Anju v. Dhanwati

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit against the concurrent Judgments of the courts below; of the Trial Court dated 7.8.2013 and the First Appellate Court dated 11.7.2016; by which the suit for recovery of moneys on account of grant of loan granted by the respondent/plaintiff has been 2016:DHC:6843 decreed. The suit has been decreed for a sum of Rs.2,00,000/- with interest at the rate of 6% per annum.

2. The facts of the case are that respondent/plaintiff filed the subject suit for recovery of an amount of Rs.2,00,000/- which was pleaded by her to be given as loan to the appellant/defendant. With respect to grant of loan, the appellant/defendant executed an Undertaking dated 28.3.2007 which contained both her signatures as also her thumb impressions. This has been proved and exhibited as Ex.PW1/3 by the respondent/plaintiff. Respondent/plaintiff also pleaded that as a security for the loan the appellant/defendant deposited with the respondent/plaintiff title documents of the appellant’s/defendant’s property being House no. G-366, J.J. Colony, Shakurpur, Delhi and which was proved by means of paragraph 6 of the affidavit by way of evidence of the respondent/plaintiff. Since the loan was not repaid the subject suit came to be filed.

3. Appellant/defendant contested the suit and denied taking any loan from the respondent/plaintiff. Appellant/defendant also denied her signatures and thumb impressions on the Undertaking dated 28.3.2007. Appellant/defendant pleaded that she gave the property papers to the respondent/plaintiff to verify the same with respect to registration because property papers in other case were only notarized and appellant/defendant therefore gave the property papers of the property being House no. G-366, J.J. Colony, Shakurpur, Delhi, to the appellant/defendant only for verification and not as security. Disputes are also pleaded to exist with respect to another property being the property in which the appellant/defendant is a tenant of respondent/plaintiff and which is property being House no. H-366, J.J. Colony, Shakurpur, Delhi.

4. After the pleadings were complete, the trial court framed the following issues:- “1. Whether the plaintiff is entitled for a sum of Rs.[2] Lacs as prayed? OPP

2. Whether the plaintiff is entitled for any interest? If yes, at what rate and for which period?

3. Whether loan was taken by the defendant from the plaintiff?

4. Whether plaintiff’s husband has taken Rs.2.[5] Lacs to purchase a house for the defendant as contended in para no. 1 of preliminary objections of the written statement?

5. Relief.”

5. Respondent/plaintiff proved her case by filing affidavit by way of evidence as Ex.PW1/A and proved the documents as Ex.PW1/1 to Ex.PW1/6. Since the appellant/defendant denied her thumb impressions and signatures on the Undertaking dated 28.3.2007/Ex.PW1/3, therefore, respondent/plaintiff led the evidence of a handwriting expert Sh. Deepak Jain as PW[2] who filed his affidavit Ex.PW2/A and his report Ex.PW2/B along with the photographs of the disputed thumb impressions as Ex.PW2/C.

6. Appellant/defendant appeared in the witness box and tendered her affidavit by way of evidence Ex.DW1/A and proved documents as Ex.DW1/1 to Ex.DW1/7.

7. In my opinion, both the courts below have rightly decreed the suit for recovery of moneys, inasmuch as, the undertaking Ex.PW1/3 has been duly proved both by the respondent/plaintiff including through the examination of handwriting expert as Ex.PW2/A. I cannot agree with the arguments urged on behalf of the counsel for the appellant/defendant that the handwriting expert was not a handwriting expert and that the handwriting expert failed to answer the question with respect to measurement of area of the ridges and therefore the handwriting expert’s report cannot be looked into. The handwriting expert has given in paragraphs 1 and 2 of his affidavit by way of evidence in detail his qualifications and the fact that he had given his evidence as an expert in many cases involving many documents. Mere cross-examination cannot dislodge the affidavit by way of evidence of the expert, more so because, admittedly, the appellant/defendant has led no evidence of an expert to counter the report filed by the respondent/plaintiff. Also, once the number of ridges and their pattern is same in the thumb impression, and thus not too much emphasis can be laid on the disputes with respect to those ridges, inasmuch as, the distance of the ridges depends upon the angle at which the thumb impression is put on the document, circumstances, age of the person who puts the thumb impression, the type of the paper on which the thumb impression is put, and various other related circumstances. Therefore, I reject the argument urged on behalf of the appellant/defendant that the undertaking Ex.PW1/3 is not proved and which mentions the factum of taking of a loan by the appellant/defendant from the respondent/plaintiff.

8. Counsel for the appellant/defendant also argued that there is contradiction in the evidence of the respondent/plaintiff and her witness PW[3], because PW[3] said that loan was given on the same date as the execution of the undertaking Ex.PW1/3, but plaintiff has stated that loan was given earlier and the undertaking was taken subsequently, but this argument again is of no avail to the appellant/defendant because neither in the plaint nor in the affidavit by way of evidence respondent/plaintiff has deposed that loan was taken on an earlier date and the undertaking was executed on a subsequent date. The plaint only talks of the appellant/defendant approaching the respondent/plaintiff in November, 2006, but there is no averment in the plaint that loan was given in the year 2006. There are always inconsistence of a person in a case but the evidence of both the parties has to be read holistically to arrive at a decision in a civil case on the balance of probabilities. Even if I take that there is some contradiction in the evidence of the respondent/plaintiff as PW[1] and her witness PW[3] with regard to the date of the grant of loan, it is seen that the best proof of the fact that loan has been given by the respondent/plaintiff to the appellant/defendant is the fact that respondent/plaintiff has in her possession original title documents of the property being House no. G-366, J.J. Colony, Shakurpur, Delhi, and there is no reason why a person such as the appellant/defendant would give original title documents of the property unless they were given as security. I also disbelieve the case of the appellant/defendant that she gave original title documents to the respondent/plaintiff to verify the same from the Sub-Registrar’s office, inasmuch as, surely no one gives original documents of an immovable property just like that to any person with the fact that there is no reason why the appellant/defendant herself could not have got the aspect of registration verified with respect to the papers of the property being House no. G-366, J.J. Colony, Shakurpur, Delhi either directly or through her husband or any of her close acquaintances. Therefore, I hold that the courts below have rightly held that respondent/plaintiff had given a loan of Rs.2,00,000/- to the appellant/defendant as evidenced from the Undertaking Ex.PW1/3 dated 28.3.2007 and the fact that the original documents of the property being House no. G-366, J.J. Colony, Shakurpur, Delhi were in possession of the respondent/plaintiff.

9. The fact that there are disputes between the parties with respect to another property being House no. H-366, J.J. Colony, Shakurpur, Delhi, and in which appellant/defendant is a tenant, and for which a civil suit is pending will not mean that the respondent/plaintiff has not proved the factum of grant of loan of Rs.2,00,000/- to the appellant/defendant in the present case.

10. No substantial question of law arises in this Regular Second Appeal so as to be entertained under Section 100 CPC.

11. The second appeal is accordingly dismissed in the above terms.