Smt. Anju vs Smt. Dhanwati
2016 Latest Caselaw 6330 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RSA No. 297/2016

%                                                           3rd October, 2016

SMT. ANJU                                                        ..... Appellant

                                Through:    Mr. Akhilesh Singh, Advocate.

                                versus

SMT. DHANWATI                                                  ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 36636/2016 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

RSA No.297/2016 and C.M. Appl. No. 36635/2016 (for stay under Order XLI Rule 5 read with Section 151 CPC)

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

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 PW2 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 PW3,

because PW3 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 PW1 and her witness

PW3 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.

OCTOBER 03, 2016                                       VALMIKI J. MEHTA, J
AK