Delhi District Court
) Sh. Roop Kishore Rastogi vs ) Sh. Roshan Bhai Jewellers on 19 March, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
RCA - 06/2015
Unique I. D. No. 02401C0088042015
1) Sh. Roop Kishore Rastogi, Karta HUF,
M/s Roop Kishore Rasatogi,
C/o Barh Wali Kothi, Nai Sarak,
Delhi110006.
2) M/s Roop Kishore Rastogi (HUF),
Through its Karta
Sh. Roop Kishore Rastogi,
C/o Barh Wali Kothi, Nai Sarak,
Delhi110006.
......Appellants
Versus
1) Sh. Roshan Bhai Jewellers,
Through its proprietor,
Sh. Rajeev Malhotra,
C159, Central Market, Lajpat NagarII,
New Delhi.
RCA06/2015
Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 1 of 14
2) Sh. Rajeev Malhotra,
Proprietor M/s Roshan Bhai Jewellers,
C159, Central Market, Lajpat NagarII,
New Delhi.
.......Respondents
Date of institution of appeal : 16.02.2015
Date of reserving the judgment : 12.02.2016
Date of pronouncement of judgment : 19.03.2016
JUDGMENT
1. The present appeal is directed against the impugned judgment and decree of Ld. Civil Judge09 (Central), Tis Hazari Courts, Delhi, dated 04.12.2014, thereby dismissing the suit of appellants/plaintiffs for recovery of Rs. 62,100/, bearing Suit No. 479/2014, titled "Sh. Roop Kishore Rastogi, Karta HUF & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr."
2. Feeling aggrieved with the judgment of the trial court, present appeal was preferred by the appellant/plaintiff on the grounds that RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 2 of 14
(i) impugned judgment was perverse, erroneous and had been passed without application of mind; (ii) Trial Court committed grave error in selectively relying upon the statement of ledger account Ex DW1/1 (colly) and the statement of bank account Ex DW1/2. Had the Trial Court perused the documents and evidences in their correct perspective, it would have definitely come to the conclusion that the principal amount of Rs. 50,000/ received by the respondents from the appellants on 03.05.2007 was still due and outstanding; (iii) statement of account relied upon by the respondents for the year 200405 i.e. Ex DW1/1 to 201011 clearly showed that the respondents have been taking deposits from the appellants even prior to 2007 and the respondents/defendants have admitted in the statement that there was a credit opening balance of Rs. 1 Lakh of the appellants for the year 200405 but Trial Court had not considered the said admitted facts of respondents/defendants. The respondents/defendants had admitted that the name of Sh. Harish Chand Rastogi was a typographical error in the opening balance of the respondents/defendants; (iv) Trial Court failed to appreciate that the respondents/defendants had been paying interest on the principal amount upto 02.02.2009 and the principal amount of Rs. 50,000/ received by the RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 3 of 14 respondents/defendants from appellants/plaintiffs on 03.05.2007 remained unpaid and the respondents/defendants in acknowledgment of their liability continued to pay interest to the appellants/plaintiffs upto 02.02.2009 and thereafter illegally stopped making payment of interest after 02.02.2009; (v) Trial Court in a mechanical manner had nonsuited the appellants/plaintiffs on the ground that the appellants/plaintiffs had not filed any copy of ledger or statement of accounts maintained by the appellants/plaintiffs in support of their contention that the defendants had not paid any interest or principal amount subsequent to 02.02.2009. Trial Court ought to have afforded an opportunity to the appellants/plaintiffs to file their statement of account; (vi) the approach of Trial Court in appreciating the statement of ledger account Ex DW1/1 (colly) filed by the respondents was completely erroneous and misplaced; (vii) Trial Court ought to have given a careful consideration to the said statement of ledger account Ex DW1/1 (colly) in it's correct perspective rather than blindly adopting the manner in which the respondents' treated the said accounts; (viii) Trial Court failed to consider that the respondents/defendants were liable to repay the principal amount of Rs. 50,000/ received from the appellants/plaintiffs on 03.05.2007 alongwith RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 4 of 14 interest @ 2% per month for the period after 02.02.2009 and the allegation of the respondents that they had made excess payment to the appellants/plaintiffs was false, baseless, vague and without any merit;
(ix) the findings of Trial Court that the principal amount of Rs. 50,000/ stood repaid by the respondents/defendants to the appellants/plaintiffs on 14.05.2007 was erroneous and perverse; (x) the dismissal of the counter claim of the respondents/defendants by the Trial Court was evident of the fact that the false statement of account Ex DW1/1 (colly) showing excess payment having been made by the respondents/defendants, did not inspire confidence with the Trial Court. It was therefore incumbent upon the Trial Court to decree the suit of the appellants/plaintiffs for the reliefs claimed therein; and (xi) the findings of the Trial Court were contrary to the pleadings and evidence on record and ignoring relevant and material piece of evidence and relying upon conjectures and surmises. Appellants/plaintiffs prayed for allowing the appeal and setting aside of the impugned judgment and decree thereby seeking decree of the suit filed by appellants/plaintiffs.
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3. I have heard arguments addressed by Sh. Sonal Sinha, Ld. counsel for appellants; Sh. Varun Goswami, Ld. counsel for respondents, perused the record of this appeal, written arguments and precedents relied upon by both the parties and the entire record of the trial court received on requisition and have given my thoughts to the rival contentions put forth. Ld. counsel for appellant argued in terms of averments of appeal seeking setting aside of impugned decree and judgment. Ld. Counsel for respondents argued in terms of averments of his pleadings before the Trial Court seeking dismissal of appeal.
4. Ld. Counsel for appellants/plaintiffs relied upon :
1)Kampa Wati Devi Vs. Basant Rai & Anr., [4 (1967) DLT 395];
2)Ramesh Thadani Vs. Mohit Garera, 213 SCC Online Del 3622 : (2013) 130 AIC 936.
5. Ld. Counsel for respondents/defendants relied upon:
1)Anjum Nath Vs. British Airways = 226 (2016) DLT 306;
RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 6 of 14
2)Gopal Krishanji Katkar Vs. Mohd. Hazid Latif & Ors. = 1968 (3) SCR 862;
3)Rameshwar Dass Vs. Hakim Javed & Ors. = 187 (2002) DLT 73; and
4)Balbir Singh Vs. Raj Krishan, CRR No. 2594/2014 (O&M) decided on 03.03.2015 by High Court of Punjab & Haryana.
6. Appellants/plaintiffs had filed the suit for recovery of Rs. 62,100/ from respondents/defendants on the premise of respondents/ defendants having received Rs. 50,000/ from respondents/plaintiffs vide cheque no. 262509, dated 03.05.2007 at a monthly rate of interest of 2% on execution of a receipt of said amount taken by appellants/plaintiffs at Nai Sarak, Delhi. It is the case of appellants/plaintiffs that respondents/defendants had been paying interest on the said principal amount @ 2% up to 02.02.2009 and thereafter neither respondents/ defendants have paid interest nor paid principal amount taken from appellants/plaintiffs despite requests and demands. RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 7 of 14
7. Impugned judgment reveals the defence of respondents/ defendants interalia including that appellants/plaintiffs had concealed the fact of receiving not only the claimed amount but also the excess amount from respondents/defendants for which counter claim was preferred but since respondent/defendant no2 declined to sell his shop at Central Market, Lajpat NagarII, Delhi, the suit was filed in vengeance as an attempt to compel respondent/ defendant no2 to sell said shop to father of appellant/plaintiff no1.
8. No statement of account was placed on record by appellants/plaintiffs in support of their claim for outstanding balance payable claimed sum from respondents/defendants. Per contra, respondent/defendant no2/the counter claimant no1 in evidence relied upon the filed statements of accounts Ex DW1/1 (colly) for year 200405 to 201011 as well as on statement of bank account Ex DW1/2 w.e.f. 21.04.2004 to 08.03.2008.
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9. Order VII Rule 17 of The Code of Civil Procedure, 1908 (in short CPC) interalia provides that where the document on which the plaintiff sues is an entry in a shop book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. Such original entry is to be marked after comparing with the filed copy and such book is to be returned to the plaintiff. Order VII Rule 14 of CPC embodies the duty of the plaintiff to enter the relied upon documents in his possession or power in support of his claim in a list and produce them when the plaint is presented by him. Where any such document is not in possession or power of the plaintiff, plaintiff is to state in whose possession or power such document is. Oblivious of the duties in Rules 14 and 17 of Order VII of CPC, neither appellants/plaintiffs placed on record copies of statement of account of respondents/ defendants in their books of account alongwith the plaint with the list of documents nor produced the original books of accounts on the first date of hearing before the Trial Court for getting it so compared and marked. Instead, in the grounds of appeal the appellants/plaintiffs are crying hoarse alleging the statement of accounts maintained by RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 9 of 14 respondents/defendants to be incorrect without producing the statement of account of respondents/defendants maintained in the books of appellants/plaintiffs. Having themselves not observed the duty cast upon them as above said, the appellants/plaintiffs cannot find fault with the Trial Court for not calling upon them to file their statements of accounts containing the ledger account of respondents/defendants in the books of appellants/plaintiffs. Onus of Issue no2 with respect to entitlement of appellants/plaintiffs for recovery of claimed sum from respondents/defendants was upon the appellants/plaintiffs. It was the appellants/plaintiffs, who withheld the account books, the statements of respondents/defendants in the ledgers of appellants/plaintiffs for relevant financial years, which was in power and possession of the appellants/plaintiffs, which could be produced by the appellants/plaintiffs but instead was not produced either alongwith the suit nor later with the permission of the Trial Court nor proved in evidence; so necessary inference is drawn in accordance with the illustration (g) of Section 114 of Indian Evidence Act, 1872 that had such best evidence been produced, it would have been unfavourable to appellants/plaintiffs, who withheld it. RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 10 of 14
10. Statement Ex DW1/2 of bank account no.
5477000100012201 of respondents/defendants in Karnataka Bank Limited, Lajpat NagarI, interalia reflects debit of Rs. 50,000/ on 14.05.2007 on account of cheque no. 728683 in favour of appellants/plaintiffs. It is the case of the respondents/defendants of payment of said sum of Rs. 50,000/ to appellants/plaintiffs towards repayment of loan to appellants/plaintiffs with respect to the loan received on 03.05.2007. Accordingly, I find the conclusion of the Ld. Trial Court in the impugned judgment, of appellants/plaintiffs having failed to prove their case that said sum of Rs. 50,000/ had not been repaid by the respondents/defendants, to be well founded and not erroneous to set aside such findings.
11. Entire pleadings of appellants/plaintiffs in the plaint nowhere finds mention that sum of Rs. 50,000/ was advanced by appellants/plaintiffs to respondents/defendants as relative or friend or acquaintances. PW1 in the course of crossexamination before Trial Court elicited that appellants/plaintiffs were dealing with the respondents/defendants since the year 2003. PW1 further elicited that RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 11 of 14 respondent/defendant no2 was not a friend of PW1 but a friend of his brother. PW1 further elicited of having never visited house of respondent/defendant no2. DW1 in course of crossexamination elicited that parties were carrying money transactions since year 1998. Appellant/plaintiff no2 is HUF and appellant/plaintiff no1 is Karta of said HUF with which the respondents/defendants are neither stated to be acquaintances, relatives or friend as per the averments of the plaint. In terms of Section 3 of The Punjab Registration of Money Lender's Act, 1938 as adopted in NCT of Delhi, the suit of money lender is barred unless money lender is registered and holding a valid license in prescribed form. Reliance placed upon - (1) Shop named Kaloji Talusappa Ganga Vathi Vs. Khyanagouda & Ors., AIR 1970 SC 1420; (2) Daljit Kumar & Anr. Vs. Popal Dass, AIR 1981 Punjab & Haryana 211; (3) Gyanananda Sen Vs. Ranjit Kumar Das & Anr., AIR 2003 Orissa 166; (4) Jaswanti Devi & Ors. Vs. Sunil Mehra, AIR 2004 Himachal Pradesh 15; (5) Niranjan Singh Vs. Mohinder Singh, RSA No. 2551 of 1987 (O&M), High Court of Punjab & Haryana at Chandigarh, decided on 03.03.2010; and (6) Smt. Fula Devi Vs. RCA06/2015 Sh. Roop Kishore Rastogi & Anr. Vs. Sh. Roshan Bhai Jewellers & Anr. Page 12 of 14 Mangtu Maharaj & Ors., AIR 1969 Patna 294 (V 56 C 75) Full Bench. In this fact of the matter, the reliance of appellants/plaintiffs/counsel on precedents viz., Kampa Wati Devi Vs. Basant Rai (supra); and Ramesh Thadani Vs. Mohit Garera (supra) is misplaced since, these precedents embody facts and circumstances entirely different and distinguishable to the facts and circumstances of the case in hand. In the case of Balbir Singh Vs. Raj Krishan (supra), the High Court of Punjab and Haryana interalia held that nonmaintainability of a suit by a money lender for recovery of loan for not holding a valid license is a legal issue and can be raised at any stage including that of appeal. The evidence borne out of record elicited above is clear pointer of appellants/plaintiffs being engaged in money lending business and such transactions interalia with respondents/defendants for past several years. Accordingly, since appellants/plaintiffs, who were not having license of money lender nor were registered money lender, so were not entitled to lend any money and such a suit by money lender was accordingly barred in terms of Section 3 of The Punjab Registration of Money Lender's Act, 1938. Grounds of appeal lack merits and substance. Appeal is dismissed. No order as to costs.
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12. File of this appeal be consigned to record room and the requisitioned file of trial court be sent back against receipt. Copy of this judgment be also sent to the trial court.
Announced in open Court (GURVINDER PAL SINGH) on 19th Day of March, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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