Jaswinder Singh And Others vs Radhe Sham Malik And Another
2023 Latest Caselaw 1871 P&H

RSA-875-2021 (O&M)                                                   -1-

    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH

                               RSA-875-2021 (O&M)
                               Reserved on: 24.01.2023
                               Date of pronouncement: 30.01.2023

Jaswinder Singh and others
                                                           ...Appellants
                 Versus

Radhe Sham Malik and another

                                                          ...Respondents

CORAM: HON'BLE MR.JUSTICE H.S. MADAAN

Present:   Mr. J.S. Randhawa, Advocate for the appellants.

           Mr. Rajesh Khurana, Advocate for the respondents.

                               *****

H.S. MADAAN, J.

Briefly stated facts of the case are that plaintiffs Radhe

Sham Malik and his wife Mrs. Prem Lata Malik, both residents of

H.No.376, Sector 38-A, Chandigarh had brought a suit for recovery of

Rs.18,80,000/- against defendants i.e. Jaswinder Singh, his wife Smt.

Ranjit Kaur and M/s Citi Investment Centre, Sector 17-C, Chandigarh

through proprietor Jaswinder Singh on the averments that defendants

No.1 and 2 had allured the plaintiffs to invest money in shares with

promise of doubling the invested amount within six months. Taken in

by such representation, plaintiffs started investing money in shares

from 01.03.2001 onwards till 15.06.2007 by making payment to

defendants through cheques. The total amount so paid by the

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plaintiffs to the defendants was Rs.10,64,545/-.

The defendants gave details of the investment made in

purchasing shares of TCS, SBI, Wipro, HDFC Bank, RIL, Maruti,

L&T, etc., in the month of July, 2010 of the value of Rs.10,64,545/-.

After calculating bonus and bonus shares, total amount comes to

Rs.18,80,050/-. The defendants had agreed and admitted those

calculations, however, in order to mislead the plaintiffs, the defendants

had opened one Demat account of plaintiffs. The plaintiffs used to give

cheques to defendant No.1 in the name of defendant no.3, however,

subsequently, the plaintiffs came to know that defendants had invested

their hard earned money for purchase of shares in their own names.

Whenever the plaintiffs asked the defendants to show the

purchase of shares, profits and dividend etc, they kept making lame

excuses. Finally, the plaintiffs called a computer expert to verify the

account and came to know that no share had been purchased by

defendant No.1 in the name of plaintiffs and their Demat account

namely Master Capital Service Limited, Chandigarh was blank.

Plaintiff No.1 was having Demat account No.10641868 whereas

plaintiff No.2 was having Demat account No.10641173 which had

been opened by the defendants in order to mislead the plaintiffs. The

defendants had projected themselves to be trading in bulk shares,

giving an assurance to the plaintiffs that amount of shares was to be

invested in re-purchase of shares of blue chip companies and certain

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blank transfer forms were got signed from the plaintiffs. The plaintiffs

visited the defendants to refund their money and on 02.07.2010, the

defendants issued two cheques in the sum of Rs.6 lacs each to the

plaintiffs, which were to be got encashed on 16.03.2011. However, the

defendants took back both the cheques on 10.03.2011 with an

assurance that they would give one cheque of the whole amount,

however, despite repeated requests of plaintiffs, no such cheque was

given and the plaintiffs had to file a complaint to police.

On 09.04.2012 a compromise was effected between the

parties with the intervention of Mr. Naveen Sharma, Inspector of Police

according to which the defendants issued a cheque for Rs.18,80,000/-

dated 09.04.2012. The compromise was to take effect after encashment

of that cheque. On the same date, the defendants requested to present

the cheque by 15.05.2012 with an undertaking that no further extension

would be taken. The plaintiffs presented the cheque on 29.05.2012,

but, it was dishonoured. Therefore, the plaintiffs filed another

complaint to the police on which FIR No.211 dated 05.07.2012 was

registered against the defendants and they remained behind bars upto

11.09.2012. When the defendants failed to make payment of

Rs.18,80,000/- despite several demands raised by the plaintiffs and

service of legal notices dated 22.09.2012 and 05.12.2012 upon the

defendants, feeling aggrieved, the plaintiffs had brought the suit in

question.

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 RSA-875-2021 (O&M)                                                   -4-

2. On being given notice, the defendants appeared and filed a

joint written statement, contesting the suit, raising preliminary

objections that the suit was not maintainable and the plaintiffs had

concealed true facts. Plaintiff no.1 himself had approached defendant

No.1 for investment in mutual funds and at that time, plaintiff No.1

was informed about the procedure for investment in mutual funds.

Defendant no.1 is only a service provider/financial adviser running M/s

Citi Investment Centre and he is not a broker, therefore, he cannot deal

in shares as alleged by the plaintiffs. According to the defendants, M/s

Master Capital is the broker of the plaintiffs and after opening of the

demat account, plaintiffs did not give any direction to the broker to

purchase any shares in their names. Whatever amount was given by

plaintiffs, same was invested in mutual funds. Plaintiff no.1 himself

withdrew the invested amount from mutual funds without knowledge

of defendant No.1. Defendant no.1 has already returned back a sum

Rs.2,87,000/- through cheques to plaintiff No.1 as plaintiff No.1 had

requested the defendants to purchase shares, but defendant No.1 at that

time was not dealing in shares. One cheque in the sum of Rs.3 lacs had

been given to plaintiff No.1 in the year 2006 but he returned the same

and received Rs.3 lacs from defendant No.1 in cash in presence of

witnesses, in that way, the entire amount paid by plaintiff No.1 was

returned to him. As alleged in the written statement, defendant No.1

was called to the police station and his signatures were obtained on

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some blank papers along with one cheque No.583498, which was

converted into alleged compromise, whereas defendant No.1 had not

entered into any such compromise because there was no need for the

same. The plaintiffs being government servants were required to take

permission from Government before purchasing shares. They have not

annexed any income tax return to show that they had invested money

in shares. Defendant No.1 never promised the plaintiffs to double the

money in six months and return back the money, however, nothing was

due towards the plaintiffs.

Going further, the defendants stated that brother of plaintiff

No.1 is working in Governor house and under his influence, a false

case was registered and defendant No.1 was pressurized to give a blank

cheque to the plaintiffs and to sign some blank papers. That cheque

was filled in by plaintiff No.1 in his handwriting and got bounced

without intimation to defendant No.1. Because there was no legal

liability, as such no complaint u/s 138 of the Negotiable Instruments

Act was filed by plaintiffs. Defendants denied that defendant No.1 had

purchased shares on behalf of plaintiffs.

According to the defendants, there was no document to

prove such purchase or that total amount was worked out to

Rs.18,80,000/-. In the list attached at Sr. No.15 plaintiffs have

mentioned that on 12.03.2005, a sum of Rs.20,000/- was paid through

cheque no.408540 and same entry has been mentioned at Sr. No.18

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vide which same cheque was mentioned but date was different which

showed that all the entries were false and fabricated. The amount

shown in list did not come in account of defendant No.1 in one go. The

plaintiffs were trying to blackmail the defendants in order to derive

illegal benefit. The suit was time barred because plaintiff No.1 has

himself admitted that he had given payment from 01.03.2011 till

15.6.2007, thus, suit was required to be filed within three years from

15.06.2007. Defendant No.2 is only a housewife and has been falsely

implicated. She is neither proprietor nor partner of defendant No.3.

Reply on merits is almost reiteration of the contentions raised in

preliminary objections.

3. Plaintiffs filed replication, controverting the allegations in

the written whereas reiterated the averments in the plaint.

4. From the pleadings of the parties, following issues were

framed:-

1. Whether the defendants no.1 and 2 had misrepresented and fraudulently induced plaintiffs to invest money in shares with the promise that they will double the money in six months? OPP.

2. Whether on account of this investment, plaintiff had paid a sum of Rs.10,64,545/- ?OPP.

3. Whether the plaintiffs investment appreciated to Rs.18,80,000/- which they are entitled to recover from defendant? OPP

4. Whether the plaintiffs are entitled to interest @ 18% p.a.? OPP

5. Whether the suit is not maintainable in the present form? OPD

6. Whether the suit is barred by limitation? OPD

7. Relief.

5. The parties were afforded sufficient opportunities to lead

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evidence in support of their respective claims.

6. After hearing arguments, the trial Court of Addl. Civil

Judge (Sr. Divn.) Chandigarh, vide judgment and decree dated

25.10.2017 decreed the suit partly with proportionate costs for recovery

of Rs. 18,80,000/- against the defendants No.1 and 3 alongwith pendente

lite and future interest @ 6% p.a. from the date of filing of the suit till

realization. Defendant No.2 was not found liable to pay any amount to the

plaintiffs and suit qua her was dismissed.

7. The judgment and decree passed by the trial Court were

challenged by the defendants by way of filing an appeal before District

Judge, Chandigarh, that appeal was assigned to Addl. District Judge,

Chandigarh, who vide judgment and decree dated 11.02.2020

dismissed the appeal, leaving the defendants still dissatisfied and they

have approached this Court by way of filing the present Regular

Second Appeal, notice of which was given to the respondent/plaintiffs

who have put in appearance through counsel.

8. I have heard learned counsel for the parties besides going

through the record.

9. In this case, learned counsel for the appellants has

attacked the judgment mainly on two grounds, firstly that no

evidentiary value can be attached to list Ex.PW4/1, which has been

relied upon by the Courts below to return the finding that the

appellants/defendants own money to the plaintiffs, however, learned

counsel for the respondents/plaintiffs has contended that they had

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successfully proved their case by leading cogent and convincing

evidence both oral as well as documentary and the case of the plaintiffs

is not solely based upon such list which even otherwise has been

properly proved by the plaintiffs on record.

I find that it cannot be said that the case of the plaintiffs is

based upon a solitary document Ex.PW4/1, which has not been proved

in accordance with law or that it is a self created document as per

argument advanced by counsel for the appellants. Such argument lacks

depth and cannot be accepted.

10. The next argument put-forward was that the suit is clearly

barred by limitation. It could be filed upto 17.06.2010 but it was filed

much later on 23.03.2013, therefore, it is hopelessly time barred.

Whereas, learned counsel for the respondents has

contended that limitation is a mixed question of law and fact and the

Courts below on thorough appraisal of evidence, in the light of legal

position, have held that the suit is not time barred.

11. After hearing counsel for the parties and going through the

record, especially the judgments passed by the trial Court and Ist

Appellate Court, I find that the suit was rightly held to be not barred by

limitation. I do not see any reason to differ with the Courts below on

that point.

12. Learned counsel for the appellants has then contended that

appellant/defendant Jaswinder Singh has since been acquitted by the

Court of Judicial Magistrate Ist Class, Chandigarh in FIR No.211 dated

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05.07.2012, for offences under Sections 420 and 120-B IPC, Police

Station Sector 17, Chandigarh. May it be so, but that judgment does

not help the appellant Jaswinder Singh in getting the judgments and

decrees passed by the Courts below set aside. The judgments passed by

a criminal Court is not binding upon the Civil Court which is to reach

its own conclusion on the basis of material on record which includes

pleadings and evidence adduced by the parties etc.

13. Learned counsel for the appellants had referred to

judgments, first being Sait Tarajee Khimchand & Ors. Vs. Yelamarti

Satyam & Ors., 1971 AIR (Supreme Court) 1865. That judgment

basically deals with a document providing that mere marking of a

document as an exhibit does not dispense with its proof. There cannot

be dispute with such proposition of law. However, there is nothing on

record to show that any of the documents relied upon by the plaintiffs

including document Ex.PW4/1 has not been proved in accordance with

law, rather it comes out that sufficient evidence to prove the document

had been led by the plaintiffs.

As regards the second judgment pressed into service by

learned counsel for the appellants Narbada Devi Gupta Vs. Birendra

Kumar Jaiswal & Anr., 2003(4) RCR (Civil) 683, is on the similar

point and for the reasons given earlier, this judgment also does not help

the appellants.

14. With regard to next two judgments B.S. Dhillon Vs.

Corporation Bank & Anr., 2020(4) RCR (Civil) 108 and Smt.

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Mukesh Yadav Vs. Yadvender Singh, 2021(1) RCR (Civil) 554,

where dealing with point of limitation for filing a civil suit for recovery

stating that a suit filed beyond period of limitation is barred by time.

Again there cannot be any quarrel with such proposition of law.

However, as has been rightly pointed by learned counsel for the

respondents, limitation is a mixed question of law and facts and

straightway no finding can be given that a particular suit is barred by

limitation.

15. Although, Section 3 of the Limitation Act provides that

subject to the provisions contained in sections 4 to 24

(inclusive), every suit instituted, appeal preferred, and application

made after the prescribed period shall be dismissed, although limitation

has not been set up as a defence. However, in terms of Section 5 of the

Limitation Act, the delay in filing of the suit can be condoned under

certain circumstances. Therefore, both the Courts below, after

considering all the aspects have arrived at a conclusion that the suit is

not time barred.

I do not see any reason to differ with such conclusion and

dismiss the suit being time barred.

16. Learned counsel for the respondents also referred to

various judgments i.e. The National Textile Corporation Ltd. Vs.

Nareshkumar Badrikumar Jagad & Ors., 2011(2) RCR (Rent) 293,

Sahara India Real Estate Corp. Ltd. Vs. Securities and Exchange

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Board of India in Civil Appeal No.9813 and 9833 of 2011, decided on

31.08.2012 by the Apex Court, Hiralal & Ors. Vs. Badkulal & Ors.,

1953 AIR (SC) 225, Saroop Singh Vs. Rattan Singh (dead) through

LRs, 2015(4) RCR (Civil) 825 etc.

17. I do not find any merit in the present Regular Second

Appeal. No substantial question of law arises in this appeal. The appeal

stands dismissed accordingly.

30.01.2023                                          (H.S. MADAAN)
sumit.k                                                 JUDGE

             Whether speaking/reasoned :      Yes          No
             Whether Reportable :             Yes          No




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