Delhi District Court
Pushpa Devi vs Nirmal Bisht on 26 September, 2024
CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht
In the Court of Ms. Neetu Nagar, Judge Small Causes Court cum
Additional Senior Civil Judge cum Guardian Judge, South East
District, Saket Courts, New Delhi
Civil Suit No. : 171/2017
CNR No. : DLSE03-000399-2017
In the matter of:
Mrs. Pushpa Devi W/o Mr. Mohan Chander,
R/o H. No. 115, DDA Janta Flats,
Badarpur, New Delhi-110044
... Plaintiff
VERSUS
Late Mrs. Nirmala Bisht W/o Mr. Inder Singh Bisht
Through LR Mrs. Payal Anand (daughter of the deceased)
R/o H. No. 596, DDA Janta Flats, Badarpur,
New Delhi-110044 ... Defendant
*******
Date of Institution : 17.02.2017
Final arguments heard on : 07.06.2024
Judgment pronounced on : 26.09.2024
Decision of the suit : Dismissed
*******
SUMMARY SUIT FOR RECOVERY OF RS. 2,00,000/-
UNDER ORDER XXXVII CPC
*******
Digitally
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NEETU
(Neetu Nagar) NEETU NAGAR
JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.26
Delhi: 26.09.2024 Page 1 of 46 16:22:21
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CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed by Smt. Pushpa Devi (hereinafter referred to as the "plaintiff") seeking recovery of Rs. 2,00,000/- from Mrs. Nirmala Bisht (hereinafter referred to as the "defendant").
PLAINT
2. It is stated in the plaint that the defendant is resident of the same locality where the plaintiff lives and was introduced to the plaintiff as a Principal of a Government School by some neighbour. The defendant approached the plaintiff in the month of September, 2013 for financial help of Rs. 3,00,000/- (Rupees Three Lakh Only). Considering the friendly relations with the defendant, the plaintiff arranged amount of Rs. 2,00,000/- (Rupees Two Lakh only). The defendant assured that she will return the same within 3-4 months with interest. The defendant paid the interest only upto December 2013. After various reminders and visits, the defendant in order to discharge her liability issued a cheque bearing No. 05198 dated 16.02.2014 drawn on Central Bank of India, Badarpur, New Delhi, of Rs. 2,00,000/- in favour of the plaintiff towards the friendly loan. Plaintiff presented the above mentioned cheque for encashment to its Banker i.e. Central Bank of India, Badarpur, New Delhi. However, the said cheque was dishonoured for the reason "Funds Digitally signed by (Neetu Nagar) NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
Delhi: 26.09.2024 Page 2 of 46 2024.09.26 16:22:27 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht Insufficient" vide return memo dated 19.02.2014. The plaintiff then sent a notice of demand dated 26.02.2014 to the Defendant through Speed post which was duly received by the defendant. The defendant sent a false and baseless reply dated 03.03.2014. Thereafter, the plaintiff filed complaint under Section 138 of N.I. Act which is pending at Saket Court. It is further submitted that despite sending legal notice and filing complaint under section 138 of NI Act, the defendant failed to make the payment. Hence the present suit.
SUMMONING OF DEFENDANT AND CHAIN OF SUBSEQUENT EVENTS
3. Upon receipt of the plaint, summons under Order XXXVII CPC of the suit were directed to be issued to the defendant vide order dated 18.02.2017. The defendant filed appearance on 14.03.2017. Thereafter, summons for judgment were issued upon defendant. The defendant filed an application for leave to defend which was dismissed vide order dated 16.09.2020 passed by Learned Predecessor. Thereafter, defendant filed appeal against the order dated 16.09.2020 which was set aside by Learned Appellate Court vide order dated 06.01.2021 with the direction to the defendant to deposit FDR of Rs. 2,00,000/- in the name of the Trial Court. Thereafter, written statement was filed by defendant on 16.02.2021.
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JSCC-ASCJ-GJ/South East NEETU NAGAR
Delhi: 26.09.2024 Page 3 of 46 NAGAR Date:
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CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht
WRITTEN STATEMENT
4. Written statement has been filed on behalf of defendant wherein various preliminary objections were taken on the ground of barred by limitation and hit by the Money Lending Act as the loan on interest can be advanced by only a licensed money lender and not by other person.
4.1 It is submitted that on the basis of alleged cheque, the plaintiff filed a complaint under Section 138 of the Negotiable Instruments Act and the allegations in the complaint case and in the present suit are self contradictory. 4.2 It is pleaded that defendant has only one married daughter, having two sons namely Mr. Rohit Anand and Mr. Rahul Anand. Mr. Rohit Anand after passing his Secondary Examination was selected in National Defence Academy and underwent training at the National Defence Academy from December 2012 to November 2015. Whereas, Mr. Rohit Anand was in Class 8th in 2013. So, it is not understood as to for whose professional education the defendant allegedly took the alleged loan as alleged in reply to leave to defend application. It is further stated that the defendant stated to be Principal of the school will not take such a huge loan from a lady who herself is working as a Aganwadi worker. The defendant was never in a position to take such high loan, nor there was any such need of the defendant for which could she have taken the alleged loan.
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Delhi: 26.09.2024 Page 4 of 46 Digitally signed by
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4.3 It is averred that the defendant was in need of
money of Rs.10,000/- which she took from the plaintiff without the knowledge of her husband. The plaintiff gave the said amount to the defendant saying that she may return the same at her convenience. It is averred that the plaintiff actually had an intention to usurp the property of defendant, so after three four months, the plaintiff started asking for return of said amount of Rs. 10,000/- otherwise charging an exorbitant rate of interest i.e. @15% per month and took five blank cheques of Bank of India, Parliament Street, New Delhi from the defendant as security. Finding herself in helpless condition, the defendant agreed to return the said amount of Rs. 10,000/- alongwith such an exorbitant rate of interest. It is alleged that the plaintiff took the defendant to a Tantrik and got her hypnotized and since then the defendant started acting at the whims and fancies of the plaintiff. Thereafter, in the month of September 2013, the plaintiff made the defendant a member of four illegal committees being run by Mr. H.D. Tiwari and Mr. Bhagwan Ballabh Tiwari represented to be her brothers for Rs.1,00,000/- each and even bid in two committees in the name of defendant at a loss of Rs.30,000/- each and after adjusting an amount of Rs.30,000/- towards less bid amount plus Rs. 14,250/- towards three monthly installments of Rs. 3,500/- each plus Rs.11,500/- in one committee and Rs.30,000/- i.e. Bid amount plus Rs. 14,5000/- towards monthly Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.26 16:22:41 Delhi: 26.09.2024 Page 5 of 46 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht installments in another committee gave two cheques of Rs. 48,000/- and Rs. 55,750/- from the accounts of said Mr. H. D. Tiwari and Mr. Bhagwan Ballabh Tiwari dated 05.09.2013 and 07.10.2013 drawn on Bank of Baroda, R.M.L. Hospital, New Delhi respectively. However, in the reply to the notice of plaintiff it is wrongly typed as N.D. Tiwary and mentioned as her brother.
Subsequently, from the notice of her brother, it is revealed that in fact his name is H.D. Tiwary and he is not her brother but in fact her father. It is claimed that both these persons while issuing aforesaid two cheques to the defendant took four blank cheques from her as security bearing No. 051981 to 051984 drawn on Central Bank of India, Badarpur, Now Delhi against four committees without any date and without mentioning any amount and without the name of the payee. It is further alleged that when the amount of said two cheques issued by her father and brother is credited in the account of defendant, the plaintiff got the said amount withdrawn from the defendant and took away the amount of said cheques also saying that same is adjusted against the interest on the monetary help provided by the plaintiff to defendant as the interest rate is enhanced from 15% to 25% per month and thus, misappropriated the amount of both the cheques. It is averred that the defendant did not receive even a single paisa of said two cheques. It is further alleged that the plaintiff also got pledged the ornaments of defendant with one jeweller Digitally (Neetu Nagar) signed by NEETU JSCC-ASCJ-GJ/South East NEETU NAGAR NAGAR Date:
Delhi: 26.09.2024 Page 6 of 46 2024.09.26 16:22:45 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht namely Anil Jeweller and also taken the amount borrowed from him against the monetary help of Rs.10,000/- but still claimed that her said monetary help is still existing. 4.4 It is further stated that the defendant tried to commit suicide in the month of February, 2014 due to the acts of the plaintiff and her associates. The defendant told all above nefarious activities of plaintiff to her husband in the month of February who lodged a complaint with the police on 24.02.2014 and further brought the same to the knowledge of their son-in-
law Mr. Shiv Anand, who contacted the plaintiff and made inquiries and came to know that plaintiff in connivance with other ladies of the area is running a racket of money lending and another racket of illegal committees in connivance with her father and brother in which they allure and entice poor persons thereby usurping their properties and thus extort money from them by making them indebted. It is averred that the plaintiff had admitted that she charged interest on the loan amount in the audio talks between him and the plaintiff. 4.5 It is further stated that Mr. I.D. Tiwari and Mr. Bhagwan Ballah Tiwari are government servants, so they themselves could not use said blank cheques and as such, they gave the cheque in question to the plaintiff who in connivance with them, presented it after filling her name, amount and date.
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NEETU
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JSCC-ASCJ-GJ/South East NAGAR Date:
Delhi: 26.09.2024 Page 7 of 46 2024.09.26
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4.5 It is further asserted that after receiving the reply to
the notice, the plaintiff's brother Mr. Bhagwan Ballabh himself presented another cheque No. 051984 for alleged amount of Rs.2,00,000/- almost concocting similar story of monetary help and the said complaint is filed in Patiala House Courts, New Delhi on similar allegations. Then he has also filed a case under Order XXXVII CPC, which is dismissed being time barred and appeal is pending.
4.6 It is further stated that the plaintiff knowing the falsity of her suit had already relinquished the pre-litigation interest i.e. interest from 16.02.2014 to 15.02.2017. The plaintiff is not entitled even for a single penny. Rest of the contents of the plaint have been denied in toto. It has been prayed for dismissal of the suit.
REPLICATION
5. Replication was filed on behalf of the plaintiff wherein she denied the averments of the written statement stating that cheque was issued undated to the plaintiff by the Defendant in discharge of her liability to realize the same on demand. It is submitted that the claims of the Defendant are not only false but inconsistent to her own case as on one hand, she claims that the Plaintiff's brother could not have filled the cheques in their name and on the other hand, she claims that they presented a separate Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.09.26 JSCC-ASCJ-GJ/South East 16:22:54 +0530 Delhi: 26.09.2024 Page 8 of 46 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht cheque for a sum of Rs.2,00,000/-. The plaintiff reaffirmed the contents of the plaint.
ISSUES FRAMED
6. It is pertinent to mention that the defendant Ms. Nirmala Bisht died during the pendency of the suit. Accordingly, her legal representative/daughter namely Mrs. Payal Anand was brought on record under Order XXII Rule 4 CPC vide order dated 11.04.2022. On the basis of the pleadings of the parties, the following issues were framed vide order dated 06.05.2023:-
(i) Whether the suit is barred by limitation? OPD
(ii) Whether the suit is barred by provisions of Punjab Money Lending Act? OPD
(iii) Whether the subject cheque had been issued by the defendant to the brother of the plaintiff and not the plaintiff as claimed? OPD
(iv) Whether the suit has been filed without any cause of action as the cheque was not issued to the plaintiff for any recoverable liability as the plaintiff never advanced the friendly loan of Rs. 2,00,000/- as claimed? OPD
(v) Whether the plaintiff is entitled to recovery of an amount of Rs. 2,00,000/-? OPP
(vi) Whether the plaintiff is entitled to recovery of interest, if so at what rate? OPP
(vii) Relief.
Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.09.26 JSCC-ASCJ-GJ/South East 16:22:59 +0530 Delhi: 26.09.2024 Page 9 of 46 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht EVIDENCE OF PLAINTIFF
7. Plaintiff in support of her case has examined herself as PW1 who has placed on record her affidavit in evidence vide Ex.PW1/A and relied upon the following documents:
Sl. Exhibits/Mark Details of Documents No.
1. Ex. P-1 Cheuqe bearing no. 051981 dated 16.02.2024
2. Ex P-2 Legal notice dated 26.02.2014
3. Ex. PW1/3 Return memo dated 19.02.2014
4. Ex. PW1/4 Postal receipts and tracking report.
7.1 PW1 was duly cross-examined on behalf of the defendant. Plaintiff has not examined any other witness.
Thereafter, evidence on behalf of the plaintiff was closed vide order dated 16.09.2023.
EVIDENCE OF DEFENDANT
8. Thereafter, defendant (LR of the original defendant) examined herself as DW-1 who has placed on record her NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 26.09.2024 Page 10 of 46 NEETU NAGAR Date: 2024.09.26 16:23:05 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht affidavit in evidence vide Ex. DW1/A and relied upon the following documents:-
Sl. Exhibits/Mark Details of Documents No. 1 Ex.DW1/1 (Colly) Receiving copy of complaint to (OSR). DCP and SHO (objected to on the ground as the maker of the documents has not been examined) 2 Ex.DW1/2 (OSR). Certified copy of cheques dated 07.10.2023 and 05.09.2013 (objected on the ground as the original cheques are not on record) 3 Mark-A Copy of handwriting of the plaintiff's brother.
4 Ex.DW1/4 Certified copy of legal notice.
5 Ex. DW1/5 Certified copy of the cheque.
(objected on the ground as the original cheque not on record) NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 26.09.2024 Page 11 of 46 NEETU NAGAR Date: 2024.09.26 16:23:09 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht 6 Ex.DW1/6 Certified copy of complaint.
7 Ex.DW1/7. Certified copy of the plaint.
8 Ex.DW1/8. Certified copy of the reply dated 31.03.2014 9 Ex.DW1/9 (Colly). Testimonial of Sh. Rohit Anand comprising of original documents except of joining letter which is mark as Mark-B (Objected to on the ground as the maker of the documents has not been examined.) 8.1 DW1 was duly cross-examined on behalf of the plaintiff. Sh. Shiv Anand was examined as DW-2 who is husband of DW-1. He placed on record his affidavit in evidence vide Ex. DW2/1 and was duly cross-examined on behalf of the plaintiff.
8.2 Thereafter, no witness has been examined on behalf of the defendant. The evidence on behalf of the defendant was closed vide order 16.05.2024.
ARGUMENTS NEETU (Neetu Nagar) JSCC-ASCJ-GJ/South East NAGAR Delhi: 26.09.2024 Page 12 of 46 Digitally signed by NEETU NAGAR Date: 2024.09.26 16:23:14 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht
9. This court has carefully perused the evidence on record in light of the pleadings of the parties and considered the submissions of the learned counsel for both the parties who have argued as per their respective cases but their arguments are not being reproduced for the sake of brevity and shall be dealt hereinafter.
APPRECIATION AND FINDINGS
10. The issues are adjudicated as under:-
ISSUE NO. ( i) :-
"(i) Whether the suit is barred by limitation? OPD"
11. The burden to prove this issue was placed upon the plaintiff. It is relevant here, before appreciation of evidence and deciding the issues, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on pre- ponderance of probability against the defendant. As per the prin- ciples of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is re- quired to affirmatively establish it. Hence, whether the present suit is barred by limitation, was to be proved by the defendant.
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NAGAR Date:
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12. It is contended on behalf of the defendant that the al- leged amount of Rs.30,000/- which was alleged to be paid in June 2013 became time barred in June 2016; the alleged 2nd in- stallment of Rs.45,000/- allegedly paid in September 2013 be- came time barred in September 2013 and the alleged amount of Rs.65,000/- allegedly paid by the plaintiff in November 2013 be- came time barred in November 2016. Arguing further, the rest of the two amounts allegedly got paid from the Goldsmith Mamc- hand in the month of August 2013 to the tune of Rs. 40,000/- and another installment of Rs. 37,000/- in the month of September 2013 are also time barred as present suit has been filed on 17.02.2017. Learned counsel on behalf of the defendant con- tended vehemently that there is no acknowledgment at all of the debt within limitation and hence the debt is completely barred on the date of issue of cheque.
13. As per the case of the plaintiff, all the installments of the friendly loan of Rs. 2,00,000/- are asserted to have been paid by the plaintiff in the year 2013and further the interest has been paid upto December, 2013. The cheque in question is dated 16.02.2014. Admittedly, the said cheque has been bounced.
14. Before we proceed further, let us discuss the legal portion with regard to extension of limitation period, if any, in NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 26.09.2024 Page 14 of 46 NEETU NAGAR Date: 2024.09.26 16:23:23 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht case of bounced cheque. Section 19 of the Limitation Act 1963 is relevant and reads as under : -
"Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made"
15. On the language of Section 19 above said, it is clear that the payment may be made either against the principal or on account of interest. In either case, the payment will be on account of the debt which is all that the provision requires. A payment by cheque satisfies the requirement of Section 19 inasmuch as the acknowledgment of payment appears in the handwriting of or in a writing signed by the person making the payment in the form of a cheque. Further, acknowledgment has to be made within the prescribed period of limitation.
16. It is settled law that promise to pay in writing ma- tures into an enforceable contract in view of Section 25(3) of the Indian Contract Act and suit can be filed in order to enforce the same. Reliance in this regard can be placed on case law titled as Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.26 Delhi: 26.09.2024 Page 15 of 46 16:23:27 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht Narendra Kanekar Vs. The Bardez-Taluka Co-operative Housing decided on 20th April 2016, wherein the Hon'ble Bombay High Court has observed as follows:-
"Mere giving a cheque, without anything more, will not revive a barred debt, because cheque has to be given, as contemplated by the ex- planatory in discharge of a legally enforceable debt. There is no doubt that in terms of the Indian Limitation Act, 1963, a signed acknowledgment of liability made in writing before the expiration of the period of limitation, is enough to start a fresh period of limitation. Likewise, when a debt has be- come barred by limitation, there is also Section 25 (3) of the Contract Act, by which, a written prom-
ise to pay, furnishes a fresh cause of action. In other words, what Clause (3) of Section 25 of the Indian Contract Act in substance does is not to re- vive a dead right, for the right is never dead at any time, but to resucitate the remedy to enforce pay- ment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation below Section 138 of the Act. As far Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.26 Page 16 of 46 16:23:32 Delhi: 26.09.2024 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht as this aspect of the case is concerned, the learned Division Bench observed that to determine as to whether or not a liability is legally enforceable, the provisions of the Contract Act cannot be said to be irrelevant. This can provide a cause for a legal liability. Although the primary question answered by the Division Bench was that a cheque becomes a promise to pay under Section 25(3) of the Con- tract Act, this view need not be followed by this Court in the light of the Judgment of this Court in the case of Ashwini Satish Bhat v. Shri Jeevan Di- vakar Lolienkar (supra) and the other two Judg- ments referred to hereinabove. Nevertheless, the Division Bench Judgment is relevant to the extent that it holds that a promise to pay in writing as per Section 25 (3) of the Indian Contract Act, 1972, matures into an enforceable contract, which can be enforced by filing a Civil Suit. If a suit could be filed pursuant to a promise made in writing and signed by the person to be charged therewith, as contemplated by Clause (3) of Section 25 of the Law of Contract, then, in my view, the debt be- comes legally enforceable and if a cheque is given in payment of such debt is dishonoured and subse-
NEETU
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quently, the statutory notice is not complied with, then the person making the promise in writing and issuing the cheque, would still be liable to be pun-
ished under Section 138 of the Act." (emphasis supplied)
17. Similarly, the Hon'ble Bombay High Court in case title as Vijay Ganesh Gondhlekar Vs. Indranil Jairaj Damale on 04 October, 2007 (2008CRILJ657) observed as follows:-
"7. Assuming for the sake of argu- ment that there was no acknowledgment before the expiry of period of limitation and the cheque is is- sued after a period of expiry of limitation, still whether there is an enforceable liability or not will have to be considered. I have already observed above that the cheque is issued under the signature of the debtor after putting the sum payable. The cheque directs the bank to pay the bearer sum mentioned in the cheque. As such it becomes the promise in favour of the payee within the meaning of Section 25 (3) of the Indian Contract Act. Once it becomes a fresh promise, fresh period of limita- tion of 3 years would begin to run from the date of Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR NAGAR Date:
JSCC-ASCJ-GJ/South East 2024.09.26 16:23:42 Delhi: 26.09.2024 Page 18 of 46 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht cheque. Hence the liability would certainly be a legally enforceable liability."
(emphasis supplied)
18. In a case reported in Veera Exports V. T. Kalavathy 2002(1) All MR 275 (SC), Hon'ble Supreme Court has observed as follows:-
" ......Thus when a drawer revalidates cheque form time to time which is permissible, it could be said that on each occasion there was a fresh promise as envisaged by Section 25 of the Contract Act as well as an acknowledgment within the meaning of Section 18 of the Limitation Act if such revalidation is made within the period of lim- itation. In the instant case admittedly the accused- applicant had extended the date of cheque from time to time under his own signature and had vali- dated the cheque. As said earlier such validation amounts to a fresh promise and therefore, he has revived a barred debt. The proceedings have been filed within 3 years from the last such revalidation and in view of this it could not be said that under the cheque the applicant sought to recover a barred NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 26.09.2024 Page 19 of 46 NEETU NAGAR Date: 2024.09.26 16:23:47 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht debt. In view of this I find no substance in the ap- plication. It is dismissed"'. (emphasis supplied)
19. It is legally settled now that if payment by cheque is made within limitation period, then same will save the limitation period under Section 19 of Limitation Act even if the cheque is bounced. The Hon'ble Delhi High Court in case titled as Rajesh Kumari Vs. Prem Chand Jain on 22 April, 2007 [1997IIIAD(DELHI)609], observed as follows:-
"(13) I may illustrate. The loan is dated 1.3.81, the limitation for suit for recovery expires on 1.3.84.
On 28.2.84 the debtor delivers a cheque in part payment of principal or in payment of interest duly signed by him. The plaintiff files a suit on 7.3.84. Seeking extension to limitation relying on payment dated 28-2-1984. The suit will be within limitation though the cheque may bounce during the pen- dency of the suit. The bouncing of the cheque will not undo the advantage of extension in the period of limitation earned by the plaintiff and his validly instituting the suit on 7.3.84. Thus, dishonouring of the cheque results in not extinguishing the lia- bility of the debtor to the extent of the amount of Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.26 Page 20 of 46 16:23:51 Delhi: 26.09.2024 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht the cheque; nevertheless the cheque remains an ef- fective payment for the purpose of Section 19 of the Limitation Act 1963.
(14) In the case at hand, the cheque was accepted as a payment by the plaintiff. He had no reason to believe or apprehend that the cheque will be dis-
honoured when presented for payment. The pay- ment by cheque having been accepted and the plaintiff having earned the advantage of extension in period of limitation, that advantage cannot be wiped out or undone by the tortuous act of the de- fendant withholding the payment of the cheque."
20. Hence, it is crystal clear that payment by cheque will be effective payment for the purpose of Section 19 of Limi- tation Act even if the cheque is bounced. Harking back to the facts of the present case, it has transpired from the testimony of plaintiff that no payment after the date of cheque has been made by the defendant to the plaintiff. Admittedly, the transaction in the present case is a loan transaction between the parties and same would be covered by Article 19 of the Limitation Act ac- cording to which a suit for the recovery of the amount would be three years after the date on which the loan was made. Hence, NEETU NAGAR (Neetu Nagar) Digitally signed by JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 26.09.2024 Page 21 of 46 Date: 2024.09.26 16:23:55 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht taking into consideration the last interest paid in December 2013 as asserted by the plaintiff, the present suit could have been filed by December ,2016. However, it is pleaded that the suit has been filed within limitation as the cheque dated 16.02.2014 was issued to the plaintiff by the defendant to discharge her liability. The said cheque bears the amount, the name of the payee and the sig- nature of the drawer of the cheque as well as the date of issue. Therefore, a cheque itself is a document which could fall within the scope of Section 18 of the Limitation Act. Acknowledgment is thus given before the expiry of period of limitation since time was extended under the signature. Hence, fresh period of three years shall begin to run from the date of cheque. Considering from the date of the issuance of the cheque dated 16.02.2014 ,the present suit filed on 17.02.2017 is barred by limitation as time of three years from 16.02.2014 would expire on 16.02.2017. The cheque could have saved limitation if the suit would have been filed on or before 16.02.2017. However, the present suit has been filed on 17.02.2017, hence, same is time barred. Accordingly, this issue stands decided in favour of the defendant and against the plaintiff.
ISSUE NO. (ii):-
"(ii) Whether the suit is barred by provisions of Punjab Money Lending Act? OPD"
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21. The burden to prove issue no. (ii) was placed on the defendant. However, the defendant failed to prove on record if the plaintiff was engaged in any money lending business or was lending money to various persons in connivance with other ladies of the area as asserted by the defendant so as to attract the provisions of Punjab Money Lending Act. Hence, this issue is decided in favour of the plaintiff and against the defendant.
ISSUES NO.(III) TO (VI):-
"(iii) Whether the subject cheque had been issued by the defendant to the brother of the plaintiff and not the plaintiff as claimed? OPD
(iv) Whether the suit has been filed without any cause of action as the cheque was not issued to the plaintiff for any recoverable liability as the plaintiff never advanced the friendly loan of Rs. 2,00,000/- as claimed? OPD
(v) Whether the plaintiff is entitled to recovery of an amount of Rs. 2,00,000/-? OPP
(vi) Whether the plaintiff is entitled to recovery of interest, if so at what rate? OPP"
22. The burden to prove issues no. (iii) to (iv) was placed upon the defendant and that to prove issues no. (v) to (vi) was placed on the plaintiff.
23. It is necessary to examine whether the plaintiff has advanced the alleged loan to the defendant and the cheque was NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 26.09.2024 Page 23 of 46 NEETU NAGAR Date: 2024.09.26 16:24:05 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht given by the defendant to the plaintiff for the repayment of loan amount.
24. Let us first discuss the relevant legal provisions applicable to the present facts and circumstances. Sections 118 and 119 of the Negotiable Instrument Act lay down certain presumptions which the court presumes in regard to negotiable instruments. In other words, these presumptions need not be proved as they are presumed to exist in every negotiable instrument. Until the contrary is proved, the following presumptions shall be made in case of all negotiable instruments:
1. Consideration: It shall be presumed that every negotiable instrument was made drawn, accepted or endorsed for consideration. It is presumed that, consideration is present in every negotiable instru-
ment until the contrary is presumed. The presump- tion of consideration, however may be rebutted by proof that the instrument had been obtained from, its lawful owner by means of fraud or undue influ- ence.
2. Date: Where a negotiable instrument is dated, the presumption is that it has been made or drawn on such date, unless the contrary is proved.
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25. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another. The provision of law under Section 114 of the Indian Evidence Act is also relevant and reads as under :
"114 Court may presume existence of certain facts.
--The Court may presume the existence of any fact which it thinks likely to have happened, regard be- ing had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
xxxxxx Illustrations. The Court may presume-- xxxxx "..............(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good con- sideration ................"
26. In Khem Singh v. Dinesh Bhatia, 2017 SCC OnLine Del 9047, it is observed by Hon'ble Delhi High Court as under :-
"I would like to add that once a cheque is dishonored, a liability arises as a cheque has to be presumed to have been given for consideration.
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Also, in terms of Section 114 of the Indian Evi- dence Act, 1872 illustration (i) if a document cre- ating an obligation is in the hands of the obligor, the obligation stands discharged and meaning thereby the opposite is also equally true that if the instrument, i.e banking instrument in this case, is not in the hands of the appellant/defendant, it means that the banking instrument was with the re- spondent/plaintiff for discharge of the liability of the appellant/defendant."
27. In Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm, (2008) 7 SCC 655, it was observed by Hon'ble Supreme Court as under :
"17. Under Section 118(a) of the Negotiable In- struments Act, the court is obliged to presume, un- til the contrary is proved, that the promissory note was made for consideration. It is also a settled po- sition that the initial burden in this regard lies on the defendant to prove the nonexistence of consid- eration by bringing on record such facts and cir- cumstances which would lead the court to believe the non existence of the consideration either by di-
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ments as noted hereinabove, the position of law which emerges is that once execution of the prom- issory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consid- eration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
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(emphasis supplied)
28. The position of law with regard to Section 118 of Negotiable Instruments Act, 1881 and Section 114 of Indian Evi- dence Act, 1872 has been explained by the Hon'ble Supreme Court in M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30 :2006 SCC OnLine SC 660 as under :
"30. Applying the said definitions of "proved" or "disproved"to the principle behind Section 118(a) of the Act, the court shall presume a negotiable in- strument to be for consideration unless and until after considering the matter before it, it either be- lieves that the consideration does not exist or con- siders the nonexistence of the consideration so probable that a prudent man ought, under the cir- cumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said pur- pose, the evidence adduced on behalf of the com- plainant could be relied upon."
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29. Hence, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the exis-
tence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. However, if the defendant fails to dis- charge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
30. Now, reverting back to case in hand, the issuance of alleged cheque is admitted by the defendant. The signature of the defendant is already admitted. It is not the case of the defendant that the subject cheque has been stolen.It will thus lead to raising a prima facie presumption in favour of the plaintiff that the cheque was drawn for consideration and it was for the defendant to rebut the presumption as raised against her under Section 118 of the Negotiable Instrument Act, 1881 and Section 114 of Indian Evidence Act. But the presumption could be rebutted by adduc-
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ing evidence. The burden of proof was however on the person who wanted to rebut the presumption.
31. Let us now see whether the defendant has been able to rebut the presumption or not. The defence of the defendant in the present case is basically two fold. It is the case of the defen- dant that she has received Rs.10,000/- as friendly loan from the plaintiff and same has already been paid but the plaintiff kept on charging exorbitant interest at the rate of 15 to 20% thus extract- ing more and more money from the defendant on the basis of the loan amount of Rs.10,000/- taken 7 years ago from the date of filing of the suit which on the date of filing of the present suit is time-barred. However, it is nowhere clear from the entire evi- dence of the defendant as to the exact date when the defendant has taken the loan of Rs.10,000/- and paid the same. Nothing in writing has been proved on record regarding the said transaction or the interest amount, if any given by the defendant to the plain- tiff from time to time. It is further asserted by the defendant that the plaintiff also took five blank cheques of Bank of India, Par- liament Street, New Delhi from the defendant as a security. How- ever, there is nothing on record to prove the same. Even the pass- book in order to confirm the said bank account of the defendant has not been placed on record by the defendant. DW1 is the daughter of the original defendant who deposed that her mother NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by NEETU NAGAR Delhi: 26.09.2024 Page 31 of 46 Date: 2024.09.26 16:24:43 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht used to talk to her husband regarding her financial needs where as, it is pleaded in the written statement that the defendant told about the same to her husband who then intimated the same to her son-in-law. Hence, it is never the case of defendant that the defendant told about the transaction to her daughter. Then she has deposed that her mother did not tell her about the entire transaction that took place between the plaintiff and her mother. She further testified that her mother told her that she took Rs.10,000/- from the plaintiff and that she will be paying the same. She deposed categorically that no transaction of Rs.10,000/- ever took place in her presence. Then she has de- posed that her mother never paid the amount Rs.10,000/-to the plaintiff. Whereas, it is the case of defendant that Rs.10,000/- was paid by the original defendant to the plaintiff. Hence, amount of Rs. 10,000/- stood paid by the defendant to the plain- tiff is doubtful. Then she has deposed that her mother used to pay interest thereon to the plaintiff as informed to her which was to the extent of 15% to 25%. She has further deposed that her mother used to pay interest amount to the tune of Rs.1500/- and Rs.2500/- at times as demanded by the plaintiff in different months as stated by her mother. It seems that the testimony of this witness is based on conjectures and is hearsay. It is next de- posed by her that the plaintiff got her mother pledge her jew- ellery. However, DW-1 never made any efforts to claim the said NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by NEETU NAGAR Delhi: 26.09.2024 Page 32 of 46 Date: 2024.09.26 16:24:49 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht jewellery items from Anil jewellers. Moreover, Anil jewellers has also not been examined in order to substantiate her version. The defendant has also examined her husband namely Mr. Shiv Anand as DW2 who has deposed that his mother-in-law inti- mated about the money transactions to him and not to her father- in-law which is totally in contradiction with the defence of the defendant. Then he has deposed that he is not aware of the exact items of jewellery belonging to her mother-in-law which were got pledged by the plaintiff with Anil Jeweller. Perusal of the re- ceipts Ex. DW2/X1 shows that it is not mentioned therein that the jewellery items were pledged. The defence of the defendant in this regard thus is completely unbelievable. Hence, the version of the defendant regarding taking loan of Rs. 10,000/- from the plaintiff has to be discarded completely being not worthy of any credence.
32. The next averment on behalf of the defendant is that she has been hypnotised by the tantrik and that she was playing at the hands of the plaintiff. However, there is nothing on record to prove the same except for bald averments. No such tantrik has been named. No complaint as such has been moved against any tantrik by the defendant. Hence, the contention in this regard is without any substance.
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33. The next defence of the defendant is that the cheque in question has been handed over by her to the brother of the plaintiff namely Mr. Bhagwan Ballabh and not to the plaintiff for the committees of the amount of Rs.1,00,000/-each which were being run illegally by the brother and father of the defendant. It is averred on behalf of the defendant that the brother of the plaintiff had issued two cheques bearing no. 67 and 70 and took four cheques as security inclusive of cheque in question with regard to the illegal committees. It is next contended further that four cheques were issued by the plaintiff to the brother of the defen- dant Mr. Bhagwan Ballabh as security and one has been misused by the plaintiff and another one has been misused by her brother and false cases have been instituted against the defendant under section 138 of Negotiable Instrument Act and false suits have been filed under Order XXXVII CPC.
34. On perusal of testimony of plaintiff/PW1, it has transpired that plaintiff and defendant have been sharing very cordial relations, due to which plaintiff had given friendly loan of Rs. 2 lacs to the defendant in the month of September 2013 and same was required to be paid by the defendant within 3 to 4 months with interest. It is further averred that the defendant also paid the interest up to December 2013. It is contended that the defendant acknowledged the liability and issued the alleged NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by Delhi: 26.09.2024 Page 34 of 46 NEETU NAGAR Date: 2024.09.26 16:24:59 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht cheque of Rs.2lacs. However, the same is dishonoured and the plaintiff has sent a legal notice and after service of which, the de- fendant has failed to repay the amount and the defendant is liable to refund the loan amount to the plaintiff.
35. In order to discharge the onus, plaintiff relied on the testimony of herself as PW1 and has also placed on record cheque, bank return memo, legal notice and its postal receipt to fortify her testimony by documentary evidence.
36. Admittedly, complaint under section 138 of Nego- tiable Instrument Act has been filed in which the present plaintiff was duly cross examined on behalf of the defendant who was ac- cused in the said case. It is also an admitted fact that Mr. Bhag- wan Ballabh has also instituted a recovery suit in the sum of Rs.2 lacs against the original defendant under Order XXXVII CPC and also instituted a criminal complaint under section 138 of Ne- gotiable Instrument Act. Since the defendant expired, it seems that the proceeding under section 138 of Negotiable Instrument Act stood closed. As far as suit under Order XXXVII CPC is concerned, it is stated that it has been dismissed by the Civil Court and appeal against the same is already pending.
37. It was argued vehemently by learned counsel of the Defendant that there are so many contradictions in the testimony NEETU (Neetu Nagar) JSCC-ASCJ-GJ/South East NAGAR Digitally signed by Delhi: 26.09.2024 Page 35 of 46 NEETU NAGAR Date: 2024.09.26 16:25:03 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht of the plaintiff in the present case vis-a-vis the testimony which has been recorded in the criminal complaint under section 138 of Negotiable Instrument Act which makes the case of the plaintiff doubtful and proves the defence of the defendant that no consid- eration as such has been passed by way of the cheque in question. It is emphasised that the testimony of the plaintiff is self contra- dictory which demolish the case of the plaintiff.
38. It is pertinent to mention that there are major contra- dictions elicited by learned counsel of the defendant during the course of cross-examination of the plaintiff in the present case which makes the version of the plaintiff doubtful. It seems that the lies of the plaintiff does not know any boundaries and same is also clear from the testimony of the plaintiff recorded in the present case as well as that recorded in the complaint under Sec- tion 138 Negotiable Instrument Act. It is imperative thus to dis- cuss the contradictions and concealment of facts made on behalf of the plaintiff.
39. In the complaint, it is alleged that amount of Rs.2,00,000/- was given on different dates but there was not even a remote whisper that out of this an amount Rs. 40,000/- and Rs.37,000/- were got paid from the Goldsmith Mamchand, while during her cross-examination she stated that out of alleged Rs. 2,00,000/-, Rs. 40,000/- and Rs. 37,000/- were got paid from NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by NEETU NAGAR Delhi: 26.09.2024 Page 36 of 46 Date: 2024.09.26 16:25:08 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht Goldsmith Mamchand. While in the present suit, it is alleged that amount of Rs. 2,00,000/- was given in September 2013. In the complaint, it is alleged that the amount was a friendly help with- out interest while in the present suit it is alleged that the alleged amount was a loan and was returnable with interest and that the defendant even paid interest upto December 2013. There is no proof of interest, if any, paid by the defendant to the plaintiff. Further, in the suit it is not shown as to when the alleged cheque is given whereas in the complaint it is alleged that the said cheque was given in November 2013. In reply to Leave to defend application, the plaintiff stated that the defendant had borrowed an amount of money of Rs.2,00,000/- (two lacs rupee only) in cash from the plaintiff in the year 2013 though it was a friendly loan with the request of the defendant for domestic need, particu- larly for affording fee for professional education of her daughter's son. PW-1 deposed that the Defendant did not demand Rs.3 lakhs in September 2013. Whereas, it is the case of the plaintiff that the defendant demanded friendly loan of Rs.3 lacs from her. Surpris- ingly, she has deposed that she was given the cheque not for a lump sum amount of Rs.2 lacs. It was given towards the total lia- bility which had crossed Rs.2 lacs given in installments. How- ever, the cheque in question is only to the tune of Rs. 2 lacs.
40. A further perusal of cross-examination of PW1 shows that the plaintiff has denied having received any reply to NEETU NAGAR (Neetu Nagar) JSCC-ASCJ-GJ/South East Digitally signed by NEETU Delhi: 26.09.2024 Page 37 of 46 NAGAR Date: 2024.09.26 16:25:13 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht the legal notice and admitted the same during her confrontation with certified copy of her testimony Ex.D3. Meaning, thereby that the plaintiff tried to conceal the fact of receiving the reply to legal notice. The plaintiff has also identified her signature on the promissory note Ex. D4 wherein her signature has been ap- pended. When the plaintiff was questioned regarding the purpose with regard to promissory note Ex. D4, she answered that same was executed concerning "certain amount" which the defendant had taken as loan from her. PW1 has not even revealed the exact amount which has been taken as loan as she deposed that it was certain amount.Then she has deposed that at the time of giving loan to the defendant, no promissory note in writing was exe- cuted and only a cheque was handed over. It could not be under- stood why the plaintiff deposed that the promissory note Ex.D4 was with regard to the amount taken by the defendant as loan from her. Meaning thereby that the plaintiff is actually conceal- ing the truth with regard to the said promissory note and there is possibility that the cheque in question has been issued to the brother of the defendant. PW1 deposed next that she had also fa- cilitated the meeting of the Defendant with her brother but did not remember the exact date as to when she had done the same. Then she testified that her brother did not give any loan to the Defendant in her presence. Whereas, she has identified her signa- ture on the promissory note Ex.D4. When she was questioned re-
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garding the purpose, when she signed promissory note Ex.D4, she has not answered the question and has vaguely responded that the said document was prepared when she had taken the de- fendant to meet her brother. Then she has deposed that at the time of signing the promissory note, her brother did not give any money to the defendant, nor did he issue or handover any cheque to the defendant. From a perusal of promissory note Ex. D4, it has transpired that there is mention of issuance of two cheque number 67 and 70 and cash for Rs. 96,250/- therein. It could not be understood when the defendant was not paying the loan to the plaintiff then why would she introduce the defendant to her brother. She has next deposed that she had made the defendant to meet her brother since she wanted to meet him. She deposed fur- ther that defendant had not given any reason as to why she wanted to meet him. Clearly, the witness is not speaking the truth, as nobody will make any relative meet another person without knowing the reason of meeting.
41. Further, PW1 has deposed that the loan was ex- tended in 3 to 4 installments over a period of time in the year 2013 while the cheque was issued to her by the defendant in the month of November 2013. Contrary to this, it is the case of the plaintiff that she has given loan to the defendant in the sum of Rs.2 lacs. The plaintiff herself admitted that she has not mentio- ned about the installments anywhere in her plaint or the evidence NEETU (Neetu Nagar) NAGAR JSCC-ASCJ-GJ/South East Digitally signed by NEETU NAGAR Delhi: 26.09.2024 Page 39 of 46 Date: 2024.09.26 16:25:23 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht affidavit.Later she deposed that she filed the present suit for re- covery of the amount extended to the Defendant as loan by way of the above mentioned installments. Evidently, it is nowhere mentioned in the plaint that the loan was extended by way of installments. Further it has been mentioned in the plaint that the cheque was given in the month of September 2013 where as she has deposed that she was given the same in the month of Novem- ber 2013. Meaning thereby that the plaintiff is not even aware when exactly the cheque in question has been given which fur- ther creates a doubt if the cheque in question was actually given to her or not.
42. PW1 has next deposed that the first instalment for Rs.30,000/- was paid by her to the Defendant in June 2013. The second installment was for Rs.40,000/- given in September 2013.She deposed that she had given the second installment after taking the money from her brother. However, she has not exam- ined her brother to prove the same. She has next deposed that the third installment for Rs.37,000/- was given by her by giving jew- ellery as security to a jeweller on 08. 08.2013. The said jeweller has also not been examined. She has next deposed that she did not take anything in writing from the jeweller from whom she had taken money against her jewellery to pay as loan to the De- fendant. It is totally unbelievable that a reasonable and prudent person would grant loan to other by taking loan from another.
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She has next testified that fourth installment was given in No- vember 2013 to the tune of Rs.65,000/-and that she had taken the money for the said installment from some third person namely Ms. Prabha but the said person has not been examined in order to corroborate the same. Again, it is unbelievable that the plaintiff will keep on taking loans from here and there in order to grant loan to the defendant. She has further deposed that she gave amount to the tune Rs.69,000/- in addition to the four install- ments however, she did not remember exactly as to when it was paid. She has then deposed that Rs.65,000/-was paid before mak- ing payment of Rs. 59,000/-. However, when the total of the four installments and amount of Rs.69,000/- is made, the amount comes out as 2,41,000/-.Where as, the case of the plaintiff is that she gave loan of Rs.2,00,000/- to the defendant. Hence, a major doubt has been created as to the amount of loan advanced by the plaintiff as asserted.
43. The plaintiff further deposed that she has given the amount in 3 and 4 installments of Rs. 30,000/-, 40,000/-, 37,000/- and 65,000/- and further amount of Rs. 69,000/-. Whereas, in her cross-examination in the complaint case, the plaintiff stated that she paid Rs. 30,000/-, 45,000/-, 40,000/-, 37,000/-and 65,000/-. During her cross-examination as to which of the statements is correct, she deposed that she had not mentioned the installment of Rs.45,000/- in her previous statement in the complaint case.
NEETU (Neetu Nagar) NAGAR Digitally signed by JSCC-ASCJ-GJ/South East NEETU NAGAR Delhi: 26.09.2024 Page 41 of 46 Date: 2024.09.26 16:25:31 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht When she was asked to explain the inconsistency, then she de- posed that she did not remember exactly and deposed that she had paid more than 2 lakhs to the defendant for which she had also given away her jewellery. She has then deposed that she has given Rs. 30,000/- in June 2013, Rs. 40,000/- thereafter (She did not remember the month), Rs. 37,000/- in September 2013 and thereafter, further payments which she did not remember. Then again she contradicted saying that cheque was given to her by the defendant after she had made the entire payment of over Rs. 2 lakhs to the defendant. However, earlier she deposed that the subject cheque was handed over on the same date when the fourth installment was paid by her to the Defendant. The fourth installment has been given in the month of November 2013 as per the deposition of the plaintiff. She then deposed that the last amount given by her to the defendant was Rs. 59,000/-. The said payment was made later after making fourth installment in the month of November 2013 when the cheque in question was ad- mitted to be given by the plaintiff as admitted. Hence, there are contradictions in testimony of the plaintiff as to when the cheque in question was given.
44. It further transpired that PW1 had deposed that an- other installment for a sum of Rs. 40,000/-was got paid through goldsmith Mamchand to the defendant in the month of August 2013. Further, she deposed that another installment of Rs.
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37,000/- was also got paid through gold smith Mamchand in Sep- tember 2013 during her cross examination in complaint case.However, herein she deposed that it was only Rs. 37,000/- that was arranged through the goldsmith and not Rs. 40,000/-. Then she stated in the next breath that there was a liability run- ning towards interest against the defendant with Mr. Mamchand and therefore, Rs. 40,000/- was also arranged through him. Then she deposed that she did not arrange Rs. 40,000/- through Mr. Mamchand for the defendant. She had taken the same herself from him.Hence, it is crystal clear that the plaintiff is not telling the truth and made wavering as well as contradictory statements.
45. The plaintiff also showed her ignorance when she was questioned as to the purpose for which the Defendant needed the sum of Rs.37,000/-, Rs.40,000/- and Rs.30,000/-, Rs. 65,000/- and Rs. 59,000/- as alleged. She deposed that the defen- dant did not tell the reasons. She deposed that the defendant used to say that she has to give the money further. No sane person will give the amount without knowing the need of another. Hence, it seems that the version of the plaintiff that she extended help to the defendant due to her need also stands falsified.
46. There are waving statements made by PW1 with re- gard to the date of cheque as well. She could not tell as to who had written the date of 16.02.2014 on the cheque in question. She then categorically deposed that the name of Pushpa Devi and the Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR JSCC-ASCJ-GJ/South East NAGAR Date:
2024.09.26 Delhi: 26.09.2024 Page 43 of 46 16:25:39 +0530 CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht amount Rs.2 lakhs in figures and words on the said cheque has not been written by her. She deposed that the said details and date were already written when the cheque was handed over to her by Nirmala Bisht. Whereas, in her replication it has been stated by her that the cheque in question was undated and the same was required to be paid on demand. Then she has deposed that she did not remember the date when the same was written and it was written by Mrs. Nirmala Bisht. Hence, the plaintiff is not speaking the truth in this regard also.
47. The contradictions in the testimony of PW1 are fur- ther pellucid when she was confronted with and asked as to what was the rate of interest for the loan claimed to have been ex- tended to which she has stated that there were no such under- standing towards the interest. Whereas, the interest is referred to in the plaint as paid till December 2013 to which she deposed that was the interest which was paid to the Jeweller and not to her. Despite such deposition, the plaintiff failed to examine the said jeweller. Further, in her plaint she stated that someone intro- duced her to the defendant. Whereas, during her cross examina- tion, she deposed that no one introduced her and that she used to meet the defendant on her visits to the local temple.
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CS SCJ 171/17 Puspha Devi Vs. Nirmala Bisht
48. All these major contradictions and concealments of facts clearly point out that the plaintiff is not speaking the truth and has not come to the court with clean hands. Even if for the sake of arguments ,it is assumed that the plaintiff gave some money to the defendant, no concrete finding can be given regard- ing the same due to bundle of lies deposed by the plaintiff in the court. Hence, the defendant has successfully proved the non exis- tence of consideration by raising a probable defence, and dischar- ged the initial onus of proof that the existence of consideration was improbable or doubtful. Possibility of misuse of the cheque in question by the plaintiff can not be ruled out. If the cheque in question would have been actually given by the defendant to the plaintiff, then the plaintiff would not have lied on so many as- pects. Hence, the truth has come out through the lengthy cross examination of the plaintiff which raised a doubt if the cheque in question was handed over to the plaintiff by the defendant. No cause of action thus arises in favour of the plaintiff.
49. This leads the court to conclude that the testimony of PW1 is not reliable and the version of the plaintiff is not ac- ceptable to this court. Hence, the plaintiff is not entitled to re- cover an amount of Rs. 2,00,000/- from the defendant. Conse- quently, issue no.(iii) to (vi) stand decided against the plaintiff and in favour of the defendant.
Digitally
signed by
NEETU
NEETU NAGAR
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RELIEF
50. In view of the above decision, the present suit is dis- missed with costs.
51. Decree sheet be prepared accordingly.
52. File be consigned to record room after due compli- ance.
Announced in the open Digitally
signed by
court today i.e. 26.09.2024 NEETU
NEETU
NAGAR
(This judgment contains 46 pages NAGAR Date:
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Saket Courts: New Delhi
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