Shobha Rani Sah vs P.S.Verma
2008 Latest Caselaw 2258 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: December 16, 2008

+                              RFA 331/2007

     SHOBHA RANI SAH                       ..... Appellant
             Through:          Mr. S.K.Sharma, Adv. with
                               Mr. Dhruv Kumra, Advocate

                               versus

     P.S.VERMA                            ..... Respondent
                    Through:   Respondent in person

     CORAM:
     HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
     HON'BLE MR. JUSTICE J.R.MIDHA

1.     Whether Reporters of Local papers may
       be allowed to see the Judgment?

2.     To be referred to the Reporter or not?

3.     Whether the judgment should be

       reported in the Digest?

Pradeep Nandrajog, J. (Oral)

1. Heard learned counsel for the appellant and the

respondent who appears in person.

2. We note that the respondent is a banker having

retired as Deputy Manager from the Chandni Chowk Branch of

the State Bank of India and understands the commercial laws.

3. The appellant was the defendant. The respondent

was the plaintiff.

4. Suit was filed on the allegation that on various dates

between September 2000 till April 2001 the plaintiff advanced

loan aggregating Rs.3,80,000/- (Rupees Three Lacs and Eighty

Thousand only) to the defendant and it was agreed that the

same shall carry interest @ 2% per month. It was pleaded that

interest till June 2001 was paid by the defendant and from the

month of July 2001 none was paid. It was stated that to clear

the outstanding loan and interest which had accrued thereon till

the month of November 2001, the defendant issued a cheque to

the plaintiff bearing No.486047 dated 30.11.2001 in sum of

Rs.4,25,000/- (Rupees Four Lacs and Twenty Five Thousand

only). The cheque was stated to be drawn on Jai Laxmi

Cooperative Bank Ltd., Fateh Puri. It was pleaded that when

presented for encashment the cheque was returned with the

remark "account closed". Suit was filed seeking recovery of

Rs.4,25,000/- (Rupees Four Lacs and Twenty Five Thousand

only) and pre-suit interest in sum of Rs.1,50,000/- (Rupees One

Lac and Fifty Thousand only). Total value of the suit was

Rs.5,75,000/- (Rupees Five Lacs and Seventy Five Thousand

only).

5. Defence taken was that no loan was ever taken and

no interest was ever paid. The cheque was explained as without

consideration. It was pleaded that the late husband of the

defendant was having an account with State Bank of India,

Chandni Chowk Branch and that in said connection the husband

of the defendant came into contact with the plaintiff who was

working as a manager in the Chandni Chowk Branch of State

Bank of India. It was stated that the husband of the defendant

was in business and as per the dictates of her husband the

defendant would sign blank cheques from her account

maintained with the Jai Laxmi Cooperative Bank and would hand

over the same to her husband for being utilized by him during

course of his business. It was pleaded that the plaintiff appears

to have got hold of the cheque in question which was signed

blank and after filling up the same has presented the same for

encashment. It was further pleaded in the written statement

that after the unfortunate demise of the husband of the

defendant on 22.9.2001, the plaintiff started visiting the

residence of the defendant and started sympathizing her and

desired intimate relations with her. She was tempted with

money to overcome the difficulties in the life of a widow. The

defendant pleaded that she declined to have relations with the

plaintiff and that the suit was filed as a pressure tactic; intention

being to some how or the other pressurise the defendant to

scumb to the oblique desires of the plaintiff.

6. On the pleadings of the parties, it is apparent that

the main issue which was debated before the learned Trial Judge

was whether the cheque in question on which the suit was

founded was issued by the defendant towards return of the loan

and interest for the months of July 2001 till November 2001.

7. The plaintiff examined himself as his witness and

proved Ex.PW-1/1 a legal notice dated 16.10.2004 posted at 2

addresses of the defendant. Posting receipts pertaining to the

notices being dispatched under Regd. A.D. Post were proved as

Ex.PW-1/2 and Ex.PW-1/3. A certificate of posting was proved as

Ex.PW-1/4. The A.D.Card relatable to one out of the two

addresses at which the notice was sent i.e. D-9, South Ganesh

Nagar, Mansarover Road was proved as Ex.PW-1/5; purporting to

bear the acknowledgment by the defendant of having received

the postal docket. The postal envelope which was returned

unserved at the second address being Camera Market, IInd

Floor, Kucha Chaudhary, Chandni Chowk, Delhi was proved as

Ex.PW-1/6.

8. The defendant examined herself as DW-1. She

deposed in lines of her defence taken in the written statement

and proved Ex.DW-1/1 to Ex.DW-1/6 being certain complaints

which she had lodged with the police pertaining to the theft of

her cheque book containing cheques including the cheque on

which the suit was founded.

9. Defendant also examined DW-2 Sh. Yashpal an

employee of Jai Laxmi Cooperative Bank who proved the

statement of account pertaining to the account maintained by

the defendant with the said bank as Ex.DW-2/1 and Ex.DW-2/2.

10. Constable Haider Ali was examined. He was also

referred to as DW-2. He corroborated receipt of the complaint

Ex.DW-1/1 with the police station. DW-3, Daya Nand was

examined to prove that the defendant used to receive letters at

shop No.39/40, Kucha Chaudhary, Dharba Kalan, Delhi. DW-4,

ASI Harbhan Singh proved having received the complaint

Ex.DW-1/5.

11. DW-5 S.I. Bhaskar Sharma proved the order Ex.PW-

5/1 being a report to the DCP North West to the effect that the

complaints by the defendant be consigned to the record room

without registration of any case for the reason opinion given was

that the dispute between the parties was of a civil nature.

12. The suit filed by the plaintiff has been decreed.

13. Principally, two reasons have been given by the

learned Trial Judge. Firstly that the plaintiff was not cross

examined on the line of the defence projected by the defendant

in the written statement and secondly for the reason the notice

Ex.PW-1/1 being held duly served upon the defendant evidenced

by the A.D. Card Ex.PW-1/5; notice not being replied to, an

adverse inference was to be drawn against the defendant that

she had cooked up a false story; projecting the same in the

written statement.

14. Decree has been passed in sum of Rs.4.25 lacs

holding that the cheque was for consideration. Interest has

been granted @ 6% per annum.

15. In appeal it is urged that the learned Trial Judge has

ignored the admissions of the plaintiff in cross examination to

the effect that neither the loan nor interest received was ever

disclosed by him in this income tax return which were being filed

by him because he was assessed to income tax. It is further

urged that the learned Trial Judge failed to appreciate that the

plaintiff failed to prove the advancement of loan in sum of

Rs.3,80,000/- and that pertaining to the cheque in question

reaching the hands of the plaintiff learned Trial Judge ignored

the circumstances of the defendant being a widow and the

plaintiff being a banker and possibility of the plaintiff (a male)

attempting to exploit the defendant (a female).

16. Learned counsel further urges that another material

circumstance ignored by the learned Trial Judge was the

statement in the plaint that interest till the month of June 2001

was received and that interest from the month of July 2001 was

payable till the month of November 2001; meaning thereby

calculated @ 2% per month, the stated agreed rate at which

interest had to be paid, for a period of 5 months, interest came

to Rs.7,600/- x 5 = Rs.38,000/-. Counsel urges that if this be so,

the cheque in question had to be Rs.3,80,000/- + Rs.38,000/- =

Rs.4,18,000/-.

17. The defendant who appears in person states that he

advanced the loan after withdrawing the money from his

account and that since he was helping a destitute lady he did

not obtain any receipt from her when he advanced the loan of

Rs.3,80,000/- to the defendant.

18. On being cross examined the plaintiff deposed as

under:-

"I am retired Bank employee. I had been an employee of S.B.I Chandni Chowk, Delhi. Since, it was a transferable job, therefore, I had remained in different branches of S.B.I. I had remained in S.B.I. Chandni Chowk Branch from 1998 to March, 2001. I know the Defendant who is present today in the court.

           Q.        How do you know her?

           Ans.      She used to come to the bank.

                                x    x     x    x

           Q.        What is your scale of salary?

Ans. I am unable to recollect the exact basic salary at the time of my joining the service. However, my approximate salary on the date of the transaction in question was about Rs.20,000/-.

The loan to the Defendant had been given in cash.

Q. Can you produce any documentary evidence to substantiate the fact that you had advanced loan to the Defendant?

Ans. I had withdrawn the amount from the bank and had paid it to the Defendant. However, no document had been prepared at that time.

The amount was paid to the Defendant in the bank itself. Other employees were present in the bank but they were not made witness of the loan as it was given personally by me to the Defendant.

                           x     x     x        x

     Q.    What was the amount of interest on the

date on which the alleged cheque had been issued?

     Ans.      It can be calculated.

     Q.     Is it correct that the principal amount and

the interest thereon calculated at the rate, as claimed by you, will not tally with the amount of cheque?

Ans. It is a matter of calculation.

I file income tax return. I had not shown the loan amount in the income tax return. Volunteered, it is not shown in the income tax return.

I am not aware of any rule which prohibits advancement of loan by a employee to its customer.

Do you have money lending licence?

No.

     Q.    Had you ever advanced loan to anybody
     else?

            Ans.      No."

19. The learned Trial Judge has not referred to the said

aspect of the cross examination of the plaintiff. We note that

the plaintiff was cross examined as to how would he justify the

amount shown in the cheque towards principal and interest; to

which he replied that the same was a matter of calculation. It is

apparent that the plaintiff ducked the issue. It is further

relevant to note that the plaintiff admitted not having shown the

loan amount in his income tax return. The plaintiff who appears

in person, on being questioned by us, admits that the stated

interest which he had received till the month of June 2001 was

not reflected by him in his income when he filed his income tax

return.

20. The testimony of the plaintiff establishes that he had

no proof of having advanced any loan. His statement that he

had withdrawn the money from his account maintained by him

in the bank has remained a mere statement for the reason the

statement of account has not been proved on record.

21. We are surprised at an officer of the bank holding the

post of a Deputy Manager conducting business without taking

the basic precaution of obtaining receipt of the person to whom

a loan is advanced. Who other than a merchant banker would

know the importance of a receipt?

22. The fact that the plaintiff has not shown the stated

interest received ostensibly till the month of June 2001 in his

income tax returns as income requires an adverse inference to

be drawn that no such income had accrued to be paid.

23. This in turn leads to the plaintiff being discredited vis-

à-vis his version.

24. It would not be out of place to note that the cross

examination of the plaintiff has been directed towards testing

his veracity on the twin issue of loan being advanced; stated

interest being received and the hiatus between the cheque

amount and the amount due and payable as per the version

pleaded in the plaint. The learned Trial Judge is completely

wrong when he has recorded a finding that the plaintiff has not

been cross examined on material points.

25. Non-response to a legal notice is merely a piece of

presumptive evidence to hold against the noticee. By its very

nature, presumptive evidence is weak evidence and needs to be

corroborated by independent and unimpeachable evidence.

26. While deciding a suit the totality of the circumstances

have to be kept in mind. It may be impermissible to pick on only

one circumstance and rest the reasoning thereon.

27. Noting the stand of the defendant that she was a

widow and that the plaintiff tried to physically exploit her; noting

that the plaintiff is a merchant banker; noting that the plaintiff

has no proof of ever having advanced any loan to the

defendant; noting that the stated interest received by the

plaintiff has not been reflected in his income tax returns; noting

that there is a hiatus in the cheque amount vis-à-vis the amount

which was payable as per the version pleaded in the plaint till

30.11.2001; noting that no details of the stated interest received

i.e. what amount and when was it paid has come on record;

noting that the plaintiff has not brought on record his passbook

to evidence withdrawals by him from his bank account when

stated loan was advanced from time to time, we are of the

opinion that the appeal has to be allowed and impugned

judgment and decree dated 6.12.2006 has to be set aside.

28. The appeal is allowed. Impugned judgment and

decree dated 6.12.2006 is set aside. Suit filed by the plaintiff is

dismissed with costs all throughout.

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J.

DECEMBER 16, 2008 mm