0170 was handed over to the plaintiff by Nawab through defendant. It is alleged that the plaintiff has misused the security cheque of the defendant which were given by the defendant to the plaintiff as security cheques at the time of loan agreement between plaintiff and the defendant. According to the defendant, he has not issued any cheque to the plaintiff as guarantor of Nawab and has never agreed nor gave his consent either in writing or oral that he will repay the loan amount in case if Nawab failed to repay the loan amount. The defendant has also denied the alleged affidavit/ declaration dated 05.04.2016 and claimed that the same is false, forged and Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 23 of 36 fabricated document.
(21) In order to prove his case the plaintiff Pratap Singh has examined himself as his sole witness as PW1. On the other hand, the defendant Khursheed has examined himself as his sole witness as DW1.
(22) I have gone through the records of the case and the testimonies of the witnesses examined by the parties. At the very Outset, I may observe that the plaintiff has filed the present suit against the defendant for recovery of Rs.26,16,000/ along with pendentelite and future interest on the ground that the defendant had issued a Cheque for a sum of Rs.24,00,000/ which got dishonoured. Here, I may note that the provisions of Section 2 (1) (c) of Commercial Courts Act, 2015 are very clear which reads as under:
(c) "commercial dispute" means a dispute arising out of
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 24 of 36 outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum;
(xx) insurance and reinsurance; (xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
(23) The provisions of Section 2 (1) (c) of Commercial Courts Act as above are very much clear. (24) The provisions of Section 2 (1) (c) of Commercial Courts Act as above are very much clear. It includes ordinary transactions of merchants, bankers, financiers and traders etc. In the present case, the plaintiff claims himself to be the Sole Proprietor of a Finance Company i.e. M/s. Pratapshree Finance Company. Therefore, the facts which alleged in the plaint comes under the commercial dispute. (25) Secondly, with regard to the Pecuniary Jurisdiction to adjudicate the matter which is in dispute, reliance is placed upon the provisions of Section 3 of Commercial Courts Act, 2015 which provides that:
Section 3: Constitution of Commercial Courts:
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 25 of 36 number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.] (26) Admittedly, the Commercial Court Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs.3,00,000/. In the present case, the claim amount which shown in the plaint is of Rs.26,16,000/ and hence, this court has the pecuniary jurisdiction to adjudicate upon the issues in dispute.
(27) Thirdly, I note that this court has the Territorial Jurisdiction to try the present suit since as per the record the plaintiff Pratap Singh is running his Proprietorship firm i.e. M/s.
Pratapshree Finance Company from the premises bearing No. 2717, Kashmere Gate, Delhi110006 which falls within the jurisdiction of this Court.
Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 26 of 36 (28) Fourthly, in so far as the aspect of Limitation is concerned, I note that as per the documents on record the cheque in question Ex.PW1/1 was returned by the bank vide Cheque Return Memo dated 23.09.2020 which is Ex.PW1/2. The limitation for filing the present suit started to run w.e.f. 23.09.2020 when the said cheque was returned by the bank. Therefore, the suit having been filed on 05.10.2021 is within the period of Limitation.
(29) Fifthly, a perusal of the record shows that before filing the present suit, the preinstitution mediation proceedings were initiated by the plaintiff. The NonStarter Report dated 07.09.2021 shows that notices were issued to the defendant for 19.04.2021 and 06.08.2021. As per the Non Starter Report, the notices were undelivered as a result of which the Non Starter Report was issued.
(30) Sixthly, in his testimony the plaintiff Pratap Singh (PW1) has placed his reliance upon the various documents i.e. the Cheque bearing No. 000076 dated 09.09.2020 issued by the defendant which is Ex.PW1/1; Original Cheque Return Memo dated 23.09.2020 which is Ex.PW1/2; Affidavit executed by the defendant on 05.04.2016 which is Ex.PW1/3; original loan agreement containing which is Ex.PW1/4; Demand notice which is Ex.PW1/5 and original postal receipt which is Ex.PW1/6. (31) In his crossexamination, the plaintiff Pratap Singh (PW1) has admitted that the agreement which was filed with the plaint and the original agreement Ex.PW1/4 are not Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 27 of 36 same. According to him, the loan agreement Ex.PW1/4 was executed in his office on 01.04.2023 in the presence of his office staff as well as the parties and the Guarantor and the details of the parties which were filled in the Agreement was done by his staff but he does not remember the names of the staff. He does not remember as to who had filled up the details in the first page of the agreement Ex.PW1/4 and last page i.e. page no. 15 of the agreement and Schedule1. He also does remember who had filled up the blank space of page 1, 15 and 16 of the aforesaid agreement by use of pencil. The plaintiff has admitted that he has not taken any License of Money Laundering and has explained that it is not required in the case of proprietorship. He has further admitted that he has no license of NBFC (Non Banking Finance Company). According to him, he had financed Rs.24,00,000/ to Nawab Khan and has explained that he had paid the same amount to the Truck Dealer as instructed by him (Nawab). He has admitted that he has not filed any document related to the aforesaid amount of Rs.24,00,000/ in the case file. He does not remember as to how many installments have been paid to him by Nawab Khan but he can tell the balance amount when he stopped making the payment. The plaintiff has also explained that the defendant had approached him somewhere in August 2020 for one time settlement of the loan amount and the cheque was given to him by the defendant in the first week of September 2020. He has specifically denied that Ex.PW1/3 is a false and fabricated document and that the cheque Ex.PW1/1 Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 28 of 36 was given as Security by the defendant at the time of finance of vehicles in 2010 to 2013 which he had misused. According to him, he does not have any other cheque except the cheque Ex.PW1/1 pertaining to the defendant. The plaintiff has admitted that there is a clause of Arbitration in the Loan Agreement Ex.PW1/4 but he did not invoke the arbitration clause against Nawab Khan since Nawab Khan had given the cheque which was dishonoured. He has further explained that the outstanding amount was Rs.17,54,000/ plus interest at the time of handing over the cheque by Nawab Khan to him and the cheque amount of Rs.21,65,000/ includes the interest also on the late payment of the installment.
(32) Seventhly, in so far as the defendant Khursheed (DW1) is concerned, he has not placed his reliance upon any documents in his examination in chief by way of affidavit. In his crossexamination the defendant has admitted that the vehicle was got financed by Nawab from the plaintiff and he was Guarantor of Nawab in the said finance. Initially the defendant has denied his signature on the Loan Agreement dated 01.04.2013 but lateron stated that he might have signed the loan documents of Nawab when he stood guarantor for him. Further, the defendant has taken a contradictory stand. On the one hand he claims that he stood as a Guarantor for Nawab whereas on the other hand he stated that he did not accompany Nawab when this vehicle was financed which is not possible. Further, he has been most evasive on material aspects. Though he has testified that he Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 29 of 36 had given 100 security cheques to the plaintiff against the loan which was financed to him for his vehicles but at the same time he states that he does not remember the details of the accounts number of the said cheques of HDFC Bank which is not believable. According to the defendant, he had cleared his last loan repayment within two and half years of 2013 but does not remember the exact date, month and year. He has admitted that he did not serve any notice upon the Plaintiff asking him to return the security cheques mentioned in para 4 of his affidavit of evidence. He has also admitted that he did not lodge any complaint in police regarding not returning the said cheques nor did he report to his Bank not to encash the said cheques. The defendant has again taken contradictory stands on the aspect of handing over of vehicle to the plaintiff. At one place he states that he did not handover the vehicle bearing No. HR55S0170 financed to Nawab to the Plaintiff but it was handed over by Nawab to the Plaintiff, whereas at another place he states that the said vehicle was not handed over through him. Here, I note that in para 5 of his affidavit of evidence he claimed that the vehicle was handed over by Nawab through him (witness). The defendant Khursheed has specifically admitted that the installments dated 12.04.2016, 29.06.2016, 01.08.2016, 16.03.2017, 21.10.2016, 14.02.2017, 30.05.2017, 25.07.2017 and 08.09.2017 were paid by him out of which four were paid in cash and five were paid through cheques from his account. He has explained that the said vehicle (i.e. the financed vehicle in Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 30 of 36 the present case) was engaged at his crusher plant installed at his land by somebody, therefore the said proceed of the vehicles involved in the loading and unloading of the stones used to be credited in his account and hence, the aforesaid payments of cash and cheque were credited from his account. (33) Eighthly, it is writ large from the testimony of the defendant Khursheed (DW1) that he has admitted having stood as Guarantor in the loan agreement Ex.PW1/4 executed between the plaintiff and Nawab. The defendant has also admitted having issued the cheque in question Ex.PW1/1 to the plaintiff. In fact, it is an admitted case of the defendant that the plaintiff had financed him seven vehicles and at that time he had given 100 cheques to the plaintiff. The short dispute which now remains is that whether the said cheque given by the defendant to the plaintiff was in lieu of one time settlement in respect of the loan agreement in question which is Ex.PW1/4 or it was only one of the security cheques given by the defendant to the plaintiff at the time of financing the seven vehicles, which was misused by the plaintiff. In this regard, I may note that according to the defendant he had cleared his last loan repayment within two and half years of 2013 and kept on asking the plaintiff to return the cheques till the year 2019 which the plaintiff did not return. However, the defendant did not lodge any complaint to the police regarding not returning of the said cheques by the plaintiff nor the defendant informed his bank not to encash the said cheques. It is also an admitted case of the defendant that he did Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 31 of 36 not serve any notice to the Plaintiff asking him to return the security cheques. It is unbelievable that a person who had come to know about the alleged misuse of the security cheques, would not lodge any complaint with the police nor take initiate any legal proceedings against the said misuse nor he informed his banker about the said misuse and asked them to stop the payments. (34) Ninethly, it is argued by the Ld. Counsel for the defendant that the plaintiff is required to obtain a license from the competent authority under Section 4 of the Punjab Registration of Money Lenders Act, 1938 which he has failed to do and hence, the suit is liable to be dismissed under Section 3 of the Punjab Registration of Money Lenders Act, 1938. In this regard, I may note that the defendant having admitted that the plaintiff had financed seven vehicles for him during the years 2010 to 2013, now it does not lie in the mouth of the defendant to claim that the plaintiff is not a registered financier. (35) Tenthly, the defendant has also raised a ground that despite there being an arbitration clause in the agreement, the plaintiff did not initiate any arbitration proceedings against the defendant. In this regard, I may note that it is an admitted case of the plaintiff Pratap Singh (PW1) that there is an arbitration clause in the agreement Ex.PW1/4 and has explained that he did not initiate the arbitration proceedings since Nawab Khan had given the cheque which was dishonoured.
(36) Eleventhly, in so far as the declaration/ affidavit dated 05.04.2016 which is Ex.PW1/3 is concerned, the defendant Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 32 of 36 Khurhseed claimed that the same is a forged and fabricated document and has denied his signatures over the same. I have gone through the said Declaration/ Affidavit dated 05.04.2016 which reads as under:
".... Main, Khursheed putr Shri Ruzdaar, Gaon Tapkania Ki Dhani, Nimbaheri, Tehsil Tijara, Jila Alwar, Rajasthan ka sthayi niwasi hoon aur shapathpurvak ghoshna karta hoon:
1. Yeh ki gaadi No. HR55S0170 jo Nawab Putr Shri Kalu Khan ke naam se hai. Yeh gaadi mere paas hai aur es gaadi ka asli maalik main hi hoon.
2. Aaj dinank 5.4.2016 ko yeh tay hua hai ki es gaadi ki kist rupay saath hazar mahine ke hisab se doonga, ho sakta hai main beech mein jyada bhi de doon tatha is gaadi mein rupay 17,54,000/ bakaya hai. Sath me compensation charges sab jo banega vah main pura 18 mahino me August 2017 tak es gaadi ka clear kar doonga.
3. Yeh main upar likhi sabhi sharton ka palan karoonga or uprokt vivran meri jaankari me sahi hai...."
(37) Though the defendant has vaguely denied his signatures over the same yet a bare comparison of the signatures of the defendant appearing on his affidavit of evidence and his testimony with the signatures appearing on this affidavit/ declaration primafacie show that they are apparently matching with each other when compared with naked eye. The defendant having denied his signatures on the said affidavit/ declaration, it was necessary for him to get the said document examined from a Handwriting Expert which he has failed to do. The plaintiff Pratap Singh has placed on record the cheque bearing the Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 33 of 36 signatures of the defendant which is Ex.PW1/1 and the affidavit/ declaration Ex.PW1/3 both bearing the signatures of the defendant Khursheed, which the defendant has not been able to rebut in accordance with law.
(38) Twelfthly, it is also the case of the defendant Khursheed that the vehicle in question was handed over to the plaintiff by Nawab. However, the defendant Khursheed (DW1) has admitted that the installments dated 12.04.2016, 29.06.2016, 01.08.2016, 16.03.2017, 21.10.2016, 14.02.2017, 30.05.2017, 25.07.2017 and 08.09.2017 were paid by him out of which four were paid in cash and five were paid through cheques from his account. He has not explained in respect of which vehicle he has made the payment of above installments. Rather, he has testified that said vehicle (meaning thereby the financed vehicle in the present case) was engaged at his crusher plant installed at his land by somebody, therefore the said proceed of the vehicles involved in the loading and unloading of the stones used to be credited in his account and hence, the aforesaid payments of cash and cheque were credited from his account. This explanation given by the defendant is not probable or plausible. If the vehicle in question was handed over to the plaintiff as claimed by the defendant, there would be no reason for the defendant to have make the payments of the above installments.
(39) Thirteenthly, the plaintiff has duly proved the cheque for a sum of Rs.24,00,000/ issued by the defendant which is Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 34 of 36 Ex.PW1/1; the cheque returning memo which is Ex.PW1/2 which are duly corroborated from the Affidavit/ Declaration of the defendant which is Ex.PW1/3, which the defendant has not been able to rebut or controvert. Though the plaintiff is claiming recovery of Rs.24,00,000/ from the defendant, yet it is an admitted case of the plaintiff that as on 05.04.2016 a sum of Rs.17,54,000/ was due in respect of the loan amount of vehicle No. HR55S0170. I, therefore, hold that the plaintiff is entitled to recovery of Rs.17,54,000/ from the defendant Khursheed. (40) Lastly, in so far as the interest on the principal amount is concerned, the plaintiff is claiming the interest @ 18% per annum. In my considered view the rate of interest of 18% is excessive and hence, in the interest of justice, the plaintiff is held entitled to the recovery of principal amount of Rs.17,54,000/ along with interest @ 6% per annum from the date of filing of the suit till realization.
(41) Both the issues are accordingly decided in favour of the plaintiff and against the defendant.
CONCLUSIONS & RELIEF:
(42) In view of my findings on the various issues, I hereby hold that the plaintiff is entitled to following reliefs:
A) That the plaintiff is entitled to recovery of principal amount of Rs.17,54,000/ from the defendant. B) That the plaintiff is entitled to the recovery of principal outstanding amount of Rs.17,54,000/ along with Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 35 of 36 interest @ 6% per annum from the date of filing of the suit till realization.
(43) Suit of the plaintiff is accordingly Decreed. Parties to bear their own costs. Decree Sheet be prepared accordingly. (44) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 25.10.2023 District Judge (Commercial Court)02, Central, Tis Hazari Courts, Delhi Pratap Singh Vs. Khursheed. CS (Comm.) No. 3931/2021 Judgment dated 25.10.2023 Page No. 36 of 36