Delhi District Court
Motia Jauhar vs Shashi Jhanji on 26 April, 2018
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Shriya Agrawal, DJS
Civil Suit No. 51642/16
In the matter of:
Motia Jauhar
W/o Late Shri Ram Johar
R/o K-24A, Kalkaji
New Delhi-19. ....Plaintiff
Vs.
1. Shashi Jhanji
W/o Late Shri Revti Saran
R/o S-186, First Floor,
Greater Kailash Part-II,
New Delhi-110048
2. Sheeba Seth
W/o Sh. Prateek Seth,
R/o E-108, First Floor,
Greater Kailash Part-I,
New Delhi-110048
3. Anisha Hans
W/o Tarun Hans
R/o 473, Second Floor,
KG-1, Vikaspuri,
New Delhi-110018 ....Defendants
Date of institution of Suit : 07.09.2015
Date on which Judgement was reserved : 06.04.2018
Date of pronouncement of the Judgement: 26.04.2018
CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 1 of 14
JUDGEMENT
1. The present suit was instituted by the Plaintiff against the defendants for recovery of Rs. 1,54,000/.
2. The case of the Plaintiff is that the defendants are LRs of Late Mr. Revti Saran, with defendant no. 1 being the wife and defendants 2 and 3 being the daughters of the deceased father. It is claimed by the plaintiff that in the month of September 2012, Late Mr. Revti Saran had approached the plaintiff and had asked for friendly loan for Rs. 1 lakh. It was represented to the plaintiff that Late Mr. Revti Saran was in the Real Estate con struction business and that he had incurred losses and therefore was in the dire need of funds. He had assured the plaintiff that he would return the money with interest before the completion of one year period. He had also promised her that if required he would return the money on one month notice. It is further averred that Late Mr. Revti Saran had also taken friendly loan from the other family members of the plaintiff. Being a friend and considering the financial needs of the deceased father and also believing the assurances extended to fulfill the return, the plaintiff agreed to handover the friendly loan amount to the late Husband of defendant no. 1. The loan to the tune of Rs. 1 lakh was given to Late Mr. Revti Saran by way of account payee cheque dated 06.09.2012 bearing no. 740540 drawn upon the Syndicate Bank, Kalkaji, New Delhi, which was duly credited in his account maintained with the SBI, G.K. II, New Delhi. In the CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 2 of 14 month of June 2013, the plaintiff had approached Late Mr. Revti for the return of the loan amount with interest. It was stated that the marriage of the youngest daughter was scheduled on 11.08.2013 and therefore he assured he would return the loan amount after the marriage, by September/October 2013. How ever, Mr. Revit Saran died on 28.08.2013. The plaintiff claims to have also attended the Uthala Ceremony of Late Mr. Revti Saran Jhanji, and also had visited his house for conveying her condo lences. The defendants/LRs of Late Mr. Revti were also told by the plaintiff about the loan amount. They were requested to honour the amount timely, since the plaintiff required the money. The defendants however, in the presence of the other family members told the plaintiff that since it was Late Mr. Revti Saran who had given the amount, she should recover it from him only. The plaintiff was also threatened by defendant no. 1 with dire consequences
3. Since the LRs have succeeded to the Estate of Late Mr. Revti, they are liable to repay the loan amount to the plaintiff. The defendants have not been willing to return the loan amount as committed. Thus, the plaintiff has prayed for recovery of Rs. 1 lakh along with interest from 08.09.2012 till 03.09.2015 @ Rs. 18% per annum, i.e. Rs. 54,000/ along with interest @18% per annum, pendente lite and future from the defendants by the present suit.
CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 3 of 144. Per contra, the defendants through their WS originally filed have stated that neither the deceased Mr. Revti Saran Jhanji, nor the defendants owned to the plaintiff any amount whatsoever. There is no subsisting liability and that the plaintiff is taking the benefit of the sudden death of Late Mr. Jhanji. There was no loan agreement executed between the deceased Mr. Jhanji and the plaintiff. The plaintiff in connivance with em ployee of the defendant viz. Mr. Anil Sehgal, looking after the fi nance along with one Mr. Mohit, have in collusion taken the benefit of the situation. It is stated that defendant no. 1 has also lodged a police complaint against the said persons with PS C.R. Park, dated 15.09.2013.
5. Defendant no. 1 had come to know about daughter of the plaintiff only on 14.09.2013, when she came along with Mr. Anil Sehgal and Mr. Mohit Sapra and had begun threatening the de fendant no. 1. It is stated that defendant no. 1 had never met the plaintiff. The claims of the plaintiff with respect to the loan have been denied by the defendants. Mr. Revti Saran was running the company by the name of RSA Infratech Pvt. Ltd. and was maintaining proper statement of accounts. The firm of Mr. Jhanji was engaged in the business of interior designing construction and the money was given on account of the job work done. The defendants had come to know that the plaintiff's daughter was working as commission agent in LIC and Office. The defendant no. 1 never know the plaintiff personally. It is stated that on CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 4 of 14 14.09.2013, when defendant no. 1 was alone, the plaintiff's daughter had forcibly entered the house along with Mr. Anil Se hgal, Mr. Chintu and Mr. Mohit and they had started threatening defendant no. 1, prursuant to which the latter had filed a com plaint against them. Except the plaintiff, all the other persons had apologized at the police station and therefore no action was taken against them. It is stated that the claim of the plaintiff is false and fabricated.
6. By way of replication to the WS, the plaintiff has stated that no police complaint dated 15.09.2013 was ever filed against her. The plaintiff has nothing to do with the persons by the name of Mr. Anil Sehgal and Mr. Mohit. She is only claiming re covery of loan amount which was extended to Mr. Revti Saran. The plaintiff denies having appeared before the police station and having apologised. The claim with respect to the work car ried out by late Mr. Revti Saran is false. He had on the contrary represented to the plaintiff that he was engaged in the business of Real Estate Construction. The plaintiff''s daughter had never worked as commission agents in the office of LIC and post office. Since the loan was extended by way of account payee cheque, there was no need for any receipt or acknowledgment. The claims in the WS have been denied and the averments in the plaint have been reiterated.
7. The isues framed vide order dated 30.01.2016 were as fol lows:
CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 5 of 141) Whether the plaintiff is entitled to relief of recovery along with interest and cost as prayed for in the prayer clause of the plaint?OPP
2) Relief.
8. The plaintiff has examined two more witnesses (PW2 and PW3) other than having herself examined as PW1. She de posed on the strength of her affidavit Ex. PW1/A. Reliance has been placed upon the documents viz. (Ex. PW1/B), i.e. a certifi cate issued by the Syndicate Bank in favour of the plaintiff con cerning the debit of Rs. 1 lakh from her account maintained with SBI, (Ex. PW1/C), i.e. account statement of Syndicate Bank from 01.08.2012 till 30.09.2012, (Ex. PW1/D), i.e. bank pass book of the account bearing no. 90872030000267 maintained with Syndicate Bank from 03.08.2012 till 28.03.2014, and Mark B, i.e. copy of cheque bearing no. 740540 dated 06.09.2012 of Rs. 1 lakh in favour of Mr. Revti Saran, interalia other docu ments. During her crossexamination by the counsel for defen dants, when the witness was asked as to whether the bank state ment relied upon by her also contained the entries prior to 03.08.2012, she answered in the affirmative. She however sub sequently explained that it was not intentional that entries prior to 03.08.2012 were not filed by her. It was because the pages of the first passbook stood exhausted and the second passbook was issued to her. She assured that she could bring the earlier passbook if required to the court as well. She stated that the CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 6 of 14 grant given to Mr. Revti Saran was from her account, sourced from her family pension. It is stated specifically that her daugh ters and her grand daughter had also given loan to Mr. Revti Saran. She could not however remember as to when the same was extended to Mr. Saran. She claimed that her daughter had given the loan of Rs. 9 lakhs to Mr. Saran. She admitted that her daughter has also filed a suit against the defendants on account of the loan given to Late Mr. Revti Saran by her. She denied hav ing done any paper work in respect of the loan. When recalled for further crossexamination, the witness PW1 had brought her bank passbook bearing her photograph attested by the bank along with stamp of the bank. She claimed that she had de manded the loan amount from Late Mr. Revti Saran and his chil dren. She claims to have done so from Late Mr. Saran in the month of June 2013 and again to have visited his house in Au gust/September, 2013. She admitted that on 14.09.2013, she along with her daughters had visited the house of Late Mr. Jhanji, though denying the suggesion of Mr. Anil Sehgal, and Mr. Mohit Sapra accompanying them. She pleaded ignorance as regards the lodging of the complaint dated 15.09.2013 by defen dant no. 1. She also did not know if her daughter had visited the residence as alleged by the defendants. She deposed that she did not demand money in writing or through notice. It was an oral request only.
CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 7 of 149. The witness, officially summoned from the Syndicate Bank, Kalkaji, New Delhi, deposed as PW2. He had brought the statement of account of the plaintiff (account no. 90872030000267 for period of 01.08.2012 till 30.09.2012), i.e. Ex. PW2/1.
10. The third plaintiff witness also summoned officially from the State Bank of India, G.K. II, New Delhi, was examined as PW3. He had brought the statement of account for the period 04.09.2012 till 15.09.2012, i.e. Ex. PW3/1. He had also brought the certified copy of the cheque bearing no. 740540 dated 06.09.2016, i.e. Ex. PW3/2.
11. The defendant no. 1 stepped into the witness box as DW1 deposing on the strength of her affidavit Ex. DW1/A, relying upon the bank statement of Mr. Revti Saran (Ex. DW3/1), the bank statement of Ms. Anisha Jhanji Mark A and police compli ants dated 15.09.2013 and 30.12.2014 (Mark B). In her cross examination she denied having any personal knowledge about the transactions between the plaintiff and her late Husband though claiming that she was aware of the business transactions of her husband. She clarified that her Late husband had never contacted the plaintiff and that he had dealings only with Mr. Anil Sehgal, an employee of the husband. She denied the taking of the loan as alleged from the plaintiff, by her husband, though admitted that a cheque bearing No. 740540 dated 06.09.2012 for a sum of Rs. 1 lakh was credited in her husband's account.
CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 8 of 14On being asked specifically as to whether she had any personal knowledge as to the reason for the credit of the said amount, she answered in the negative. She acknowledged that there were other cases filed against her and her daughters for recovery of other loan amounts as well. She stated that her husband was the owner of M/s RSA Infractech Pvt. Ltd., adding that all the com panies however are now closed. She stated that she can produce the documents to show that it was a company. She stated that her husband was occasionally doing the business of real estate construction as well. No bank account of RSA Infratech was maintained with the SBI. She admitted that in the police com plaint dated 15.09.2013 she had stated that her husband was doing the business of building material supply and real estate. She denied having made any police complaint against the plain tiff, explaining that the same was made against the daughter of the plaintiff. She also stated that it would be correct to suggest that on 15.09.2013 neither the plaintiff nor her daughter were present at the PS C.R. Park, adding that she herself also was not present at the said police station on 16.09.2013. The plaintiff or her daughters had not tendered any apology in her presence at the police station and the same was tendered in front of her brother Col. G.S. Chopra. She denied for self and on behalf of her late husband to have known the plaintiff, her daughters etc. at any point of time. The plaintiff's daughter had not come on 14.09.2013 for demanding the repayment of the loan. She had CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 9 of 14 on the contrary given threaten to the defendant no. 1. She was again crossexamined on 28.10.2017, when she denied having any knowledge about the alleged closure of the criminal com plaint in which the police had concluded that defendant no. 1 did not want to return the money taken and the dispute was of a civil nature. She, although admitting that she had not filed any document to show that her husband was in the business of inte rior designing and construction work, denied the suggestion that her husband had not done any interior designing construction work.
12. Defendant no. 3, i.e. the daughter of defendant no. 1 was examined as DW2, who deposed on the strength of her affidavit Ex. DW2/1, also relying upon her statement of account already marked as Mark A for period of 01.04.2011 till 31.03.2012. In her crossexamination, she explained that she was not involved in the business activities of her father at any given point of time. She claims that her father was the sole owner of M/s RSA Infrat ech Pvt. Ltd. He was involved in the business of construction and interior designing and was also engaged in the real estate con struction business. She did not know anything about the ac counts of M/s RSA Infrastructure Pvt. Ltd. She also admitted that she did not have any personal knowledge about the borrow ing and lending of money by her father from any other personal. He was financially sound and therefore there was no need for him to borrow money from him. She denied having personal CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 10 of 14 knowledge about the alleged financial transaction between the plaintiff and her father. She reiterated that the plaintiff was tak ing undue benefit of sudden demise of her father. She sought to explain that the cheque stood credited in the account of the fa ther as payment towards the work of interior designing and con struction done and not towards any loan amount. She did not have any written proof to show that it was for the work done by her father. She stated that she was not present at the house of her mother on 14.09.2013. She also affirmed that Mr. Anil Seh gal and Mr. Mohit Sapra along with other people had accompa nied the plaintiff to the house of her mother, when they had ex tended threats to her mother, who told her about the incident. She was also not present at the police station on 15.09.2013. She did not know if her father approached the plaintiff in the month of September 2012 asking for friendly loan. She also did not know if her father used to maintain a separate account of RSA Infrastructure and a separate personal account. She also did not have any knowledge about the fate of the inquiry in the po lice complaint dated 15.09.2013 and 01.01.2015. When recalled for further crossexamination on 20.09.2018 she denied the sug gestions that the complaints were made only to discourage the plaintiff.
13. The official from the SBI Bank, G.K.II Branch was sum moned as DW3, who had brought the statement of account of Late Mr. Revti Saran, pertaining the account no. 10670632793 CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 11 of 14 for the period 01.05.2012 till 30.04.2015 (Ex. DW3/1). Subse quently, it was noted on 20.09.2018 the said official could not have deposed in the matter, their being no authorization in his favour by the bank manager. The Bank Manager stood examined as PW4 who brought the statement of account of Ms. Anisha Jhanji, i.e. defendant no. 3 for period of 01.04.2011 till 31.03.2012 which stood exhibited as Ex. DW4/1.
14. Heard final arguments at length. Perused the record.
15. The plaintiff had sought for recovery against the defen dants who are admittedly the LRs of Late Mr. Revti Saran Jhanji. The defendant no. 1 in her crossexamination has admitted the credit of the cheque bearing no. 740540 dated 06.09.2012 in her husband's account. The defendants all through have pleaded by way of their WS as well as their depositions that the payment was received towards the services/work done by Late Mr. Jhanji for the plaintiff, since he was engaged in the business of the inte rior designing and construction. However, it is equally the case that the defendant no. 1 in her crossexamination had categori cally admitted that she did not have any personal knowledge as to the reasons why the sum of Rs. 1 lakh was taken from the plaintiff. She also admitted that she had not filed any document to substantiate her claim that her husband was engaged in the business of construction work and interior designing. Defendant no. 3 who was examined as DW2 also pleaded ignorance in the course of her crossexamination with respect to the borrowing CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 12 of 14 and lending of money by her father with any third person. She specifically stated that she had no personal knowledge about the financial transaction between the plaintiff and her father. She has only deposed to the effect that her father was not facing the need to borrow the amount as alleged from anyone. She also did not have any proof to show that her father had carried out some construction/interior designing work for the plaintiff. The depo sitions of the defendants are replete with contradictions and in consistencies. They clearly have been neither aware of the finan cial dealings of Late Mr. Jhanji nor about his business dealings.
16. The plaintiff on the contrary has been able to discharge the onus of proof cast upon her by bringing on record the certificate issued by the Syndicate Bank with respect to her cheque for Rs. 1 lakh, in favour of Mr. Revti Saran having been duly presented and debited on 08.09.2012. She, through her deposition has consistently stated that the said credit was indeed a loaned amount. Thus, on the test of preponderance of probabilities, the plaintiff is entitled to the relief as prayed. The suit stands de creed in her favour for recovery of Rs. 1,54,000/ along with in terest @9% per annum, pendente lite and future, till realization of the decreetal amount. It is however, qualified that the plaintiff would be entitled to recover the amount only from the estate, which the defendants have inherited from Late Mr. Revti Saran Jhanji.
17. Decreesheet be prepared accordingly.
CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 13 of 1418. File be consigned to record room after due compliance.
Digitally signed by SHRIYA SHRIYA AGRAWAL
AGRAWAL Date: 2018.04.28
17:20:56 +0530
Pronounced in the open Court (Shriya Agrawal)
on this 26.04.2018 Civil Judge, South East,
Saket Court, New Delhi.
CS No. 51642/2016 Motia Johar Vs. Shashi Jhanji & Ors. Page 14 of 14