Delhi District Court
Runjhun Aggarwal vs . Rohtas Kr. Goel on 31 July, 2014
Runjhun Aggarwal Vs. Rohtas Kr. Goel
CS490/11
1
IN THE COURT OF SH. MANISH KHURANA:JSCCCUMASCJ
CUMGUDN. JUDGE (NORTH): ROHINI COURTS:DELHI
Ms. Runjhun Aggarwal
D/o Sh. Rajender Kishore Aggarwal
R/o BF44, Shalimar Bagh (East)
Delhi
Through her father/attorney
Sh. Rajender Kishore Aggarwal
@ R.K.Aggarwal
R/o BF44, Shalimar Bagh (East)
Delhi ........................... Plaintiff
Versus
Sh. Rohtas Kumar Goel
s/o Sh. H.C.Goel
r/o H. No. 2608/194, Onkar Nagar
Tri Nagar, Delhi110035
........................Defendant
DATE OF INSTITUTION :09.12.2010
DATE OF DECISION : 31.07.2014
SUIT FOR RECOVERY OF Rs.140000 (RUPESS ONE LAC FORTY
THOUSAND ONLY) ALONGWITH INTEREST @ 24 % PER ANNUM
TOGETHER WITH PENDETILITE AND FUTURE INTEREST
VALUE OF SUIT : Rs.140000/
COURT FEES PAID :Rs. 3715/
Runjhun Aggarwal Vs. Rohtas Kr. Goel
CS490/11
2
JUDGMENT
1. Vide this judgment, I proceed to dispose of the suit for recovery of Rs. 140000/ filed by Ms. Runjhun Aggarwal against the defendant namely Rohtas Kumar Goel.
2. As per case of the plaintiff, the plaintiff used to provide friendly loans to the defendant from time to time. It is further alleged that the defendant approached the plaintiff for a friendly loan and the plaintiff gave the friendly loan of Rs. 1 lac in cash to the defendant. It is also alleged and that the plaintiff received the part interest on loan to the tune of Rs. 25860/ from the defendant through cheque and towards discharge of the liability of the loan amount the defendant issued the cheque bearing no. 692264 dated 10.12.07 for Rs. 1 lac drawn on PNB, Tri Nagar, Delhi in favour of the plaintiff. It is alleged that on presentation the said cheque got dishonoured and the plaintiff served a legal notice dated 04.12.10 upon the defendant but despite that no Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 3 payment was made by the defendant, hence the present suit.
3. The defendant was summoned vide order dated 16.12.10 and he appeared and filed the written statement in which he categorically denied to have taken any loan from the plaintiff. It is stated in the written statement that the defendant took a loan of Rs. 2,70000/ from the father of the plaintiff namely Sh. Rajender Kishore Aggarwal and that the same has already been repaid vide various cheques and cash as alleged in the written statement.
4. The plaintiff also filed the replication and denied the contentions raised in the WS.
5. From the pleadings of parties following issues were settled by Ld Predecessor of this court vide order dated 29.02.12:
1.Whether the plaintiff is entitled for the decree of 140000/, if yes, at what rate of interest? OPP.
2. Whether the suit is without any cause of action? OPD.
3. Whether the provisions of Punjab Money Lander Act are Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 4 attracted? OPD
4. Relief.
6. The plaintiff examined PW1 Sh. Rajender Kishore Aggarwal i.e. her father in her evidence. PW1 was cross examined by Ld counsel for the defendant. The defendant also examined himself as DW1 who was cross examined by Ld counsel for the plaintiff.
7. Issue wise findings are as under:
ISSUE NO. 1
Whether the plaintiff is entitled for the decree of 140000/, if yes, at what rate of interest? OPP.
8. In the case in hand the plaintiff has claimed the relief of decree of Rs. 140000/ in her favour and to prove her case she has examined her father PW1 Sh. R.K.Aggarwal. PW1 has deposed in the affidavit Ex. PW1/A that he is the attorney/father of the plaintiff vide special power of attorney dated 08.12.10. In para 2 of the Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 5 affidavit PW1 R.K.Aggarwal categorically stated that the defendant approached him for a friendly loan and he gave the loan of Rs. 1 lac in cash to the defendant. He also alleged to have received the interest amount of Rs. 25860/ through cheque from the defendant and stated that the defendant has failed to repay the loan amount. In this case, the plaintiff Runjhun Aggarwal has alleged to have given the loan of Rs. 1 lac in cash, however, no documentary proof thereof has been filed on record. Further PW1 R.K.Aggarwal has deposed in his affidavit that he gave the loan of Rs. 1 lac to the defendant. Ld counsel argued that the deposition of Sh. R.K.Aggarwal in para 2 of affidavit should be construed such in a way so as to read that the plaintiff Runjhun gave the loan to the defendant. In the case in hand, Sh. R.K.Aggarwal has deposed by way of affidavit and he categorically stated in his affidavit that the deponent is the attorney of the plaintiff and that the deponent had given the friendly loan of Rs. 1 Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 6 lac in cash to the defendant. Therefore, the categorical statement made by the deponent in the affidavit cannot be construed in such a manner that it is the plaintiff and not the deponent who gave the loan. It is pertinent to mention that another civil suit bearing no. 491/11 filed by Sh. R.K.Aggarwal against the defendant for recovery of the loan granted by him is also pending disposal.
9. The plaintiff has not filed any document to show that the alleged loan was granted to the defendant and the plaintiff has also not disclosed the source of availability of alleged sum of Rs. 1 lac with her at the time of granting loan to the defendant. The plaintiff has not even mentioned the date of granting the alleged loan to the defendant in pleadings or evidence by way of affidavit. The plaintiff has also alleged the receipt of interest amount of Rs. 25860/ through cheque from the defendant, however, no proof thereof has been filed on record.
Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 7
10. Ld counsel for the plaintiff has argued that PW1 has relied upon the cheque Ex. PW1/2 issued by the defendant in favour of the plaintiff to prove the factum of loan. It is further argued that the defendant has been making payments to the father of the plaintiff which shows that there was a loan transaction between the parties and in view of presumption u/s 139 of Negotiable Instruments Act it should be presumed that the defendant took the loan of Rs. 1 lac from the plaintiff and in discharge of his liability he issued the cheque Ex.PW1/2.
11. It is civil suit and plaintiff is required to prove the transaction of loan as alleged in the plaint. The case of the plaintiff cannot be said to have been proved on the basis of presumption under Negotiable Instrument Act. The plaintiff is required to prove the facts alleged in the plaint in accordance with Indian Evidence Act. Mere issuance of cheque does not prove the loan as alleged by the plaintiff.
Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 8
12. In Krishan Janardan Bhatt Vs. Dattatraya G. Hegde Appeal (Crl.) 518/2006 decided on 11.01.08 Hon'ble Supreme Court has observed that "A mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Negotiable Instrument Act. It was further observed that Section 138 of the Act has three ingredients, viz. (i). that there is a legally enforcible debt; (ii). that the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability; and (iii). that the cheque so issued had been returned due to insufficiency of funds. It was observed that Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter and existence of legally recoverable debt is not a matter of presumption u/s 139 of the Act. It merely raises a presumption in favour of the holder of a cheque that the same has been issued for discharge of any debt or other liability.
13. The defendant has taken a plea that he handed over the Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 9 cheque in question to Sh. R.K.Aggarwal i.e. father of the plaintiff as a security after signing the same at the time of taking the loan of Rs. 2,70,000/ from him and Sh. R.K.Aggarwal has misused that cheque and he presented the cheque after filling the name of the plaintiff thereupon. It is also alleged that the defendant signed the blank cheque and handed over to Sh. R.K.Aggarwal and it is pointed out that the date on the cheque Ex. PW1/2 is written in black ink, however, the remaining body of the cheque is written in blue ink.
14. I have perused the cheque Ex. PW1/2, it reveals the use of different handwritings and inks. The plaintiff has not produced any concrete evidence to prove the factum of loan as alleged in the plaint. Further, in the plaint, it is alleged that plaintiff Runjhun gave the loan, however, in the evidence PW1 R.K.Aggarwal deposed that deponent i..e he gave the loan to the defendant. The pendency of suit No. 491/11 filed by Sh. R.K.Aggarwal against the defendant for recovery Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 10 of loan given by him probablise the defence of the defendant.
15. In the facts and circumstances of the case, I am of the opinion that the plaintiff has failed to prove that she gave the friendly loan of Rs. 1 lac to the defendant and mere issuance of cheque by the defendant does not prove the factum of loan as alleged by the plaintiff. Therefore, plaintiff is not entitled to the money decree as prayed for. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE NO. 2 Whether the suit is without any cause of action? OPD.
16. The defendant has taken a plea in the written statement that there is no cause of action for the plaintiff to file the present suit. The onus to prove this issue lies upon the defendant.
17. Cause of action is a set of facts sufficient to justify a right to sue or for the enforcement of a right against another party. Cause of Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 11 action are the facts alleged in plaint which are required to be proved and while rejecting the plaint for want of cause of action, the court is required to see the averments made in the plaint and the written statement or the documents relied upon by the defendants cannot be looked into. Hon'ble Supreme Court in Saleem Bhai Vs. State of Maharashtra AIR 2003 SC 759 held that it is only the plaint in which the relevant facts are to be seen and not the written statement for the purpose of order 7 rule 11 CPC for deciding as to whether the plaint be rejected or not.
18. The plaintiff has alleged that she gave the friendly loan of Rs. 1 lac to the defendant and in discharge of his liability defendant issued the cheque in question in favour of the plaintiff.
19. The plaintiff has alleged certain facts which she is required to prove to obtain the relief claimed vide present plaint and therefore, the averments made in the present plaint cannot be said to be without Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 12 any cause of action. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3 Whether the provisions of Punjab Money Lenders Act are attracted? OPD.
20. The onus to prove this issue lies upon the defendant and the defendant has failed to prove that the provisions of Punjab Money Lenders Act are attracted in the present case. The defendant has not asked any question regarding the applicability of provisions of Punjab Money Lenders Act during the cross examination of PW1. Further the defendant has not alleged the applicability of the said Act in his deposition as DW1. The defendant has not alleged in his evidence that the plaintiff has been involved in the business of money lending without proper licence. The defendant has failed to discharge the onus upon him to prove this issue. Hence, this issue is decided Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 13 against the defendant and in favour of the plaintiff.
21. Relief: The suit of the plaintiff for the recovery of 140000/ is hereby dismissed. No orders as to cost. Decree sheet be drawn accordingly. File be consigned to record room.
Announced in the open (Manish Khurana) Court on 31.07.2014 JSCCcumASCJcumGudn. Judge North, Rohini Courts, Delhi Runjhun Aggarwal Vs. Rohtas Kr. Goel CS490/11 14 26.02.2014 Present : None for the plaintiff.
Proxy counsel for the defendant.
Vide my separate judgment announced in the open court the suit of the plaintiff is hereby dismissed, however, the counter claim filed by the defendant is decreed to the tune of Rs. 20200/ along with interest @ 9% per annum w.e.f. April 2009 till the realization of the amount in his favour and against the plaintiff. Decree sheet be drawn accordingly.
File be consigned to record room after due compliance.
(Manish Khurana) JSCCcumASCJcumGudn. Judge North, Rohini Courts, Delhi 26.02.2014