Delhi District Court
Sh. Kirpal Singh Tomar vs Sh. Kamal Singh on 6 February, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 353/2013
Unique I. D. No. 02401C0621792013
Sh. Kirpal Singh Tomar,
S/o Sh. R.P. Singh Tomar,
R/o A146, PhaseI, Gali No3,
Bhagirathi Vihar, Delhi110094.
......Plaintiff
Versus
Sh. Kamal Singh,
S/o Late Sh. Bhopal Singh,
R/o H. No. E1221, Ram Park Ext.,
Nanda Colony, Loni, Ghaziabad, UP.
.......Defendant
SUIT FOR RECOVERY OF RS. 3,40,000/ WITH INTEREST
Date of institution of suit : 05.12.2013
Date of reserving the judgment : 08.01.2016
Date of pronouncement of judgment : 06.02.2016
CS353/2013
Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 1 of 21
JUDGMENT
1. The plaintiff has filed the present suit against the defendant for recovery of Rs. 3,40,000/ with interest @ 12% per annum. Adumbrated in brief the facts of the case of plaintiff are as follows. Defendant, being family relative approached the plaintiff for some urgent financial help as he was facing some financial crises. Considering the request of defendant, plaintiff arranged funds from his friends and relatives and gave Rs. 3 Lakhs to defendant in good faith on 07.04.2010 @ 1% interest per month. After receiving the said amount, defendant executed promissory note at Tis Hazari Court, Delhi and signed the same in the presence of witnesses in favour of plaintiff. Defendant assured that the said amount will be returned within one year i.e. 06.04.2011 in the presence of witnesses. Due to some matrimonial dispute, relationship of plaintiff and daughter of defendant broke in the month of July, 2010. After lapse of one year, plaintiff requested the defendant to return the afore elicited loan amount, but defendant did not pay the same and flatly refused to return the same and also threatened the plaintiff with dire consequences of life and property. Plaintiff sent legal notice dated CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 2 of 21 06.07.2013 to defendant but defendant refused to receive the said legal notice. Therefore, plaintiff has filed the present suit.
2. In the filed written statement, defendant took preliminary objections viz., (i) this Court had no territorial jurisdiction to entertain and try the present suit; (ii) lack of cause of action; (iii) the suit is highly time barred; (iv) plaintiff has no locus standi to file the present suit against the defendant; (v) plaintiff tried to extort the money from defendant on the basis of present false and frivolous suit and filed the same with oblique motive; (vi) plaintiff has not come to this Court with clean hands, is misleading the Court and suit has been filed on the basis of manipulated, fabricated and forged documents; and (vii) proper Court fees has not been paid. Defendant denied of having approached plaintiff for any financial help or that plaintiff arranged and gave Rs. 3 Lakhs to him at any point of time. Hence, the question of executing of promissory note dated 07.04.2010 did not arise. The averments of the plaint are cooked by plaintiff with his friends and associates as he had forged, fabricated and manipulated the alleged promissory note and got fake signatures of the defendant. It is further averred that with a view to cheat CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 3 of 21 the defendant and to extort the money from him, plaintiff forged and fabricated the alleged promissory note of his own and same did not bear the signatures of defendant. Plaintiff had not disclosed that he had Money Lending Licence and/or he was an Income Tax Payee nor disclosed he had sufficient funds in his bank account. The alleged promissory note was not presented within time. It was further averred that plaintiff was putting pressure upon the defendant and his family members by way of filing several false and frivolous cases against the defendants and his family members to succeed in his oblique motive. Defendant denied of having any relationship with plaintiff. It was further averred that plaintiff was habitual litigant and by way of false and frivolous litigation used to harass the innocent persons as of the defendant, who was illiterate and a poor person. The report of postman, as alleged was a manipulated one. Rest of the averments of the plaint have been denied by the defendant in toto and particular.
3. Plaintiff filed replication to the written statement of the defendant to controvert the contentions of the written statement and to reiterate the averments of the plaint.
CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 4 of 21
4. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 13.10.2014 : ISSUES
1)Whether this court has jurisdiction to try and entertain the present suit? OPP
2)Whether the suit of plaintiff is within limitation? OPP
3)Whether the plaintiff is entitled to recover the suit amount from the defendant? OPP
4)Whether the plaintiff is entitled to any interest on the suit amount? If so, at what rate and for what period? OPP
5)Relief.
5. Plaintiff examined himself as PW1 vide affidavit Ex PW1/A; and Sh. Balbir Singh as PW2 vide affidavit Ex PW2/A. PW1 relied upon documents viz., (i) promissory note dated 07.04.2010 exhibited as Ex PW1/1; (ii) legal notice dated 06.07.2013 exhibited as Ex PW1/2; (iii) postal receipt exhibited as Ex PW1/3; and (iv) returned CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 5 of 21 registered envelope exhibited as Ex PW1/4. Both the witnesses were crossexamined.
6. Defendant examined Sh. Kumar Praveen, Branch Manager, Bank of Maharashtra, Yamuna Vihar, Delhi as DW1; Sh. Deepak Jain, private Handwriting and Finger Print Expert as DW2 vide affidavit Ex DW2/A; and himself as DW3 vide affidavit Ex DW3/A. DW2 relied upon documents viz., (i) report dated 12.04.2015 exhibited as Ex DW2/1; and (ii) enlarged photographs of disputed and comparative signatures exhibited as Ex DW2/2. DW3 relied upon documents viz., (i) complaint dated 30.07.2011 exhibited as Ex DW3/1; and (ii) wedding card of daughter of defendant exhibited as Ex DW3/2. All the witnesses were crossexamined.
7. I have heard arguments addressed by Sh. Tara Singh Kashyap, Ld. counsel for plaintiff; Sh. Laxmi Prasad Maikhuri, Ld. counsel for defendant and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, written arguments of both the parties, relied precedents and have also examined the record of the case. CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 6 of 21
8. Ld. counsel for defendant has relied upon : (1) Jasbir Kaur &Ors. Vs. Rakesh Kumar & Anr., 138 (2007) DLT 743;
(2) Aiyappankutty Vs. Mathoo Mathai & Ors., AIR 1955 TRACO. 65 (Vol. 42, C.N. 25);
(3) State (Delhi Administration) Vs. Pali Ram, AIR 1979 SC 14;
(4) Murarilal Vs. State of MP, AIR 1980 SC 531.
9. My issue wise findings are as under : Findings on Issue No(1) Whether this court has jurisdiction to try and entertain the present suit? OPP In preliminary objection no1 of written statement of defendant, it is averred that this Court had no territorial jurisdiction to entertain and try this suit as defendant is residing at Ghaziabad, U.P.
10. It is the case set up by plaintiff that defendant executed promissory note Ex PW1/1 on 07.04.2010 at Tis Hazari Courts, CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 7 of 21 Delhi110054 on receipt of Rs. 3 Lakhs from plaintiff as friendly loan. Alleged advancement of friendly loan is stated to be at Tis Hazari Court. Accordingly, alleged cause of action arose within territorial jurisdiction of this Court. Issue no1 is decided in favour of plaintiff and against the defendant accordingly.
Findings on Issue No(2)
Whether the suit of plaintiff is within
limitation? OPP
11. Plaintiff/PW1 in affidavit Ex PW1/A reiterated the averments of the plaint alleging having advanced friendly loan of Rs. 3 Lakhs in cash to defendant on 07.04.2010 at Tis Hazari Court on execution of promissory note Ex PW1/1.
12. Following is the text of promissory note Ex PW1/1 : "पोनोट मै/हम कमल ििंह S/O सव. भोपाल ििंह, R/o E1221, रामपाकक एकि. ननदा कालोनी, लोनी, गािियाबाद (35) का हू ँ/के है जो िक मुबिलग तीन लाख र. नकद रपये आधे िजनके डेढ लाख र. होते है शीमान शी कृपाल ििंह तोमर S/O राम पिाद ििंह तोमर िन. CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 8 of 21 D107, गली न. 6, भागीरथी िवहार, िदली94 जो के अपने जुममे देने रखता हू ँ/रखते है और पितजा करता हू /ँ करते है िक कुल रकम दर 01% िैकडा माििक िूद ििहत कािरज मजकूर या िजिको जब और जहां यह आजा करगे े रिीद लेकर अदाकर दगं ू ा। बदल इि पोनोट का मिौदा (िमयाविध 1 वषक िनधाकिरत हु ई) पाप कर िलया है और यह िलिखत ठीक बुिि ििहत शुि अनतःकरण दारा िमझ बूझ कर िलख दी ह।ै की िनद रहे।
िदनांक ...07... माि.... 04... 2010... तदानुिार... िात...माि... चार... िं. .... 2010... हसताकर............ हसताकर........sd/......
राजसव िटिकट sd/कमल ििंह रिीद पोनोट मै/हम कमल ििंह S/O सव. भोपाल ििंह, R/o E1221, रामपाकक एकि. ननदा कालोनी, लोनी, गािियाबाद (35) का हू ँ/के है जो िक मुबिलग तीन लाख र. नकद रपये आधे िजनके डेढ लाख र. नकद होते है के िलए मय िूद दर 01% िैकडा माििक के िहिाब िे यह पोनोट शीमान कृपाल ििंह तोमर जी के हक मे बुिि ििहत शुि अनतःकरण दारा िलख िदया गया और कुल बदल इिका पाप कर िलया ह।ै यह रिीद विूली नकल इि पोनोट के िलये िलख दी है िक िनद रहे।
हसताकर लेखक.....sd/ िदनांक...07...माि....04...2010...तदानुिार...िात...माि... अपैल.........िं.....2010............
हसताकर...... हसताकर........हसताकर........गवाह.....sd/...." CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 9 of 21
13. As afore elicited the text of promissory note Ex PW1/1 reveals that alleged advanced loan of Rs. 3 Lakhs by plaintiff to defendant was payable on demand and its term was fixed for one year. In terms of Article 31 in the Schedule of The Limitation Act, 1963 the note fell due on 6/7.04.2011 i.e., one year from its alleged date of execution i.e., 07.04.2010. So, the period of limitation of three years begins to run from 6/7.04.2011, when the note fell due. Present suit was filed on 05.12.2013 which is within period of limitation accordingly. Issue no2 is decided in favour of plaintiff and against the defendant accordingly.
Findings on Issue No(3) Whether the plaintiff is entitled to recover the suit amount from the defendant? OPP
14. It is the claim of plaintiff/PW1 that he advanced friendly loan of Rs. 3 Lakhs in good faith on 07.04.2010 to defendant on interest @ Rs. 01% per month on execution of promissory note Ex PW1/1, dated 07.04.2010 at Tis Hazari Courts, Delhi.
CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 10 of 21
15. It is own averment of PW1/plaintiff for having arranged funds from friends and relatives as has been laid in plaint and affidavit Ex PW1/A but the same is without any relevant facts and particulars of such friends and relatives. PW1 claims to be property dealer by occupation alleging having worked as tailor prior to 2008. PW1 has not placed on record any documents with respect of his source(s) of such loan advanced. PW2 Sh. Balbir Singh in affidavit Ex PW2/A claims to be friend of PW1 and stated that PW1 had borrowed Rs. 1,50,000/ from him stating his fatherinlaw (defendant) was in need of sum of Rs. 3 Lakhs and also claimed to be witness of pronote, executed by defendant on 07.04.2010. PW2 in crossexamination stated that he was not knowing the name of Advocate or his chamber number, who wrote pronote but he had seat near post office, Tis Hazari. PW2 claimed to be maintaining his account but stated that he had not brought it. Also, PW2 admitted that he was aware that cash loan beyond Rs. 20,000/ cannot be given and despite that he gave Rs. 1,50,000/ to plaintiff in cash. PW2 also claimed to have earlier advanced loan to plaintiff but stated that he had no license for money lending.
CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 11 of 21
16. The defendant/DW3 in corroboration of his version in written statement reiterated the averments of plaint in affidavit Ex DW3/A, claiming plaintiff having forged signatures in Ex PW1/1, which were put forth as signatures of defendant no1 and claimed that said promissory note Ex PW1/1 was a fabricated and manipulated document. DW1 also averred of having never come to Tis Hazari Court prior to this case. DW1 also deposed that plaintiff was not his soninlaw, submitting the averments in the plaint were concocted by plaintiff/PW1, his friends including PW2 and associates for malafide motives. It is also the version of DW3/defendant that plaintiff/PW1 was putting pressure upon the defendant/DW3 and his family members with oblique motive though there was no relationship between the parties to the lis. The wedding card of daughter of defendant/DW3 has been proved as Ex DW3/2, whereby the name of the bride groom is Sh. Suresh Kumar with whom daughter of defendant/DW3 was got married on 01.05.2005. DW3/defendant has also proved on record the copy of his complaint Ex DW3/1, addressed to SHO PS Loni, Ghaziabad, U.P. on date 30.07.2011, finding mention of his daughter having got married in Faridabad but after CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 12 of 21 she was subjected to cruelty by her inlaws and she was left at parental home, then plaintiff, who was residing in neighbourhood of defendant, had taken daughter of defendant on the pretext that he had a lawyer friend in Ghaziabad Court, who would do good work and so enticed the daughter of defendant to home of plaintiff on pretext of Court and kept his daughter for two/three months at his home and daughter of defendant was subjected to wrong treatment (दरु ाचार) by plaintiff. Ex DW3/1 finds mention that on finding opportunity later, daughter of DW3 somehow returned to home and said complaint was lodged as also thereafter the plaintiff started blackmailing defendant/DW3 as well as threatened to kill him and family in case defendant did not handover his daughter to plaintiff/PW1.
17. In the course of defendant evidence, defendant examined private Handwriting and Finger Print Expert DW2 Sh. Deepak Jain, who proved his report Ex DW2/1. Ex DW2/1 interalia embodies that after examining disputed signature Mark Q1 on promissory note Ex PW1/1 with comparative signatures (1) Mark A1 to A4 on written statement and supportive affidavit of defendant dated 10.07.2014; (2) Mark A5 and CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 13 of 21 A6 on affidavit dated 17.12.2013; and (3) Mark A7 on vakalatnama, the Handwriting Expert DW2 reached the conclusion that the disputed signatures Mark Q1 on Ex PW1/1 was not written by one and the same person Sh. Kamal Singh, whose comparative signatures were Mark A1 to Mark A7. Following are the reasons and observations for arriving at such conclusion : "1. An examination of the line quality of the disputed signature shows that it is defective amounting to forgery as the strokes of the disputed signature are containing unnatural pen lift, concealed retouching and blunt ends or start. Hence, the line quality of the disputed signature can be graded as defective unlike to the smooth line quality of the comparative signatures. Defects of forgery are demonstrated on the enlarged photograph. This fact alone is sufficient to conclude that the disputed signature is the product of free hand forgery.
2. Pen position and shading cannot be examined in the signatures as these signatures are either appended on the photostat document or written with the mono type writing instrument. However, from the quality of strokes, it can be concluded that the pen pressure is heavy in the disputed signature than that of the original comparative signatures.
CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 14 of 21
3. An interse comparison of the comparative signatures shows that these are falling in the similar range of natural variations in all the general and personal writing characterstics which show that the writer did not disguise his comparative signatures and further show that the writing habits remained the same throughout this period. These signatures are also corresponding in period to the disputed signature. Hence, the comparative signatures can be taken as the suitable standard signatures for comparison with the disputed signature.
4. A comparison of the disputed with the comparative signatures shows that the range of natural variations as observed in the comparative signatures does not cover the disputed signature as the disputed signature is written with inferior executional skill than that of the comparative signatures.
5. The manner of writing and making of the strokes of the signatures under comparison shows unequal development of handwriting and are also showing difference in the freedom, fluency and continuity in the motion of pen and hand with which these signatures are written, wherein pen scope is restricted in the disputed signature, but the pen scope is curved as well angular in the comparative signatures.
6. The disputed signature is written with finger movement with slow speed, whereas the comparative signatures are written with the wrist movement with CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 15 of 21 medium speed of writing.
7. The comparative signatures are written with mixed angle of slant, but the disputed signature is written with forward angle of slant.
8. First word 'Kamal' of the comparative signatures is written with descending alignment of the writing line and second word 'Singh' is written with the ascending, but the disputed signature is simply written with the almost straight and ascending alignment of the writing line.
9. Difference in the formation of letters and strokes, directional approach of the strokes, proportionate size of letters and strokes, relative spacing between the letters and strokes are also observed in between both the sets of signatures, some of which may be observed as under :
1. Left and body part of letter 'Ka' is written across the vertical stroke in the disputed signature but in the comparative signatures, left body part is joining the top of the vertical stroke and the right body part is in continuation with the base of the vertical stroke.
2. There is a triangular loop at the joining of first down going stroke with the middle stroke in letter 'Ma' in the disputed signature but in the comparative signatures, there is either an angular formation or a blind elliptical loop formation.
CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 16 of 21
3. There is an elongated curved arc in 'Ee' matra in the disputed signature, which is independently formed from its vertical stroke or otherwise, but in the comparative signatures, there is a triangular arc formation, which is in continuation with the terminal of vertical stroke of letter 'Sa' although at places, this joining stroke is not visible due to speed where pen becomes flying.
4. There is a sharp joining at the middle of the body of letter 'Sa' in the disputed signature but in the comparative signatures, there is smooth curved formation.
10. After examination and comparison of both the sets of the signatures, interse and in comparison to each others, I observed that there are fundamental differences in all the general and personal writing characteristics to prove their different authorship which are neither superficial nor incidental."
18. In the case of State (Delhi Administration) Vs. Pali Ram (supra), it has been inter alia held that Section 73 of the Indian Evidence Act expressly enables the Court to compare disputed writing with the admitted or proved writing to ascertain whether writing is that of the person by whom it purports to have been written. Similar pronouncement in case of Murarilal Vs. State of MP (supra), can also be adverted to. CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 17 of 21
19. Disputed signature on pronote Ex PW1/1 allegedly/ purportedly of defendant when compared with naked eye with the afore elicited comparative signatures Mark A1 to Mark A7, makes it manifest clear that the elicited findings of comparisons of the Handwriting Expert DW2 hold substance since neither the disputed signatures are akin nor similar in any manner to the comparative signatures of defendant on record.
20. No document has been proved on record for existence of matrimonial relationship between plaintiff and daughter of defendant. No books of account have been relied upon by the plaintiff/PW1, no Income Tax Returns have been placed on record by the plaintiff to prove that he was having financial capacity to lend the claimed sum to defendant. Section 269 SS of Income Tax Act, 1961 prohibits any person from taking or accepting any loan or deposit in cash, where the amount is more than Rs. 20,000/. Financial soundness of plaintiff to the tune of loan advanced, stands not proved. In terms of Section 3 of The Punjab CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 18 of 21 Registration of Money Lender's Act, 1938 as adopted in NCT of Delhi, the suit of money lender is barred unless money lender is registered and holding a valid license in prescribed form. Reliance placed upon - (1) Shop named Kaloji Talusappa Ganga Vathi Vs. Khyanagouda & Ors., AIR 1970 SC 1420; (2) Daljit Kumar & Anr. Vs. Popal Dass, AIR 1981 Punjab & Haryana 211; (3) Gyanananda Sen Vs. Ranjit Kumar Das & Anr., AIR 2003 Orissa 166; (4) Jaswanti Devi & Ors. Vs. Sunil Mehra, AIR 2004 Himachal Pradesh 15; (5) Niranjan Singh Vs. Mohinder Singh, RSA No. 2551 of 1987 (O&M), High Court of Punjab & Haryana at Chandigarh, decided on 03.03.2010; and (6) Smt. Fula Devi Vs. Mangtu Maharaj & Ors., AIR 1969 Patna 294 (V 56 C 75) Full Bench. Plaintiff is not having license of money lender nor is a registered money lender and is accordingly not entitled to lend any money and such a suit by money lender is barred accordingly.
21. Per se, PW2 is an interested witness. It can be said, so since he is himself interested with success of case of plaintiff PW1, wanting himself (PW2) alleged return of Rs. 1,50,000/ from plaintiff/PW1 for CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 19 of 21 alleged loan advanced by him to plaintiff for which there is no document on record when such sum is alleged to have been advanced in cash per contra to Section 269 SS of Income Tax Act. Promissory note Ex PW1/1 embodies purported signatures of other witness Sh. Manoj Kumar. Neither PW1 nor PW2 made even a whisper of said Sh. Manoj Kumar having witnessed the alleged loan transaction or execution of Ex PW1/1. Though, said Sh. Manoj Kumar was cited as plaintiff witness by plaintiff/PW1 in his list of witnesses but was not examined in plaintiff evidence. In terms of illustration (g) of Section 114 of Indian Evidence Act, presumption is drawn that the evidence of said Sh. Manoj Kumar which could be and is not produced would, if produced would have been unfavourable to plaintiff/PW1, who with held it.
22. By preponderance of probabilities, plaintiff has not been able to prove of having advanced alleged loan of Rs. 3 Lakhs to defendant, to be entitled to its return thereof. Issue no3 is decided in favour of defendant and against the plaintiff.
CS353/2013
Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 20 of 21
Findings on Issue No(4)
Whether the plaintiff is entitled to any
interest on the suit amount? If so, at what
rate and for what period? OPP
23. In view of my findings with respect to Issue no3, since plaintiff is not held entitled for recovery of any principle loan sum from defendant, plaintiff is not entitled to any interest claimed or otherwise. Issue no4 is decided against the plaintiff and in favour of defendant accordingly.
RELIEF
24. In view of my findings with respect to the Issues No. 3 and 4, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly and file be consigned to record room. Announced in open Court (GURVINDER PAL SINGH) th on 6 Day of February, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD) CS353/2013 Sh.Kirpal Singh Tomar Vs. Sh. Kamal Singh Page 21 of 21