Delhi District Court
Naresh Chandra Tiwari vs Anil Kumar on 5 January, 2015
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 345/14
Case I.D. Number : 02402C0270192013
IN THE MATTER OF :
Naresh Chandra Tiwari
S/o Late Sh. R. S. Tiwari
R/o 324, DDA Flats, Welcome,
Phase III, G. T. Road, Shahdara,
Delhi110053 ........ Plaintiff
VERSUS
Anil Kumar
S/o Sh. Dwarka
R/o H. No. 240, Double Storey,
Welcome,
Phase III, G. T. Road, Shahdara,
Delhi110053.
At also: Anil Kumar/Sh. A. K. Kashyap
17, Double Storey Welcome, PhaseIII,
Opp. Community Centre,
Delhi110053 ........ Defendant
CS No. 345/14 page 1 of 16
Naresh Chandra Tiwari Vs. Anil Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Date of Institution of suit : 11.07.2013
Received in this Court :12.03.2014
Date of argument : 05.01.2015
Date of Judgment/Order : 05.01.2015
Decision : Suit is dismissed with cost
SUIT FOR RECOVERY
J U D G M E N T
1. The plaintiff filed this suit for recovery of Rs. 4 lakh alongwith interest
@ 24 % per annum from 21.02.2011 till realization against the defendant. As
contended, the defendant was running the mobile shop near the house of
plaintiff. The defendant used to take small loan from the plaintiff and returned
the same on time. In view of the request of the defendant, on 21.02.2011
plaintiff given Rs. 3 lakh in cash and Rs. 70,000/ by cheque bearing No.
082611 dated 21.02.2011 drawn on ING Vyas Bank Ltd. Yamuna Vihar
Branch, Delhi. Further, Rs. 30,000/ was paid to the defendant on 23.02.2011
by way of cheque bearing No. 082613 drawn on ING Vyasa Bank Ltd.,
Yamuna Vihar Branch, Delhi. The defendant promised to return the said
amount of Rs. 4 lakh within two months. When the plaintiff asked for the
money after two months, the defendant refused to pay any amount. Legal
Notice dated 21.05.13 was also issued by the plaintiff to the defendant but of
no avail. Hence, this suit.
CS No. 345/14 page 2 of 16
Naresh Chandra Tiwari Vs. Anil Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
2. In the written statement, the defendant stated that the plaintiff has
filed this suit without any cause of action and it is not maintainable; the
plaintiff has suppressed the material facts. On merit the defendant denied
having taken any loan at any time from the plaintiff. It is further mentioned
that the defendant is engaged in the commodities business in share market
and plaintiff also started this business in the demat account of the defendant.
The plaintiff suffered loss on account of the business and as per the
statement of account, Rs. 2.45 lakh is due against the plaintiff. The
defendant made police complaint also in this respect. While denying the rest
of the material contentions of the plaintiff in the plaint, the defendant prayed
to dismiss the suit with cost.
3. Replication was filed by the plaintiff to the written statement of
defendant whereby the plaintiff has reiterated the contentions mentioned in
the plaint while denying the averments of the defendant in the written
statement.
4. In view of the pleading of the parties, following issues were framed
vide order dt. 09.12.2013:
(i) Whether the plaintiff is entitled to a decree for recovery of Rs. 4
lakh along with interest @ 24 % per annum from the date of filing of this suit
till the realization ? OPP
(ii) Relief.
The case was thereafter fixed of Plaintiff's Evidence.
CS No. 345/14 page 3 of 16
Naresh Chandra Tiwari Vs. Anil Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
5. PW 1/plaintiff has filed his affidavit by way of evidence Ex. PW1/A
and deposed regarding the case as mentioned in the plaint. The witness
has also deposed regarding the relevant documents i.e. Bank Statement of
account Ex. PW1/1, Complaint dated 08.12.2012 to the SHO of PS
Seelampur Ex. PW1/2, Copy of Legal Notice dated 21.05.2013 Ex. PW1/3,
Original Regd. Coupons, Speed Post Coupons and Courier Receipts all
dated 21.05.2013 Ex. PW1/4 to Ex. PW1/9 respectively, Original Delivery
Report of Legal Notice dated 01.06.2013 Ex. PW1/0 & Ex. PW1/11,
Photocopy of Pass Book of Bank Account No. 10259219343 Ex. PW1/12 and
Copy of Client Master List of NSDL from 28.04.2005 Ex. PW1/13. As no
other witness remained to be examined by the plaintiff, the PE was closed
and the case was fixed thereafter defendant's evidence.
6. The Defendant filed his evidence by way affidavit Ex. DW1/A and
examined himself as DW1 in support of contentions and proved the Legal
Notice dated 07.11.2012 issued by the plaintiff Ex. PW1/1 and reply to the
legal notice Ex. PW1/2. As no other witness remained to be examined by the
defendant , DE was closed.
7. I have heard the Ld. counsel for the parties and gone through the
relevant materials on record. I have also considered the relevant provisions
of law.
8. Having drawn my attention to the pleadings of the parties, testimony of
witnesses and materials on records, it is submitted by learned counsel for
CS No. 345/14 page 4 of 16
Naresh Chandra Tiwari Vs. Anil Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
the plaintiff that plaintiff has proved his case and is entitled for the amounts
as prayed in the suit. It is further argued the defence of the defendant is
shame, vague and fanciful, the defendant failed to return the due amount to
the plaintiff despite requests and opportunities, this suit is filed within
limitation. It is further argued by the Ld. Counsel for the plaintiff that the
defendant has admitted the payment of Rs. 1.40 lakh but the claimed to have
adjusted the same though no counter claim/ set up is filed in support of
contentions. The Ld. Counsel for the plaintiff further prayed to decree the
suit in favour of the plaintiff and against the defendant.
9. The Ld. Counsel for the defendant on the other hand, having
drawn my attention to the testimony of the witnesses and documents on
records submitted that the plaintiff has failed to prove the case and
discharge the onus. It is argued that the plaintiff has filed this suit without any
basis and cause of action. It is also submitted by Ld. counsel for the
defendant that plaintiff has concealed the material facts and therefore, the
suit is liable to be dismissed.The Ld. Counsel for the defendant prayed to
dismiss the suit with cost.
10. I have given my thoughtful consideration to the submissions made on
behalf of the parties. My findings issuewise are as under :
Issue No. i
(i) Whether the plaintiff is entitled to a decree for recovery of
Rs. 4 lakh along with interest @ 24 % per annum from the date of filing
CS No. 345/14 page 5 of 16
Naresh Chandra Tiwari Vs. Anil Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
of this suit till the realization ? OPP
11. The onus to prove this issue was upon the plaintiff. It is well settled
that a suit has to be tried on the basis of the pleadings of the contesting
parties which is filed in the suit in the form of plaint and written statement and
the nucleus of the case of the plaintiff and the contesting case of the
defendant in the form of issues emerges out of that. Being a civil suit, this
suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities.
The balance of probabilities in the present case shows
that the Power of Attorney Ex. PW3/1 and the Will Ex.
P1 were duly executed by the deceased Sh. Sohan
Singh. The Power of Attorney is after all a registered
Power of Attorney, and more importantly, the original
title documents of the subject property are in the
possession of the respondent No. 1 and which would
not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible CS No. 345/14 page 6 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "
preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on CS No. 345/14 page 7 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. balance of probabilities.
12. Section 101 of the Evidence Act, 1872 defines " burden of proof" which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar CS No. 345/14 page 8 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
13. The brief and relevant facts for filing of this suit has been mentioned at the outset. In the present case there is no admission by the defendant. It is reiterated that the onus to prove this case was upon the plaintiff for entitlement of the amount as prayed in the suit. In the present case, the plaintiff claims to have given Rs. 4 lakh to the defendant i.e. Rs. 3 lakh in cash and Rs. 1 lakh by way of two cheques of Rs. 70,000/ and Rs. 30,000/ each. As further contended, the cheque of Rs. 70,000/ was paid in the name of the defendant whereas the cheque of Rs. 30,000/ was issued in the name of one Sunil Kumar, employee of the defendant. The defendant has denied any transaction with the plaintiff contending that he has never taken any loan from the plaintiff. The defendant has denied any Sunil Kumar being his employee. In support of contention the plaintiff placed on record one statement of account Ex. PW1/1 showing withdrawal of Rs. 70,000/ and Rs. 30,000/ on 21.02.2011 and 23.02.2011 respectively but the said statement of account is not proved by the plaintiff as per law nor is duly certified under the bankers book of Evidence Act to rely upon the same. The plaintiff has even not produced the said Sunil Kumar who allegedly received the payment on behalf of the defendant or any other witness in support of contentions to the reasons best known to the plaintiff.
After going through the pleadings and the evidence of the witnesses CS No. 345/14 page 9 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. examined in this case, this court has no hesitation in holding that the plaintiff categorically failed to prove the payment of Rs. 4 lakh to the defendant as mentioned in the plaint. There is nothing on record nor anything proved in this respect except the bald averments of the plaintiff. The testimony of the plaintiff was further controverted during crossexamination and his testimony was totally shattered. The plaintiff himself admitted that there is no documentary evidence regarding any previous transaction/loan given to the defendant or repayment. The testimony of the plaintiff was shattered further as he claimed during crossexamination that Rs. 1 lakh was paid to the defendant by the cheques issued in the name of the defendant and were bearer cheques. ( His testimony was confronted with reference to the contentions in the plaint and para 6 and 7 of the affidavit Ex. PW1/A). Nothing is produced by the plaintiff also to show that Sunil Kumar was employee of the defendant. The plaintiff claimed himself to be an Income Tax payee but failed to show any such return to show the payment of Rs. 4 lakh as loan to the defendant.
I have gone through the legal notice dated 07.11.12 Ex. PW1/X1 issued by one Sh. Dharamvir Singh, Advocate whereby Rs. 1 lakh was demanded from the defendant. The contents of the said notice belied the claim of the plaintiff and the plaintiff concealed this fact of issuance of the notice Ex. PW1/X1 in the plaint. The notice Ex. PW1/X1 never talk of any loan of Rs. 4 lakh and therefore the contentions of the plaintiff regarding the loan of Rs. 4 CS No. 345/14 page 10 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. lakh appears to be afterthought. Nothing is answered by the plaintiff in this respect. The testimony of the plaintiff was further shattered as he admitted during crossexamination that he was an account holder in the name of Jyoti Commodities Ltd. and this testimony support and corroborates the defence of the defendant. The plaintiff further claimed to have given Rs. 3 lakh in cash in the presence of witnesses Naresh Sharma and Kamlesh Sharma but this testimony is beyond pleadings. Moreover, no such witnesses are produced by the plaintiff to prove his contentions. The plaintiff claimed that Rs. 4 lakh was lying in cash at his home which was withdrawn from SBI Shahadara two months before the transaction but no such transaction is proved by the plaintiff further.
14. The plaintiff led his evidence on the lines of pleadings but the cross examination of the plaintiff belied his claim. The plaintiff further failed to disclose the payment of Rs. 4 lakh. No income tax return was placed on record by the plaintiff to corroborate his claim. The police complaint relied by the plaintiff is also not proved in accordance with law as no steps was taken by the plaintiff to summon the relevant witness to prove the same. The contention of the plaintiff regarding loan appears to be not sustainable or believable. The case of the plaintiff do not inspire confidence. This court is of the considered view that plaintiff failed to prove the payment of any money of Rs. 4 lakh as contended. The plaintiff is accordingly not entitled for any amount as prayed in the suit. Issue No. I is decided against the plaintiff and CS No. 345/14 page 11 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. in favour of the defendant.
15. The witness/plaintiff claimed to have paid Rs. 3 lakh by way of cash which itself is unbelievable and also contrary to the provisions of law. This act and conduct appears to be suspicious and does not inspire confidence. There is no averments in the plaint nor any evidence to infer the capacity of the plaintiff for payment of such huge amount in cash nor there is anything as from where such large amount was arranged by the plaintiff in cash. The plaintiff failed to show the source of arranging such large money in cash. Moreover, even the alleged transaction of Rs. 3 lakh in cash made by the plaintiff is violative of the provisions of Income Tax Act. Section 269(SS) of the Income Tax Act prohibits any person from taking or accepting from any other person any loan or deposit in any other way than by cheque or bank draft where the amount is more than Rs. 20,000/. Similarly Section269(T) prohibits the repayment of any loan or deposit other than by way of cheque or bank draft, if amount is more than Rs. 20,000/.These provisions have been extended to loans between two individual as well and in such cases, the Income Tax assessing officer can levy penalty as high on the amount itself. The whole idea behind this clause is to counter act tax evasion. In this case, plaintiff failed to show any reason or ground for alleged transaction in violation of provisions of Income Tax Act. The plaintiff has not produced any corroborative evidence to show or prove that such amount was arranged or paid, whether such payment was reflected in the income tax return or any CS No. 345/14 page 12 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. records maintained by the plaintiff. The plaintiff cannot be permitted to gain from the illegal act violating any law of the land. Further, merely oral averments is not sufficient to prove the case of the plaintiff for entitlement of the amount particularly when the transaction appears to be barred by the provisions of law. There is nothing on record except the bald averments of the plaintiff. This court does not finds itself in consonance with the arguments of Ld. Counsel for plaintiff regarding admission as the defendant at no place admitted the factum of taking any loan from the plaintiff. Moreover, one legal notice Ex. DW1/X1 relied by the plaintiff is neither pleaded nor produced at the relevant stage before the court and therefore is not reliable.
16. Plaintiff has not produced any income tax return to show that any payment was made and same was reflected in the return at the relevant time. Had the amount been actually given by plaintiff to defendant and same would have been shown by plaintiff in his income tax return at the relevant time and said fact would have been proved on record by examining the concerned official from Income tax department.
17. I have gone through the judgment reported AIR 2008( NOC) 2495( KAR.) which is squarely applicable in the facts and circumstances of the case. Further the judgment reported as 2009 (107) DRJ 271 squarely applies in the facts and circumstances of this case. The plaintiff has not filed even a single document to show the availability of cash in such large volume CS No. 345/14 page 13 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. along with the source of the same.
18. I have gone through the judgment titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) and ratio of the case squarely applies in the facts of this case. The relevant para No. 13 of the judgment reads as under: 13" In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year 2006 it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
19. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in CS No. 345/14 page 14 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and CS No. 345/14 page 15 of 16 Naresh Chandra Tiwari Vs. Anil Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. circumstances of this case.
20. In view of the aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiff has failed to discharge the onus and prove the issue No. I. The plaintiff categorically failed to prove any payment of Rs. 4 lakh/ as contended in the plaint along with entitlement of relief/amount as prayed in the suit. Plaintiff is accordingly not entitled for any relief as prayed in the suit. Issue No. I is decided against the plaintiff.
Relief In view of the above said discussions and findings, this court of the considered opinion that plaintiff is not entitled for the relief as prayed in the suit. The suit of the plaintiff is therefore dismissed with cost. The decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 5th day of January, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 345/14 page 16 of 16 Naresh Chandra Tiwari Vs. Anil Kumar