Delhi District Court
In The Matter Of Jyoti Gangwani vs . P. K. Bajaj on 21 February, 2013
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-06, NORTH, THC, DELHI
In the matter of JYOTI GANGWANI Vs. P. K. BAJAJ
Suit No. 696/11
Unique ID No. 02401C1156592007
JYOTI GANGWANI
W/o Late Sh. Parhlad Gangwani
R/o 3,27, 2nd floor,
East Patel Nagar, Delhi
Through her special Power of Attorney
Sh. Manish Gangwani
S/o late Sh. Parhlad Gangwani ...... PLAINTIFF.
Vs.
Sh. P. K. BAJAJ
Proprietor M/s M. Bajaj Papers
C/o A-5, Mayapuri Indl. Area,
Phase-1, New Delhi ..... DEFENDANT
DATE OF INSTITUTION OF THE CASE : 20.11.2007
DATE ON WHICH RESERVED FOR ORDER : 07.02.2013
DATE OF ORDER/ JUDGMENT : 21.02.2013
CS No.696/11
Jyoti Gangwani Vs. P. K. Bajaj Page No. 1 of 32
JUDGMENT:
SUIT FOR RECOVERY OF Rs. 2,36,000/- (RUPEES TWO LAC THIRY SIX THOUSAND ONLY)
1. The present suit has been filed by the plaintiff against the defendant for the recovery of Rs. 2,36,000/- inclusive of interest @ 12% per annum from the date of promissory note till the date of filing of the present suit and also for pendent- lite and future interest at the said rate of 12% and also for costs.
2. The brief facts of the case as per the plaint are that the plaintiff is aged about 56 years and is suffering from serious old age ailments and her son Sh. Manoj Gangwani has been has been looking after and managing the affairs of the plaintiff and is duly constituted SPA (Special Power of Attorney) of the plaintiff and he is also fully conversant with CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 2 of 32 the facts and circumstances of the present case and is thus authorized to institute and contest the present case on behalf of the plaintiff. As alleged, defendant is the proprietor of M/s. M. Bajaj Papers, carrying on the business from the address as mentioned in the memo of parties. That in or about first week of April, 2006 the defendant approached the plaintiff through her son namely Sh. Manish Gangwani and requested to grant him a loan of Rs. 2 lacs representing that the said loan amount is required for business and with assurance to repay it within 6-8 months. That believing the representation made by defendant, the plaintiff agreed to advance loan to the defendant and the son/ SPA of the plaintiff accordingly arranged the said amount of Rs. 2 lacs from the funds of the plaintiff and advanced the same to the defendant as loan returnable within 6-8 months. That the defendant executed promissory note dated 20.04.2006 in favour of the plaintiff on the said amount acknowledging in CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 3 of 32 the receipt of the loan amount of Rs. 2 lacs in cash and also agreed to pay interest @ 12% per annum. That in or about last week of January, 2007 the plaintiff requested the defendant to refund the said loan amount with interest, however the defendant sought more time. Thereafter, despite several requests the defendant did not repay any amount and avoided the plaintiff. That the intention of the defendant is clear as he has failed to repay the loan with interest despite repeated requests and demands made by the plaintiff/ her son. That a total sum of Rs. 2,36,000/- inclusive of interest @ 12% per annum from the date of promissory note has become due and payable till the filing of the present suit. That the plaintiff is entitled to the said amount and also for pendente- lite and future interest @ 12% per annum along with the costs of the suit.
3. In WS filed on behalf of the defendant the preliminary objection taken is that the defendant never took any loan CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 4 of 32 from the plaintiff at any time and did not execute/ sign the alleged promissory note dated 20.04.2006 which is a forged document and the present suit is liable to be dismissed u/o 7 rule 11 CPC. It is also contended that the present suit is neither signed nor verified by the plaintiff and the suit cannot be filed by any other person. That no required notice before filing the suit was ever sent to the defendant and in the absence of any demand notice, the present suit is not maintainable. That M/s. M. Bajaj Papers was closed on 25.05.2004 and hence no question arises for taking any loan by M/s. M. Bajaj Papers on 20.05.2006. That no business/ commercial loan can be given without holding any money lending license for providing the loan for the purpose of commercial activities in view of the provisions u/s 3 of Punjab Registration of Money Lenders Act, 1938. That the defendant is not proprietor of M/s M. Bajaj Papers w.e.f. 20.05.2004. That the SPA is seen to be executed on CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 5 of 32 17.11.2007 and therefore, the said Manish Gangwani had no right to provide any loan or make any negotiation prior to the said date. That the contents of the plaint are wrong, false, malafide and concocted and there was no loan given by the plaintiff to the defendant, however there is no denial as to the jurisdiction of the Court and valuation of the present suit.
4. In replication filed on behalf of the plaintiff the averments of the WS have been denied and those of the plaint have been reaffirmed. It is further stated in the replication that no notice is required to be served before filing of any recovery suit. That the defendant for the first time has disclosed in the WS that the firm M/s Bajaj Papers was closed on 20.05.2004 and the defendant has failed to show any document in this regard.
5. Vide order sheet dated 07.08.2008 my ld. Predecessor framed the following issues:-
CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 6 of 32
1. Whether the present suit is without cause of action and based on forged and fabricated documents? OPD.
2. Whether the suit is barred u/s 3 of Punjab Registration of Money Lenders Act, 1938? OPD.
3. Whether the plaintiff is entitled to the suit amount, if so, at what rate and for what period? OPP.
4. Relief.
6. To substantiate its case, the son/ SPA of the plaintiff Sh.
Manish Gangwani appeared in the witness box as PW-1, his affidavit in evidence being Ex PW 1/A. In documentary evidence, the plaintiff filed and relied upon original SPA Ex PW 1/1 and original promissory notice and receipt Ex PW 1/2. On the other hand, defendant himself appeared as witness DW-1, his affidavit in evidence being Ex DW 1/B. The documents filed and relied upon by the defendant is certified copy of sale deed Ex DW 1/A. CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 7 of 32
7. I have heard the arguments of ld. Counsel for both the parties and perused the record. My issue-wise disposal of the present suit is as under:-
8. Issue No. 1:- Whether the present suit is without cause of action and based on forged and fabricated documents? OPD.
The onus of proving this issue was upon the defendant. Cause of action is a bundle of facts. In the present matter the plaintiff has alleged that a loan was granted by her to the defendant for Rs. 2 lacs and the defendant executed a promissory note Ex PW 1/2. The defendant has denied to the facts of having taken any alleged loan from the plaintiff and to have executed any such promissory note. The plaintiff has filed on record the original promissory note in this regard. It cannot thus be said that there is no cause of action in favour of the plaintiff.
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The defendant has raised another contention that the plaintiff has herself not appeared in the witness box and another person namely Sh. Manish Gangwani, her son has appeared on her behalf to depose as SPA who was not authorized by now and therefore, there is no cause of action in favour of the plaintiff. In this regard the plaintiff has relied upon Bhajan Kaur Vs. Tarlok Singh 2009 (3) RCR (Civil) 610 (P & H) in which it was held that the plaintiff must prove the facts of his personal knowledge by himself appearing in the witness box and statement of power of attorney qua such facts is not admissible. Defendant has also relied upon Janki Vashdeo Bhojwani & Another Vs. Indusland Bank Ltd. & Others AIR 2005 SC 439 wherein it was held by Hon'ble Supreme Court that GPA holder can appear as a witness only in his personal capacity and he cannot appear as witness on behalf of the plaintiff. It has been contended on behalf of the plaintiff in the plaint itself that the son/ SPA CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 9 of 32 of the plaintiff arranged the said loan amount of Rs. 2 lacs from the funds of the plaintiff and advanced the same to the defendant. It is even seen that plaintiff states that the defendant approached the plaintiff through her son namely Sh. Manish Gangwani who is the SPA of the plaintiff in the present case. Thus, it is seen that the pleadings suggest that the said loan transaction was in the personal knowledge of the SPA holder i.e. son of the plaintiff and in fact he was a participant in the said loan in as much as the request for the loan was made through him and he arranged the loan amount from the funds of the plaintiff and gave it to the defendant. In the evidence by way of affidavit of PW-1 it is deposed by the PW-1/ SPA holder that he being the son of the plaintiff has been looking after and managing the affairs of the plaintiff and is fully conversant with the facts and circumstances of the present case. The other facts regarding the loan, above mentioned have also been CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 10 of 32 deposed in the evidence by way of affidavit Ex PW 1/A. The witness PW-1 has been cross-examined upon the factum of the execution of SPA Ex PW 1/1 in his favour but nothing has come out which could disprove the execution of the said SPA Ex PW 1/1 in favour of the said Sh. Manish Gangwani PW-1. To the question regarding who were present at the time of the execution Ex PW 1/2 i.e. pronote, the witness PW-1 has answered in his cross-examination dated 18.05.2009 that the plaintiff, the defendant and he himself were present at that time. The witness PW-1 has also further deposed that at the time of signing of the pronote Ex PW 1/2 money dealing was made by the defendant. It further shows that the SPA i.e. PW-1 had personal knowledge of the said loan transaction and was present at the time of its execution and money dealing. Although PW-1 could not tell the name of the writer who had written / prepared the said pronote Ex PW 1/2 but merely that cannot CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 11 of 32 oust him from his personal knowledge and participation in the transaction as noted above. Thus, in this case the power of attorney holder PW-1 has deposed upon the facts which are a part of transaction in question and were in his personal knowledge. Thus, there is cause of action in favour of the plaintiff and against the defendant and it cannot be held that PW-1 was not competent to depose on behalf of plaintiff.
The defendant has also raised averments that no prior notice was served upon him as is required under law before institution of the present suit and therefore, there is no occasion to file the present suit and no cause of action arises in favour of the plaintiff. But the defendant has not referred any law as to what kind of notice is required to be served and under which law prior to the institution of any recovery suit. There is only a statutory requirement u/s 138 of Negotiable Instrument Act, 1881 of serving a notice prior to the institution of any complaint but the present suit is a CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 12 of 32 civil suit. The defendant/ DW-1 has even been asked in his cross-examination dt. 20.09.2012 in this regard wherein he states that as per knowledge from the reading of newspapers as well as legal journals, he is aware that a legal notice has to be sent prior to the institution of a case for the recovery of money. But further the witness DW-1 deposed that he cannot say in which book the said law is cited and he is in the business of publication and editing of legal books/ journals and he does not have any decree/ qualification in law. Thus, this contention of sending legal notice also does not sustain.
Another contention raised by the defendant is that the present suit is based on forged and fabricated documents. It is the specific plea of the defendant that he did not take any loan as alleged and also did not execute any such promissory note Ex PW 1/2 and the same is forged and fabricated. The burden of proving the said issue is also CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 13 of 32 upon the defendant. Perusal of the cross-examination of DW-1 conducted on two different occasions i.e. firstly on 02.02.2011 and secondly on 20.09.2012 show that initially the defendant/ DW-1 had been deposing that he did not take any loan and had been denying his signatures on the promissory note Ex PW 1/2 but later in the cross- examination conducted on 20.09.2012 the witness DW-1 has identified the signatures at point X and X1 on the pronote Ex PW 1/2 to be his signatures. Although the burden of proving the said document/ pronote being forged and fabricated was upon the defendant as it was his pleadings only but after admitting his signatures on the same a greater burden is casted upon defendant/ DW-1 to prove his said averments that the document is forged and fabricated. The defendant/ DW-1 has brought no direct evidence to prove his said averments. Although the witness defendant/ DW-1 has attempted to create circumstantial evidence by taking a plea CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 14 of 32 that the firm M/s M. Bajaj Papers was closed on 20.05.2004 and therefore no question arises of taking any loan by M/s M. Bajaj Papers on 20.04.2006 the date mentioned on the alleged promissory note Ex PW 1/2. But in his affidavit in evidence Ex DW 1/B, the witness DW-1 states in para 5 that M/s M. Bajaj Papers was closed on 12.12.2003. Thus, it is seen that the date of closure as mentioned in para-6 of the preliminary objection of the WS and para 5 of the evidence by way of affidavit Ex DW 1/B differ. Upon this variation, the DW-1 was specifically cross-examined on 02.02.2011 to which he answered that the firm has been closed on 12.12.2003, however due to formalities of surrendering the document with the sales tax department which took about one year, therefore, he had mentioned the date of closure as 20.05.2004. It was therefore incumbent upon the witness DW-1 to have filed the alleged documents pertaining to sales tax department which he did not. In his affidavit in evidence CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 15 of 32 Ex DW 1/B in para 5 the defendant has deposed that he has enclosed the sale document of land of M/s M. Bajaj Papers which was sold on 20.05.2004 and the sale deed is Ex DW 1/A. Although the said evidence is beyond the pleadings but even when in his cross-examination on 02.02.2011 the witness DW-1 was specifically asked why no details as to the said firm M/s M. Bajaj Papers has been mentioned in the said sale deed Ex DW 1/A, he replied that the said land was sold in his capacity of proprietor. Thus, the witness DW-1 has not been able to withstand upon his deposition made in para 5 as the said sale deed Ex DW 1/A even does not mention the name of his firm M/s M. Bajaj Papers. Moreover, merely, the selling of land cannot be connected to the fact of closure of the firm and cannot be conclusive proof of the fact of the surrender of the firm. The defendant/ DW-1 ought to have produced income tax/ sales tax records in order to prove his contention that the firm was closed prior to CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 16 of 32 the loan transaction in question. It is even pertinent to note that the defendant/ DW-1 did not even make a complaint to any police or other Government body regarding the forgery/ fabrication of any document. The witness DW-1 was even asked of question in this regard in his cross-examination dt. 20.09.2012 wherein he deposed that he did not make any such complaint. Thus, even the defendant has not been able to raise any circumstantial evidence in respect of the averment that the document pronote Ex PW 1/2 is forged and fabricated. Thus, in light of above discussion, issue no. 1 is decided in favour of the plaintiff and against the defendant.
9. Issue No. 2 :- Whether the suit is barred u/s 3 of Punjab Registration of Money Lenders Act, 1938? OPD.
The onus of proving this issue was upon the defendant. The defendant has relied upon Nikoo Ram Ashok Kumar Vs. CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 17 of 32 Jagtar Singh 2005 (3) RCR (Civil) 716 (P & H) wherein it was held that if the plaintiff is not proved to be a licensed moneylender either on the date of filing of the suit or on the date of decree then the suit is not competent. Section 3 of the Punjab Registration of Money Lenders Act, 1978 reads as follows:-
" S.3 Suits and applications by money-lenders barred, unless money-lender is registered and licensed- Notwithstanding anything contained in any other enactment for the time being in force, a suit by a money- lender for the recovery of a loan; or an application by a money-lender for the execution of a decree relating to a loan, shall, after the commencement of this Act, be dismissed, unless the moneylender_
(a) at the time of the institution of the suit or presentation of the application for execution; or
(b) at the time of decreeing the suit or deciding the application for execution_
(i) is registered; and
(ii) holds a valid license, in such form and manner as may be prescribed;
(iii) holds a certificate from the Chief Commissioner granted under Section 11, specifying the loan in respect of which the suit is instituted, or the decree in respect of which the application for execution is presented; or
(iv) if he is not already a registered and licensed moneylender, satisfies the Court that he has CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 18 of 32 applied to the Collector to be registered and licensed and that such application shall not be finally disposed of until the application of the moneylender for registration and grant of license pending before the Collector is finally disposed of."
Perusal of the above mentioned Section 3 shows that for filing of the suit for recovery of a loan by a moneylender or for its execution of a decree relating to the loan the moneylender must be registered and must hold a valid license either at the time of institution of the suit or presentation of the application or at the time of decreeing the suit or deciding the application for execution. Thus, for attracting the said Section 3 the defendant has to prove that the plaintiff is a moneylender.
Section 2 (8) of the said act provides the definition of moneylender which is also reproduced herein under for the sake of convenience :-
" (8) Moneylender means a person, or a firm carrying on the business of advancing loans as defined in this Act, and shall include the legal representatives and the successors-in-CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 19 of 32
interest whether by inheritance, assignment or otherwise, of such person or firm; provided that nothing in this definition shall apply to-
(a) a person who is the legal representative or is by inheritance the successor- in- interest of the estate of a deceased moneylender together with all his rights and liabilities; provided that such person only-
(i) winds up the estate of such moneylender,
(ii) realizes outstanding loans;
(iii) does not renew any existing loan, nor advance any fresh loan; other than the wife or husband of such assignor, as the case may be, or any person, who is descended from a common grandfather of the assignor.
Thus, the defendant has to prove that the plaintiff is/ was carrying the business of advancing the loan. A suggestion has been put to PW-1 in his cross-examination dated 20.11.2009 appearing on page-1 of the said cross- examination and the witness PW-1 has answered that they do not have any money lending license for granting advance/ loan for business purpose. But admitting to the suggestion merely does not go to prove that the plaintiff has been carrying the business of advancing loan. Further the witness CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 20 of 32 PW-1 has volunteered that Sh. Bajaj (defendant) took the loan from the plaintiff many times prior to it. PW-1 has also deposed that Sh. Bajaj (defendant) obtained loan from the plaintiff in the year-2000 in two times, one loan was taken from his mother (plaintiff herein) and one loan was taken from him. This deposition of the witness PW-1 shows that way back in the year 2000 i.e. about six years prior to the date of pronote Ex PW 1/2 the defendant had obtained a loan from the plaintiff two times and even out of which one loan was obtained from the plaintiff and one from her son i.e. PW-1. But these two transactions of previous years cannot also prove that the plaintiff is a moneylender. It is further pertinent to note and mention herein itself that on the contrary to the above deposition the defendant/ DW-1 has deposed in his cross-examination on 02.02.2011 page -1 that he had not taken a loan in the year 2000 from Ms. Jyoti Gangwani and/ or Sh. Manish Gangwani (plaintiff and PW-1 CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 21 of 32 respectively) and has however volunteered that he never took any loan from them. Thus, it is seen that on one hand the defendant is trying to allege the plaintiff as moneylender, wherein PW-1 deposes that he had given a loan advanced to the defendant while on the other hand the defendant himself denies to have taken any loan from the plaintiff or PW-1. The defendant has further deposed in his cross- examination dt. 02.02.2011 at page-1 that he does not know the plaintiff or Manish Gangwani (PW-1) and he met Manish Gangwani in the Court only in the present case. Further in the cross-examination dt. 20.09.2012 DW-1 has denied the suggestion that he used to take loans from the plaintiff and her family members and has volunteered to say that he did not know the family members of the plaintiff.
It was held in AIR 1952 Punjab 207 that a person does not becomes a moneylender by reason of occasional lending to relations, friends or acquaintance, whether CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 22 of 32 interest be charged or not and there must be a business of money-lending and the word business imports the notion of system, repetition and continuity and therefore the element of continuity and habit is essential to constitute an exercise of profession or business. In the facts of the present case defendant has not been able to prove such elements as mentioned above which could bring the plaintiff within the definition of a moneylender. In this scenario, therefore the defendant has been unable to show/ prove that the plaintiff is a moneylender and plaintiff ought to have been registered and must have a valid license to institute the present suit. Hence, this issue is decided against the defendant.
10. Issue No. 3:- Whether the plaintiff is entitled to the suit amount, if so, at what rate and for what period? OPP.
The plaintiff has alleged that loan of Rs. 2 lacs was advanced to the defendant and he executed a promissory CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 23 of 32 note Ex PW 1/2 dt. 20.04.2006. The defendant has denied having taken any loan from the plaintiff by having executed the said promissory note alleging it to be forged and fabricated. But as is observed while deciding issue no. 1 above, the defendant initially denying his signatures on the said pronote Ex PW 1/2 in his cross-examination dt. 02.02.2011, has later identified the signatures on the said pronote to be his signatures as deposed in his cross- examination conducted on 20.09.2012. The defendant/ DW-1 has further volunteered that only his signatures are there on the pronote and the whole body has not been filled up by him. Thus, in these circumstances when the defendant/ DW-1 has finally admitted his signatures on the said pronote Ex PW 1/2 and also there is no denial to the said rubber stamp in the name of M/s M. Bajaj Papers on the said pronote, the presumption as contained under Section 118 of Negotiable Instrument Act, 1881 comes into play as CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 24 of 32 per which unless the contrary is proved, the presumption as to the consideration, date, time of acceptance, time of transfer, order of endorsement etc. shall be made. Thus, the presumption goes in favour of the plaintiff regarding the said promissory note Ex PW 1/2 and now the burden is upon the defendant to prove the contrary. Regarding the forgery or fabrication as alleged by the defendant, it has already been observed and held in issue no. 1 above that the defendant has failed to prove that the said pronote was forged and fabricated. Ld. Counsel for the defendant has relied upon various rulings which are as under:-
(i) Tati Pamula Naga Raju Vs. Pattern Padama Vathi 2011 (3) RCR (Civil) 308 (S. C.)
(ii)Bhajan Kaur Vs. Tarlok Singh 2009 (3) RCR (Civil) 610 (P & H)
(iii) Amarjit Singh Vs. Nazar Singh 2009 (3) RCR (Civil) 246 (P & H) CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 25 of 32
(iv) Timmappa Vs. L. S. Prakash 2011 (2) RCR (Criminal) 217 (Karnataka)
(v) P. Venkatamma W/o Madhava Reddy Vs. Donthana Sulochana w/o Gopal Reddy AIR 2006 A. P. 92.
In Tati Pamula Naga Raju there was tampering with promissory note which was confirmed by handwriting expert and evidence of Mediators was also adduced by defendant but this is not the case in hand as there is no allegation of any tampering in the promissory note and the defendant has not brought any other witness to rebut the presumption.
In the case of Bhajan Kaur Vs. Tarlok Singh 2009 (3) RCR (Civil) 610 (P & H) dealt with alternation in the instrument and held that material alteration effected in the pronote without consent of the defendant renders the pronote without consideration. But in the present case there is no alteration/ material alteration alleged by the defendant which is not his case and has rather admitted his signatures CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 26 of 32 on the pronote. The case of Amarjit Singh Vs. Nazar Singh 2009 (3) RCR (Civil) 246 (P & H) also dealt with the instance of material alteration in the pronote. The case of Timmappa Vs. L. S. Prakash dealt with the aspect of Section 269 (SS) of the Income Tax Act and the complainant failed to prove that he had financial capacity to advance substantial amount. But in the case in hand no such defence or questions have been raised on behalf of defendant. In the case of P. Venkatamma Vs. Donthana Sulochana, the plaintiff was no able to prove the presumption which is not the position in the case in hand.
The defendant has not even filed any document to show that the said promissory note is not in his own hand writing. The defendant though raised the contention that his firm M/s M. Bajaj Papers was closed prior to the date of promissory note but he did not produce any documentary evidence in support of his contention. In this context the CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 27 of 32 defendant in his cross-examination dt. 02.02.2011 has deposed that his firm was registered with sales tax department and was issued sales tax no. also and he had completed all formalities with regard to registration of his said firm in Haryana. The defendant/ DW-1 even admitted to the suggestion that on the closure of the firm one has to surrender all the numbers with the Govt. agencies and he also did the same on closure of his firm. It was therefore incumbent and necessary for the defendant to have brought on record the documents pertaining to the said registration with the sales tax department and the documents pertaining to the surrendering of his nos. upon closure of the firm. It is further pertinent to note that the defendant/ DW-1 has admitted to the suggestion that he has not brought any document in the Court in respect of the closure of his firm or surrender of the requisite no., though he volunteered that he can produce the same. But the defendant never tried to CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 28 of 32 move any application in order to bring any such document on record. The selling of land, for which the sale deed Ex DW 1/A has been filed, also does not co-relate to the closure of his said firm, as is observed in issue no. 1 above. Thus, the defendant has not been able to bring any direct evidence nor has been able to show by way of circumstantial evidence to rebut the presumption standing in favour of the plaintiff in respect of the said pronote Ex PW 1/2. The Ld. Counsel for the defendant also pointed attention towards cross- examination of PW-1 dt. 18.05.2009 wherein the plaintiff/ PW-1 has deposed that at the time of signing pronote Ex PW 1/2 Rs. 1,00,000/- was given to P. K. Bajaj and PW-1 has further volunteered to say that Rs. 1 lac was given to P. K. Bajaj earlier. The Ld. Counsel for defendant has argued that this deposition of PW-1 shows that whole of consideration of Rs. 2 lacs was therefore not paid together at the time of signing the pronote. Here it is pertinent to observe that no CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 29 of 32 further question as to the date/ time as to the earlier payment of Rs. 1 lac was asked from PW-1 and even no suggestion has been put to him which gives a natural inference that the total consideration of Rs. 2 lacs was made to the defendant upon which he signed on the pronote. Had the passing of consideration in such manner i.e. in parts really been an issue, the plaintiff/ PW-1 would have been further asked specific questions upon it. Thus, no adverse inference can be drawn upon such deposition and in the given facts and circumstances of the case, it cannot rebut the presumption standing in favour of the plaintiff.
In Jit Singh Vs. Nachhatar Singh & Ors., 2008 (1) Civ. C. R. 42 (P & H), relied upon by the plaintiff, it was held that where the plaintiff has proved that pronote and receipt was duly executed in accordance with law then the presumption of passing of consideration arises and the plaintiff is not further required to prove his capacity to make CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 30 of 32 the said payment at the time of execution of pronote or receipt. Thus, the averments of the plaintiff have been proved and the defendant has failed to prove his averments.
In view of the above discussion, the plaintiff is entitled to the recovery of the loan amount. As far as the interest claimed @ 12% is concerned, the said rate is mentioned on the promissory note Ex PW 1/2, and which is also reasonable in the facts and circumstances of the case and hence, the plaintiff is entitled to the amount of Rs. 2,36,000/- as claimed. The plaintiff is also granted pendente- lite and future interest at the said rate of 12% per annum on the said decreetal amount of Rs. 2,36,000/-. This issue is accordingly decided in favour of the plaintiff.
RELIEF In light of the findings of various issues above, the present suit of the plaintiff is decreed in favour of the plaintiff for an CS No.696/11 Jyoti Gangwani Vs. P. K. Bajaj Page No. 31 of 32 amount of Rs. 2,36,000/-along with pendente- lite and future interest @ 12% per annum till realization.
Costs of the suit are also awarded in favour of the plaintiff.
File be consigned to record room after necessary compliance.
Announced in open Court (PRANJAL ANEJA)
on 21.02.2013 CIVIL JUDGE-06, NORTH
THC/DELHI/21.02.2013
CS No.696/11
Jyoti Gangwani Vs. P. K. Bajaj Page No. 32 of 32