Delhi District Court
Sh. Singh Ram vs Sh. Dinesh Kumar Tawar on 27 February, 2023
IN THE COURT OF SH. SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No.516923/2016
CNR No. SW010004692012
IN THE MATTER OF:
Sh. Singh Ram
S/o Late Sh. Umrao Singh
R/o H No. WZ-911/3, Ring Road
Naraina, New Delhi ... Plaintiff
v.
Sh. Dinesh Kumar Tawar
S/o Sh. Jaipal Singh
R/o WZ-911/1, Ring Road
Naraina, New Delhi - 110028 ... Defendant
Date of institution of suit: 17.11.2012
Date of judgment reserved: 21.01.2023
Date of pronouncement of judgment: 27.02.2023
JUDGMENT
1. The plaintiff has preferred the present suit under Order XXXVII of the Code of Civil Procedure,1908 (hereinafter "CPC") for recovery of ₹ 7,50,000/- (Rupees Seven lakh fifty thousand only) together with interest at the rate of 2% per month calculated w.e.f 06.05.2011 to 05.08.2012 i.e. Rs. 2,25,000/- (Rupees Two Lakh twenty five thousand ) and thus for total CS DJ ADJ No.516923/16 Page No. 1/13 recovery of ₹9,75,000/- (Rupees Nine lakh seventy five thousand only) on the basis of promissory note (pronote), against the defendant.
2. Briefly stated, it is the case of the plaintiff that he and defendant are known to each other from their childhood and belongs to same village. It is further averred that defendant approached to plaintiff for a loan of Rs.7,50,000/- (Rupees Seven lakh fifty thousand only) due to business losses in his lucky draw scheme and was also in urgent need for construction of his building. The plaintiff did not have that much of amount with him but the defendant induced him to advanced the loan at interest of 2% per month. The plaintiff due to the said inducement could not stop himself and promised to advance him the said loan.
3. It is further stated that on 03.03.2011 he arranged a sum of Rs. 4 lakh and informed the defendant who came to his house and the plaintiff handed over Rs. 4 lakh to the defendant. Then again on 25.03.2011, he arranged a sum of Rs.1,50,000/- and he handed over the same to the defendant at his house. Again on 28.04.2011 plaintiff handed over Rs. 1 lakh to the defendant and lastly on 06.05.2011, the plaintiff arranged and gave a sum of Rs. 1 lakh to the defendant at plaintiff's house and there itself the defendant executed the promissory note in favour of the plaintiff for a sum of Rs. 7,50,000/- with interest @ 2% per month with promise to repay the same on demand.
4. It is further averred in the plaint that on 09.08.2012 a legal demand notice was also issued to the defendant for demanding sum of Rs. 7,50,000/- alongwith interest at the rate of 2% through CS DJ ADJ No.516923/16 Page No. 2/13 registered AD/ Courier and the same was served upon him but despite of receiving the aforesaid notice, defendant did not pay the amount of pronote and receipt to the plaintiff.
5. On the basis of above pleadings, the present summary suit under Order XXXVII CPC was filed.
6. The Ld. Predecessor of this Court allowed the leave to defend application filed by the defendant vide order dated 15.04.2014 subject to deposit of 50% of the principle amount by way of FDR and on 23.07.2014 FDR of Rs. 3,75,000/- dated 25.06.2014 drawn on Punjab National Bank was filed by the defendant.
7. Thereafter, defendant filed his written statement wherein he has taken more or less the same grounds as taken in the application for leave to defend. It is the case of the defendant that he has never taken any money from the plaintiff due to loss in lottary business or construction of the house due to shortage of money as alleged by the plaintiff and he never signed any pronote or receipt in favour of the plaintiff and the same is forged and fabricated. The defendant denied his liability to pay the suit amount. The defendant however, admitted that he was doing the business of lucky draw scheme in the year 2000 and thereafter the said draw was closed by him due to personal reasons. It is contended by the defendant that he was having sufficient means to construct his house. It is the case of the defendant that the whole story was concocted by the plaintiff to extort money from the defendant. It is denied by the defendant that he never approached the plaintiff for a loan of Rs. 7,50,000/- and signed CS DJ ADJ No.516923/16 Page No. 3/13 any promissory note or any receipt in favour of the plaintiff for a sum of Rs. 7,50,000/-.
8. Thereafter, plaintiff filed the replication to the written statement of the defendant and he denied the contentions raised by the defendant in the written statement and reiterated and reaffirmed the stand taken by him in the plaint.
9. On the basis of the pleadings of the parties, the following issues were framed on 03.01.2017:-
(i) Whether plaintiff had paid a sum of Rs.7,50,000/- to the defendant as loan? ... OPP
(ii) Whether pronote-cum-receipt dated 06.05.2011 was duly executed by the defendant in favour of plaintiff in respect of loan? ... OPP
(iii) Whether the plaintiff is entitled for the principal amount of Rs.7,50,000/- alongwith interest @2% p.m? ... OPP
(iv) Relief
10. In order to prove his case, plaintiff examined two witnesses.
11. On 05.09.2016 plaintiff tendered his evidence by way of affidavit - Ex. PW1/1 and relied upon the following documents:
(i) Promissory note - Ex. PW1/A,
(ii) Legal notice - Ex. PW1/B
(iii) Postal receipt -Ex. PW1/C CS DJ ADJ No.516923/16 Page No. 4/13
(iv) courier receipt - Ex. PW1/D
(v) Postal acknowledgment - Ex. PW1/E
12. He also produced Smt. Geeta Singh and Mr. Deepak in the witness box and they tendered their evidence by way of affidavit Ex. PW2/A and Ex. PW3/A, respectively and reiterated the averments of the plaintiff. After examination and cross examination they were discharged and thereafter plaintiff closed his evidence.
13. In order to prove his case, defendant examined two witness. Defendant himself appeared in the witness box and tendered his evidence by way of affidavit - Ex. DW1/A and he was cross- examined at length and discharged.
14. Mr. Vijender Singh appeared in the witness box and tendered his evidence by way of affidavit Ex. DW2/A. Arguments
15. It is argued by the learned counsel for the plaintiff that the plaintiff has duly proved his case by proving the promissory note Ex. PW1/A by calling the attesting witnesses of the promissory note in the witness box. He further argued that the defendant failed to cause any dent in the case of the plaintiff and prays for decree of the suit as per the reliefs prayed for.
16. Per contra, the Ld. Counsel for the defendant argued that the plaintiff not only failed to prove the source of funds out of which he has paid the alleged loan amount to the defendant but also attesting witnesses to both the promissory note also failed to prove the said note in their testimony and the ld. counsel further CS DJ ADJ No.516923/16 Page No. 5/13 argued that there are glaring contradictions in the testimony of the witnesses regarding the arrangement of Rs. 7,50,000/- by the plaintiff as in the plaint he has not mentioned the source of funds and only for the first time in cross examination he testified that he has arranged Rs. 2,50,000/- from his brother in law namely, Virender Kumar and Rs. 5 lakh were with him, however, the plaintiff never produced his brother in law in the witness box and the plaintiff even failed to prove the due execution of the promissory note and prays for dismissal of the present suit with exemplary costs.
17. I have heard the arguments and have gone through the judicial file.
18. Issue-wise Finding :-
19. All the three issues are taken up and are being discussed together as they are inter connected and finding on one will have bearing on other.
20. ISSUE NOS. 1 TO 321. The onus to prove all the three issues was on the plaintiff.
FINDING
22. Coming to the point that whether the plaintiff proved the payment of Rs. 7,50,000/- alleged to be paid to the defendant by him on different dates.
23. It is observed that the plaintiff in his plaint as well as in his evidence by way of affidavit have not mentioned that he has CS DJ ADJ No.516923/16 Page No. 6/13 arranged Rs. 2,50,000/- from his brother in law as deposed by him in his cross examination. As far as his own earnings are concerned, in cross examination he deposed that he retired from Air force in the year 1993 and since 1997 he is running a shop and after deduction of all the expenditure he may be having a monthly income of Rs. 20,000/- to Rs. 25,000/- per month. He admitted that he has not placed on record any document to show the said monthly income. He also deposed that the defendant has closed the lucky draw scheme in the year 1996-1997 approximately. He also deposed that he has constructed his house 5-6 times and lastly in the year 2005-2006. He further deposed that his daughter got married in 2005 and the elder son got married in the year 2012. As already stated that he deposed that he arranged Rs. 2,50,000/- from his brother in law and Rs. 5 lakh was with him and he admitted that he has not mentioned so in his plaint and evidence affidavit.
24. Smt. Geeta Singh wife of the plaintiff (PW-2) in her cross examination deposed that her husband is running a fair price shop. Our monthly savings are between Rs. 30,000/- to Rs. 35,000/- but I do not know the monthly earning of my husband. She also deposed that the defendant for the first time in the year 2011 made a request for loan of Rs. 4 lakh and the said amount was withdrawn by her husband from his bank account to give the same to defendant. She further deposed that in all her husband had given a loan of Rs. 7.5 lakh to the defendant and last payment of Rs. 1 lakh was made in April, 2011.
CS DJ ADJ No.516923/16 Page No. 7/1325. Sh. Deepak son of the plaintiff entered the witness box as PW-3 and in cross examination he deposed that the monthly earning of his father in the year 2010-2011 were approximately Rs. 30,000/- to Rs. 35,000/- per month from all sources. He further deposed as far as his knowledge, the loan advanced to the defendant was available in our house and it was given by his father to the defendant. The loan amount was paid twice to the defendant in his presence i.e. the first and the last payment and no other payment was made in his presence.
26. On perusal of the testimony of PW-1 and PW-3 there are material contradictions in their testimony regarding the source of funds as the plaintiff is claiming that Rs. 2,50,000/- was borrowed from his brother in law and the remaining amount of Rs. 5 lakh was lying with him. Whereas, his wife is claiming that the entire amount was available with her husband and the first loan payment of Rs. 4 lakh was withdrawn by her husband from the bank account and whereas the son of the plaintiff is claiming that the loan amount was available at the house and he is not aware whether the same was withdrawn by his father from the bank account or not. Pertinently plaintiff never examined his brother in law Varinder Singh to prove that a sum of Rs. 2,50,000/- was borrowed from him as claimed by him in his cross examination.
27. Thus, in view of the above discussion, it is observed that the plaintiff has failed to prove the source of funds available with him for the advancement of the alleged loan.
CS DJ ADJ No.516923/16 Page No. 8/1328. As far as promissory note Ex. PW1/A dated 06.05.2011 is concerned neither the plaintiff nor the attesting witness i.e. PW2 and PW-3 have identified the signatures of the defendant on the promissory note. Plaintiff neither in his plaint nor his evidence filed by affidavit have claimed that the promissory note was executed by defendant in presence of the attesting witnesses i.e. PW-2 and PW-3. In cross examination also he only deposed that the defendant brought the pre-filled promissory note on 06.05.2011 and same was available to him. He has not deposed that the same was signed by the defendant in his presence.
29. On the other hand, PW-2 merely claimed that the promissory note was executed in her presence and she signed at point 'A' and similarly, PW-3 deposed that the promissory note was executed in his presence and he signed at point 'B'. Neither PW-2 deposed that the PW-3 was present when the promissory note was executed nor PW-3 have deposed so in respect of PW-
2. Similarly, both of them have not identified the signatures of each other on the promissory note. Even in cross examination PW-2 and PW-3 have not deposed that besides the plaintiff and the defendant, both of them were simultaneously present at the time of the execution of the alleged promissory note by the defendant. Even though PW-2 and PW-3 in cross examination have deposed that the defendant signed the promissory note in their presence but none of them identified his signatures.
CS DJ ADJ No.516923/16 Page No. 9/1330. Thus, the primary requirement as envisaged by Section 67 of the Indian Evidence Act, 1872 has not been fulfilled by the plaintiff which provides as follows:-
67. Proof of signature and handwriting of a person alleged to have signed or written document produced-
if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting.
31. The Hon'ble High Court of Madhya Pradesh in L.S. Trading Company, Gwalior v. Manish Mishra (2010) 93 AIC 838 MP, while examining the scope of Section 67 of the Evidence Act has held that the following are the modes for proving a document:
(a) by calling a person who signed or wrote a document;
(b) by calling a person in whose presence the documents are signed or written;
(c) by calling handwriting expert;
(d) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
(e) by comparing in Court, the disputed signatures or handwriting with some admitted signatures or writing;
(f) by the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person;CS DJ ADJ No.516923/16 Page No. 10/13
(g) A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant;
(h) by other circumstantial evidence.
32. However, plaintiff has not adopted any of the methods mentioned above to prove the signatures of the defendant on the promissory note. Therefore, once the signatures on the promissory notes were denied by the defendant on the ground that the same are forged and fabricated documents, the initial burden was upon the plaintiff to prove that the promissory notes bears the signature of the defendant and it is only thereafter, the onus to prove plea of forgery and fabrication could have shifted on the defendant. It is also relevant to mention that rather it is the defendant who filed an application to get his signatures examined for CFSL Rohini in order to prove that same are forged and fabricated but the CFSL Rohini failed to give any satisfactory report after examining the disputed and admitted signatures of the defendant.
33. It is also pertinent to mention that the both the attesting witness to the promissory note are related to the plaintiff i.e. wife and son and thus, an inference can be drawn that the plaintiff can easily take their signatures at his sweet will on the promissory note.
34. Further, the plaintiff failed to create any contradiction or elucidate any favorable statement from the testimony of defendant who in his evidence by way of Ex. DW1/A he reiterated the stand taken by him in the written statement. In his CS DJ ADJ No.516923/16 Page No. 11/13 cross examination he has deposed that he is an income tax assesses and have two building in Village Naraina. He is also the owner of WZ-165, Village Naraina consisting of 3-1/2 floors and also owner of half portion of building No. WZ-911/1 Ring Road, Naraina and have given them on rent and receiving a total rent of Rs. 70,000/- to Rs. 80,000/- per month since 2010. He further deposed that WZ-165 was constructed in the year 2005 and 2-1/2 storey of WZ-911/1 was constructed in the year 1992. He further deposed that he built the WZ-165 out of the funds taken from his father. He denied all the suggestion with respect to taking of loan from the plaintiff for the construction of the house and repayment of the loan amount taken by him from other people etc.
35. Thus, in circumspection of the discussion and observations made above, this Court is of the considered view that the plaintiff has miserably failed to prove his case by preponderance of probabilities as not only the plaintiff himself and through the witnesses produced by him failed to prove the payment of Rs. 7,50,000/- to the plaintiff but also failed to prove the promissory notes alleged to be executed by the defendant.
36. Accordingly, the issues no. 1 to 3 are decided against the plaintiff and in favour of the defendant.
37. Relief
38. On the basis of my finding on issue Nos. 1 to 3, the suit of the plaintiff is hereby dismissed with no orders as to costs.
CS DJ ADJ No.516923/16 Page No. 12/1339. The original FDR of Rs. 3,75,000/- placed on record by the defendant be returned to him after taking on record the certified copy of the same against acknowledgment. The concerned bank is also directed to release the FDR amount alongwith accrued interest upto date in favour of the defendant.
40. Decree sheet be drawn accordingly, as per Rules.
41. File be consigned to record room, after due compliance and necessary action, as per Rules.
Digitally signed SACHIN by SACHIN JAIN JAIN Date: 2023.02.28 15:41:52 +0530 Pronounced in the open (Sachin Jain) Court on 27.02.2023 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No.516923/16 Page No. 13/13