Delhi District Court
Sh. Bhanwar Singh vs Anil Srivastava on 27 September, 2016
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 476327/15
IN THE MATTER OF :
Sh. Bhanwar Singh
S/o Sh. Hari Chand
H. No. B974, Subhash Road,
Subhash Mohalla,
North Ghonda,
Delhi110053
Through Girish Chand
Attorney ........ Plaintiff
V E R S U S
Sh. Anil Srivastava
S/o late Sh. Prameshwar Dayal
Sole Proprietor of M/s Kinesis India
H. No. B5/285, Yamuna Vihar,
Delhi ........ Defendant
Date of Institution of suit : 11.03.2015
Date of argument : 27.09.2016
Date of Judgment/Order : 27.09.2016
Decision : Suit is dismissed with cost.
CS No. 476327/15 page 1 of 15
Bhanwar Singh V/s Anil Srivastava
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
SUIT FOR RECOVERY
J U D G M E N T
1. The plaintiff filed this suit for recovery of Rs. 20,00,000/ against the
defendant contending that being known to each other, defendant
approached the plaintiff in January February 2012 for friendly loan of Rs.
26,00,000/ to run his business properly. In view of the good relation,
plaintiff arranged Rs. 26,00,000/ as friendly loan to the defendant. The
defendant against the loan issued cheque of Rs. 26,00,000/ on 15.10.12
which was dishonoured on presentation vide memo dt. 20.10.12 due to
"Insufficient funds". The plaintiff requested the defendant number of times
to repay the amount and also filed complaint U/s 138 NI Act but despite
assurance, defendant failed to pay the due amount. Instead of making
payment, the defendant lodged a FIR No. 327/13 against the the plaintiff
at PS Bhajan Pura on 20.08.13 and wife of the defendant lodged another
FIR No. 641/13 dt. 09.12.13 PS Bhajan Pura and FIR No. 973/14 dt.
25.07.14 PS Bhajanpura Delhi. Though the plaintiff has advanced a loan
of Rs. 26,00,000/. This suit is filed only Rs. 20,00,000/ giving up of the
claim of Rs. 6,00,000/. As the defendant failed to pay the amount to the
plaintiff, this suit is filed by plaintiff against the defendant.
2. The defendant in the written statement contended that plaintiff has
concealed the material facts; there is no cause of action for filing of the
suit; the defendant has never taken any amount from the plaintiff or is
liable to make any payment and this suit is filed to harass the defendant.
CS No. 476327/15 page 2 of 15
Bhanwar Singh V/s Anil Srivastava
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
The defendant admitted the acquaintance with the plaintiff but denied
regarding request of the any loan or having taken any loan from the
plaintiff claiming that plaintiff was the employee in firm M/s Kinesis
Enterprises Private Limited with the defendant and has misappropriated
the funds with cheques. The defendant was denied the liability prayed to
dismiss the suit with cost.
3. Replication was filed by the plaintiff to the written statement of
defendant whereby the plaintiff has reiterated the contentions mentioned
in the plaint while denying the averments of the defendant in the written
statement.
4. In view of the pleading of the parties, following issues were framed
vide order dt. 02.07.2015:
(i) Whether the plaintiff is entitled for decree of recovery of Rs.
20 lakh alongwith interest as prayed in the suit? OPP
(ii) Relief.
The case was thereafter fixed of Plaintiff's Evidence.
5. PW 1/plaintiff has filed his affidavit by way of evidence Ex. PW1/A
and deposed regarding the case as mentioned in the plaint. The witness
has also deposed regarding the documents i.e. original cheque bearing
No. 153008 Ex. PW 1/1, returning memo Ex. 1/2, legal notice Ex. PW 1/3
and postal receipt Ex. PW 1/ 4( two postal receipt). As no other witness
was examined by the plaintiff, the PE was closed and the case was fixed
thereafter defendant's evidence.
6. The defendant filed his evidence by way affidavit Ex. DW1/A and
examined himself as DW1 in support of contentions. The witness
deposed regarding the defence as mentioned in the WS. As no other
CS No. 476327/15 page 3 of 15
Bhanwar Singh V/s Anil Srivastava
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
witness remained to be examined by the defendant, DE was closed.
7. I have heard the Ld. counsel for the parties at length and gone
through the relevant materials on record alongwith the written
submissions filed on their behalf in support of contentions. I have also
gone through the judgment of Hon'ble Delhi High Court in Criminal
Revision Petition No. 188 /2015 decided on 15.09.15 relied upon by ld.
counsel for the defendant in support of contentions.
8. I have given my thoughtful consideration to the submissions made
on behalf of the parties. My findings issuewise are as under :
ISSUE No. I :
(i) Whether the plaintiff is entitled for decree of recovery
of Rs. 20 lakh alongwith interest as prayed in the suit? OPP
9. The onus to prove this issue was upon the plaintiff. It is well settled
that a suit has to be tried on the basis of the pleadings of the contesting
parties which is filed in the suit in the form of plaint and written statement
and the nucleus of the case of the plaintiff and the contesting case of the
defendant in the form of issues emerges out of that. Being a civil suit, this
suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported
in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to
observe as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly
executed by the deceased Sh. Sohan Singh. The Power of
Attorney is after all a registered Power of Attorney, and more
CS No. 476327/15 page 4 of 15
Bhanwar Singh V/s Anil Srivastava
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
importantly, the original title documents of the subject
property are in the possession of the respondent No. 1 and
which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
reported in In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, CS No. 476327/15 page 5 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
10. Section 101 of the Evidence Act, 1872 defines " burden of proof"
which is reproduced as below: " 101. Burden of proof 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."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
11. The brief and relevant facts for filing of this suit has been mentioned at the outset. There is no dispute / denial regarding the parties being known to each other. The parties led their evidence as per the CS No. 476327/15 page 6 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
averments as mentioned in the pleadings. In view of the factual matrix, the issue remained to be examined as to whether the plaintiff has paid Rs. 26,00,000/ to the defendant as friendly loan and the defendant has issued cheque to the plaintiff towards any liability. This court has also to examine the contentions of the parties being reasonable and plausible in reference to the act of a reasonable man and as to the facts stated by which of the parties appears to be more probable and inspire more confidence.
12. I have gone through the plaint alongwith testimony of plaintiff recorded before this court. Before proceeding, it is relevant to note that the huge amount of Rs. 26,00,000/ is claimed to have been paid by the plaintiff to the defendant by way of cash but the plaintiff has not disclosed the source of such amount, from where it was arranged, when the amount was paid by the plaintiff to the defendant and in the presence of which persons if any when the amount was so paid. During cross examination, the plaintiff admitted that he was having a tea shop in front of the house of defendant at Yamuna Vihar which itself shows the capacity of plaintiff to pay such an amount. It is noted that none of the relevant witness or person from whom the plaintiff arranged such huge amount were produced or examined before the court in support of contentions. The testimony of plaintiff was totally controverted during cross examination wherein he admitted that he works in Kinesis India from 2009 to 2012 and also was Director and visited to the bank for depositing the cash and cheques. The plaintiff has further not produced any documents including bank passbook, income tax return etc to show that he has the capacity to CS No. 476327/15 page 7 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
arrange such amount and such amount has paid to the defendant. Merely bald averments that he has paid Rs. 26,00,000/ in cash to the defendant is not sufficient to prove the contentions. The testimony of defendant on the other hand remained unimpeached / uncontroverted in one way or the other regarding all the material aspect including the complaints made by him against the plaintiff.
13. As mentioned, plaintiff has filed this suit for recovery of Rs. 20,00,000/ only though Rs. 26,00,000/ was paid as friendly loan. I have gone through the documents relied by plaintiff in support of claim and contentions including the complaint made to police. It is interesting to note that plaintiff claimed to have arranged Rs. 26,00,000/ on interest from other persons( name of the persons not disclosed) and paid to the defendant without interest. It is also appears to be unreasonable that plaintiff has given Rs. 26,00,000/ and is claiming Rs. 20,00,000/ after giving up claim of Rs. 6,00,000/ though the amount was arranged from other person on interest. It is reiterated that no income tax return or other supported documents filed by the plaintiff to show any such payment to the defendant. The cheque on the basis of which this suit is filed is regarding Kinesis India where the defendant was admittedly employed and also handling the cheques and therefore there is every probabilities that the cheque is misused by the plaintiff. I have gone through the cheque Ex PW 1/1 which clearly shows that cheque is signed by different pen whereas other particulars are filled up by different ink or pen. As noted, the contentions of the plaintiff regarding giving of the loan of Rs. 26,00,000/ to the defendant is vague in respect of the date of payment of CS No. 476327/15 page 8 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the loan, arrangement of the amount etc. The FIRs lodged against the plaintiff by the defendant and his wife are already on record who corroborate the evidence of the defendant. The documents relied upon by the defendant further put to the plaintiff during cross examination Ex. PW 1/X1 also substantiate the defence of the defendant.
14. The plaintiff even during final arguments failed to answer the question as to who were the person from whom he has arranged the amount, what was the reason for plaintiff for not producing such witness in the court to substantiate his claim, why the amount has not been paid by the plaintiff way by of cheque and by way of cash is contrary to the provisions of income Tax Act, etc. The plaintiff failed to answer as to when loan was given to the defendant. It is also necessary to note that plaintiff has not produced his income tax return despite being asked to prove that amount was given for any transaction as claimed by him. In one way or the other the testimony of the plaintiff was totally impeached / controverted during the cross examination.
15. In view of the aforesaid discussion and testimony of the witnesses examined by the parties, this court is of the considered view that claim of the plaintiff is against the conduct of an ordinary reasonable man and does not stand to the reason. This court is fortified in view of ratio of judgment in re John. K. John V/s Tom K. Varghese (2007) 12 SCC 714 wherein it is held that: " The High Court was entitled to take notice of the conduct of the parties. It has been found by the High court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument CS No. 476327/15 page 9 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only had no document been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent was not even in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be make to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under section 139 of the Act, no exception thereto can be taken".
The ratio of the judgment is squarely applicable in the facts of this case. The defence of the defendant is more probable that the cheque in question was retained and misused by the plaintiff.
16. It is reiterated that plaintiff has not produced any income tax return to show that any payment was made and same was reflected in the return at the relevant time. Had the amount been actually given by plaintiff to defendant and same would have been shown by plaintiff in his income tax return at the relevant time and said fact would have been proved on record by examining the concerned official from Income tax department. The witness/plaintiff claimed to have paid Rs. 26,00,000/ by way of cash which itself is unbelievable and also contrary to the provisions of law. This act and conduct appears to be suspicious and does not inspire confidence. There is no averments in the plaint nor any evidence to infer CS No. 476327/15 page 10 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the capacity of the plaintiff for payment of such huge amount in cash nor there is anything as from where such large amount was arranged by the plaintiff in cash. The plaintiff failed to show the source of arranging such large money in cash. Moreover, even the alleged transaction of Rs. 26,00,000/ in cash made by the plaintiff is violative of the provisions of Income Tax Act. Section 269(SS) of the Income Tax Act prohibits any person from taking or accepting from any other person any loan or deposit in any other way than by cheque or bank draft where the amount is more than Rs. 20,000/. Similarly Section269(T) prohibits the re payment of any loan or deposit other than by way of cheque or bank draft, if amount is more than Rs. 20,000/. These provisions have been extended to loans between two individual as well and in such cases, the Income Tax assessing officer can levy penalty as high on the amount itself. The whole idea behind this clause is to counter act tax evasion. In this case, plaintiff failed to show any reason or ground for alleged transaction in violation of provisions of Income Tax Act. The plaintiff has not produced any corroborative evidence to show or prove that such amount was arranged or paid, whether such payment was reflected in the income tax return or any records maintained by the plaintiff. The plaintiff cannot be permitted to gain from the illegal act violating any law of the land. Further, merely oral averments is not sufficient to prove the case of the plaintiff for entitlement of the relief particularly when the transaction appears to be barred by the provisions of law. There is nothing on record except the bald averments of the plaintiff. In view of the aforesaid discussions, plaintiff failed to discharge the onus and prove the issue.
CS No. 476327/15 page 11 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
I have gone through the judgment reported as AIR 2008( NOC) 2495( KAR.) which is squarely applicable in the facts and circumstances of the case. Further the judgment reported as 2009 (107) DRJ 271 squarely applies in the facts and circumstances of this case. The plaintiff has not filed even a single document to show the availability of cash in such large volume along with the source of the same.
I have gone through the judgment titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) and ratio of the case squarely applies in the facts of this case. The relevant para No. 13 of the judgment reads as under: 13" In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year 2006 it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
17. As noted, the onus to prove the issue on the plaintiff. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is CS No. 476327/15 page 12 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33). The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The case in hand, this court is of the considered view that plaintiff failed to discharge the onus and prove the contentions regarding factum of giving loan to the defendant and issuance of the cheque towards liability. Plaintiff has accordingly failed to prove the case. The plaintiff himself appears to be incapable to pay huge amount as loan to the defendant. It is also unreasonable that plaintiff himself arranged the money on interest and given friendly loan to the defendant. The money which was arranged by the plaintiff from the persons whose names are not known has not been referred in the Income Tax Return nor any such CS No. 476327/15 page 13 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Income Tax Return is produced on records. It is noted that Section 271
(d) of the Income Tax Act, 1961 Specifically provides that if a person takes or accepts any loan or deposits in any contravention of the provision of Section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of loan or deposit so taken or accepted.
18. The case of the plaintiff appears to be improbable and it is difficult to believe the assertion of the plaintiff since the entire amount of Rs. 26,00,000/ is claimed to have been paid in cash to the defendant. Further neither the source i.e. friend or relative of the said amount has been disclosed by the plaintiff in the plaint or in evidence nor there is any reference in Income Tax Return of such loan being advanced. The plaintiff has not been able to prove that the defendant has issued the cheque for discharge of any liability or the plaintiff has paid the loan amount to the defendant as claimed. The cheque in question was not issued towards any liability from the plaintiff as proved on record. The contention of the plaintiff regarding loan of Rs. 26,00,000/ appears to be not sustainable or believable. The case of the plaintiff do not inspire confidence. This court is of the considered view that plaintiff failed to prove the payment as claimed in the plant. The plaintiff is accordingly not entitled for any amount as prayed in the suit. Issue No. (i) is decided in favour of the defendant and against the plaintiff.
19. In view of the aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiff has failed to discharge the onus and prove the issue No. (i). The plaintiff categorically failed to prove any CS No. 476327/15 page 14 of 15 Bhanwar Singh V/s Anil Srivastava Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
payment as claimed in the plant. Plaintiff is accordingly not entitled for any relief as prayed in the suit.
Relief : In view of the above said discussions and findings, this court is of the considered opinion that plaintiff is not entitled for the relief as prayed in the suit. The suit of the plaintiff is therefore dismissed with cost. The decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 27th day of September, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 476327/15 page 15 of 15 Bhanwar Singh V/s Anil Srivastava