Delhi District Court
Ajay Kumar vs Vikas Kumar on 13 December, 2019
1
IN THE COURT OF SH. ARUN GOEL
ADMINISTRATIVE CIVIL JUDGE (NORTH WEST), ROHINI
COURTS, DELHI
Suit No. 651/17
Ajay Kumar
S/o. Sh. Bhup Singh
R/o. 468, KBlock,
Mangolpuri,
Delhi110 083.
...Plaintiff.
Versus
Vikas Kumar
S/o. Sh. Khan Singh
R/o. C4/164, Sultanpuri,
Delhi110 086.
...Defendant
Date of Institution : 09.06.2017
Date of Arguments : 28.11.2019
Date of Judgment : 13.12.2019
Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 1
2
SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF
RS. 93,000/ ALONG WITH PENDENTE LITE INTEREST.
JUDGMENT:
1. Initially the present suit has been filed under Order 37 CPC, however, at the request of plaintiff it was treated as an ordinary suit. Statement of the plaintiff was recorded separately in this regard.
2. In short facts are as under: The plaintiff and the defendant were having a good family relationship and were well known to each other from last several years. In the month of January, 2016 the defendant contacted the plaintiff and requested to give friendly loan of Rs. 93,000/ for installment of ATM but the defendant did not install the ATM in the premises/shop of plaintiff. In this regard, one police complaint was lodged on 17.03.2017. It is further submitted that the said loan was given in installments. Defendant assured to return the said loan amount in few months. Thereafter, plaintiff contacted the defendant several times but the defendant avoided returning Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 2 3 the said loan amount on one pretext or the other. In the month of January, 2017, the defendant was contacted but he flatly refused to return any amount to plaintiff and threatened to face the dire consequences if action is taken by the plaintiff against him. Lastly, plaintiff sent a legal demand notice dt. 16.05.2017 to the defendant but despite service of the said notice neither the defendant complied the terms of the said notice nor gave reply to the same. It is submitted that the plaintiff is entitled to recover a sum of Rs. 93,000/ from the defendant along with interest @ 18% p.a. It is prayed that a decree for a sum of Rs. 93,000/ with pendente lite and future interest @ 18% p.a. be passed in favour of the plaintiff and against the defendant. Hence the present suit.
3. The summons for settlement were issued to the defendant. The WS was filed wherein it was submitted that defendant never approached the plaintiff for any loan and that the plaintiff has filed a false suit against the defendant which is not supported with any proof of loan/written contract. It is further submitted that plaintiff has filed a false complaint against the defendant which was later on found baseless and Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 3 4 police officials investigated the matter and the defendant was exonerated from the allegations made against him by the plaintiff. It is further submitted that no cause of action arose against the defendant.
4. Replication was filed by the plaintiff denying the contentions of WS and reiterating the contents of the plaint.
5. After the completion of the pleadings the following issues were framed by the Ld. Predecessor vide order 16.07.2018 :
1. Whether the plaintiff is entitled for recovery of Rs. 93,000/ along with interest @ 18% per annum as prayed for? (OPP)
2. Relief
6. Thereafter, matter was fixed for plaintiff's evidence. The evidence was led by the plaintiff who examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He also relied upon the documents i.e. copy of aadhar card as Ex.PW1/1, copy of the CD Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 4 5 along with its transcription and certificate under Section 65B of Indian Evidence Act as Ex.PW1/2 (Colly), legal notice dt. 16.05.2017 as Ex.PW1/3, postal receipt as Ex.PW1/4 and copy of the police complaint made to the SHO PS Mangolpuri as Ex.PW1/5.
Thereafter, plaintiff examined PW2/Sh. Parveen Gautam who tendered his evidence by way of affidavit Ex.PW2/A and filed his identity proof/copy of aadhar card as Ex.PW2/1.
Lastly, plaintiff examined PW3/Smt. Kiran w/o. Parveen Gautam who tendered her evidence by way of affidavit Ex.PW2/A and filed identity proof/copy of her aadhar card as Ex.PW3/1.
All the witnesses were cross examined by the counsel for the defendant. Vide order dt. 11.07.2019 PE was closed.
7. Matter was fixed for DE but neither the defendant has appeared nor any evidence was filed by way of affidavit. Rather it was submitted by Ld. Counsel for defendant Ms. Manisha Saneja (Legal Aid Counsel ) that defendant has not contacted her despite the fact that she had informed the defendant about last date of hearing as well as date of Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 5 6 25.10.2019. Accordingly, vide order dt. 25.10.2019 DE was closed.
8. I have heard Sh. Mahesh Kumar, Ld. Counsel for the plaintiff and Ms. Manisha Saneja, Ld. Legal Aid Counsel for defendant and perused the record.
MY ISSUEWISE FINDINGS ARE AS UNDER ISSUE NO. 1
9. The onus to prove this issue was upon the plaintiff. In the present suit plaintiff stated that he has given Rs. 93,000/ to the defendant for installing ATM. However, neither the ATM was installed at his shop nor the defendant has returned the amount of Rs. 93,000/ given by the plaintiff for the said purpose. The plaintiff in the present case has not filed on record any document to show that the amount of Rs. 93,000/ was paid by him to the defendant, however, the plaintiff has filed on record one CD in which it is alleged that it bears the conversation between the plaintiff and defendant wherein defendant had admitted his liability towards the plaintiff. The transcription of the same was also filed on record which was Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 6 7 marked as Ex.PW1/2.
10. Perusal of the transcription filed on record reveals that there is no admission on behalf of the defendant about the loan of Rs. 93,000/ towards the plaintiff. The said transcription is only an admission of certain amount which was to be paid by the defendant to the plaintiff. The plaintiff also examined himself as PW1. He was crossexamined by Ld. Counsel for defendant. In his crossexamination, he admitted that he has no document pertaining to installation of ATM . He also admitted that he did not know of which bank the said ATM was to be installed. In case ATM is to be installed, the same does belong to a particular bank and particular agreement will be executed regarding the same. Further there is no such document in this regard filed in the present case. The plaintiff has also not shown that the defendant was working for any bank which was involved in the business of installing of ATMs. During his cross examination, he also admitted that he did not remember the specific dates on which the amount of Rs. 93,000/ was paid to the defendant.
Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 7 811. The plaintiff also examined PW2 to support his case. PW2, during his crossexamination stated that he did not know whether the amount has been paid or not. PW3 was also examined by the plaintiff. She stated that no agreement regarding the payment of Rs. 93,000/ was executed in her presence. She further stated that the amount was paid by her husband and this fact was told by her husband to her. In that case her evidence is hearsay evidence and inadmissible. The plaintiff in the present case has failed to produce any document showing any liability towards the defendant. He also failed to show any admission on the part of the defendant admitting his liability towards the plaintiff. As such this issue is decided against the plaintiff and in favour of the defendants.
RELIEF.
12. In view of above said reasons, I am of the considered opinion that the plaintiff has failed to discharge the burden of proof upon him seeking relief claimed in the suit. The suit of the plaintiff is accordingly dismissed. No order as to cost.
Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 8 9Decree sheet be prepared accordingly.
File be consigned to the record room.
Digitally signed ARUN by ARUN GOEL
Date:
GOEL 2019.12.13
15:50:12 +0530
Announced in the open court (ARUN GOEL )
on 13.12.2019 ACJ Cum ARCNORTHWEST
ROHINI COURTS, DELHI.
(This judgment contains nine pages & each page bears my signature.) Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 9 10 Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 13.12.2019 Present: Plaintiff in person None for the defendant Part arguments have already been heard.
The liberty was granted to the plaintiff to advance further arguments, however, no further arguments have been advanced on behalf of the plaintiff despite opportunity. Right of the plaintiff to advance arguments stands closed.
Vide separate judgment of even date, suit of the plaintiff is dismissed. No order so as to cost.
Decree sheet be prepared accordingly.
Digitally signed ARUN by ARUN GOEL File be consigned to Record Room. GOEL Date: 2019.12.13 15:50:46 +0530 (ARUN GOEL) ACJcumARC (North West) Rohini Courts, Delhi/13.12.2019 Suit No. 651/17 Ajay Kumar Vs. Vikas Kumar 10