Full Text
HIGH COURT OF DELHI
Date of Decision: 20th February, 2023
NARINDER KUMAR CHAUDHARY ..... Appellant
Through: Mr. Anish Roy, Mr. Kapil Gautam and Mr. Chandrakant Tiwari, Advocates
Through: Mr. Yashpal Rangi, Advocate
JUDGMENT
1. Allowed, subject to all just exceptions.
2. Applications stand disposed of. RFA 134/2023 & C.M. APPL. 8333/2023 (Stay)
3. Present Regular First Appeal has been filed assailing the judgment and decree dated 30.01.2023 passed by the Trial Court in Civil DJ No.609684/2016. Appellant herein is the Defendant and Respondent is the Plaintiff before the Trial Court and the parties are hereinafter referred to as their litigating status before the Trial Court.
4. Factual score to the extent necessary for deciding the present appeal is that the Plaintiff filed a suit against the Defendant seeking recovery of Rs.5,00,000/- along with interest @ 12% p.a. till the date of realization under Order 37 CPC. For ready reference, the reliefs sought in the plaint are as follows:- “In view of the facts and circumstances mentioned hereinabove it is most respectfully prayed that this Hon'ble Court will be pleased to: (a) Pass a decree for recovery of Rs. 5,00,000/- in favour of the plaintiff and against the defendant; (b) Award interest at the rate of 12% p.a. from the date which the loan was advanced i.e. on August, 2012 till the date of realization.
(c) Award pendent-lite interest at the rate of 12% p.a. from the date of filing of the suit till the date of realization of the amount.
(d) Award the cost of the present proceeding as well as the legal expenses and counsel fee in favour of the plaintiff."
5. Plaintiff had pleaded in the plaint that Defendant had approached the Plaintiff through a common friend for financial help and on the assurance that the amount will be returned within six months along with interest @ 12% p.a. on the loan amount, Plaintiff advanced a loan amount of Rs.5,00,000/- to the Defendant. Thereafter, Plaintiff requested the Defendant to repay the loan on numerous occasions, however, each time the Defendant sought more time for repayment on account of financial constraints.
6. It was also averred that in January, 2013, Defendant assured the Plaintiff that he would repay the loan by February, 2013 and to discharge his liability, also issued a cheque bearing No.395800, for an amount of Rs.5,00,000/- dated 28.02.2013, in favour of the Plaintiff, drawn on State Bank of India, DDA Shopping Centre, A-1, Paschim Vihar, New Delhi. However, on presentation of the cheque, the same was dishonoured by a Cheque Return Memo dated 18.03.2013. After dishonour of the cheque, Defendant requested the Plaintiff to grant some more time and present the cheque after third week of May, 2013. Going by the assurance given by the Defendant, Plaintiff again presented the cheque, which was dishonoured for the reason ‘insufficient funds’ vide return memo dated 24.05.2013.
7. Realising that the Defendant would not keep his commitment, Plaintiff sent a legal notice dated 01.02.2016 seeking repayment of the loan alongwith interest. Constrained by the fact that the Defendant did not honour his commitment, Plaintiff filed the present suit for recovery under Order 37 CPC.
8. Upon receipt of summons, Defendant entered appearance and after the summons for judgment were issued filed an application under Order 37 Rule 3(5) CPC seeking leave to defend, to which reply was filed by the Plaintiff. The Trial Court allowed the application for leave to defend, vide order dated 10.02.2017, subject to deposit of 50% of the cheque amount in the form of FDR in the Court.
9. Written statement was filed by the Defendant in which it was pleaded that Defendant had never taken any loan from the Plaintiff and therefore, there was no question of issuing any cheque in discharge of the alleged liability. Allegations were made that Plaintiff is one of the accomplices in committing fraud and forgery against the Defendant, for which criminal complaints had been filed by the Defendant on 25.01.2013, 28.05.2013 and 15.09.2015 against several persons including the Plaintiff. It was averred that in the complaints filed by the Defendant, he had clearly mentioned that one Shri Narender Singh Yadav, who was working as a Constable in Delhi Police, had stolen some cheques, both signed and unsigned, from the cheque book of the Defendant and had distributed them to different persons for wrongful gains. The cheque on which Plaintiff had filed the recovery suit was one amongst those cheques which were stolen by Shri Yadav and therefore, it cannot be the basis to seek recovery from the Defendant. It was also pleaded that Plaintiff and Defendant were unknown to each other and prior to the legal notice, Defendant had never received any communication from the Plaintiff with regard to the alleged loan or the dishonour of the cheque. On receipt of the legal notice dated 12.02.2016, Defendant sent a reply denying all the allegations and claims made by the Plaintiff.
10. Replication was filed by the Plaintiff disputing and denying the contents of the written statement and reiterating the contents of the plaint. Additionally, Plaintiff averred that Defendant was a habitual offender and several cases were pending against him. In one such case titled Dinesh Kumar Yadav v. Narender Kumar Chaudhary, in CS No 65-A/2015, where Narender Kumar Chaudhary was the Defendant he had admitted in para 1(c)(iii) of the written statement filed in the said suit that “Sh. Rajesh Kumar was issued Cheque No.395800 dated 25.02.2013 for Rs.5,00,000/- drawn on SBI, Paschim Vihar, Delhi”. Therefore, it is not open to the Defendant to deny the liability or the factum of issuance of cheque in discharge of the same.
11. Following issues were framed by the Trial Court on the basis of pleadings of the parties:- “1. Whether the plaintiff is entitled to decree in the sum of Rs. 5,00,000/- against the defendant along with interest, if any and if yes, at what rate and for what period? OPP
2. Whether the documents relied upon the plaintiff are forged and fabricated? OPD
3. Relief.”
12. During the trial, Plaintiff examined two witnesses viz. Plaintiff himself as PW-1 and Sh. Sandeep as PW-2. Plaintiff was crossexamined at length by the counsel for the Defendant. PW-2 is an Ahlmad in the Court where the suit being CS No 65-A/2015, as aforementioned, was pending. He produced the records of the said suit and deposed but was not cross-examined by the Defendant, despite opportunity. Plaintiff proved the original cheque bearing No. 395800 dated 28.02.2013 for a sum of Rs.5,00,000/- as Ex.PW1/1. Cheque returning memos are Ex.PW1/2 and PW1/3; legal notice dated 01.02.2016 is Ex.PW1/4, while postal receipts and proof of delivery are Ex.PW1/5 (colly.). Defendant, on the other hand, examined himself as DW-1 and relied on complaints lodged with the Police as Ex.DW-1/1 and Ex.DW-1/2, amongst other documents. After going through the evidence and hearing the parties, Trial Court decreed the suit in favour of the Plaintiff and against the Defendant, deciding both the issues in favour of the Plaintiff.
13. From a reading of the impugned judgment, it is evident that the Trial Court has decreed the suit relying on the testimony of the prosecution witnesses, which could not be demolished by the Defendant in the cross examination, provisions of Sections 118 and 139 of the Negotiable Instruments Act, 1881 (NI Act) and the admission of the Defendant in the written statement filed in CS NO. 65A/2015.
14. Trial Court decided Issues No. 1 and 2 together, being inextricably linked to each other. Plaintiff in his evidence-in-chief deposed in consonance with the averments in the plaint and stated that the Defendant had approached him for financial help, for which the Plaintiff advanced a loan of Rs.5,00,000/- with an assurance that it will be repaid in six months with interest @ 12% p.a. He has further stated that despite assurance, the loan amount was not repaid and the cheque tendered by the Defendant towards discharge of his loan liability was dishonoured by the Bank not once but twice. PW-2 Sh. Sandeep is an Ahlmad and produced the summoned record of the case filed by one Dinesh Kumar Yadav against the Defendant herein, wherein the Defendant admitted that he had issued the cheque in question in favour of the Plaintiff. Despite opportunity, Defendant did not cross examine PW-2.
15. The sum and substance of the defence raised by the Defendant is that a few unsigned cheques were stolen from his office and the cheque in question was one amongst them. He has denied his liability by stating that he has never borrowed any money from the Plaintiff and therefore, the question of issuing any cheque did not arise. This defence of the Defendant, in my view, falls to the ground in view of Ex.CW1/Z[5] which is the written statement filed by the Defendant in CS No 65-A/2015, wherein Defendant has admitted in para 1(c)(iii) that a cheque was issued in favour of the Plaintiff for a sum of Rs.5,00,000/-, bearing No. 395800 dated 25.02.2013 drawn on SBI, Paschim Vihar, Delhi. Defendant was confronted with the said document during cross examination and he stated that this was a different case and he could not comment on it. In view of this admission by the Defendant, the stand that no cheque was issued or the cheque in question was stolen, as rightly held by the Trial Court, is belied. Plaintiff has been successful in proving the issuance of the cheque and nothing was brought forth by the Defendant in the oral testimony or during the cross examination of the Plaintiff which created a dent in the case of the Plaintiff. In fact, Defendant has placed no material on record to suggest that any instruction was issued by him to the Bank to stop payment, assuming the alibi set up by him that the cheques were lost/stolen is correct. Defendant also failed to prove the alleged complaints made by him to the Police in this regard, as no witness was summoned from the concerned Police Station.
16. Section 118 of the N.I. Act deals with presumptions as to Negotiable Instruments and provides that until the contrary is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration and that every such Instrument, when accepted, endorsed, negotiated or transferred is for consideration. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge of any debt or other liability. As rightly held by the Trial Court, the presumption is a rebuttable one and the onus was on the Defendant to rebut the same, which he has failed to discharge and in fact, his own admission shows that his stance in the present suit is contrary to his stand in the other suit filed by Dinesh Kumar Yadav against him.
17. An argument was raised by the Defendant that the Trial Court erred in relying on Sections 118 and 139 of the N.I. Act, as the same are wholly inapplicable to civil proceedings for recovery of money. While this issue is merely academic and even in the absence of delving into the presumption envisaged in the aforementioned Sections of the N.I. Act, Plaintiff has been able to prove his case, however, even in law, this contention of Defendant is misplaced. Courts have been relying on Sections 118 and 139 of the N.I. Act even in civil proceedings relating to recovery of money, involving Instruments such as cheques or pro-notes [Ref. G. Sivaprakasam v. G. Dhandapani, 2012 (5) CTC 395 and Patsy Saldanha v. Carmen Rebello E Cardozo and Another, 2022 SCC OnLine Bom 826].
18. In the light of the deposition and the documents filed by the Plaintiff as well as the defence set up by the Defendant, including the admission made by him, this Court finds that the Plaintiff has been able to prove that he had advanced a sum of Rs.5,00,000/- to the Defendant, for which he had issued the cheque in question and the Trial Court has rightly decreed the suit in favour of the Plaintiff.
19. Accordingly, the appeal is dismissed being devoid of merit along with pending application.