Delhi District Court
Surender Pal Singh vs Raju on 28 February, 2025
IN THE COURT OF SH. GAURAV SHARMA
JSCC-CUM-ASCJ-CUM-GUARDIAN JUDGE, EAST
KARKARDOOMA COURTS/DELHI
CNR No. DLET030015662021
Civ Suit No. : 808/2021
Surender Pal Singh
S/o Sh. Khajan Singh
R/o: H.No. A-25, Harijan Basti,
Kondli, Delhi-110096
...........Plaintiff
Versus
Raju
S/o Sh. Jaipal Singh
R/o: Mohalla Harjaspura,
Near Garh Chungi, Haipur,
Uttar Pradesh-245101
...........Defendant
Date of Institution : 16.11.2021
Judgment reserved on : 23.12.2024
Judgment pronounced on : 28.02.2025
Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 1/14
JUDGMENT
28.02.2025
1. Suit Decreed.
2. The plaintiff, a physically handicapped person with 85% disability, has averred that he is well known with the defendant since his birth, him being his nephew ('Bhanja') Both of them were stated to be having cordial relations initially. On 27.02.2020, it is stated that the defendant and his father Jaipal Singh had come over to the house of the plaintiff at Kondli, Delhi - 110096. The defendant, as per the plaintiff, had informed about his compulsion that a mason ('rajmistri') had been engaged for construction/re-building the defendant house. Due to paucity of funds however, the plaintiff has averred that the defendant had told him that the work would be stopped, unless the plaintiff could lend over a sum of Rs. 70,000/-. Considering the nature of the request made and the cordial relations that both the sides had enjoyed over years, the plaintiff agreed to lend money to the defendant. For the same, on 28.02.2020, the plaintiff is stated to have withdrawn a sum of Rs. 1 Lakh from his bank (State Bank of India, Raj Nagar Branch, District Ghaziabad, Uttar Pradesh) and gave a sum of Rs. 70,000/- out of that to the defendant in the presence of his father. After passing of a year from thereon however, it is contended that the defendant did not re-pay the loan and started evading the plaintiff. On 02.02.2021 therefore, the plaintiff is seen to have reported the matter by writing a complaint to the Tehsildar and on 13.02.2021, on complaint of the plaintiff, the police officials concerned at Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 2/14 B.B. Nagar Police Station, District Bulandshehar, Uttar Pradesh called the defendant to the police station to return the plaintiff money. On that day, it is asserted that the defendant had accepted his liability towards the plaintiff in the presence of the police officers and two other witnesses Vinod Kumar and Amarpal Singh. He undertook, as per the plaintiff, to return back Rs. 70,000/- within one month i.e. by 13.03.2021. In this regard, it is also the plaintiff case that the defendant had executed a written document as well and signed upon it - being the compromise/application before the police officials concerned at PS B.B. Nagar duly attested by two witnesses as above also. The plaintiff had also recorded a video clip of the defendant's acceptance of his liability and the undertaking he had made. Despite acting as such, the plaintiff claims that the defendant never had any real intention to repay the loan. On 12.02.2021, at about 06.34 PM, it is averred that on the instance of the defendant, his brother in law Pintu, S/o Hatam Das had called the plaintiff through his mobile number 6397509986 and had used filthy language as well, threatening the plaintiff of dire consequences if he persisted with his demand from the defendant qua return of the loan amount. Similarly, on 12.10.2021 also, it is stated by the plaintiff that at about 01.36 PM, the defendant himself had called the plaintiff through his mobile no. 8439764088 and used fifty language and threatened him of dire consequences as well. In this regard, it is averred that the plaintiff had recorded the voice of the defendant and that of his brother in law Pintu. A written complaint regarding such conduct on part of the defendant and Pintu was also made to the police by the Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 3/14 plaintiff with the SHO concerned at PS Ghazipur and PS B.B. Nagar, Bulandshehar, Uttar Pradesh, with a copy being forwarded to the DCP, East on 21.10.2021 as well. A legal notice was also issued to the defendant in due course but to no avail. Hence the present suit.
3. Summons of the suit were issued and WS came to be filed on behalf of the defendant. He denied the transactions in question as had been alleged to have taken place with the plaintiff. He stated that he had taken no loan from the plaintiff. As per him, the property of the defendant had already been built up in the year 2017 and therefore, there was no need on part of the defendant to approach the plaintiff for the alleged loan for the purposes of repairing his house. Instead, the defendant stated that he had sold off his property to one Amar Pal vide sale deed dated 01.07.2021 and the plaintiff was in fact a witness to the same and as such therefore, no transaction of the kind stated by the plaintiff, had ever taken place between him and the plaintiff. On 13.02.2021, it is further claimed by the defendant that the police at PS B.B. Nagar, Bulandshehar, Uttar Pradesh had called him to the police station, in pursuance of which he had indeed visited there, where plaintiff was also present. It is further contended by the defendant that at the instance of the plaintiff, the police had detained the defendant in the police station for about 4-5 hours and in collusion with the plaintiff, obtained the signatures of the defendant on blank papers with malafide intention and threatened him not to disclose the same anywhere else, failing which dire consequences would Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 4/14 entail. In view of the same, it is claimed by the defendant that the compromise dated 13.02.2021 got prepared by the plaintiff is forged and fabricated in order to create false liability upon the defendant. The defendant also stated that no transaction above Rs. 20,000/- could take place in cash anyways and the plaintiff claim therefore about lending of Rs. 70,000/- was against the law of the land. The legal notice of the plaintiff was stated to be duly replied to as well where all liability was denied. In view of the same, it was prayed that the suit of the plaintiff is liable to be dismissed.
4. In the replication that came to be filed by the plaintiff, the contents of the plaint were reiterated whilst denying all the defences taken by the defendant.
5. Pleadings being complete as such, vide order dated 09.01.2023, issues came to be framed for consideration of the court as follows :
1) Whether the plaintiff is entitled to recover the amount of Rs. 70,000/- along with interest at the rate of 18% p.a. from the defendant ? OPP
2) Whether the plaintiff has no locus standi to file the present suit ? OPD
3) Relief, if any.
6. Plaintiff evidence was led thereafter wherein he examined himself as the sole witness. Contents of the plaint were reiterated in his evidence affidavit. He further relied upon the following documents :
Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 5/14
i) Copy of Aadhar Card of the plaintiff : Ex. PW1/A (OSR)
ii) Copy of Disability Certificate of the plaintiff : Ex. PW1/B (OSR)
iii) Copy of plaintiff's Bank account statement : Ex. PW1/C (Colly.) (OSR) (02 pages)
iv) Copy of compromise / application before PS B.B. Nagar on 13.02.2021 : Mark A
v) Original CD of the video clip of defendant : Ex. PW1/D
vi) Certificate U/s 65B of the Indian Evidence Act : Ex. PW1/E
vii) Copy of the complaint dated 21.10.2021 : Ex. PW1/F (Colly) (04 pages)
viii) Original postal receipt dated 21.10.2021 : Ex. PW1/G
ix) Original postal receipt dated 21.10.2021 : Ex. PW1/H
x) Original postal receipt dated 21.10.2021 : Ex. PW1/I
xi) Legal notice dated 21.10.2021 : Ex. PW1/J (Colly.) (03 pages) Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 6/14
xii) Original postal receipt dated 21.10.2021 : Ex. PW1/K
xiii) Tracking report : Mark B
7. Upon being cross examined at length thereafter, PE was closed vide order dated 09.05.2024.
8. DE was then led and the defendant was examined as a witness. His deposition on affidavit made same claims as were previously taken in his WS. He also relied upon the following documents :
i) Certified copy of Sale Deed dated 29.07.2021 : Ex. DW1/B
ii) Photocopy of reply of legal notice dated 03.01.2022 : Mark A (Colly.) (02 pages)
iii) Photocopy of postal receipt dated 04.01.2022 : Mark B
9. DE was closed vide order dated 05.10.2024 and the matter was then posted for final arguments. Both the sides made submissions accordingly and the matter was reserved for orders.
10. Case file perused. Submissions considered.
Issue No. 1 and 21. Whether the plaintiff is entitled to recover the amount of Rs. 70,000/- along with interest at the rate of 18% p.a. from the defendant ? OPP Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 7/14 AND
2. Whether the plaintiff has no locus standi to file the present suit ? OPD
11. Both the issues as aforesaid are intertwined, being based on same set of case facts. As such therefore, they are taken up for disposal together.
12. PW1/Plaintiff in his examination in chief by way of affidavit deposed on similar lines vis a vis the averments contained in the plaint. During his cross examination as well, his testimony is seen to have remained well rounded. He stated that he was 12th pass, knew Hindi language and a little English as well. He further informed that he had left the driving profession after 30.04.2018 as he had met with an accident and was on bed rest since then. The witness reaffirmed that he had given a loan to the defendant on 28.02.2020 at his residence and no written document for the same had been executed at that time. The witness nevertheless explained that his wife and two children were present at the time when he had advanced such a loan to the defendant. He also added that the defendant was his nephew and that is why no documentation had been done. It was further stated by the witness that the defendant was residing at Hapur, Uttar Pradesh and he had approached the plaintiff since he was carrying out some construction work at his house and was in need of money. With regards the construction work also, the witness deposed that he had gone to the house of the defendant in the year 2021 but could not recollect the exact month and the date. He nonetheless explained that when he had visited the house of the defendant, Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 8/14 construction work was incomplete and some terrace/mumty work was still pending. The witness denied the suggestion that construction work had already been completed in the year 2017 and no construction was going on in 2021. The witness reiterated that he had given a written complaint with PS B.B. Nagar, District Bulandshehar, Uttar Pradesh on 02.02.2021. It was also deposed by the witness that he and the defendant had been called at the police station after registration of the complaint on 13.02.2021. The witness stated that the defendant had replied to its legal notice but the same had been received after the filing of the present suit. The witness denied the suggestion that he had never visited the defendant house in the last 5-6 years. It was also deposed by the witness that he knew Amarpal and that the defendant had sold off half portion of his house to such Amarpal. Pintu, as per the witness was the brother in law of the defendant and he denied the suggestion to the contrary by claiming Pintu was his nickname, not knowing his real/official name. The witness again denied that the defendant had signed the admission letter in the police station under pressure. He further denied that the actual transaction was instead between the defendant and Amarpal and for that, the defendant had already sold off his property to discharge his liability towards him. Finally, the witness also denied that the present suit was filed falsely and that the defendant has no amount to pay to the plaintiff.
13. It can be seen therefore that the witness testimony as aforesaid has a broad stroke of uniformity running through it. At no place during his cross examination, it can be said that the Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 9/14 witness could not answer coherently the circumstances of the case put to him. It is to be noted that though the plaintiff/PW1 did agree that the Amarpal had indeed purchased some portion of the house property of the defendant but by no stretch of imagination it can be said that due to the same, no transaction as alleged had ever taken place between the plaintiff and the defendant to begin with. The documents qua the sale deed, to which we shall allude to later, also no where contain any recitals of any subsisting liability between the parties because of which the sale transaction in question would have taken place. In view of the same, the mere fact of existence of a sale deed executed between the defendant and Amarpal does not by itself ipso facto prove that the plaintiff claim could not independently exist. In fact, documents Ex. PW1/C (Copy of plaintiff's bank account statement), Mark A (compromise dated 13.02.2021), Ex. PW1/D (original CD of the video clip of the defendant) and Ex. PW1/F (Colly) (complaint dated 21.10.2021) stand proved having not been controverted to any reasonable extent which could be said to have probabalised the defendant defence. If that be so, taking the examination and cross examination of PW1, read with the documents proved on record, it is amply clear that the loan in question was indeed given by the plaintiff to the defendant and the same was undertaken to be repaid, but not to be. Considering the same, plaintiff testimony is seen to inspire confidence.
14. The defendant on its own end, examined himself as DW1 and re-emphasised his averments as were taken in its WS. In his Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 10/14 cross examination however, he did not quite remain as steadfast. He stated that he was 8th pass and that he could not read and write in English. The witness in fact admitted that he was not aware about the contents of his affidavit but reasoned that his Counsel had explained the same to him in Hindi language and that he had signed the same in the chamber of his Counsel only. The witness went on to admit that the plaintiff was his uncle/'mama' and being as such, he used to visit his house. The witness attention was thereafter drawn to the document Mark A and he conceded that on the said document, the signatures of Amarpal Singh and Surender Pal Singh (plaintiff) were present at Point A and B and that of the defendant himself at Point C. He also admitted that the said document was prepared at District Bulandshehar, Uttar Pradesh. He further agreed that that the PS of the said district was B.B. Nagar, Bulandshehar, Uttar Pradesh. DW1 also admitted even further by stating that that on the said document there were no signatures of any police officials. When put to him, the witness again admitted that the mobile number mentioned on the document Ex. PW1/F (Colly) i.e. 8265912885 was his. The witness however denied that the number 8439764088 was his. He further admitted that he had received the legal notice of the plaintiff but felt uncertain if he had replied to the same or not. The witness was further asked if he had preferred any complaint against the police officials who had allegedly coerced him into signing the compromise agreement with the plaintiff or not, to which he replied in the negative but maintained that he had not signed such a document Mark A voluntarily. He even denied that he, and Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 11/14 not his 'mama'/plaintiff had in fact sold the property to Amarpal, as reflected by the documents of sale Ex. DW1/B., though stating that the plaintiff was a witness to such a document. Going further, it is seen that the CD, Ex. PW1/D, was played in open court and after seeing the video therein, the witness admitted that the said video footage belonged to him and also contained his voice only. He also stated that the plaintiff had no transaction with Amarpal and that the defendant only dealt with him qua the sale of the property. All other suggestions were duly denied.
15. In view of the above, it is seen that the defendant evidence adduced on record was unable to show gaps in the plaintiff version so as to establish a favourable version in its favour. Most of the plaintiff documents were admitted by the defendant and without any proof to the contrary, he could not discharge his burden by simply averring, through a general and omnibus assertion that the police had coerced him into signing the compromise in collusion with the plaintiff. Also, as discussed above already, the fact that a sale deed transaction had taken place between the defendant and Amarpal does not by itself negate the plaintiff claim, more so in view of the the additional fact that the plaintiff also, at its end, has raised question marks over the said sale deed transaction also. Considering the totality of circumstances therefore, from the scrutiny of the defendant evidence, nothing has been able to come on record that could accrue to his benefit.
Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 12/14
16. It is noted that the plaintiff has sought recovery of a total amount of Rs. 70,000/- alongwith interest @ 18% p.a. Such rate of late payment interest however is not only unreasonable but also excessive. Superior courts have repeatedly laid down that high & unconscionable rates of interests / charges are in essence against public policy and by implication void under Section 23 of the Indian Contract Act, 1872 ("ICA"). Also, as per Section 74 of ICA as well, even in cases of stipulation by way of penalty provided for breach of any terms of contract, only reasonable compensation is liable to be awarded & not always the penalty amount, which may be exorbitant.
17. In this regard in fact, Section 34 CPC postulates the pendente- lite interest at a rate, not exceeding 6% and any other interest at a rate, not exceeding the rate, at which nationalized banks advance loan may be awarded.
18. Keeping the above statutory stipulations in mind, it shall be in fitness of things if plaintiff is granted 9% interest from 13.03.2021 (by when the defendant had undertaken to repay the loan amount as per the compromise Mark A) to filing of the suit on 10.11.2021 and future interest till realisation at same rate also, plus pendente-lite interest at 6%, within the meaning of Section 74 of the Indian Contract Act, 1872.
19. For the reasons as aforesaid, Issue no. 1 is decided in favour of the plaintiff and against the defendant to the extent as noted. As for Issue no. 2, it is decided against the defendant and in favour of the plaintiff.
Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 13/14 RELIEF
20. From the discussion as aforesaid, the following reliefs are hereby granted :
A. The plaintiff is held entitled to a decree of recovery of Rs. 70,000/- as against the defendant. Together with the same, plaintiff is also held entitled to 9% interest from 13.03.2021 (by when the defendant had undertaken to repay the loan amount as per the compromise Mark A) to filing of the suit on 10.11.2021 and future interest till realisation at same rate also, plus pendente-lite interest at 6% and the same is also payable by the defendant.
B. Parties to bear their own cost.
Decree-sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance. Digitally signed by GAURAV SHARMA GAURAV Announced in the open Court SHARMA Date:
2025.02.28 on 28.02.2025 16:33:31 +0530 (Gaurav Sharma) JSCC-cum-ASCJ-cum-Guardian Judge East/KKD Courts/Delhi 28.02.2025 Civ Suit No. 808/2021 Surender Pal Singh Vs. Raju pg. no. 14/14