Delhi District Court
Sh. Pavit Singh vs Ekta Bhatt on 26 August, 2022
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-
02, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
Presiding Judge: Sh. Dinesh Kumar
In the matter of
Suit No. 6958/16
Filing No. 3318/2015
CNR No. DLST01-001207-2015
Sh. Pavit Singh
S/o Sh. Satbir Singh,
R/o RZ-56, Chandan Colony
Saidulajab, New Delhi.
................Plaintiff
Versus
Ekta Bhatt
D/o. Sh. Vishal Mani Bhatt
R/o. F-61, Road No.2,
Andrews Ganj, New Delhi
.............Defendant
Date of Institution : 30.01.2015
Date of reserving judgment : 12.08.2022
Date of pronouncement : 26.08.2022
Decision : Suit Dismissed
CS DJ No.6958/2016
Pavit Singh Vs. Ekta Bhatt
Page 1 of 23
Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022
SUIT FOR RECOVERY OF RS.10,00,000/- (RS. TEN LACS
ONLY)
JUDGMENT
1. Vide this order I shall disposes of the Civil Suit filed by the plaintiff for recovery of Rs.10,00,000/-. The brief facts of the case as per plaint are as under:-
1.1. The plaintiff and defendant are known to each other and they were friends. The defendant was in need of money and she requested the plaintiff for a friendly loan of Rs. 8,00,000/-. The plaintiff gave the said amount in cash to the defendant on 26.06.2014. On the same day the defendant also took the accessories like mobile phone, jewellary etc. valuing Rs. 2,00,000/-. 1.2. The defendant also executed a promissory note and duly signed the same on 26.06.2014 for returning of the said sum of Rs.10,00,000/- and promised to return the same within 6 months from the date of executing the promissory note.
1.3. The defendant did not pay the amount within the stipulated period. Hence, the plaintiff issued a notice dated 30.10.2014 to the defendant asking her to make the payment. However, the defendant did not make the CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 2 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 payment despite service of legal notice. Hence, the present suit was filed by the plaintiff seeking recovery of Rs. 10,00,000/- from the defendant with the following prayer.
"a decree for recovery of Rs. 10,00,000/- may pleased be passed favour of the plaintiff and against the defendant".
" costs of the suit be also awarded in favour of the plaintiff and against the defendant".
"a pass any other order(s)/ relief(s), as this Hon'ble Court deems fit and proper be passed in favour of the plaintiff and against the defendants, in the interest of justice".
2. The plaintiff filed the present suit as a summary suit under Order XXXVII CPC. The summons for appearance were issued to the defendant in the prescribed format. The defendant appeared and filed memo of appearance for summons for judgment. On an application of the plaintiff, summons for judgment were issued. The defendant filed an application seeking leave to defend. The plaintiff filed reply to the application. After hearing the arguments of the parties, vide order dated 10.06.2016, the CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 3 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 Court allowed the application seeking leave to defend the suit unconditionally. The plaintiff filed an application under Order XLVII Rule 1 CPC r/w Section 114 CPC for review of the order dated 10.06.2016. Vide order dated 16.11.2017 Ld. Predecessor allowed the said application and reviewed the Order of unconditional leave to defend. The defendant was granted leave to defend the suit subject to furnishing surety worth Rs.5 lacs in the Court. The defendant filed an appeal against the said Order. Vide order dated 15.03.2018 Hon'ble Delhi High Court in FAO 46/2018 modified the Order dated 16.11.2017 directing the defendant to deposit Rs.3 lacs instead of Rs.5 lacs for conditional leave to defend. The said FDR was deposited by the defendant in the Court on 19.04.2018.
3. The defendant filed her written statement. The defendant has contested the present suit on the basis of following grounds:-
3.1. The present suit is barred by limitation. The plaint does not disclose any cause of action. The plaintiff has filed the present suit on the basis of a forged and fabricated document alleged to be a promissory note.
However, it is not a promissory note as per the law. The CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 4 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 plaintiff has made contradictory statements at different places. In the application for summons for judgment and affidavit filed alongwith it, he is claiming that he had paid Rs. 10,00,000/- to the defendant on 26.06.2014. However, in the alleged note, the date of loan is year 2010. The plaintiff changed his stand after receiving the application for leave to defend. In his reply to the said application, the plaintiff has stated that the note records that Rs. 8,00,000/- had been taken by the defendant from the plaintiff since 2010 till 26.06.2014. Again in his plaint, the plaintiff has mentioned that he is claiming recovery of Rs. 10,00,000/- from the defendant. However, in his reply to the application seeking leave to defend, he has stated that he was claiming Rs. 8,00,000/- and not Rs. 10,00,000/-. 3.2. The plaintiff has not produced any source of the funds as to how he arranged such a huge amount. The alleged promissory note is not properly stamped as per section 35 of the Stamp Act and therefore, it cannot be read in evidence.
3.3. The defendant is a victim of well planned conspiracy hatched by the plaintiff. The defendant had met with the plaintiff for the first time in the year 2010 at Institute of Home Economics situated at Hauz Khas CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 5 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 where the defendant was studying and the plaintiff used to supply books and other study materials. In the year 2014, the defendant met with the plaintiff in Saket Court where she had come to attend a case bearing FIR No. 45/2013 PS Defence Colony. The plaintiff told the defendant that he had good connections with lawyers, judges and media persons and that he would help the defendant. The defendant handed over all the documents of her case to the plaintiff on his assurance. On 26.06.2014, the plaintiff called the defendant at East of Kailash stating that he has an office in East of Kailash where senior lawyers and retired judges were coming, who would help her in her case. The defendant reached at East of Kailash bus stop and met with the plaintiff. However, the plaintiff instead of taking her to his office, took her to Solace Hotel, East of Kailash under the pretext that all the said persons were coming at the hotel. The plaintiff took the defendant in a room in the hotel. The plaintiff closed the door and misbehaved and molested the defendant. When the defendant opposed this, the plaintiff forced her to write the alleged papers dated 26.06.2014. The defendant saved herself from the clutches of the plaintiff. She did not share this incident with anyone including her parents as she did CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 6 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 not want to involve in any new litigation as she was facing previous litigation.
3.4. The plaintiff is a habitual litigant. He files false and frivolous cases against the public persons when they fail to fulfil his illegal demand. The plaintiff and his father had filed number of writ petitions before the Hon'ble High Court of Delhi against the person, who did not fulfil their illegal demands. Various FIR have been registered against them.
3.5. The plaintiff has made false allegations against the defendant in his suit. Nothing is due and payable to the plaintiff by the defendant. Hence, it is prayed that the suit may be dismissed.
4. The plaintiff filed the replication to the written statement in which he has denied the allegations made by the defendant and reiterated the facts stated by him in the plaint.
5. On the basis of the pleadings of the parties, vide order dated 30.01.2018, the following issues were framed.
a) Whether the plaintiff is entitled to seek recovery of Rs. 10,00,000/- from the defendant on the basis of document dated 06.06.2014 which the plaintiff contends to be a promissory note, CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 7 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 having been executed by the defendant? OPP
b) Whether the defendant was forced to execute the document dated 26.06.2014 under duress of the plaintiff, and hence is not entitled to recover any amount whatsoever?OPD
c) Whether the suit claim, or part of it is barred by law of limitation? OPP
d) Relief.
6. The plaintiff was asked to lead the evidence. The plaintiff examined himself as PW1. He tendered his evidence by way of affidavit Ex.PW1/A. He reiterated the facts mentioned in the plaint. He has relied upon the following documents :
a) Original promissory note dated 26.06.2014 executed by defendant as Ex.PW1/1.
b) Letter/ legal notice dated 30.10.2014 alongwith postal receipts as Ex. PW1/2 (colly).
c) Legal notice dated 17.12.2014 alongwith postal receipts as Ex.PW1/3 (colly).CS DJ No.6958/2016
Pavit Singh Vs. Ekta Bhatt Page 8 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022
d) Legal notice dated 06.01.2015 alongwith postal receipts as Ex.PW1/4.
7. The witness was duly cross examined by Ld. Counsel for the defendant. The plaintiff did not examine any other witness. Therefore, PE was closed at his statement. The defendant examined herself as DW1. Sh e tendered her evidence by way of affidavit Ex.DW1/A. She reiterated the facts mentioned in the written statement. She has relied upon the document i.e. copy of FIR no. 45/2013, PS Defence Colony is Ex. DW1/1.
8. The DW1 was duly cross examined by the Ld. Counsel for the plaintiff. The defendant did not examine any other witness. Therefore, the DE was closed and the matter was fixed for final arguments.
9. Ld. Counsel for the plaintiff would argue that the plaintiff has proved his case against the defendant. The defendant has admitted that the document Ex.PW1/1 was written by her in her handwriting. She has taken the defence that it was got signed from her forcibly. However, she has not bring any evidence to prove the said fact. She did not make any complaint despite expiry of more than 8 years. Therefore, it is shown that she has taken a false plea of the force. Further the defendant is a habitual complainant. There was a previous FIR CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 9 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 registered against her. The suit is within limitation. The plaintiff had advanced the loan in cash between the period started from year 2010 till 26.06.2014. Apart from the cash she had also borrowed accessories worth Rs.2 lacs that includes mobile phone and jewellery. In lieu of the same she had executed the promissory note Ex.PW1/1 on 26.06.2014 wherein she promised to pay back the loan within 6 months of executing of the documents. The plaintiff had issued two legal notices to the defendant which are Ex.PW1/2 and Ex.PW1/3. However no acknowledgments of the notices was received. Therefore the plaintiff had issued the notice dated 06.01.2015 which is Ex.PW1/4 (colly). The notice was duly served however the defendant did not reply to the notice. The present suit was filed by the plaintiff within the limitation period. Hence, the plaintiff has proved that the defendant is liable to pay the amount of Rs.10 lacs with interest. Therefore, it is prayed that the suit of the plaintiff may be decreed.
10. Ld. Counsel for the defendant on the other hand would argue that the plaintiff has failed to prove his case against the defendant. The document Ex.PW1/1 is not a promissory note. It was got signed by the plaintiff from the defendant forcibly under duress. The document does not show that the plaintiff had paid Rs.8 lacs to the defendant on CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 10 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 26.06.2014 as claimed by him. The plaintiff has taken contradictory stand at different stages in the present matter. The plaintiff has failed to show the source of the funds and his capacity to pay such a heavy amount. The plaintiff has claimed that he had paid the amount in cash which is not permissible under the law. Therefore adverse inference may be drawn against him. In the document Ex.PW1/1 it is mentioned that the defendant had taken near about Rs.8 lacs since 2010. There is no proof produced by the plaintiff regarding the said payment. Even if the said fact is presumed to be true, the plaintiff has filed the present suit in the year 2016 i.e. after expiry of the limitation period. Hence, the suit of the plaintiff is liable to be dismissed on that ground alone. There are material contradictions at different places made by the plaintiff. The plaintiff in his plaint as well as in his affidavit in evidence Ex.PW1/A has stated that he had given a friendly loan of Rs.8 lacs to the defendant on 26.06.2014 and on the same day the defendant had taken accessories like mobile phone, jewelleries valued Rs.2 lacs. He has also stated that on the same day the defendant had executed the promissory notes Ex.PW1/1. However, in the Ex.PW1/1 it is written that near about Rs.8 lacs were taken since 2010 which is contradictory to the stand taken by the plaintiff. In the legal notice dated CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 11 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 06.01.2015 and in an application for summons for judgment, the plaintiff had stated that on 26.01.2014 he had given Rs.10 lacs to the defendant which is contrary to his pleadings. He again changed his reply to the leave to defend application, wherein he would state that the defendant had taken Rs.8 lacs since 2010 till 26.06.2014, which is contradictory to the pleadings in the present suit. In his cross examination dated 14.10.2019 the plaintiff would state that he had not given any loan in the year 2010, 2011, 2012 and 2013. He would also state that he had given the entire loan amount of Rs. 8 lacs in cash on 26.06.2014. He would also state that the contents of promissory note Ex.PW1/1 were wrong as he had not given any loan to the defendant before the year 2014. Thus the plaintiff himself is not relying upon the document Ex.PW1/1 as he has stated on oath that the contents of the documents were wrong. The plaintiff has a long history of crime. He had become friend of the defendant. He had taken the defendant to a hotel in East of Kailash under the pretext of introducing her to some senior Lawyers, Judges etc. There he had misbehaved with the defendant and molested her. He had forced the defendant to write the document Ex.PW1/1. Therefore, the defendant had executed the said document under force and she is not bound by the contents of the documents. She had not CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 12 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 informed her family members under the fear of damage to her reputation. The cash transactions above Rs.20,000/- are not permissible under the law as per Section 269SS of the Income Tax Act. The plaintiff has not produced his ITR to show that he was having such a huge amount in his possession at the relevant time and that he had the capacity to pay the loan amount. He had taken time from the Court to produce his ITR. However the ITR was never produced. Therefore adverse inference must be drawn against him. No bills/invoices of the alleged items have been produced. Therefore the story of the plaintiff cannot be believed. Further the plaintiff in his cross examination has stated that the articles were given to the defendant as loan as she wanted to show off in the marriage of her sister Ms. Neha Bhatt. He would also state that he had met with Ms. Neha, however, he did not know when was the marriage of Ms. Neha solemnized. Ms. Neha was already married in the year 2012 and therefore there was no need to take those articles to show off in her marriage in the year 2014. The document Ex.PW1/1 cannot be considered in evidence as it is not duly stamped and hit by Section 35 of the Indian Stamp Act. The plaintiff has filed a false case to harass the defendant and to extort money. Hence, it is prayed that the suit CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 13 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 may be dismissed. Ld. Counsel for the defendant has relied upon the following judgments in support of his arguments: -
a) Vimal Chand Ghevarchand Jain Vs. Ramakant Eknath Jadoo:(2009) 5 SCC 713;
b) Biswanath Agarwalla Vs. Sabitri Bera:(2009) 15 SCC 693;
c) Gautam Sarup Vs. Leela Jetly: (2008) 7 SCC 85;
d) Ganga Retreat and Towers Ltd. Vs. State of Rajasthan:(2003) 12 SCC 91;
e) Pramod Kumar Jain and Anr. Vs. Ramesh Kumar Jain: CS(OS) No. 2179/2010, Delhi High Court dated of Order 19.05.2011;
f) Kewal Kishan Vs. Delhi Development Authority:
CM(M) No. 679/2013 decided on 21.08.2013;
g) Adarsh Kaur Gill Vs. Smt. Surjit Kaur Gill and Ors.:FAO (OS) No. 634/2009 decided on
15.01.2010;
h) Sampooran Vs. Niranjan K.:AIR 1999 SC 1047;
i) Packing Paper Sales (Regd.) and Ors. Vs. Smt. Veena Lata Khosla: AIR 2007 Delhi 175;
j) Bharat Nidhi Ltd. Vs. Shital Prasad Jain: 2000 (54) DRJ 1;
CS DJ No.6958/2016Pavit Singh Vs. Ekta Bhatt Page 14 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022
k) Love Kumar Sethi Vs. Deluxe Stores and Ors.:2008 AIR (Delhi) 75.
11. I have heard the arguments and have gone through the material available record. My issue-wise findings are as under.
12. Issue No. 1 to 3 are taken jointly as they require common discussion. The issues are as under:-
"Issue no.1:- Whether the plaintiff is entitled to seek recovery of Rs. 10,00,000/- from the defendant on the basis of document dated 06.06.2014 which the plaintiff contends to be a promissory note, having been executing by the defendants? OPP "Issue No. 2: Whether the defendant was forced to execute the document dated 26.06.2014 under duress of the plaintiff, and hence is not entitled to recover any amount whatsoever?OPD "Issue No. 3: Whether the suit claim, or part of it is barred by law of limitation? OPP"
13. The claim of the plaintiff in the plaint and in his affidavit of evidence is that he had granted a loan of Rs.8 lacs in cash to the defendant on 26.06.2014 and that on the same date the defendant had also taken accessories like mobile CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 15 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 phone, jewellery etc. worth Rs.2 lacs from the plaintiff. The plaintiff has also asserted that on the same day the defendant had executed a promissory note promising to pay the total amount of Rs.10 lacs within 6 months from the date of executing of the promissory note. The document which is called a promissory note by the plaintiff is Ex.PW1/1. Section 4 of the Negotiable Instruments Act, 1881 defines a promissory note as an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking signed by the maker to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. The Section provides various illustrations also to show what is a promissory note and what is not. In the present case the document Ex.PW1/1 reads as under:-
"Myself Ekta Bhatt d/o Sh. Vishal Mani Bhatt Address F-61, Road No.2, Andrew Ganj, New Delhi I hereby declare that I have taken near about Rs.8 lakh rupee taken since 2010 and near about (2 lakh) Two - 2 lakh amount I have taken mobiles and other valuable things. But now all the money and other things consumed and used by me. In view of these things I promise to Pavit Singh S/o Satbir Singh Add RZ56 Chandan Colony, Saidulazab, New Delhi-30 pay all blance amount and other things within a period of 6 months. Sd 26/June/2014."CS DJ No.6958/2016
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14. Perusal of this document Ex.PW1/1 would show that there is a promise to pay balance amount and other things. As discussed hereinabove a promissory note is an instrument in writing wherein there is a promise to pay a certain sum of money. In the present case however, there is no certain amount mentioned in the promise. Further there is a promise to pay other things which all does not fall within the definition of promissory note. Illustration D of Section 4 reads, "I promise to pay B Rs.500/- and all other sums which shall be due to him." That instrument mentioned in illustration D is stated not to be a promissory note. In the present case also for the abovesaid reason I hold that the Ex.PW1/1 is not a promissory note.
15. The second question which is required to be decided is whether the defendant has proved that she had executed the document Ex.PW1/1 under duress. It is proved on record that the document Ex.PW1/1 is in the handwriting of the defendant. However, the defence has been taken that the document was executed by her under the duress as the plaintiff had forced her to write the said things on a paper in a hotel where she was also molested.
16. The alleged incident is dated 26.06.2014 while the present case has been filed on 30.01.2015. Thus there was a CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 17 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 gap of more than 7 months before the date of execution of document and filing of the present suit. There is nothing on record to show that the defendant had made any complaint to any legal authority regarding her molestation by the plaintiff and forcing her to write the document Ex.PW1/1. Even after filing of the present suit, no complaint is shown to be filed by the defendant regarding the alleged force used by the plaintiff to get the document written from her. The burden was on the defendant to prove the said fact by leading some evidence or by producing some material which could make the Court to believe that such a force was used by the plaintiff to get the document executed from the defendant. However, no such material or evidence has been produced on record. Therefore this Court is of the view that the defendant has failed to prove that the document Ex.PW1/1 was got executed by the plaintiff from the defendant forcibly as claimed by the defendant.
17. Ld. Counsel for the plaintiff during the arguments would state that the document Ex.PW1/1 can be considered as a receipt. Ld. Counsel would also argue that the plaintiff had paid the loan amount in installment since the year 2010, which is mentioned in the document and therefore it might be considered as a receipt executed by the defendant in lieu of the CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 18 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 said amount taken by her from the plaintiff in installments during the period starting from year 2010.
18. I have considered the submissions. I am of the view that the document Ex.PW1/1 cannot be considered even as a receipt. No doubt during the course of the arguments Ld. Counsel for the plaintiff would argue that the loan was granted by the plaintiff to the defendant in installments during the period starting from year 2010 till 26.06.2014. However it is settled position of law that the parties in a Civil Suit are bound by their pleadings and the evidence adduced by them. Therefore the said arguments of Ld. Counsel for the plaintiff is contradictory to the stand taken by the plaintiff in his plaint and in his evidence. The plaintiff in the plaint has specifically stated that he had given a friendly loan of Rs.8 lacs in cash to the defendant on 26.06.2014. In his affidavit of evidence Ex.PW1/A also, the plaintiff has made the same statement. Even during his cross examination recorded on 14.10.2019, while questioned by Ld. Counsel for the defendant, he would state that he had not given any loan in the year 2010, 2011, 2012 and 2013 and that he had given the entire loan amount of Rs.8 lacs in cash on 26.06.2014 and gold jewellery and mobile in between 20.06.2014 to 26.06.2014. Therefore it is not a case where the plaintiff had made a mistake regarding the date of CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 19 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 loan at once place. At different stages during the proceedings he had made the statement on oath that he had given the loan only on the date mentioned in the document and not on some other dates or years. In the document Ex.PW1/1, it is written that the executor of the document had taken about Rs.8 lacs since 2010. The said statement of the document is contradictory and contrary to the pleadings and the evidence led by the plaintiff. During his cross examination plaintiff himself has stated that the contents of the promissory note Ex.PW1/1 were wrong as he had not given any loan to the defendant before the year 2014. When the plaintiff himself is disputing the contents of the document Ex.PW1/1, it cannot be considered as a receipt for the alleged loan given by the plaintiff to the defendant in cash on 26.06.2014 or for the alleged articles stated to be given by him to the defendant.
19. Once the plaintiff himself has claimed that the contents of the promissory note were wrong, the burden was on the plaintiff to prove by some independent/corroborative evidence to prove that he had advanced loan of Rs. 8 lacs in cash to the defendant on 26.06.2014 and that he had provided accessories worth Rs.2 lacs to the defendant on the said date. The plaintiff has examined himself only to prove his case. During the course of his cross examination on 19.01.2019 the CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 20 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 witness had sought time to get his ITRs for the assessment years 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15 and the receipts with regard to purchasing of I-phone and Gold Chain. Despite opportunity the plaintiff did not produce those documents in the Court to prove his capacity and the source of the funds. It is settled position of law that in case a party who is in possession of the best evidence, does not produce the same, an adverse inference can be drawn against such party. In the present case the plaintiff despite opportunity did not provide his ITRs to show that he was having a capacity to advance such a huge loan amount to the defendant at the relevant time as claimed by him. Therefore an adverse inference has to be drawn against him. The plaintiff has failed to prove that he was having sufficient amount with him to advance the same as loan to the defendant.
20. It is also worth mentioning here that the plaintiff has made contradictory statements at different places in relation to the loan advanced by him. In his plaint and the affidavit of evidence the plaintiff has claimed that he had advanced a cash loan of Rs.8 lacs to the defendant on 26.06.2014. However in his reply to the application of the defendant seeking leave to defend the suit in para No. 5 the plaintiff had admitted that it is specifically mentioned in the promissory note that the CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 21 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 defendant had taken Rs.8 lacs since 2010 till 26.06.2014. This admission by the plaintiff is contradictory to his claim mentioned in the plaint and in the evidence. Even the arguments of Ld. Counsel for the plaintiff are contradictory to the claim of the plaintiff as mentioned in the plaint and the evidence. The plaintiff cannot be allowed by law to take contradictory stands which are also mutually destructive. I get strength from the judgment of the Hon'ble Supreme Court of India in Sarvashramik Sangh Vs. Indian Oil Corporation Ltd. And Ors.: AIR 2009 SC 2355, wherein the Hon'ble Supreme Court observed that mutually repugnant and contradictory pleas, destructive of each other cannot be permitted to be urged simultaneously by a plaintiff / petitioner, though alternative plea can be taken when there is no inconsistency in the facts alleged. In the present case the plea mentioned in the plaint and the evidence is contradictory to the arguments advanced by Ld. Counsel for the plaintiff and therefore he cannot be permitted by the law to take such contradictory stands.
21. In the light of the discussion hereinabove I hold that the plaintiff has failed to prove on the preponderance of probabilities that he had paid the loan of Rs.8 lacs to the defendant in cash on 26.06.2014 and further that he had provided accessories worth Rs. 2 lacs to the defendant on the CS DJ No.6958/2016 Pavit Singh Vs. Ekta Bhatt Page 22 of 23 Dinesh Kumar/ADJ-02/South/Saket/ND/26.08.2022 said date. Therefore the plaintiff is not entitled to recovery of any money from the defendant. It is shown that the defendant was not forced to execute the document Ex.PW1/1. However, in view of the above discussion, I hold that the plaintiff is not entitled to recover any money from the defendant on the basis of said document. As the plaintiff has failed to prove that any money was recoverable from the defendant, the question of limitation does not arises and therefore no findings qua issue No. 3 are given. Issues No. 1 is decided against the plaintiff and in favour of the defendant. Issue No. 2 & 3 are also accordingly decided as above mentioned.
22. Issue No.4: Relief: In view of the discussion hereinabove the suit of plaintiff is dismissed. The defendant is entitled to the cost of the suit. The defendant is also entitled to refund of the amount deposited by her as FDR of Rs.3 lacs in the Court for conditional leave to defend.
23. The decree sheet be prepared accordingly. Pronounced in the open Court on this 26th Day of August 2022. Digitally signed DINESH by DINESH KUMAR KUMAR Date: 2022.08.27 12:34:40 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE-02 SOUTH, SAKET COURTS, NEW DELHI.
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