Delhi District Court
Sh. Lalit Kumar vs Sh. Pramod Kumar Pandey on 17 July, 2021
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE03,
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CS No. 684/18
Sh. Lalit Kumar,
S/o Sh. Bhagwan Dass,
R/o 2A/58, Geeta Colony,
Delhi110031. ..........Plaintiff
Versus
Sh. Pramod Kumar Pandey,
S/o Deo Prashad Pandey,
R/o House No. 7,
Second Floor, Gali no. 7,
Gopal Park, Near Chnader Nagar,
Delhi110051.
Also at
IX/3345, Gali no.7
Old Dharampura,
Gandhi Nagar, Delhi110031. .........Defendant
Suit filed on - 06.09.2018
Judgment pronounced on - 17.07.2021
JUDGMENT
(under Order XXXVII Rule 3 (6) (a) of CPC)
1. This is a suit, filed on 06.09.2018, seeking recovery of Rs. 6,42,000/ together with interest of 18% per annum and costs.
2. Plaintiff runs a motorcar workshop under the name of 'Luxmi Automobiles' at Geeta Colony. He is known to the defendant for the last many years as the latter used to come to his workshop for repair of his car. In the first CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 1 of 11 week of August 2016, he approached the plaintiff for a friendly loan of Rs. 6,00,000/ for 18 months. He represented to the plaintiff that he required the loan for business purposes. On 12.08.2016 plaintiff advanced a friendly loan of Rs. 6,00,000/ in cash to the defendant for a period of 18 months. Defendant executed a promissory note dt. 12.08.2016. Eighteen months later, the defendant, in order to repay the loan, issued a cheque of Rs. 6,00,000/ bearing no. 036370 dt. 12.02.2018 drawn on Union Bank of India, Chander Nagar, Delhi. This cheque returned dishonoured on 17.04.2018 for lack of sufficient funds. Plaintiff's legal notice dt. 14.05.2018 to the defendant was of no avail. Thus the present suit.
3. The defendant in his leave to defend application/affidavit states as follows: I) From 2013 till July 2017 he (defendant) was maintaining a Chevrolet Aveo car bearing registration no. DL 3CAY 2874. He used to get it serviced from one M/s Lakshmi Automobiles, Geeta Colony, Delhi being run by one Lalit Kumar Nasa. Over the course of time after several job works, the said Lalit Kumar Nasa gained defendant's trust and faith. He used to leave his car at the aforesaid shop for repairing etcetera and used to collect it later in the evening or Lalit Kumar Nasa used to have it sent to his house. Like any other car owner, he used to keep his several belongings in the car. With his belongings still inside, he used to give the car to Lalit Kumar Nasa for servicing. As usual, in 2015 defendant had sent his car for servicing to Lalit Kumar Nasa's shop. But, before sending his car for servicing, he did not, as usual, clear the dashboard etcetera. Inside the car, in a transparent polythene bag he had kept few blank CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 2 of 11 cheques signed by him and his wife, few blank stamp papers, plain papers and pronotes duly signed by him. He had kept them inside his car as he had to submit the same to a financier, through one his friends, from whom he was taking friendly loan for his daughter's admission. The documents had remained in his car for about a week. This time, the car postservicing was delivered in his absence by Lalit Kumar Nasa's staff at his then residence at F20, Street no.4, West Cahnder Nagar, Delhi51. The next morning, on not finding the said bag/documents in the car, he unsuccessfully made a search in his house and enquired from his wife about it, who told him that he might have put the same in the heap of books or left it at some student's house. He even went to Lalit Kumar Nasa's shop and enquired about his lost bag, but he denied having seen any such bag in the car. In the meantime, a relative of his wife fulfilled his financial requirement. He and his wife forgot about the said blank documents. Everything went on smoothly till March 2018 when he received a message about cheque dishonor. He tried to enquire from his bank about it, but to no avail. It was when he received summons of this case that he realised that plaintiff had forged his cheque and pronote by writing his name, amount of Rs. 6 lacs and dates of 12.02.2016 and 12.02.2018 respectively thereon.
II) He had very good relations with the defendant till receipt of summons of this case. He even visited Mussoorie with the plaintiff and his friends prior to receipt of court summons of this case. Had he taken any friendly loan, he would not have continued his friendly relations with the defendant even after 17.04.2018 (date of cheque dishonor) and also after issuance of the legal notice dt. 14.05.2018.
CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 3 of 11III) From a reading of the plaint, it is clear that Lalit Kumar Nasa has mentioned his name as Lalit Kumar only in order to conceal his identity. The aforesaid cheque bearing no. 036370 was lost in year 2015 and the subsequent cheques bearing no. 036372 and 036373 were encahsed on 15.09.2015 and 04.07.2016 respectively. Therefore, the cheque in question bearing no. 036370 could not have been issued in February 2018. This is more so when he got issued a new cheque book in Decemebr 2016. Lalit Kumar Nasa malafidely filled the said cheque and blank pronote as if he has lent Rs. 6 lakhs to him and that too in cash. Plaintiff has not yet presented the remaining cheques for encashment. He got lodged a police complaint dt. 31.10.2018 with the local police and lodged a criminal complaint under sections 200 and 156 (3) CrPC against the plaintiff.
IV) Plaintiff has annexed a pronote dt. 12.08.2016 mentioning his (defendant's) address as IX/3345, Gali No. 7, Old Dharampura, Gandhi Nagar, Delhi - 31. This address, which was of a rented accommodation, could not have been his address on the date mentioned in the pronote, for he had already vacated it way back in 2013. This pronote is a stolen one. The cheque and the documents too had been stolen. He never gave the pronote/cheque to plaintiff. He never signed and executed the pronote/cheque and the same are forged and fabricated. He has already lodged a complaint for the offence of theft, cheating, conspiracy to cheat, forgery of cheque/pronote etc. use of forged cheques/pronote as genuine and for institution of false and frivolous cases on the basis of forged cheque/ pronote.
V) Plaintiff in his plaint avers that he needed the loan for business purposes, CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 4 of 11 but it is a fact that till date he has never been involved in any business activity. He gives tuitions to children for his livelihood and has never been involved in any business activity.
VI) Plaintiff has not disclosed his source of funds and has annexed no document in this regard. He has neither annexed his income tax returns. He cannot be permitted to sue for recovery of unaccounted money based on forged documents. He owes no money to the plaintiff. Plaintiff has played a fraud with him.
VII) As per section 269SS of Income Tax Act no payment in cash in excess of Rs. 20,000/ can be given. For this reason, the transaction in question as set out by the plaintiff is not legal.
4. Plaintiff in his reply to defendant's leave to defend application/ affidavit states that his name is only Lalit Kumar and not Lalit Kumar Nasa. Defendant himself had filled the pronote and if there is any wrong address thereon, then it he himself who ought to take responsible. There is no document to show that defendant had left the said address three years ago. At the time taking the loan, the defendant had handed over photocopy of his voter identity card showing the same address. Plaintiff's bank balance of the period from 30.06.2013 to 31.08.2016 shows that he did have financial capacity to give loan of Rs. 6 lacs. The defendant himself disclosed that he needed the loan for business purpose.
5. In his rejoinder, the defendant has reiterated his averments as set out in his leave to defend application and refuted plaintiff's averments as set out in his reply. In addition, he states that he did not receive plaintiff's legal notice dt. 14.05.2018.
CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 5 of 116. Arguments already heard. Record perused.
7. In IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568 the following principles for grant of leave to contest is a suit under Order XXXVII, CPC were laid down.
(a) If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
(b) If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
(c) Even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
(d) If the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 6 of 11 of the case requires.
(e) If the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.
(f) If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in the court.
8. During the course of arguments, plaintiff's counsel relied on the following judgments: Sushila Giri v. Nitish Kaushik, 2018 (168) DRJ 328; Vipin Gupta v. Prem Singh, 2006 (134) DLT 402; Harish Dubey v. Ankur Jain, 2016 (1) RLR 455; Ranbir Singh Bhardwaj v. R. K. Kapadia, 2012 (194) DLT 94; Maya Jain v. Yash Chhabra, 2015 (149) DRJ 396 and Rambir Sharma v. HBN Housing Finance Ltd., 2018(1) JCC 1 (NI). On the other hand, defendant's counsel relied on the report of Gainda Mull Hem Raj v. Arora Bros. & Ors., AIR 1973 Delhi 141.
9. Section 269SS of Income Tax Act provides for the mode of taking and accepting certain loans and deposits. It provides that no loan or deposit of an amount more than Rs. 20,000/ shall be made otherwise than by an account payee cheque or account payee bank draft or electronic clearing system through a bank account or through such other electronic mode as may be prescribed. Section 271D of Income Tax Act provides that in case section 269SS is not complied with, the person making such payment shall be liable to pay by way of penalty a CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 7 of 11 sum equal to the amount of loan or deposit so taken or accepted. Bare perusal of these two provisions makes it clear that the loan transaction itself is not rendered illegal if made in cash. Such a cash transaction only entails penalty; the transaction of loan does not per se become illegal. In Bijender Sharma v. Anil Sabharwal, 2017 SCC OnLine Del 10375 : (2017) 245 DLT 204 it was observed that an amount of Rs.50 lacs given in cash, and not reflected in income tax returns, may attract penalty, but it would not make such loan unrecoverable. Merely because the loan transaction was in cash, it cannot be presumed that there was no legally enforceable debt. In Mukesh Gupta v. P.K. Bajaj & Anr., 2006 SCC OnLine Del 1425 : (2007) 93 DRJ 333 it was held that any loan transaction which is made in contravention of section 269SS or which is not recorded in income tax returns, would not make it void and the debt cannot be held to be not recoverable. In Shyam Sunder v. Sohan Singh @ Sobhan Singh, 2018 SCC OnLine Del 7455 it was observed that section 269SS and section 269T do make it compulsory for persons to accept loan or deposits of Rs. 20,000/ or more only through proper banking channels. The consequence of not doing so is to fasten the parties with penalty under the Income Tax Act, 1961 and the income tax authority is free to take action against the erring party. However, such cash transactions per se do not become illegal or nonrecoverable. The loan may have been taken in cash, but that per se would not make it illegal or not recoverable.
10. Under section 118 of Negotiable Instruments Act there are certain statutory presumptions attached to negotiable instruments. These presumptions do squarely come to the aid of the plaintiff. At this stage of consideration on leave to defend, the defendant is required to at least show a defence that is credible and which may require trial. In this case the defendant has miserably CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 8 of 11 failed to show any credible defence. He pleads that he took no loan from the plaintiff and that in fact the latter in the year 2015 had stolen his duly signed pronote and cheque. However, this defence of the defendant does not appear to be plausible. It does not stand to reason that one would not lodge any missing complaint with the police as regards loss of duly signed pronote and cheque. It also does not stand to reason that one would avoid informing one's banker about the loss of duly signed cheque, lest anyone misuse the same. The cheque and the pronote were allegedly lost in 2015, but for the next about three years there is no complaint made to any authority or intimation sent to the bank. Not only this, the cheque in question was dishonoured in April 2018, and it was a good six months later on 31.10.2018 that the defendant woke up from his slumber to lodge police complaint against the plaintiff. Such a conduct is not at all in consonance with the course of normal human conduct. It is an admitted fact that both the parties were very well known to each other. All these factors strongly point to the fact that the cheque/pronote were not at all lost, rather the defendant himself had given the same to the plaintiff. The plea of the defendant in this regard is not believable by any stretch of imagination. This plea is moonshine and is accordingly turned down.
11. The observation that this plea of the defendant is moonshine is buttressed by the following circumstance as well. As per the defendant himself the subsequent cheques bearing no. 036372 and 036373 were encashed on 15.09.2015 and 04.07.2016 respectively. Even then, it did not actually dawn upon the defendant that a certain cheque of his, allegedly stolen/misplaced in 2015, had not been traced as yet.
12. The plea of the defendant that his address on the pronote is an old address CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 9 of 11 of his does not persuade this Court to return a finding in his favour. The plaintiff has furnished on record a copy of the voter identity card of the plaintiff mentioning the very same address. It is not the stand of the plaintiff that in his voter identity card he had got his address changed. In any event, the fact that on the pronote an old address of the defendant is mentioned will not suffice to take away the statutory presumptions under the Negotiable Instruments Act. I do not think that for this any trial is required to be held, more so when the very fundamental plea of loss/misplacement of the cheque/pronote is a moonshine one.
13. It was next the contention that the plaintiff is not a man of means to lend Rs. 6 lacs to him. The plaintiff has furnished on record his bank statement of account of the period from 2014 to 2016 and it shows that the defendant was certainly not a pauper at the relevant time.
14. It was next the contention that the defendant never indulged in any business and as such the plea of the plaintiff that he lent him money for business purpose cannot be credible. This plea of the defendant does not persuade this Court take a different view of the matter. As already stated hereinabove, the very fundamental plea of loss/misplacement of the cheque/pronote is a moonshine one. There are statutory presumptions in respect of negotiable instruments under the Negotiable Instruments Act. The moonshine plea of theft/misplacement is a frivolous one.
15. Ld. Counsel for the defendant relying on the report of Gainda Mull Hem Raj (supra) had argued that the plaintiff ought to have contested the correctness of defendant's averments as set out in his leave to defend application by way of an affidavit. This argument is noted to be rejected. The defendant filed his reply CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 10 of 11 in response to the leave to defend application of the defendant and together with that he annexed a short affidavit stating therein that the fact set out in his reply be read as part and parcel of his affidavit and the averments therein are not being repeated for the sake of brevity. I think this is sufficient compliance on the part of the defendant of the aforesaid judgment.
16. To conclude, this Court is of the view that the defendant has no substantial defence to make. He raised no triable issues. His defence is frivolous and vexatious. His application seeking leave to contest stands dismissed.
17. Relief The suit stands decreed in the sum of Rs. 6 lacs in faovur of the plaintiff and against the defendant. On this amount, plaintiff is awarded interest of 18% per annum from the date of the decree till realisation. Costs of the suit is awarded to plaintiff. File be consigned to record room.
Digitally signed by Announced in the open Court as also MURARI MURARI PRASAD SINGH PRASAD Location: Court through video conference SINGH No.7, Karkardooma Courts, Delhi Date: 2021.07.17 on 17th July, 2021 14:54:31 +0530 (M. P. Singh) Addl. District Judge03, East, Delhi 17.07.2021 CS 684/18 Lalit Kumar v. Pramod Kumar Pandey Page 11 of 11