IN THE COURT OF SH. PITAMBER DUTT; AD&SJ (CENTRAL)-17,DELHI
Suit No. 626/2008
Shri Hukam Chand
S/o Sh. Banwari Lal
Proprietor of M/s Parmanand jai Bhagwan
of B-1/68, Paschim Vihar,
New Delhi .....Plaintiff
Versus
M/s Sant Lal Ram Kishan
3980-A, Naya Bazar,
Delhi, Through its sole proprietor
Shri Ram Kishan Goel .....Defendant
Date of Institution of Suit : 19.03.2008
Date when reserved for orders : 31.08.2010
Date of Decision : 07.09.2010
JUDGMENT
Vide this judgment I shall decide the suit filed by the plaintiff for
recovery of Rs. 3,05,760/- against the defendant. The brief facts
necessitating for filing the present suit are as given under;
2 That the Plaintiff has been carried out his own business in the name
and style of M/s Parmanand Jai Bhagwan at B-1/68, Paschim Vihar, New
Delhi as a sole proprietor. The defendant used to accept deposits of loan
amount from various shopkeepers in its regular course of business. The
plaintiff thus, deposited Rs. 1,95,000/- with the defendant vide cheque no.
Suit no. 626/08 Page 1 of 25
219563 dated 29.01.1999 drawn on State Bank of Mysore, Naya Bazar,
Delhi in favour of the defendant. The said amount carry the interest @
1.60% per month. The said amount was agreed to be repaid by the
defendant to the plaintiff alongwith interest as and when the same was to
be demanded by the plaintiff from the defendant. The defendant had
issued a receipt dated 29.01.1999 in favour of the sole proprietor concern
of the plaintiff. The defendant has been making the payment towards the
interest time to time to the plaintiff which were debited by the plaintiff in the
account. The defendant has made the payment qua the interest up till
31.03.2005. Lastly, defendant paid a sum of Rs. 29,745/- by way of
cheque bearing no. 632659 dated 31.03.2005 after deducting Rs. 3,305/-
on account of TDS for the period of 01.04.2004 to 31.03.2005.
As and when the defendant used to deduct amount of TDS, he
used to send the TDS certificate to the defendant, however, defendant had
deducted Rs. 3,305/- on account of TDS from the amount of interest up to
31.03.2005 yet he has not sent the TDS certificate to the plaintiff. The
defendant with a malafide motive has not paid any interest to the plaintiff
after 31.03.2005 nor returned the amount of Rs. 1,95,000/- that was
deposited by the plaintiff. The plaintiff has not received any amount of
interest for the period 01.04.2005 to 31.03.2006. The plaintiff demanded
money from the defendant, in the last week of March, 2006, however, the
Suit no. 626/08 Page 2 of 25
defendant neither paid the amount of interest nor the principal amount to
the plaintiff. As per the plaintiff he is entitled to recover Rs. 1,95,000/- on
account of principal amount deposited with the defendant and Rs,
1,10,760/- on account of interest from 01.04.2005 to 15.03.2008. Thus he
is entitled to recover total amount of Rs. 3,05,760/- from the defendant.
On the basis of the aforesaid averment, the present suit has
been filed by the plaintiff for seeking recovery of the said amount.
3 In pursuance of the summons the defendant appeared and filed its
written statement taking preliminary objection. It is stated that suit filed by
the plaintiff is bad on account of incorrect verification of the plaint. It is
further averred that suit filed by the plaintiff is without any cause of action
and same is barred by limitation as same has been filed beyond the
prescribed period.
The averment on merit have also been replied. It is submitted that
plaintiff used to collect the amount of interest through cheque as well as in
cash. It is further submitted that total amount alongwith interest was repaid
by the defendant to the plaintiff in two instalments, firstly, in the month of
April 2005, and another in the month of June, 2005 and no amount
remained due and payable after the aforesaid payments. The said
payments were made in the presence of witnesses, namely, Shri Mukesh
Suit no. 626/08 Page 3 of 25
Kumar, Shri Purshottam Mittal and Shri Hem Lal, in cash. It is further
stated that no amount is due against the defendant either towards the
principal or interest.
All other averment have also been replied. It is prayed that suit be
dismissed with cost.
4 The plaintiff has filed replication denying the averment of the written
statement and reiterated the averment made in the plaint.
5 On the basis of the pleadings of the parties ld. Predecessor of this
court vide order dated 21.05.2009 was pleased to frame the following
issues for adjudication: -
Issue no. 1 Whether the suit is bad and not maintainable on account of
incorrect verification of the plaint? OPD
Issue no. 2 Whether the suit is without any cause of action ? OPP
Issue no. 3 Whether the suit is barred by limitation? OPD
Issue no. 4 Whether the plaintiff is entitled to a decree of the suit amount?
OPP
Issue no. 5 Whether the plaintiff is entitled to any interest on the suit
amount, if so, at what rate and for what period? OPP
Issue o. 6 Relief
6 In order to prove his case plaintiff has examined Sh. Manish Kumar
as PW-1 who has exhibited the GPA dated 13.03.2008 as Ex. PW-1/1. He
has also exhibited receipt dated 29.01.99 as Ex. PW-1/2.
7 During cross-examination PW-1 stated that he is doing food grain
Suit no. 626/08 Page 4 of 25
business with his grand-father. He was neither a partner nor proprietor in
the business run by his grand-father. He was was doing it under his
guidance. His grand-father is the sole proprietor of the business under the
name and style of M/s Permanand Jai Bhagwan which is being run at B-
1/68, Paschim Vihar, New Delhi, where his grand-father is residing with
him. He has been doing the business with his grand-father for the last 10
years. He was 21 years of age when the loan in question was given to the
defendant. The cheque in question towards loan was handed over by him
to the defendant. The terms and conditions were settled by his grandfather.
His grand-father is about 74 years of age and suffering from illness
for the last about one year. He is looking after the business of his grandfather
who is not physically fit enough to move about nor he is in a position
to come to the court. At present he is not mentally sound enough and
completely bed redden. He further stated that he knows the facts stated by
him in his affidavit because of his personal knowledge and none of the
facts stated therein were ever conveyed or told by his grand father. He has
not brought the books of accounts containing the accounts of the
defendant therein. He is admitted that prior to appointing him as attorney
his grand-father was fully devoted towards his business and was personally
looking after the same. His grand-father is an Income Tax Payee. The list
of debtors and creditors is duly maintained by his grand-father and it is also
Suit no. 626/08 Page 5 of 25
shown in the Income Tax Returns. He admitted that his grand-father has
neither filed on record nor he has brought today any Income Tex Returns
filed by his grand-father. He has further stated that defendant had paid
interest on the loan amount up till 31.03.2005 and interest is due w.e.f
01.04.2005. The interest for this period ending on 31.03.2005 was paid
between 20.03.2005 to 30.03.2005. He further stated that from April to
December 2005 only interest was demanded and loan amount was never
demanded from the defendant. He also admitted that no legal notice was
ever sent to the defendant in between March 2000 to December 2005
asking him to return the loan amount or the interest. He denied that
whenever the amount of interest was paid by the defendant it was paid to
his grand-father directly. He further denied that no amount or any any
cheque was ever paid or delivered to him. He also denied that defendant
had returned the loan amount in two installments, firstly in April 2005 and
second one in June, 2005 in cash. He further denied that no amount is due
to the plaintiff against the defendant either towards the principal or interest.
He also denied that his grand-father is hale and haughty and is doing
business and is deliberately not appear as a witness in the case.
8 In order to answer the claim of the plaintiff , the defendant
examined himself as DW-1 and reiterated the averment made in the written
statement in his examination in chief.
Suit no. 626/08 Page 6 of 25
9 During his cross-examination he admitted that is concern used
to be assessed by the Income Tax Department. He does not remember
how much amount was deposited by the plaintiff with him in the year 1999.
He admitted that interest was agreed @ 1.6% per month. He also admitted
that Ex. PW-1/2 was got written on behalf of plaintiff. He also admitted that
TDS used to be deducted as and when an amount of interest was to be
paid. He further admitted that amount of Rs. 33,050/- used to be
accumulated as an interest for an year. He further admitted that an amount
of Rs. 3,305/- used to be deducted by them as TDS from the yearly
amount. He also admitted that he gave a cheque for a sum of Rs. 29,745/-
to the plaintiff on 21.03.2005. He denied that he had not handed over the
TDS certificate for the said amount to the plaintiff. They were maintaining
accounts regarding the payment as well as TDS. He has not brought the
record. He further stated that he cannot produce the said record. He
denied that he had never paid any amount qua the interest to the plaintiff in
cash. He paid a sum of Rs. one lac alongwith interest on the said amount,
amounting to Rs. around 32,000/- in cash on 31.03.2005. No receipt was
given by the plaintiff to the said amount. ( He volunterred plaintiff asked
him to given the receipt after bringing the same from home). He paid the
said amount to the plaintiff at Paschim Vihar. He admitted that plaintiff was
residing Paschim Vihar at that time. He is aware that as per Income Tax a
Suit no. 626/08 Page 7 of 25
sum of more than Rs,. 20,000/- cannot be paid in cash. He stated that he
conveyed the fact of afore stated cash payment to his counsel at the time
of filing of written statement. He paid Rs. 95,000/- in cash to the plaintiff on
31.06.2005. He does not remember how much amount was paid by him
towards the interest. No receipt was taken by him from the plaintiff for the
said amount. He had not received the receipt of the earlier amount at the
time when he paid the amount on 31.06.2005 and earlier also. He denied
that he had not paid any amount out of Rs. 1,95,000/- recoverable from
him. He has further denied that he had not paid any amount to the plaintiff
either on 31.03.2005 or 31.06.2005.
10 Defendant has also examined his son Mukesh Kumar Goel as
DW-2. During his cross-examination DW-2 stated that first installment was
paid by his father in his presence to the plaintiff in the month of April, 2005.
As far as he remember it was paid in the end of April 2005. A sum of Rs.
one lac paid in cash. No receipt was given by the plaintiff. ( He volunterred
that they demanded the receipt but same was not given). Plaintiff assured
them that he would give the receipt subsequently. He further stated that no
additional amount was paid to the plaintiff on that day towards the interest.
Second installment was paid in the month of June, 2005, however, he does
not remember exact date. They paid a sum of Rs. 1,00,200/- i.e Rs.
Suit no. 626/08 Page 8 of 25
95,000/- towards the principal and remaining towards the interest. The
plaintiff had not given receipt of the same as well. They paid said amount
in the house of the plaintiff. The accountant of his father used to maintain
the accounts. He has not brought the said record today in the court. He
can produce the statement of account regarding the transaction of the
plaintiff. He denied that they had not paid any amount either Rs. one lac in
the month of April 2005 or remaining amount Rs. 1,,00,200/- in June, 2005
as stated by him. The amount was paid by them to the plaintiff after
withdrawing from the account of his father again said there was cash
amount in shop out of which the said amount was paid.
11 Defendant has also examined Sh. Purshottam Mittal as DW-3.
During cross-examination DW-3 stated that he is an accountant and was
working with the defendant. He admitted that defendant is his brother-inlaw.
He was maintaining the accounts up to March 2005, thereafter the
firm of the defendant was closed. He is aware that an amount of more than
Rs. 20,000/- in cash cannot be paid as per Income Tax Act. He is not
aware if the TDS for the amount towards the interest paid in the month of
March 2005 was given to the plaintiff or not. He does not remember
exactly as to on which date the defendant paid the amount to the plaintiff in
April, 2005. He admitted that he has not mentioned in his affidavit that a
Suit no. 626/08 Page 9 of 25
sum of Rs. one lac was paid by the defendant to the plaintiff in April 2005.
( He volunteered he mentioned that half amount was paid). No receipt
was give by the plaintiff ( He volunterred that he stated that he would given
the receipt after the payment of the entire amount). Thereafter in June
2005 a sum of approximately one lac was paid by the defendant to the
plaintiff. They demanded the receipt the plaintiff said that he would deliver
the same through somebody. He is not aware if the defendant has
withdrawn the said amount from the bank account as he got call at his
residence to come directly at the house of the plaintiff. He denied that no
amount was paid by the defendant to the plaintiff either in April, 2005 or in
June 2005. He admitted that prior to March 2005 no amount was paid by
the defendant to the plaintiff in cash.
12 Defendant has also examined Sh. Hem Lal Sharma as DW-4.
During his cross-examination he admitted that he is working with DW-2.
He further admitted that the contents of his affidavit were written at the
instance of DW-2. A court question was put to him, if he is aware of the
fact written in his affidavit. To which he answered that it contains money
transaction between the plaintiff and DW-1. Another court question was
put that what was the amount and who paid the said amount to whom. On
which he replied that a sum of Rs. two lac was paid by DW-1 to the plaintiff
Suit no. 626/08 Page 10 of 25
in two intallments at his house, however he does not remember the date.
He further stated that plaintiff had not deposited a sum of rs. 1,95,000/- with
the defendant in his presence. He is also not aware as to how much
amount was paid by the defendant to the plaintiff on how many occasion
and at to what amount was paid as interest. No receipt was given by the
plaintiff to the defendant of the amount paid in cash on two occasions. A
sum of Rs. one lac was paid by the defendant to the plaintiff in the end of
April 2005. On second occasion an amount of more than Rs. one lac was
paid by the defendant to the plaintiff, however he does not remember the
month and year. It may be in the year 2005 or 2006. No receipt was taken
by the defendant on second occasion. Defendant asked for the receipt but
plaintiff stated that he would deliver the same. He denied that no amount
was paid by the defendant to the plaintiff in his presence.
13 I have heard ld. counsel for the parties and also perused the
pleadings, documents, and the evidence led by both the parties on record.
My issuewise findings is as under:-
Issue no. 1 Whether the suit is bad and not maintainable on account of
incorrect verification of the plaint? OPD
14 The onus to prove this issue is upon the defendant. Defendant has
taken an objection in the written statement that the verification of the suit
has not been correctly made as per Order 6 Rule 15 CPC. He has further
Suit no. 626/08 Page 11 of 25
mentioned that plaintiff has verified the prayer clause as well on the basis
of the information received and believed to be correct, which is absolutely
illegal and suit is liable to be dismissed.
On the other hand plaintiff has stated that he has correctly
verified the plaint and the objection raised by the defendant is unfounded.
15 A perusal of the plaint shows that Para 26 of the plaint relates
to the prayer of the suit. However, in the verification clause it is mentioned
that paras 22 to 26 are true and correct as per the information received and
believed to be correct.
16 Rule 15 or Order 6 CPC provides, how the plaint to be verified.
It mentions that the person verifying the plaint must specify as to which
para he verifies of his own knowledge and what he verifies as per the
information received and believe to be true. Undoubtedly, the plaintiff has
mentioned in the verification that he verify the para 22 to 26 as per true and
correct as per information received and believed to be correct. Whereas
para 26 is the prayer made by the plaintiff that should not be verified as per
the information received and believe to be true. Therefore there is error
apparent on the verification of the plaint, however, that error does not go to
the root of the matter and could have been correct. It is also relevant that
consequences of incorrect verification has not been provided in the CPC. It
only provides that how the plaint should be verified. Taking into
Suit no. 626/08 Page 12 of 25
consideration the facts and circumstances as the error erupted in the
verification is a formal one and does not effect the merit of the case, I am of
the considered view that the error erupted in the verification of the plaint
does not effect the merit of the case and on that basis only the suit of the
plaintiff cannot be dismissed. The issue no. 1 is accordingly decided.
Issue no. 2 Whether the suit is without any cause of action? OPP
Issue no. 3 Whether the suit is barred by limitation? OPD
Issue no. 4 Whether the plaintiff is entitled to a decree of the suit amount? OPP
17 The issues no. 2, 3 & 4 are taken together as they are interconnected.
The onus to prove issue no. 2 & 4 is upon the plaintiff whereas
onus to prove issue no. 3 is upon the defendant.
The plaintiff has set up a case that he deposited a sum of Rs.
1,95,000/- with the defendant by way of cheque bearing no. 219563 dated
29.01.99 drawn on State Bank of Mysore, Naya Bazzar, Delhi. The said
amount was agreed to be repaid by the defendant to the plaintiff with
interest @ 1.6% per month. The said amount was agreed to be repaid by
the defendant to the plaintiff on demand. As per the plaintiff defendant paid
interest regularly to the plaintiff up till 31.03.2005, however, he has not
handed over the TDS deducted for the payment made on 21.01.2005.
The defendant admitted the above fact that the plaintiff has
deposited the said amount with him which was payable with interest @ 1.6
% per month and same was payable on demand. However, the defendant
Suit no. 626/08 Page 13 of 25
has set up a plea that he paid the entire amount to the plaintiff alongwith
interest in two installments i.e, firstly, in the month of April, 2005 and
another in June, 2005 and no amount remain due and payable after the
aforesaid payment. In order to prove their respective case, both the parties
have led their respective evidence.
18 A careful examination of the pleadings and evidence led by
both the parties on record clearly shows that it is an admitted case of the
parties that plaintiff deposited a sum of Rs. 1,95,000/- with the defendant
which was payable alongwith interest @ 1.6 % per month.
19 Ld. counsel for the defendant contended that plaintiff has failed
to prove on record any cause of action for filing the present suit thus suit is
liable to be dismissed. He further contended that as per the plaintiff the suit
amount was payable on demand. However. the plaintiff has failed to prove
that any demand was made by the plaintiff before filing the present suit.
Therefore, the suit has no cause of action. Ld. counsel for the defendant
further contended that the present suit is governed by Article 22 of the
Limitation Act which clearly stipulates that the time for filing the demand
shall start to began from the date when the demand is made. In the instant
case as plaintiff has failed to prove on record that he made any demand
from the defendant, therefore he has no cause of action for filing the
present suit.
Suit no. 626/08 Page 14 of 25
20 On the other hand ld. counsel for the plaintiff contended that in
the plaint itself it is specifically mentioned that plaintiff demanded the
amount in the year 2006. He further contended that filing of suit against
the defendant itself is a demand and, therefore, the plaintiff has a cause of
action of filing the present suit. He also contended that defendant has
admitted the fact that the amount was deposited by the plaintiff with the
defendant which was to be payable alongwith interest @ 1.6% per month .
Therefore, the plaintiff has cause of action for filing the present suit.
Section 22 of the Limitation Act read as under;-
Description of suit Period of limitation Demand from which period
being to run
For money deposited
under an agreement i.e
it shall be payable on
demand including
money of customer in
the hands of his banker
so payable.
Three years When demand is made
21 A perusal of the Article 22 is clearly shows that time to file suit
against defendant in a case where deposit was made shall start running
from the date when the demand was made. Article 22 is similar to Article
60 of the Limitation Act, 1908.
Suit no. 626/08 Page 15 of 25
The Hon'ble Patna High Court in Baijnath Soti Vs. Bihari Ram
Sham Lal reported as AIR 1933 Patna 701 has held that “under Article 60
the period of limitation for a period to recover money deposited under an
agreement that it shall be payable on demand, is three years from the date
when the demand is made. The making of the demand is entirely
dependent upon the volition of the plaintiff and the period of limitation may
be indefinitely prolonged and a suit may be instituted without even a
demand being made, in which case no question of limitation arises.
22 The Hon'ble Supreme Court in V.E.A Annamalai Chettiar and
another, Vs S.V.V.S Veerappa Chettiar and others reported as AIR 1956,
Supreme Court 12 has held that “ There was really no proof of any demand
having been made by the plaintiffs upon the defendants for payment of
their moiety of the deposit and the defendants without any such demand
having been made. If that was so the period of limitation had not
commenced to run against the defendants and the suit against them was
well within time. With regard to concurrent finding returned by the Trial
Court as well as the High Court that no demand was made within the
period prescribed under Article 60. If that was so, the suit was certainly not
barred by the Law of Limitation. This contention of the appellant also
therefore fails”.
Suit no. 626/08 Page 16 of 25
In view of the well settled preposition for filing the suit under
Article 60 of the old Act and Section 22 of the new Act of Limitation, no
specific demand is required to be made to the defendant for making the
payment and filing of suit against the defendant itself amount to an demand
made by the plaintiff against the defendant. Therefore, the plaintiff has
cause of action for filing the present suit and he has also filed the present
suit within a period of limitation.
Defendant has admitted the fact that the plaintiff paid the said
amount of Rs. 1,95,000/- which was payable alongwith interest @ 1.6% per
month. It is also admitted that he executed receipt Ex. PW-1/2 in favour of
the plaintiff. The only defence taken by the defendant is that he repaid the
amount in two installments.
23 In order to prove his defence the defendant examined himself
as DW-1. During his examination in chief in para 2 he stated that he paid
the entire amount of Rs. 1,95,000/- in two installments i.e first in the last
week of April 2005 and second last week of June, 2005. It is further
mentioned that Up-to-date interest from April to June, 2005 was also paid
and no amount remained unpaid to the plaintiff after June, 2005. During
his cross-examination DW-1 admitted that he used to deduct the TDS from
the interest amount. He also admitted that the amount of Rs. 33,050/-
used to be accumulated an an interest for an year on which TDS used to
Suit no. 626/08 Page 17 of 25
be deducted. He said that they were maintaining the accounts regarding
the payment as well as TDS. He has not brought the said record. He
further stated that he cannot produce the said record. He further stated
that he paid a sum of Rs. one lac alongwith interest on the said amount
amounting to Rs. 32,000/- in cash on 31.03.2005. No receipt was given by
the plaintiff to the said amount. He Volunteered that plaintiff asked him to
give the receipt after bringing the same from home. He further admitted
that plaintiff was residing at Paschim Vihar at that time. He further stated
that he paid the remaining amount of Rs. 95,000/- in cash to the plaintiff on
31.06.2005. He does not remember how much amount he paid towards
the interest. No receipt was taken by him from the plaintiff for the said
amount. The said amount was also paid in Paschim Vihar. He also not
received the receipt for the earlier amount at that time when he pad the
amount on 31.06.2005 and earlier also.
24 Defendant neither in the written statement nor in examination
in chief has made mention that how much amount he paid in each
installment. During his examination in chief he stated that first installment
was paid in the end of April 2005, however, during the cross-examination
he stated that first installment was made on 31.03.2005 alongwith interest
of Rs. 32,000/- to the plaintiff. However he has not made even a whisper
regarding the payment of interest during his examination in chief or in his
Suit no. 626/08 Page 18 of 25
written statement.
25 Defendant has also examined his son Mukesh Kumar Goel as
DW-2. He also reiterated the aforesaid averment in para 2 of his
examination in chief. During his cross-examination DW-2 deposed that first
installment was paid by his father in his presence in the month of April
2005. As far as he remember it was in the end of April 2005. A sum of Rs.
one lac was paid in cash. No receipt was given by the plaintiff. They
demanded the receipt but the same was not given. No additional amount
was paid to the plaintiff on that date towards the interest. Second
installment was paid in the month of June, 2005, however, he do not
remember the exact date. He further stated that he does not know if more
than Rs. 20,000/- cannot be paid in cash under the Income Tax Act. The
accountant of his father used to maintain the record. He has not brought
the record today but he can produce the statement of account regarding
the transaction of the plaintiff.
The testimony of DW-2 is contrary to the testimony of DW-1.
DW-1 has stated that first installment was paid on 31.03.2005 whereas
DW-2 has stated that it was paid in the end of April, 2005. DW-1 has
further submitted that a sum of Rs. 32,000/- was also paid towards the
interest whereas DW-2 has categorically stated that except Rs. one lack
no additional amount was paid at the time of making the payment of first
Suit no. 626/08 Page 19 of 25
installment.
26 The defendant has also examined Sh. Purshottam Mittal as
DW-3. He has also reiterated the said fact in para 2 of his examination in
chief. During his cross-examination DW-3 stated that he was working with
the defendant. He admitted that defendant is his brother-in-law. He is
aware that an amount of more than Rs. 20,000/- in cash cannot be paid as
per Income Tax Act. He left his job in March, 2005. He do not remember
exactly as to on which date defendant paid the amount to the plaintiff in
April 2005. A sum of Rs. one lac was paid by the defendant to the plaintiff
in April. He admitted that has not mentioned in his affidavit that a sum of
Rs. one lac was paid by the defendant to the plaintiff in April 2005. No
receipt was given by the plaintiff. Second installment was paid in June
2005 approximately one lac was paid to the plaintiff by the defendant.
They demanded the receipt from the plaintiff who said that he would deliver
the same through somebody. He is not aware if the defendant has
withdrawn the said amount from the bank account or not. He admitted that
prior to March 2005 no amount was paid by the defendant to the plaintiff in
cash.
27 The defendant has also examined one Sh. Hem Lal Sharma as
DW-4 who also reiterated the averment in para 2 during his examination in
chief. During his cross-examination he admitted that contents of his
Suit no. 626/08 Page 20 of 25
affidavit were written at the instance of defendant no. 2. In reply to the
court questions, he described the nature of the transaction, however he
submitted that he was not present when the plaintiff deposited the amount
of Rs. 1,95,000/- with the defendant.
28 A careful examination of testimony of DWs clearly shows that
there are inherent contractions in there testimony. As per DW-3 prior to
March 2005 no amount was ever paid in cash whereas DW-1 has stated
that the amount of interest being paid through cheques as well as in cash.
None of the Dws has mention in their examination in chief as to how much
amount was paid in first installment and in second installment. However,
during their cross-examination they have given the different figure which is
admittedly beyond the pleadings. DW-1 has stated that the interest was
also paid whereas none of the defendant's witness never deposed this
version. During their cross-examination all the defendant's witnesses have
mentioned that no receipt was given by the plaintiff and he assured that the
receipt would be given subsequently. However, the defendant has not
made any whisper to the fact as to what action he has taken against the
plaintiff when he did not deliver the receipt despite assurance. The
defendant has not made any demand from the plaintiff or has not taken any
action against the plaintiff since June 2005 till the filing of the suit. The
plaintiff has categorically denied that he received any amount from the
Suit no. 626/08 Page 21 of 25
defendant in cash. In order to prove his case plaintiff has examined Sh.
Manish Kumar as PW-1. During his cross-examination he was suggested
by the defendant that he returned the loan amount in two installments firstly
in April 2005 and secondly in June 2005 in cash those suggestions have
been denied by PW-1. However, the defendant has not drawn attention of
the PW-1 on the point as to how much amount was paid on first installment
and how much was paid on the second installment to the plaintiff.
PW-1 was also cross-examined or confronted by the defendant
that he demanded the receipt from the plaintiff but he did not given and
assured to supply the same later on. In the absence of any crossexamination
of PW-1 on this aspect, by the defendant the plea taken by the
defendant remained unproved.
29 Ld. counsel for the defendant contended that plaintiff has not
examined himself and led evidence through PW-1 who is his attorney thus
an adverse inference to be drawn against him.
PW-1 in Para 1 of his examination in chief has stated that
plaintiff is his grand-father who has appointed him as his General Power of
Attorney vide GPA dated 13.03.2008 Ex. PW-1/1. He further deposed that
he is fully conversant with the facts of the present case and the plaintiff is ill
and now a days he is confined to bed and he cannot see properly because
of Cataract in his both eyes. During his cross-examination PW-1 stated
Suit no. 626/08 Page 22 of 25
that he is doing food grain business with his grand-father. He his doing it
under his guidance. He further stated that he was 21 years of age when
the loan in question was given to the defendant. At that time he was under
the guidance of his grand-father. Cheque in question towards the loan was
handed over by him to the defendant and the terms and conditions on
which the loan was given are within his knowledge. His grandfather at
presently about 74 years of age and suffering from illness for the last one
year. He is looking after the business of his grand father. His grandfather
is not physically fit enough to move about nor he is in a position to come to
the court. He is completely bed ridden. Said deposition of PW-1 has not
been contradicted or challenged by the defendant and same remained unrebutted.
The PW-1 is the grand son of the plaintiff who was doing
business with him. H was also residing in the same house. PW-1 during
his testimony categorically stated that he has personal knowledge of the
entire transaction and his grandfather, is not capable to attend the court as
he was bed written. The said testimony of PW-1 remained unchallenged
thus same cannot be discarded.
30 It is admitted case of the parties that an amount of Rs.
1,95,000/- was deposited by the plaintiff with the defendant which was
payable alongwith interest @ 1.6% per month. As per the plaintiff after
31.03.2005 defendant have neither paid the principal amount nor any
Suit no. 626/08 Page 23 of 25
amount towards the interest . However, defendant has taken a plea that
entire amount was paid in two installments to the plaintiff but defendant has
failed to prove the same on record. Defendant has not put sufficient
material on record on the basis of which it can be said that the amount was
paid by the defendant to the plaintiff in two installments. There are
material contradictions in the testimony of defendant witnesses which goes
to the root of their defence and makes their defence highly improbable.
31 In view of the aforesaid facts and circumstances my
issueswise findings is as under:
Issue no. 2 Plaintiff has fully proved on record that he has cause of action
for filing the present suit thus issue no. 1 is accordingly decided in favour of
the plaintiff and against the defendant.
Issue no. 3 Defendant has failed to prove that suit is barred by the
limitation, however, plaintiff has successfully proved that the present suit
has been filed within the period of limitation. therefore this issue is decided
against the defendant and in favour of the plaintiff.
Issue no. 4 Plaintiff has fully proved that he paid a sum of Rs. 1,95,000/- to
the defendant which was to be paid alongwith interest @ 1.6% per month.
He has further proved on record that defendant has not paid any amount
either towards the principal or towards the interest to the plaintiff after
Suit no. 626/08 Page 24 of 25
31.3.2005. Plaintiff has thus discharged the onus of issue no. 4, same is
accordingly decided in favour of the plaintiff.
Issue no. 5 Whether the plaintiff is entitled to any interest on the suit amount,
if so, at what rate and for what period? OPP
32 Taking into consideration the facts and circumstances, I
am of the considered view that it would be just and expedient if plaintiff is
awarded interest @ 12 % p.a from the date of filing of the suit till its
realization. Issue no. 5 is accordingly decided.
33 Relief
In view of my findings on the above issues, the suit filed by the
plaintiff against the defendant for recovery of Rs. 3,05,760/- is decreed with
cost. A Decree for recovery of Rs. 3,05,760/- is passed in favour of the
plaintiff and against the defendant. The plaintiff is also entitled for interest
@ 12% p.a from the date of filing of the suit till its actual realization.
Decree Sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( PITAMBER DUTT)
on 07.09.2010 Additional District Judge
Delhi
Suit no. 626/08 Page 25 of 25