Delhi District Court
C6/273 vs Sh. Nadeem on 24 May, 2010
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE03 (EAST),
KARKARDOOMA COURT, DELHI
RCA No.64/09
In the matter of :
Sh. Naresh Kumar Mehta
C6/273, Yamuna Vihar,
Delhi - 110 053.
.....Appellant / Plaintiff
Versus
Sh. Nadeem
S/o Sh. Naiem Khan
R/o A1057/23, Gali No.21, ABlock,
Shri Ram Colony, Rajiv Vihar, Delhi.
.....Respondent / Defendant
ID No. : 02402C0188242009
Date of Institution : 02.07.2009
Date of arguments heard : 17.05.2010
Date of order : 24.05.2010
RCA No.64/09 Page 1 of 11
J U D G M E N T
1. The appellant / plaintiff has preferred an appeal against judgment and decree dated 19.05.09 passed by Ld. Trial Court vide which the suit of the appellant / plaintiff was dismissed.
2. The appellant has filed the appeal on the grounds that Ld. Trial Court has misappreciated the evidence on record. The proper issues were not framed which caused prejudice to the appellant. There is presumption U/s 118 of Negotiable Instruments Act that promisory note was executed for consideration and onus was on the respondent to prove that no consideration was paid. Ld. Trial Court has wrongly observed that defence of the respondent appears to be probable and further adverse inference should not have been drawn against the appellant. There is no prohibition to take loan for a period of one month. Ld. Trial Court has committed illegality by placing reliance upon a complaint which is not duly proved. The said complaint is delayed one and after thought. The story set up by the respondent is improbable. Hence, this appeal.
3. The notice of the appeal was given to the respondent / defendant.
4. The plaintiff (herein appellant) filed a suit for recovery against the defendant with the allegations that plaintiff has been carrying on a business of money lending. A licensee has been issued to him by Collector, Money Lending, Govt. of NCT of Delhi to lend money to its RCA No.64/09 Page 2 of 11 customers. On 07.01.06 defendant approached the plaintiff and requested for financial assistance of Rs.19500/ to meet urgent requirement. The plaintiff gave a loan of Rs.19500/ @ 24% p.a. to the defendant for a period of one month in the presence of a witness. The defendant executed promisory note and receipt. The plaintiff contacted the defendant on 10.02.06 after the expiry of one month for the repayment of loan but in vain. The plaintiff demanded loan amount from the defendant but defendant failed to pay the loan amount. Hence, this suit.
5. The defendant (herein respondent) contested the suit by filing written statement wherein preliminary objections qua maintainability, fabrication of forged documents, cause of action are raised. On merits, it is averred that in January, 2006 defendant was in need of money and contacted the plaintiff for loan. He delivered original documents of his property / house to the plaintiff. The plaintiff and his two associates procured his signatures on some blank papers and blank printed forms and assured that a sum of Rs.20000/ will be delivered at his residence within 2/3 days. On 07.01.06 he handed over photograph, Identity Card and Ration Card to the plaintiff as demanded. The plaintiff raised a demand of blank cheques or deposit Rs.2000/ for opening a bank account and Rs.2000/ for file charges. He declined to pay the same and demanded back his documents. He was threatened with dire consequences by the plaintiff. RCA No.64/09 Page 3 of 11 He visited the office of plaintiff number of times who refused to hand over the title documents. On 28.01.06 he made a complaint to DCP, NE against the defendant. On merits, it is denied that the plaintiff gave a sum of Rs.19500/ @ 24% per annum for one month to him in the presence of witness upon which he executed promisory note and receipt. It is out of imagination that how the plaintiff relied upon the defendant on the first meeting and delivered the said amount without verifying the antecedents. It is wrong that plaintiff contacted him on 10.02.06 for making the payment. The question of repayment doesn't arise as no loan was given to him by the plaintiff.
6. From the pleadings of parties following issues were framed for trial by Ld. Trial Court on 24.08.07 which are like this :
(1) Whether the plaintiff is entitled of recovery of Rs.19,890/, as prayed ? OPP (2) Whether the plaintiff is entitled to interest as prayed if so at what rate and for what period ? OPP (3) Relief.
7. Both the parties examined one witness each besides leading documentary evidence. Ld. Trial Court after hearing the parties and perusing the entire evidence on record dismissed the suit of appellant / plaintiff.
RCA No.64/09 Page 4 of 11
8. I have heard Ld. counsel for the parties and perused the entire record of the case. My issue wise findings are like this :
9. Findings on issue No.1&2 :
The onus to prove both these issues is on the appellant / plaintiff. The plaintiff has examined himself as PW1. He tendered his own affidavit Ex.PW1/1 in the chief examination wherein he has repeated the version of the plaint and exhibited the documents namely promisory note Ex.PW1/A and receipt Ex.PW1/B. In the cross examination the suggestion is denied that defendant came to his office with Aziz and one other person. The suggestion is denied that he took signatures and thumb impression of the defendant on the very first meeting without extending the loan. It is correct that he demanded cheques from the defendant who was not having bank account as such defendant declined to give the cheques. The suggestion is denied that he suggested the defendant to open a bank account and demanded Rs.2000/ as file charges. The suggestion is denied that defendant demanded back his title documents and signed documents which are in his possession. He cannot say whether defendant lodged a complaint against him on 27.01.06. It is correct that he didn't demand the amount through written notice. It is correct that defendant didn't specify the reason for requiring the amount for one month. The suggestion is denied that he has filed a false case.
RCA No.64/09 Page 5 of 11
10. DW1 is the defendant. He has filed his own affidavit Ex.DW1/1 in his examination in chief. In the cross examination he admitted that Ex.PW1/B bears his signatures at point A&B. He made a complaint only to DCP. He has not filed any criminal complaint in the court. He has not taken any loan from the plaintiff so the question of repayment doesn't arise. No person was with him at the time of signing Ex.PW1/B. The suggestion is denied that he signed Ex.PW1/B after receiving a sum of Rs.19500/.
11. Ld. counsel for the appellant submitted that Ld. Trial Court has not casted the issue in proper perspective which caused injustice to him. I have heard the submission. Ld. counsel for the appellant didn't move any application at any point of time before Ld. Trial Court to recast the issues and no such point was raised before Ld. Trial Court as such appellant cannot raise this issue before this court so that the argument doesn't hold water.
12. Ld. counsel for the respondent submitted that the plea advanced by the respondent in the written statement was not controverted by the appellant by filing replication so his plea has gone unrebutted. Ld. counsel for the appellant submitted that non filing of replication doesn't amount to admission because replication is not a part of pleading. He has placed reliance on SLP(Civil) 21251 of 2006 decided on 03.12.08 by RCA No.64/09 Page 6 of 11 Hon'ble Apex Court titled as K. Laxmanan v. Thekkayil Padmini in support of his contention. I have perused case law referred to by Ld. counsel for the appellant wherein in para 31, it was held by their lordship that "pleadings under the provisions of rule 1 of order 6 of CPC consist only of plaint and WS. The respondent / plaintiff could have file a replication in respect of the plea raised in the WS, which if allowed by the court would have become part of the pleadings, but mere non filing of replication doesn't and couldn't mean that there has been admission of the facts pleaded in the written statement." In the instant case, appellant has not filed the replication. The replication is a part of pleading, if filed. The non filing of replication doesn't mean that appellant has admitted the averments made in the written statement as plea taken in the written statement is the defence of the respondent so mere non filing of replication doesn't mean the admission of the averments of written statement. I am fortified by the view taken by their lordship in K. Laxmanan v. Thekkayil Padmini, supra.
13. Ld. counsel for the appellant submitted that admission of the signatures on Ex.PW1/B tentamounts to its proof and transfer of consideration. He further submitted that there is no evidence on record from the side of respondent to create doubt on Ex.PW1/B. He has placed reliance on Kaka Singh v. Krishna Devi and others, 2009 (2) SLJ RCA No.64/09 Page 7 of 11 (P&H) 1161. On the other hand, Ld. counsel for the respondent submitted that appellant has not advanced the loan to the respondent and signatures were taken on Ex.PW1/B without extending the loan and moreover, marginal witness is not examined to prove its execution. He further submitted that appellant has retained the title deeds of the respondent and has not returned the same regarding which a complaint mark A was made to DCP, NE.
14. Heard and perused the record. It is admitted fact that appellant is running a money lending business regarding which a license Ex.PW1/A has been issued by the competent authority. It is admitted fact that respondent approached the appellant on 07.01.06 for the personal loan of Rs.20000/. On the same day, the loan was extended to the respondent who executed promisory note and receipt Ex.PW1/B in favour of the appellant. The respondent has admitted his signatures on promisory note and receipt. The admission of signatures mean that respondent has admitted the document. It was for the respondent to show that pronote and receipt Ex.PW1/B were signed without taking money from the appellant. The version of the respondent that he handed over the title deeds of the property and signed the pronote and receipt without taking the loan amount from the appellant RCA No.64/09 Page 8 of 11 doesn't appear to probable one. It is too big a pill to be swallowed. The oral evidence is in the form of statement on oath of the appellant and that of respondent. It is statement recorded on oath against oath. Ex.PW1/B is the pronote and receipt. The admission of signatures on Ex.PW1/B tentamounts to admission of document. It further tentamounts to transfer of consideration i.e. exchange of money from the appellant to the respondent. I am fortified by the view taken by their lordship in Kaka Singh v. Krishna Devi and others, supra.
15. The appellant took his title deeds coupled with other documents without paying the money regarding which he made a complaint mark A to the police. The respondent didn't pursue his complaint for the reasons best known to him. The respondent didn't file a criminal complaint in the court. The respondent didn't file any suit for declaration to the effect that pronote and receipt Ex.PW1/B be declared null and void. No explanation is forthcoming from the respondent. In these circumstances, an adverse inference has to be drawn against the respondent.
16. The loan amount is only for a sum of Rs.19500/. The payment through cheque arises only when amount is more than Rs.20000/ so any payment for the amount less than Rs.20000/ can be made in cash. Further, there is nothing which prohibits a person from taking a loan for a period of one month. The loan can be taken for any period. Ex.PW1/B RCA No.64/09 Page 9 of 11 cannot be doubted merely on the score that loan amount was given for a period of one month. Moreover, it is nowhere the requirement that a demand notice must be sent in order to claim the money. The period of loan amount was one month and it was the duty of the respondent to return the money after the expiry of said period. The testimony of PW1 cannot be doubted merely on the score that the period of loan amount was for one month or payment was given in cash. The arguments advanced by Ld. counsel for the respondent don't hold water. The evidence adduced by the appellant is more convincing and reliable as respondent has failed to substantiate his defence.
17. The entire evidence shows that appellant has advanced a loan of Rs.19500/ to the respondent who has not allegedly paid the same. The appellant has claimed interest @ 24% p.a. The rate of interest is on the higher side. The transaction is not commercial in nature so the appellant is entitled for the interest @ 10%p.a. from the date of the advancement of the loan.
18. Ld. Trial Court has committed an error and has not properly appreciated the facts as well as evidence on record. Hence, the appeal filed by the appellant is accepted. The judgment and decree dated 19.05.09 passed by Ld. Trial Court stands set aside. The suit of the appellant for recovery of a sum of Rs.19890/ is decreed along with RCA No.64/09 Page 10 of 11 interest @ 10%p.a. from 08.02.06 tills its realization. The suit is decreed cost. Decree sheet be prepared. TCR be sent back along with copy of this judgment. File be consigned to record room.
Announced in the open Court on 24.05.2010 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 24.05.2010 RCA No.64/09 Page 11 of 11