Delhi District Court
M/S. Guru Nanak CoOperative Soceity vs Vinod Kumar on 26 September, 2022
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE - 01, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 503/18
CNR No.DLET010043852018
In the matter of:
M/s. Guru Nanak Cooperative Soceity
At : 666D/31, Jheel Khuranja, Delhi110051
Through its Manager
Sh. Nanak Chand
........Plaintiff
Versus
Vinod Kumar,
S/o Late Sh. Prakash
R/o 666D/25, Jheel Khuranja, Delhi110051
.........Defendant
Date of Institution : 07.07.2018
Judgment reserved on : 26.09.2022
Judgment announced on: 26.09.2022
JUDGMENT :
1. Present suit for recovery of Rs.4,62,750/ with interest has been filed by the plaintiff against the defendant. Brief facts of the case are as under:
2. The plaintiff has been formed by group of individuals, CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 1 of 9 who joined their hands to better the economic condition of its members and to help each other in hour of need. Sh. Nanak Chand has been appointed by the members as Manager to manage the affairs of the plaintiff, who was also member of the plaintiff. The plaintiff being an unregistered cooperative society, the provisions of Delhi Cooperative Societies Act, 2003 are not applicable on the plaintiff.
The defendant became the member of the plaintiff about 19 years back and had taken a loan of Rs.1,00,000/ on 10.12.2013, Rs.50,000/ each on 10.02.2014 and 10.03.2014, Rs.15,000/ on 10.04.2014, Rs.35,000/ on 10.05.2014 and Rs.50,000/ on 10.12.2014, as such the defendant had taken a loan of Rs. 2,72,000/ upto 10.12.2014 @ 1.5% per month from the plaintiff to construct his house. Thereafter, the defendant had further taken a loan of Rs.50,000/ on 10.07.2015 for the same purpose and acknowledged the balance of Rs.2,53,500/ of previous loan as well as the loan of Rs.50,000/ taken on 10.07.2015. A loan agreement dated 10.07.2015 as well as an acknowledgement dated 10.07.2015 acknowledging the total balance amount of Rs.3,03,500/ on 10.07.2015 in the presence of marginal witnesses were executed. The loan amount was given to the defendant at the office of the plaintiff and the relevant documents were also executed at the office of the plaintiff. The defendant assured the plaintiff that he would regularly pay the installment as well as the interest on the loan amount. After taking further loan of Rs.50,000/ on 10.07.2015, the defendant stopped paying the installment as well as CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 2 of 9 interest. He also stopped paying the monthly membership amount to the plaintiff. On 11.07.2015, the total outstanding loan amount was of Rs.3,03,500/ against the defendant. Thereafter, the plaintiff through its manager had made several requests and demands for repayment of loan amount, but the defendant avoided the same on one pretext or other. At present, an amount of Rs.4,62,750/ including interest @ 1.5% per month upto May, 2018 is outstanding against the defendant. When defendant failed to clear the outstanding amount, the plaintiff sent a legal notice dated 12.06.2018 to the defendant through speed post with A.D. on 12.06.2018. After service of said notice, the defendant sent a false and frivolous reply dated 23.06.2018. Thereafter, plaintiff was constrained to file the present suit seeking recovery of Rs.4,62,750/. Hence, this suit.
3. On notice, defendant appeared and filed written statement in which preliminary objections were taken on the ground that the plaint of the plaintiff is not maintainable in the eyes of law; the plaint is misconceived; the plaintiff has not approached the court with clean hands and is guilty for deliberate suppression of material facts; the plaintiff has no local standi to file this suit as it is neither registered nor filed the suit through authorized person, so the present suit is liable to be rejected under Order VII Rule 11(a) CPC; the suit is bad for misjoinder of the parties and not valued properly for the purpose of jurisdiction and court fees.
CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 3 of 9 On merits, it is submitted that the defendant never took any loan from the plaintiff. Besides this, all other averments of the plaint were denied specifically and prayer to dismiss the suit with cost was made.
4. Replication to the written statement of defendant not filed.
5. From the pleadings of the parties, following issues were framed for adjudication on 07.02.2019:
1. Whether the plaintiff is entitled to recover an amount of Rs.4,62,750/, as prayed? OPP.
2. Whether the plaintiff is entitled to interest, if so, at what and for which period?
3. Whether the plaintiff has no locus standi to file the present suit? OPD.
4. Relief.
6. In order to substantiate the case, the plaintiff examined its Manager Sh. Nanak Chand as PW1, who tendered his evidence by way of affidavit Ex.PW1/1, wherein he reiterated all the averments made in the plaint. The same are not repeated here for the sake of brevity. He has also placed reliance on the following documents:
i. Loan agreement dated 10.02.2014 is Ex.PW1/B. CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 4 of 9 ii. Loan agreement dated 10.03.2014 is Ex.PW1/C. iii. Loan agreement dated 10.04.2014 is Ex.PW1/D. iv. Loan agreement dated 10.05.2014 is Ex.PW1/E. v. Loan agreement dated 10.07.2015 is Ex.PW1/G. vi. Handwritten acknowledgement on the back of Ex.PW1/G, is Ex.PW1/H. vii. Photocopy of two ledger accounts of defendant is Ex.PW1/I (colly.2 pages).
viii. Legal notice dated 12.06.2018 is Ex.PW1/J. ix. Speed post receipt dated 12.06.2018 is Ex.PW1/K. x. Rely dated 23.06.2018 of defendant to legal notice is Ex.PW1/L. The documents mentioned in affidavit as Ex.PW1/A and Ex.PW1/F were deexhibited as the same were not on record.
This witness was exhaustively crossexamined by ld. counsel for defendant.
7. Plaintiff's evidence was closed on 30.07.2019 and the matter was listed for defendant's evidence.
8. In defence, the defendant stepped in witness box as DW1 and tendered his evidence by way of affidavit Ex.DW1/A wherein he reiterated the averments made in the written statement. He also placed reliance on the document already exhibited as Ex.PW1/L i.e. reply of CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 5 of 9 legal notice.
This witness was exhaustively crossexamined by ld counsel for plaintiff. Thereafter, defendant's evidence was closed vide order dated 21.07.2022.
9. Final arguments heard. Record perused. Considered. On the basis of submissions advanced at bar, pleadings and evidence, my issue wise findings are as under: ISSUE NO.1:
"Whether the plaintiff is entitled to recover an amount of Rs.4,62,750/, as prayed? OPP".
10. Ld. counsel for plaintiff argued that plaintiff is an unregistered cooperative society and thus can sue as an association of individuals. He further submits that defendant being a member of the society availed the loan vide Ex.PW1/B to Ex.PW1/E & Ex.PW1/G but failed to return the same. Hence, this suit.
Per contra, ld. counsel for defendant submitted that the defendant has neither taken any loan nor has constructed the house as there is no sanctioned house plan approval by MCD for taking loan. Further, the plaintiff has neither filed any photograph of the house or of construction of the house nor any completion certificate of MCD. The plaintiff has also not filed any document to prove that PW1 is the manager of the said society. He further submitted that the documents CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 6 of 9 tendered by the plaintiff from Ex.PW1/B to Ex.PW1/H are fabricated by an individual to show that the defendant has taken the alleged loan as no name, address and signature of any witness is appearing on those documents. In support of his contentions, he relied upon case titled as "Shivalaya Coop. Housing Society Ltd. Vs. Shantabent Patel", decided by Hon'ble Gujrat High Court on 06.02.2001.
11. Heard. Considered.
12. The suit is filed by a fictional identity as it has no sanctity in the eyes of law. Though association of individuals can sue for enforcement of their rights, but through a representative suit which is not the case herein. Even otherwise, there is no evidence on record regarding grant of loan. Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/G are at bert loan application form only and by no stretch of imagination can be called as loan agreement or proof of sanction or disbursal of loan. Further, even application for loan vide Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/G is not proved since defendant took the defence that he signed on blank papers. Law is well settled that once execution of a document is disputed by its executor, the onus lies upon the one who asserts, to prove its execution either by calling witnesses to the document or otherwise. But no such evidence has been led. Similarly, Ex.PW1/H, the alleged acknowledgement of receipt of loan has not been proved.
CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 7 of 9 Even the statement of account has not been filed. The stock register placed on record in the name of statement of account does not prove anything. It is merely a self serving document having no sanctity in the eyes of law. Hence, discarded. Further, there is no proof of disbursement of loan. In these circumstances, the plaintiff has failed to discharge his onus entitling him to any recovery of amount since grant of loan itself is not proved. Hence, this issue is decided against the plaintiff.
ISSUE NO.2:
"Whether the plaintiff is entitled to interest, if so, at what and for which period?"
13. In view of the findings recorded in issue No.1, it is held that the plaintiff is not entitled to any interest. Hence, this issue is decided against the plaintiff.
ISSUE NO.3:
"Whether the plaintiff has no locus standi to file the present suit? OPD"
14. Plaintiff filed the instant suit in the name of Cooperative Society though unregistered. Plaintiff took the stand that this suit is filed by association of individuals through their representative, however, no such authorisation is on record. Further, the suit is filed by one Sh. Nanak Chand claiming himself to be the manager of CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 8 of 9 plaintiff, but without any authority letter or resolution passed by the members of association of plaintiff. In these circumstances, plaintiff has no locus standi to file the instant suit. Hence, this issue is decided against the plaintiff.
ISSUE NO.4 (RELIEF):
15. In view of the findings recorded in above issues, the suit of the plaintiff is dismissed. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court (AJAY GARG) on 26.09.2022. Additional District Judge01 East District, KKD Courts/Delhi CS No.503/18 M/s Guru Nanak Co operative Society Vs. Vinod Kumar. Page No. 9 of 9