Delhi District Court
Sunil Kumar vs Omprakash @ Pappu on 30 July, 2024
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 842/20
CNR NO. DLSW030025572020
IN THE MATTER OF :
SH. SUNIL KUMAR,
S/o. Late Sh. Fateh Singh Yadav
R/o. H.No. 358, Paprawat Village,
P.O. Najafgarh, New Delhi-110043. ............... Plaintiff
Versus
SH. OMPRAKASH @ PAPPU
R/o. Care of Sh. Shishpal,
RZ-25-26, Block-H,
Dharampura Colony, Najafgarh,
New Delhi-110043, Near Shiv Mandir. .............. Defendant
Date of filing : 27.10.2020
Date of Institution : 02.11.2020
Date of pronouncing judgment : 30.07.2024
SUIT FOR RECOVERY OF RS.1,78,000/-WITH
PENDENTE-LITE AND FUTURE INTEREST.
JUDGMENT.
By this judgment this Court shall dispose of a suit for
recovery of money filed by the plaintiff against the
defendant. Before adjudicating upon the issues framed in
the present suit, it necessary to dwell upon the plethora of
pleadings in the present suit.
1. It is averred that the defendant is a Thekedar cum Mistri
and worked at the house of the plaintiff for 08 months to
complete the work of tiles and marble floor at two story
house in Paprawat Village. Due to this, defendant has
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 1 of 26
malafidely developed good and cordial relations with the
plaintiff and his family. It is submitted that in the month of
September 2018 defendant seeks for some financial
assistance to clear the balance payment of his workers and
some other debts and requested him for a friendly loan of
Rs. 2,28,000/- other than his due payment as defendant
were in the dire need of the above said amount and
promised the plaintiff to return back the above said amount
to him within 06 months.
2. It is averred that all the calculation of defendant's work &
amount and after clearing his all dues and keeping in view
his hardworking nature, the plaintiff on 16/09/2018
considered his request and gave a friendly loan of
Rs.2,28,000/- to defendant in cash from his personal
savings which the plaintiff was saving for his requirements
as the construction in form of different floors was going on
at the house of plaintiff. Therefore, the plaintiff saved
some amount to make payment to other labours and the
same save amount of Rs. 2,28,000/- was disbursed to
defendant. The same was disbursed to defendant in front of
Sh. Bhavesh Mistri, Mrs. Monika Yadav. The defendant
also gave hand written receipt /acknowledgment dated
16/09/2018 in the presence of the above said witnesses and
defendant's previous customer Sh. Vijay Singh Yadav who
recommended defendant to the plaintiff was also invited at
the house of the plaintiff when the said loan was disbursed
to the defendant.
3. It is further averred that later on defendant trying to linger
on the payment of friendly loan on one pretext or the other.
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 2 of 26
The defendant told the plaintiff that he wishes to pay the
loan amount in easy installments as he is overburdened
with other financial commitments and in lieu of the same
handed over 04 filled post dated cheques and duly signed
cheques drawn on Vijaya bank, Najafgarh branch for an
amount of Rs. 20,000, 10,000, 10,000/- and Rs.10,000/-
and handed over to the plaintiff and told him to present the
same on every 10th of month. All these cheques were dully
encashed except one cheque bearing no. 988959 dt.
15.06.2019 of Rs.10,000/- drawn on Vijaya Bank which
was dishonored on its presentation. After the return of the
said cheque, defendant started lingering on for the rest
payment of friendly loan by saying that defendant cannot
make the rest payment as defendant have to pay to his
workers and sought some more time. On this, the plaintiff
granted him time of 02 months to arrange the further
installments of the payment but after 02 months, when the
plaintiff tried to reach defendant but the defendant to avoid
all the liabilities. Hence, the plaintiff sent a legal demand
notice Dated 14/01/2020 to the defendant through speed
post upon the addresses of the defendant but the defendant
neither bothered to return the money of the plaintiff nor
sent any reply of the same.
4. Resultantly, plaintiff filed the present suit for recovery of
an amount of Rs. 1,78,000/- as principle amount plus
interest @24% per annum from the date of filing of suit till
the date of making the entire payment to the plaintiff.
5. The plaintiff has instituted the present summary suit under
order 37 CPC seeking recovery of Rs. 1,78,000/- from the
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 3 of 26
defendant on the basis of agreement and dishonoured
cheques. Summons of the suit served upon the defendant
and he has appeared and filed his appearance. After service
of summons of judgment, defendant has filed the
application seeking leave to defend. Application of the
defendant seeking leave to defend is allowed by Ld.
Predecessor of this Court subject to deposit of Rs.45,000/-
as recurring FDR in the name of Ld. Principal District &
Sessions Judge, SW, Dwarka Court, New Delhi. After
compliance of the above condition, the defendant has filed
Written statement.
6. In the written statement, it is averred that the plaintiff has
no cause of action and locus standi to file the present suit
against the defendant. It is submitted that in the plaint, the
plaintiff has relied upon a statement enter in the dairy
without statement which nowhere bear the signature
acknowledgment of the defendants herein. Therefore the
plaintiff cannot be allowed to use the legal process as a toll
of extortion and the suit of the plaintiff being devoid of
any merits is liable to be dismissed with costs. It is further
submitted that the suit of the plaintiff is not maintainable
as the same is based on false and frivolous story and
forged documents developed/fabricated by the plaintiff to
achieve his ill-motive for making exertion from the
defendant by filing the present false suit.
7. It is further submitted that the Defendant was working as a
Thekedar cum Mistri at the house of plaintiff for 8 months.
It is further submitted that defendant was worked at the
houses of plaintiff more than 8 month to complete the
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work of tiles, Stones and marble in plaintiff's (3) three
different plots / houses i.e., 500 Sq. Yards, 100 Sq. Yards
and another 100 Sq. Yards as per their wish with norms of
the contract. It is submitted that Defendant has followed all
the terms and conditions with honesty, dedication and as
desire by plaintiff, whole the work doing without any
delay and lag. It is submitted that the story has been
cooked up by the plaintiff for his unlawful gain and for his
undue illegal advantage and that the story put forth by the
plaintiff is false and frivolous. It is also submitted that the
plaintiff already finalization and settled the rate of the
contract work of tiles, Stones and marble prior to start the
work. It is also submitted that plaintiff and wife of the
plaintiff (Mrs. Monika) in association with sh. Bhavesh
Mistry made up the whole story to grab the defendant's
money only to harass and also caused mental agony to the
Defendant It is further submitted that the handwritten
receipt / acknowledgment dated 16.09.2018 was obtained
by the plaintiff by illegally locking the defendant in his
house and by intimidation and coercion by the plaintiff. It
is further stated that when this happened the Defendant had
gone to the police station but the police personnel there
did not hear his petition due to the influence of the plaintiff
and his wife.
8. It is further submitted that at the time of starting the work
in plaintiff's house the plaintiff told the defendant that in
order to complete the work and the plaintiff was asked to
keep any goods / articles in view of security when the
defendant showed his inability, than plaintiff said that I
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 5 of 26
would open the defendant's bank account, than the
defendant said that he is already having a bank account in
the name than the plaintiff asked the defendant to provide /
give the cheques as his security of that job, and as per the
request of the plaintiff the defendant gave three-four blank
cheques as a security and at the time of handing over the
said security cheques, the plaintiff assured the defendant
that the said cheques will be refunded to the defendant
after completion of the entire work. Then, defendant gave
three-four blank cheques as a security but plaintiff grab the
defendant's money to use these cheques. It is further
submitted that after completed the entire work and after
passing of one month times the defendant and his wife
approached to the plaintiff for his remaining balance due
but at that point of time the make excuses, thereafter the
defendant further demanded the said security cheques from
the plaintiff but the plaintiff stated that the said security
cheques has been kept by the plaintiff in the custody of his
wife and the same will be returned as and when his wife
came at his home. It is further submitted that after some
time defendant and his wife reached to the house of the
plaintiff for his due amount as well as the said security
cheques in morning but the plaintiff clearly refused to
return / hand over the same to the defendant and also given
threat to the defendant that the said amount of
Rs.8,08,303/- will also not be given to the defendant and
also threatened that if the defendant wants to take / initiate
any legal action with that amount then he and his family
members face dire consequences. It is also submitted that
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 6 of 26
at the time of giving the threat to the defendant, the
plaintiff forcibly entered the amount of those cheques from
the hands of the defendant and out of the said cheques; the
plaintiff presented two cheques in his banker and amount
of the same encashed in his account. Not only this on the
same day the plaintiff also taken signature forcibly from
the defendant on blank papers and kicked out the
defendant from his home. That thereafter the defendant
approached to the concerned police station and also
apprised the aforesaid facts to the police officials but the
police officials did not listen the request of the defendant
9. It is further submitted that the story put forth by the
plaintiff is false and frivolous and it is wrong and denied
by the defendant that he shifted from his last address. It is
also denied that the plaintiff had sent any legal notice to
the defendant.
10.Issue were framed on 19.11.2022 as follows:
1) Whether the plaintiff is entitled to the recovery of
Rs.1,78,000/- alongwith interest pendente-lite and future
@ 24% per annum from the defendant alongwith costs pf
the plot ?........OPP.
2) Relief.
11.The plaintiff examined himself as PW1. In his testimony,
PW1 tendered his evidence by way of affidavit being
Ex.PW1/1 and he reiterated the contents of the plaint and
also relied upon the following documents:
1) Original hand written receipt signed by the defendant dt.
16.09.2018 is Ex.PW1/2.
2) Original cheque of Vijay Bank dt. 15.6.2019 is
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 7 of 26
Ex.PW1/3.
3) Original bank return memo dt. 18/07/2019 is Ex.PW1/4.
4) Office copy of legal notice is Ex.PW1/5.
5) Original speed post receipt dt. 14.1.2020 is Ex.PW1/6.
6) Delivery report of legal notice is marked as Mark
PW1/A.
7) Police complaint is Ex.PW1/7.
8) Copy of Aadhar card of deponent is Ex.PW1/8(OSR).
9) Copy of Aadhar card of Monika Yadav is marked as
Mark PW1/B.
12.In the cross-examination, it is stated as follow:
"Defendant has worked as a Thekedar for me. The rate
were finalized as per square feet of area. I have not filed
copy of any document which shows the rate finalization as
per square feet of area.
Q. Do you have sign with your surname?
Ans I have used different signature in the bank purpose
and other signature are with my surname.
The defendant had started work at my premises in
the year 2017. The defendant had worked at my three
properties. I do not reside in the suit properties at the time
the defendant was working/ constructing to these suit
properties. (vol- I was residing adjacent to that properties).
I had taken a hand written receipts of the said loan which
is Ex.PW1/2(colly), however, the word "loan" is not
mentioned in hand written receipts. I have given the said
loan in cash to the defendant. It is wrong to suggest that I
am deposing falsely. I had given the said loan to the
defendant during the construction work of my house. The
said hand written receipts Ex.PW1/2(colly) are in my
handwriting.
Q. How did you prepare document Ex.PW1/2(colly)?
Ans. The document Ex.PW1/2(colly) were prepared
alongwith the defendant and in the presence of two other
witnesses.
It is correct that there is no measurement of
construction work done by the defendant at the suit
properties mentioned in the document Ex.PW1/2(colly).
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 8 of 26
It is wrong to suggest that I have not mentioned all three
properties in the documents Ex.PW1/2(colly). My first
property is my house i.e. H.No. 358, Paprawat Village,
Najafgarh, New Delhi-110043 (500 square yards), second
property is my office at plot no. 20, Shanti Vihar, Deenpur,
Delhi (200 square yards) and third property is my another
house at H.No. 25, Gali No.4, Munirka Kunj, Najafgarh,
Delhi (100 square yards). I know Sh. Bhavesh, Mistri as
he is also working as a contractor in Najafgarh area. Sh.
Bhavesh, Mistri did not work at any of my properties. I
had made any cutting in the document Ex.PW1/2 (colly)
as per the defendant. I had mentioned in the document
Ex.PW1/2(colly) the total amount Rs.7,45,500/- which
was given to the defendant in cash out of this,
Rs.2,28,525/- is the balance/ loan amount given to the
defendant. I did not mention the word loan in the
document Ex.PW1/2(colly). It is wrong to suggest that the
defendant has given me a blank cheque. I have filled the
cheque details i.e. name, amount and date in front of the
defendant at his house. I do not remember the exact date
of presentation of the cheque, however, the same has been
mentioned in my plaint and the cheque in question. It is
correct that Ex.PW1/2(colly) was prepared on the same
date of execution i.e. 16.09.2018. The said document was
prepared by me at my house. It is wrong to suggest that I
had obtained the signature of defendant on
Ex.PW1/2(colly) forcibly. I do not remember the date of
police complaint filed by me.
At this stage, witness is shown the document
i.e. PW1/7 to which witness states that it is correct that in
the said complaint I did not mention the fact regarding the
loan transaction. (vol- In the said complaint I have
mentioned that I had called the defendant to repay
Rs.1,78,000/- but he refused to pay the same). It is wrong
to suggest that I never given the loan to the defendant. It is
wrong to suggest that I owe money to the defendant. It is
wrong to suggest that I have not paid the defendant of his
service as he has worked for me as thekedar. It is wrong to
suggest that I have false case against the defendant. It is
wrong to suggest that I am deposing falsely."
13.In support, plaintiff has examined Ms. Monika Yadav as
PW2. In her testimony, PW2 tendered her evidence by way
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 9 of 26
of affidavit being Ex.PW2/A and she reiterated the
contents of the plaint.
14.In the cross examination she deposed as under:
" Defendant had worked at our three properties for about 8
to 10 months. I do not remember the exact date but I
remember that the defendant had started work at our
properties in the year 2017. The loan was given to
defendant in the month of September 2018. The loan was
given to Om Prakash in my presence and other witnesses. I
have received the receipt of the loan from the defendant.
The receipt was made by my husband Sunil Kumar. I did
not sign on the said receipt of the loan. Defendant was in
dire need that is why the loan was disbursed to the
defendant because he was working with us. The
construction rates were decided orally not in written. I did
not take any cheque from the defendant. I had made all the
dues of the defendant till date for construction work. It is
wrong to suggest that I deposing falsely with regard to
loan given to the defendant. It is wrong to suggest that the
loan amount in question was given to defendant for his
construction work. It is wrong to suggest that I am
deposing falsely at the behest of plaintiff."
15.The defendant has examined himself as DW1. In his
testimony, DW1 tendered his evidence by way of affidavit
being Ex.DW1/A and he reiterated the contents of the WS
and also relied upon documents i.e. Certificate U/s. 65 B of
Indian Evidence Act, is Ex.DW1/1 and Cost of the work
done is Ex.DW1/2. (OSR).
16.In the cross-examination, it is deposed as under:
"I am fifth class pass. It is correct that I had worked in the
house of one Mr. Vijay Singh Yadav and I met with the
plaintiff in the year 2015 through that Mr. Vijay Singh
Yadav for the renovation work. It is also correct that I had
worked at the office of plaintiff situated in the Deen Pur
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 10 of 26
for first time in the year 2015. It is also correct that the
entire material were provided by the plaintiff for
completion of renovation work and only labour charges
were payable by the plaintiff to me. It is also correct that I
used to take my and my labour charges in every 15 days
from the plaintiff. Firstly, I had worked at the house of the
plaintiff situated in Paprawat village. The entire material
was supplied by the plaintiff for all three sites. I do not
understand English language. Ex.DW1/A as well as my
Written statement were prepared at my instance. At this
stage, the witness is shown WS more specifically para
no.5 of the WS, which mentioned that "the contents of
para no.5 under reply is admitted upto to extent that the
defendant previous customer Sh. Vijay Singh Yadav who
recommended the defendant to plaintiff and rest of para
under reply is wrong and denied.", to which the witness
states that averments made in para no.5 of WS is correct.
At this stage, the witness is also shown Ex.DW1/A more
specifically para no.3 at point C to D, which states that
"the plaintiff approached to the deponent and requested to
the deponent that he wants to affix/ install the
tiles............. Property of the plaintiff."
The witness is put a question which of these above
statements are correct.
Ans. The averment made in para no.5 of the WS is
correct. It is wrong to suggest that I have mentioned wrong
facts in my evidence affidavit.
The renovation work at the three sites of the
plaintiff was completed in nine months. I cannot say
whether I have started my work in the year 2015. I cannot
say if I finished the entire work in the year 2016 - 2017. It
is correct that after completion of entire work, the plaintiff
had organized an inauguration function at his house in the
year 2017, where I was also invited with my family. I
attended the said function with my family. It is wrong to
suggest that I had taken a sum of Rs.2,28,525/- as friendly
loan from the plaintiff on 16.09.2018.
At this stage, the witness is shown the document
Ex.PW1/2 i.e. 'Raceed' and asked whether the signature at
point A on the said document belongs to the defendant?
Ans. Yes. The signature at point A is mine.
At this stage, the witness is shown cheque Ex.PW1/3
and asked whether the said cheque was issued for
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 11 of 26
repayment of the friendly loan?
Ans. No. The said cheque was taken by the plaintiff at the
time of starting the renovation work. I have handed over
four cheques to the plaintiff. Out of which, three cheques
were credited into the account of plaintiff and cheque
Ex.PW1/3 was dishonoured. It is correct that in the year
2020, I was residing at house No.25-26, Gali No.3, H-
Block, Dharampura Colony, Najafgarh, New Delhi-
110043. It is also correct that before that I was residing at
House No. RZ-159, J Block, Dharampura Colony,
Najafgarh, New Delhi-110043.
It is correct that I have received the legal notice
issued by the plaintiff which is Ex.PW1/5. It is correct that
I have not responded to the said legal notice. It is correct
that the plaintiff and his wife had visited approx. two to
three times my house and asked for repayment of loan
amount. It is wrong to suggest that upon asking of
repayment of the loan amount, lastly I misbehaved with
the plaintiff and his wife. I do not remember when the said
three cheques were credited into the account of the
plaintiff.
I do not remember date, month and year when I have
issued four cheques in the name of the plaintiff. I used to
work at the site of the plaintiff with 8 other labourers. It is
wrong to suggest that I used to work at the site of plaintiff
with 2 to 5 laborers. It is incorrect to suggest that I am
deposing falsely. It is correct that I had not mentioned the
total cost of the work amounting to Rs.15,48,303/- in my
Written statement. It is also wrong to suggest that the cost
mentioned in the para no.7 of my evidence affidavit are
wrong and that is why it is not mentioned in my Written
statement.
The Ex.DW1/2 (OSR) was prepared by my daughter.
It is also correct that Ex.DW1/2 does not bear the
signature of plaintiff. The document Ex.DW1/2 was
prepared in one day. I do not remember the exact date,
month and year when the Ex.DW1/2 got prepared by my
daughter. It is correct that Ex.DW1/2 was not filed by me
with my Written statement. It is wrong to suggest that
Ex.DW1/2 was prepared after submission of my written
statement. It is correct that I did not make any complaint
regarding the extension of threats by the plaintiff. (vol- I
had visited the police station but police official refused to
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 12 of 26
entertain my complaint). I do not remember the exact
date, month and year on which I visited the police station.
It is wrong to suggest that the plaintiff never extended any
threats as stated in my para no. 10 of evidence affidavit or
that I never visited the police station.
It is correct that after completion of my work
in the year 2016-2017, I have asked the plaintiff to pay the
due amount, but plaintiff refused to pay the amount of
Rs.8 lac for the work done at the house of plaintiff. It is
correct that I have not sent any legal notice/ letter seeking
demand to plaintiff for repayment of outstanding amount.
It is wrong to suggest that I had not sent any legal demand
notice or any written communication to the plaintiff with
regard to due amount as there were not any outstanding
amount. It is wrong to suggest that entire amount was paid
by the plaintiff during the work as well as completion of
the entire work.
At this stage, witness is shown Ex.PW1/2 to
which the witness states that it bears my signature (vol- I
have signed the said document out of the force of plaintiff.
The signature on Ex.PW1/2 was not signed voluntarily). I
do not remember the date of execution of Ex.PW1/2. It is
wrong to suggest that plaintiff never taken forcefully
signature on any documents and that is why I do not
remember date, month and year on which the plaintiff has
taken my signature.
It is correct that I have not mentioned
regarding the payment which was made by the plaintiff
during the renovation work in every 15 days in my written
statement. It is wrong to suggest that in order to avoid my
liability, I have concocted a false story in my Written
statement. It is wrong to suggest that I have issued four
cheques in favour of plaintiff in order to repay the partly
loan amount. It is also wrong to suggest that I did not send
any reply of the legal notice despite service as I have
admitted the claim of the plaintiff. It is also wrong to
suggest that I have issued a receipt for the friendly loan of
Rs.2,28,525/- which is Ex. PW1/2 after receiving of the
loan amount. It is also wrong to suggest that there are no
any dues amount payable by the plaintiff after completion
of work in year 2016-2017. It is also wrong to suggest that
I have mentioned the same with malafide intention just of
avoid my legal liability. It is wrong to suggest that I am
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 13 of 26
deposing falsely."
17.DE was closed on 19.10.2023 and final arguments were
heard. Record perused.
18.Issue-wise findings as under:
1)Whether the plaintiff is entitled to the recovery of
Rs.1,78,000/- alongwith interest pendente-lite and future
@ 24% per annum from the defendant alongwith costs pf
the plot ?........OPP.
19.The onus of proof to prove the aforesaid issue was upon
the plaintiff. Primarily, the case of the plaintiff is that he
was known to the defendant who was a Thekedar cum
Mistry and worked at the house of the plaintiff for eight
months to complete the work of tiles and marble floor at
his two story house in Paprawat village and resultantly
they developed good and cordial relations with each other.
Further, it is averred that in the month of September 2018,
defendant asked for some financial assistance for clearing
the balance payment of his workers and some other debts
and requested for a friendly loan of ₹2,28,000 other than
his due payment as defendant were in the dire need of
abovesaid amount and promised the plaintiff to return the
same within six months. Further, it was stated that after all
the calculation of defendant's work and amount was
calculated at the house of the plaintiff in front of Shri
Bhavesh Mistry and Mrs Monika Yadav (wife of Plaintiff)
and after clearing his dues and the plaintiff on 16.09.2018
considered his request and gave a friendly loan of Rs.
2,28,000/- to the defendant in cash from his personal
savings. It was also stated that the defendant had given
written receipt/acknowledgment dated 16.03.2018 in the
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 14 of 26
presence of above said witnesses. Further the defendant's
previous customer Vijay Singh Yadav who had
recommended the defendant to the plaintiff was also
invited at the house of the plaintiff, when the above-said
loan was given. Furthermore, it was submitted that when
later on defendant tried to delay the payment then after
great persuasion, he told the plaintiff that he will repay the
loan amount in installments as he is overburdened with the
other financial commitments and in lieu of the same
handed over duly filled post dated cheques for an amount
of ₹20,000 10,000 10,000 and 10,000 respectively, which
were handed over to the plaintiff and was asked to present
the same on every 10th of the month. Further, though all
these cheques were duly encashed, except one cheque
bearing number 988959, which was dishonoured on its
presentation. It was further stated that after the return of
the said cheque, the defendant started delaying the
payment of rest of friendly loan by saying that he cannot
make the payment as he has to pay to his workers and
sought some more time and same was granted by the
plaintiff and he gave two months more time for arranging
the payment of the remaining installments. Further, it was
stated that after two months when the plaintiff tried to
reach to the defendant but he shifted overnight from his
last address to the present address in order to avoid all his
liabilities and legal action. Thereafter, when the plaintiff
went to his new address, defendant and his wife was
shocked, and they showed their inability and asked for
some more months for making the payment of friendly
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 15 of 26
amount however considering his past conduct of
defendant, plaintiff refused to do so. Furthermore, it was
argued on behalf of plaintiff that defendant has failed to
make the payment till date and even a legal demand notice
has been served to him, therefore plaintiff was constrained
to file the present suit.
20.Per contra, it was argued on the behalf of defendant that
the plaintiff has filed a false and frivolous case against the
defendant. It was further submitted that at the inception of
construction work at the plaintiff's house, the plaintiff told
that the defendant to provide some cheques as security for
his work and as per the request of the plaintiff, defendant
gave 3-4 blank cheques as security and at the time of the
handing over the said cheques, the plaintiff had assured the
defendant that said cheques will be returned to the him
after the completion of the work. Further, it was argued
that after the completion of entire work and upon the
expiry of one month, defendant and his wife approached
the plaintiff for his remaining balance and aforesaid
cheques but the plaintiff made excuses and took some
more time. Further more, it was submitted that after
sometime defendant and his wife again approached the
plaintiff for the due amount as well as for the said security
cheques however, plaintiff clearly refused to return the
same and gave the threat to the defendant that the due
amount of Rs. 8,08,303 will not be given to the defendant
and also threatened that if defendant sought any legal
action, then he and his family members will face the dire
consequences. It was also argued that at the time of giving
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 16 of 26
threat to the defendant, plaintiff forcefully entered the
amount on those cheques from the defendant and out of
said cheques, got 2 cheques encashed as well. Moreover, it
was argued that the plaintiff has also taken the signatures
forcefully from the defendant on the blank papers and
kicked out the defendant from his home and thereafter the
defendant approached the police authorities however, they
did not listened to the request of the defendant and advised
him to approach the court for appropriate relief. Hence it
was concluded that the plaintiff has filed totally false case
rather it is the defendant who has to take the money from
the plaintiff.
21.At this juncture, it is relevant to refer the landmark
judgement of Hon'ble Supreme Court of India passed in
the case titled as Dr N.G Dastane v Mrs S Dastane in AIR
1975 SCC 1534, wherein it discussed the concept of
burden of proof in the Civil law and relevant paragraph is
reproduced herein as under:
"...24.The normal rule which governs civil proceedings is
that a fact can be said to be established if it is proved by a
preponderance of probabilities. This is for the reason that
under the Evidence Act, Section 3, a fact is said to be
proved when the court either believes it to exist or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists. The belief regarding
the existence of a fact may thus be founded on a balance of
probabilities. A. prudent man faced with conflicting
probabilities concerning a fact-situation will act on the
supposition that the fact exists, if on weighing the various
probabilities he links that the preponderance is in favour of
the existence of the particular fact. As a prudent man, so
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 17 of 26
the court applies this test for finding whether a fact in
issue can be said to be proved. The first step in this
process is to fix the probabilities, the second to weigh
them, though the two may often intermingle. The
impossible is weeded out at the first stage, the improbable
at the second. Within the wide range of probabilities the
court has often a difficult choice to make but it is this
choice which ultimately determines where the
preponderance of probabilities lies. Important issues like
those which affect the status of parties demand a closer
scrutiny than those like the loan on a promissory note :
"the nature and gravity of an issue necessarily determines
the manner of attaining reasonable satisfaction of the truth
of the issue" Per Dixon, J. in Wright v. Wright (1948) 77
C.L.R. 191 at p. 210; or as said by Lord Denning, "the
degree of probability depends on the subject-matter. In
proportion as the offence is grave, so ought the proof to be
clear" Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But
whether the issue is one of cruelty or of a loan on a
pronote, the test to apply is whether on a preponderance of
probabilities the relevant fact is proved. In civil cases this,
normally, is the standard of proof to apply for finding
whether the burden of proof is discharged...."
22.Keeping the aforesaid said principles of law of evidence in
mind, let's advert to facts of present case in hand. Present
suit is a suit for recovery of money. In order to prove its
case on a better footing, it is imperative for the plaintiff to
lead a convincing evidence to show that plaintiff is entitled
to recover the money from defendant. It was also
imperative to show that it is a legally recoverable money.
Further the plaintiff has to prove its plaint by way of oral
or document evidence or both.
23.During trial, the plaintiff has examined himself as PW1
and his wife Ms Monika Yadav as PW2 for proving his
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 18 of 26
case through oral examination and led the documentary
evidence in form of; original hand written receipt dated
16.09.2018 Ex PW1/2, Original Cheque dt 15.06.2019 Ex
PW1/3, Return memo dated 18.07.2019 Ex PW1/4, legal
notice dated Ex PW1/5, Original Speed Post dt.
14.01.2020 Ex PW1/6, Delivery report of legal notice
Mark PW1/7, Police Complaint Ex PW1/7, Copy of
Aadhar Card of Plaintiff and his wife which is Ex PW1/8
(OSR) and Mark PW1/B respectively.
24.Further plaintiff, in order to prove that he gave the loan of
Rs.2,28,000/- to the defendant, he has relied upon the
handwritten receipt/acknowledgment dated 16.09.2018 Ex
PW1/2 (colly)which he asserts has been signed by the
defendant and same has been handed over to the him.
Further, perusal of same reveals that defendant has
promised that he will make the payment of Rs.2,28,525/-
within 6 months from the date of receipt. Furthermore,
plaintiff has also relied upon the calculation sheet ie Ex
PW1/2 (colly) wherein it reveals that after making the
payment to the defendant on the account of work done,
amount of Rs. 2,28,000/- has to be paid by the defendant to
the plaintiff. On the other hand defendant has admitted his
signature upon the receipt and calculation sheet ie Ex
PW1/2 (colly) however he took the limited defence that
plaintiff under threat got blank papers signed from him. As
per rules of evidence, since the factum of signature was
admitted by the defendant therefore onus has shifted upon
him to prove that same was done under duress. It is
relevant to mention defendant has led no evidence on this
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 19 of 26
aspect. Further, even in the cross examination of
plaintiff/PW1, not even a single question or suggestion has
been put forward qua witnesses which plaintiff alleges has
signed the aforesaid document in order to dispute
creditworthiness of the document. Furthermore, even the
subsequent conduct of defendant is relevant after alleged
extension of threats by the plaintiff, no complaint has been
filed by the defendant till date though it is being stated on
behalf of defendant that he tried to approach the police
officials however they refused to listen to him and advised
him to approach the Court for appropriate relief.
Admittedly, defendant has not filed any complaint or case
till date, therefore it doesn't appears to be trustworthy and
merely bald assertion.
25.Further, it was argued on the behalf of plaintiff that
defendant had told him that he wishes to pay the loan
amount in easy installments as he is overburdened with
other financial commitments and in lieu of same, handed
over 04 filled signed post dated cheques for an amount of
Rs 20,000/-, Rs 10,000/-, Rs 10,000/- and Rs 10,000/-
respectively and out of aforesaid cheques, one cheque of
Rs 10,000/- was dishonoured. Furthermore, in order to
prove his version, plaintiff placed on record bounced
cheque Ex PW1/3 and return memo Ex PW1/4. It is
admitted by the defendant in his cross examination dated
14.09.2023 that he gave four cheques to the plaintiff, out
of which three cheques were credited to the account of
plaintiff and remaining one ie PW1/3 was bounced,
however he took the defence that these cheques were given
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 20 of 26
as security cheques at the time when the work of plaintiff
was commenced and same has been misused by the
plaintiff.
26.It is relevant to mention here that once the fact that the
signature on cheque is admitted then it attracts the
presumption of S. 118 of NI Act. The relevant extract is
reproduced herein as under:
Section 118(a) in The Negotiable Instruments Act, 1881
"(a) of consideration --that every negotiable instrument
was made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
27.At this juncture, reliance is upon the landmark judgment
passed by the Hon'ble Apex Court of India in the case
titled as "Bharat Barrel And Drum Manufacturing vs Amin
Chand Payrelal AIR 1999 SCC 1008" wherein it has
discussed the evidentiary value of presumption as given in
Section 118(a) of NI Act and relevant paragraph is
reproduced as under:
"......Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that
once execution of the promissory note is admitted, the
presumption under Section 118(a) would arise that it is
supported by consideration. Such a presumption is
rebuttable. The defendant can prove the non-existence of
consideration by raising a probable defence. If the
defendant is proved to have discharged the initial onus of
proof showing that the existence of consideration was
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 21 of 26
improbable or doubtful or the same was illegal, the onus
would shift to the plaintiff who will be obliged to prove it
as a matter of fact and upon its failure to prove would dis-
entitle him to the grant of relief on the basis of the
negotiable instrument. The burden upon the defendant of
proving the non-existence of the consideration can be
either direct or by bringing on record the preponderance of
probabilities by reference to the circumstances upon which
he relies. In such an event the plaintiff is entitled under
law to rely upon all the evidence led in the case including
that of the plaintiff as well. In case, where the defendant
fails to discharge the initial onus of proof by showing the
non-existence of the consideration, the plaintiff would
invariably be held entitled to the benefit of presumption
arising under Section 118(a) in his favour. The court may
not insist upon the defendant to disprove the existence of
consideration by leading direct evidence as existence of
negative evidence is neither possible nor contemplated and
even if led is to be seen with a doubt. The bare denial of
the passing of the consideration apparently does not
appear to be any defence. Something which is probable
has to be brought on record for getting the benefit of
shifting the onus of proving to the plaintiff. To disprove
the presumption the defendant has to bring on record such
facts and circumstances, upon consideration of which the
court may either believe that the consideration did not
exist or its non-existence was so probable that a prudent
man would, under the circumstances of the case, shall act
upon the plea that it did not exist. We find ourselves in the
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 22 of 26
close proximity of the view expressed by the Full Benches
of the Rajasthan High Court and Andhra Pradesh High
Court in this regard...."
28.In the light of given findings by Hon'ble Supreme Court of
India, since it is admitted case of defendant that the cheque
bears his signature therefore the fact it has been misused
has to be proved by the defendant only. Adverting to facts
of the case, again defendant has failed to lead any evidence
on aspect that cheque has been misused by plaintiff or
elicit any contradiction from the testimony of PW1 and
PW2 qua these cheques. Rather continued silence of
defendant during the time when three cheques of
defendant were credited in the account of plaintiff raises
the suspicion on the story raised by the defendant.
Moreover, again subsequent conduct qua non filing of any
complaint against plaintiff till date for misuse of cheque is
again a very material relevant fact which has gone in the
favour of plaintiff. Hence the contention that cheques
which were initially given as security cheques to plaintiff
and same were subsequently misused, in absence of any
evidence appears to be devoid of merit.
29.Further, it is settled law that if the plaintiff, before filing
the suit, makes serious assertion in the notice to the
defendant, then the defendant must not remain silent by
ignoring to reply, if he does so, an adverse inference may
be raised against him.
30.In Metropolis Travels and Resorts (I) Pvt. Ltd. Vs. Sumit
Kalra & Anr. 98 (2002) DLT 573 (DB), wherein, Hon‟ble
Division Bench of our Hon‟ble High Court of Delhi
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 23 of 26
quoted with approval the authority Kalu Ram Vs. Sita
Ram, 1980 RLR (Note) 44, of our own Hon‟ble High
Court which is as follows:-
"Observations of Kalu Ram's case (supra) apply on all
force to the facts of this case. In the case in hand also
despite receipt of notice respondent did not care to reply
nor refuted the averments of demand of the amount on the basis of the invoices / bills in question. But the learned Trial Court failed to draw inference against the respondents."
31.In the light of above findings, it can said that from discussion above, it is apparent that when the legal notice was served upon defendant and if he chooses not to reply the same then the adverse inference can be drawn against the defendant. Adverting to facts of the present case, it is admitted by the defendant that he has received the legal demand notice in his cross examination dated 14.09.2023 and had not replied the same. Hence, an adverse inference can be drawn against the defendant that he deliberately avoided the reply to legal notice.
32.Therefore, it can be said from the above discussion that plaintiff has been successful in establishing his case that he has to recover the amount of Rs.1,78,000/- from the defendant.
33.Further, another argument raised on the behalf of defendant is that it is plaintiff which owes him money amounting to Rs 8,08,303/- on the account of construction work done by him for plaintiff. Further in order to support his version, he entered into the witness box as DW1 and Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 24 of 26 placed on record the handwritten statement of cost of work done which is Ex DW1/2. It is relevant to mention here that it is again admitted by the defendant/ DW1 that the statement of cost qua work done by the defendant has not been signed by the plaintiff and same has been prepared by his daughter. Again, upon the perusal of same reveals that it is statement of entries without any particular dates, hence it suggests the inference of subsequent embellishments since it has not been regularly maintained otherwise it would have specified entries. Moreover, again it is beyond the conduct of reasonable man that one will not any complaint/ case/ notice to opposite party if one has to take huge amount of Rs 8,08,303/- which appears highly probable and same is reflected in present case as well, since admittedly no steps have been taken by the defendant for recovering his amount. Hence the aforesaid contention is dismissed as being devoid of merit.
34.Thus it can be said that after considering the entire facts as averred in the pleadings, the facts regarding which the depositions were made by the witnesses of the plaintiff as well as defendant, the Court is of the opinion that even on the balance of probability the defendant has failed to prove that he has to recover the amount of Rs 8,08,303/- rather plaintiff has been successful in order to establish that he has to recover the amount of Rs 1,78,000/-.
35.Accordingly, aforesaid issue is decided against the defendant and in favour of plaintiff. In the light of above discussion, plaintiff is entitled to decree of Rs. 1,78,000/-.
Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 25 of 26 Relief
36.The suit of the plaintiff is therefore decreed in the favour of the plaintiff and against the defendant, the Defendant is directed to pay Rs.1,78,000/- to the plaintiff with the interest @ 6 % p.a. from the date of filing of the suit till the date of actual realization of the decreetal amount.
37.It is relevant to mention here that the present suit is a summary suit and the defendant was given conditional leave to defend subject to the deposit of recurring FDR of Rs.45,000/- vide order dt. 08.072022 passed by Ld. Predecessor Judge of this Court. Accordingly, the aforesaid FDR be released to the plaintiff on the expiry of 30 days from the date of judgment subject to any direction given by the Hon'ble Appellate Court. It is clarified that the amount of FDR will adjusted in the decreetal amount.
38.Costs of the suit are also awarded in favour of the plaintiff.
39.Decree sheet be prepared accordingly.
40.File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN Digitally signed by ANKIT COURT ON 30.07.2024 ANKIT MITTAL MITTAL Date: 2024.07.30 15:56:12 +0530 (ANKIT MITTAL) CIVIL JUDGE-01(SW)/DWARKA COURTS NEW DELHI Civil Suit No. 842/20 Judgment dt. 30.07.2024 Page no. 26 of 26