Delhi District Court
Sh. Yashpal Singh Tomar @ Pappu vs Sh. Narpat Singh on 5 July, 2013
IN THE COURT OF SHRI ANIL KUMAR: JSCC: ASCJ:
GUARDIAN JUDGE (NORTH EAST)
KKD COURTS, DELHI.
Suit No. : 135/10
Unique Case ID No. : 02402C0832032007
In matter of :
Sh. Yashpal Singh Tomar @ Pappu
S/o Sh. Mahender Singh,
R/o T-37, Singh Sabha Road,
Shakti Nagar, Delhi - 110007. ........... Plaintiff
VERSUS
Sh. Narpat Singh
(Belt No. 541) (E-company)
Through Commandant,
At 8th Batalian,
R.A.C. I.R-B, Company Gazipur,
Delhi - 110006. ......... Defendant
Date of institution of the suit : 05/10/2007
Final Arguments Heard on : 04/06/2013
Date of Judgment : 05/07/2013
SUIT FOR RECOVERY OF RS. 1,00,000/-
(RUPEES ONE LAC ONLY)
JUDGMENT :-
This is a suit for recovery of Rs. 1,00,000/-. By way of present suit plaintiff has sought a decree for recovery of Rs. 1,00,000/- along with future interest @ 18% per annum from the date of filing of the suit till its realization.
1. It is the case of the plaintiff that the defendant is Suit No. 135/10 Page 1 of 9 pages working with Rajasthan Police and presently posted at 8th Battalion, RAC, IR-B, Company, Gazipur, Delhi - 96. Plaintiff has alleged that he and defendant were goods friends and well known to each other. Plaintiff has alleged that in the month of October 2004, the defendant approached him for financial help for purchasing a piece of land in Ikram Park, Loni, District Ghaziabad, U.P. Plaintiff has alleged that for the sake of friendship he agreed to give the loan of Rs. 1,00,000/- to the defendant and defendant promised to repay the loan amount on demand by him. Plaintiff gave the amount of Rs. 1,00,000/- to the defendant in five installments of Rs. 15,000/- each and at the time of giving the amount of Rs. 25,000/- on 16/10/2004 the defendant acknowledged the entire amount of Rs. 1,00,000/- and he issued a promissory note and receipt on the day in the presence of two witnesses i.e. Surender Kumar, S/o Sh. Ishwar Singh, R/o Village Nanakheri, P.O. Chawla, New Delhi and Sh. Naveen Dutt Sharma, S/o Sh. K.D. Sharma, R/o Railway Road, Muradnagar, District Ghaziabad, U.P. and the defendant assured to plaintiff that he will return the loan amount within a period of one year from 16/10/2004. Plaintiff has alleged that he was in need of amount of Rs. 1,00,000/- and he approached the defendant in the month of January 2006 and defendant asked for extension of period for three weeks and plaintiff allowed the request of the defendant. Plaintiff has further alleged that in the month of February 2006 he repeatedly requested the defendant to return the loan amount and he also visited the residential place of the defendant number of times and even also persuaded the Suit No. 135/10 Page 2 of 9 pages defendant with the help of some respectable and responsible person of the society and the commandant of the defendant's battalion but defendant has avoided the matter on one pretext or other. Plaintiff has further alleged that he sent a legal demand notice through his Advocate on 22/02/2006 by way of Regd. A.D. and UPC to the defendant and the notice was duly served upon the defendant. After receiving the notice, the defendant had approached the plaintiff and requested for one year time for repayment of the loan amount and the plaintiff allowed the same. After the lapse of one year period, the defendant again approached the plaintiff and requested for six months more time for repayment of the loan amount and for the sake of friendship, the plaintiff again given six months more time but after the lapse of the said six months time, defendant was avoiding to repay the loan amount. Hence, present suit.
2. Defendant has contested the present suit by filing his WS. In his WS, defendant has stated that he is not known to plaintiff in any manner. He has further stated that forgery is apparent on the promissory note from the different ink and hand writing was used for putting up the date i.e. 16/10/2004. Defendant has further stated that while executing the necessary documents for the property transfer, some blank papers were signed which were kept by the document writer and this document has been prepared from the said blank paper and defendant was told that this blank papers are necessary for proper registration and same will be used, while taking registry from the concerned office and Suit No. 135/10 Page 3 of 9 pages same will be used as authority letter. Plaintiff has also filed similar suits against other several persons from the same company (RAC) and all are not known or even met to the plaintiff in their life time and their names are Mr. Bachu Singh, Mr. Shankar Singh, Mr. Narpat Singh, Mr. Sunil Kumar, Mr. Rohtas Singh, Mr. Shri Ram Arya and many others. Defendant has further stated that he neither ever approached the plaintiff to grant any loan nor the plaintiff ever granted any loan to the defendant. Plaintiff has procured the documents on the basis of which he has filed the present suit against him in connivance and collusion with one Sh. Ikram residing at Ikram Park, Loni, District Ghaziabad, U.P. Defendant has purchased a plot of land 100 Sq. Yards situated at Ikram Park, Loni, Distrcit Ghaziabad, U.P. in the year 2004. Defendant has paid the sale consideration in cash to Sh. Ikram. The said Sh. Ikram had got prepared some documents of sale and purchase which were got prepared by him and he asked the defendant to sign the same. The defendant in good faith signed the same. It appears that the said Ikram would have procured the signature of defendant on the documents which are in power and possession of plaintiff on the basis of which he has filed the present suit. Defendant has denied the other material contents of the plaint.
3. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide Order dated 18/04/2011 :-
i) Whether the suit of the plaintiff is within the period of Suit No. 135/10 Page 4 of 9 pages limitation? OPP
ii) Whether the suit of the plaintiff is without any cause of action? OPD
iii) Whether the plaintiff has concealed the material facts from the court, as stated by the defendant in the preliminary objections of his written statement? OPD
iv) Whether the plaintiff is entitled for the decree of Rs.
1,00,000/- (Rs. One Lac) along with interest as prayed for by the plaintiff in the plaint? OPP
v) Relief, if any.
4. In support of his case, plaintiff has got examined himself as PW 1 and he has proved on record promissory note and receipt as Ex. PW 1/1, copy of legal demand notice as Ex. PW 1/2, original receipts of regd. A.D. and UPC as Ex. PW 1/3 (colly.), AD card as Ex. PW 1/4 and certified copy of application under Order 37 Rule 4 r/w Section 151 CPC as Ex. DW 1/X1.
5. Other hand, in support of his case, defendant has got examined himself as DW 1 and Sh. Satbir Singh as DW 2.
6. I have heard the submissions of Ld. Counsel for both the parties and perused the entire material on record . My issue wise findings are as under :-
Issue (i) : Whether the suit of the plaintiff is within the period of limitation? OPP Onus to prove this issue is on plaintiff. Present suit has been filed on 05/10/2007 for recovery of amount of Rs. 1 Lac based on promissory note dt. 16/10/2004. Plaintiff has proved on Suit No. 135/10 Page 5 of 9 pages record promissory note dt. 16/10/2004 as Ex. PW 1/1. Limitation for recovery of money is three years. Since this suit has been filed within three years of the date of alleged execution of promissory note hence the same is within the limitation. Accordingly, this issue is decided in favour of plaintiff and against the defendant. Issue (ii) : Whether the suit of the plaintiff is without any cause of action? OPD Onus to prove this issue is on defendant. In his WS defendant has taken preliminary objection that the plaintiff has not got any cause of action to file the present suit. This suit is based on promissory note Ex. PW 1/1. Plaintiff has claimed that he has advanced a loan of Rs. 1 Lac in installments to defendant and defendant executed promissory note in favour of plaintiff for repayment of this loan amount. Plaintiff has further alleged that defendant has failed to repay the loan despite notice of demand. In my opinion, this suit involves sufficient cause of action. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue (iii) : Whether the plaintiff has concealed the material facts from the court, as stated by the defendant in the preliminary objections of his written statement? OPD Onus to prove this issue is on defendant. In the WS, defendant has taken preliminary objection that the plaintiff has not approached this court with clean hands and he has concealed the material facts and filed the present suit on the basis of forged and Suit No. 135/10 Page 6 of 9 pages fabricated documents. Defendant has failed to disclose the material fact which has been allegedly concealed by the plaintiff. A document relied upon by the parties can be forged or genuine but it does not amount to concealment of material facts. I find that defendant has failed to prove on the record concealment of any material fact. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
Issue (iv) : Whether the plaintiff is entitled for the decree of Rs. 1,00,000/- (Rs. One Lac) along with interest as prayed for by the plaintiff in the plaint? OPP Onus to prove this issue is on plaintiff. This suit is entirely based on Ex. PW 1/1 promissory note dt. 16/10/2004 alleged to be executed by the defendant against receiving loan of Rs. 1 Lac from the plaintiff. In his affidavit in evidence, plaintiff has deposed that he gave the amount of Rs. 1 Lac to the defendant in installments and on 16/10/2004 the defendant acknowledged the loan amount and issued promissory note Ex. PW 1/1 in presence of two witnesses namely Sh. Surender Kumar and Sh. Naveen Dutt Sharam.
Defendant has taken defence that the plaintiff is not known to him and he has never taken any loan from the plaintiff nor executed promissory note Ex. PW 1/1.
It is admitted fact of the case that defendant on 16/10/2004 defendant purchased immovable property in Loni on 16/10/2004 from Ikram and certain documents were executed between the plaintiff and vendor Ikram. But defendant has taken Suit No. 135/10 Page 7 of 9 pages further defence while executing the necessary documents for the property transfer, some blank papers were signed which were kept with the document maker and these blank papers have been used for fabricating promissory note Ex. PW 1/1. Hence, it is clear that signature of defendant on Ex. PW 1/1 is admitted. Now, question for consideration is that whether this promissory note Ex. PW 1/1 has been executed by the defendant in favour of plaintiff or not. Burden to prove the fact that this promissory note Ex. PW 1/1 has been executed by defendant lies on plaintiff. In support of his case, plaintiff has examined only himself but he has not examined any witness mentioned in the promissory note Ex. PW 1/1.
In his cross-examination plaintiff has admitted that he had met the defendant for the first time in Loni through his friend Ikram, who deals in business of property. He has further stated that he met the defendant for two times before advancement of loan and 6-7 times after the advancement of loan. But plaintiff shown his inability to identify the defendant during course of his cross-examination. For this plaintiff has given explanation that he has seen the defendant and his colleagues in uniform only.
From these evidences, it is clear that plaintiff is not able to identify the person to whom he has given the loan of Rs. 1 Lac in year 2004. Further it is very difficult to believe that plaintiff has given loan to a person to whom he has met only once or twice. If he had met with the defendant through vendor Ikram and given amount of Rs. 1 Lac then question arises as to why loan was not given by the vendor Ikram himself to defendant. Further it is very Suit No. 135/10 Page 8 of 9 pages difficult to believe that a person going to purchase a land for a sum of Rs. 1,35,000/- only with amount of Rs. 35,000/- in hand and demanded loan from a stranger for major portion of sale consideration. This court, in the above mentioned circumstances can not believe the version of the plaintiff as set up in the present case. Plaintiff has failed to examine his friend Ikram or other persons witnessed the execution of alleged promissory note and signed on it. It appears that Ex. PW 1/1 is a fabricated document. In my opinion, plaintiff has been failed to prove execution of promissory note Ex. PW 1/1. Hence, he is not entitled to recover the suit amount. Accordingly, this issue is decided against the plaintiff and in favour of defendant.
Issue (v) : Relief, if any.
In view of above observations, discussions and findings, this suit is dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (ANIL KUMAR)
th
on this 5 day of July, 2013 JSCC/ASCJ/G.Judge (NE) KKD Courts, Delhi.
Suit No. 135/10 Page 9 of 9 pages