1 IN THE COURT OF SH. [ENTITY], CIVIL JUDGE -01 CENTRAL DISTRICT, DELHI SUIT NO: 122/11 UNIQUE CASE ID: 02401C0370222011 Mr. [ENTITY] S/o Mr. Deep Chand, D.T.C. BBM Depot-II, Kingsway Camp, Delhi Plaintiff Versus Mr. [ENTITY] S/o Mr. Diwan Singh, G-30/324, Sector-3, Rohini, Delhi Defendant Date of Institution : 12.8.2011 Date of Pronouncing Judgment : 10.7.2013 SUIT FOR RECOVERY OF RS.2,20,000/- Judgment 1.
By this judgment, I shall decide the suit for recovery of Rs.2,20,000/- and interest filed by the plaintiff.
Version of Plaintiff
2. The relevant facts as pleaded by the plaintiff are that the plaintiff and the brother of the defendant, namely, Mr. [ENTITY] were working with DTC and were thus known to each other.
3. It is further stated that the defendant no.1 took a loan of Rs.10,77,740/-
[ENTITY] v. [ENTITY] Page No: 1/9 from Delhi State Co-op. Bank Ltd.,31, Netaji Subhash Marg, Daryaganj, New Delhi-110002 for purchasing a bus.
4. It is further stated that due to cordial relationship with the brother of defendant, the plaintiff stood as surety for the repayment of loan. At the time of availing the said loan, it was assured by the defendant that he shall adhere to the terms & conditions of the loan strictly and would make the payment of all the installments in time, promptly and regularly.
5. It is further stated that the defendant did not stick to his aforesaid assurances as he committed defaults in payment of various installments and did not pay the outstanding amount, as a result of which the aforesaid bank filed a Arbitration Case against the defendant as well as against the sureties before the Registrar of Co-op. Societies. Thereafter, a recovery order/award was passed in those proceedings.
6. It is further stated that in pursuance to the said award, a recovery certificate was issued and sent to the Collector, Nangloi to effect recovery thereof. The Collector ordered for deduction of Rs.5,000/- p.m. from the salary of the plaintiff and sent the said directions to the employer of the plaintiff i.e. Delhi Transport Corporation.
7. It is further stated that in compliance of the said order, the employer of the plaintiff i.e. DTC started deducting a sum of Rs.5,000/- p.m. from the salary of the plaintiff w.e.f. 01.4.2008 to 31.8.2010 totaling a sum of Rs.1,45,000/-.
8. It is further stated that the Collector through his subsequent order directed deduction of Rs.10,000/- from the plaintiff's salary (instead of Rs.5,000/-) and [ENTITY] v. [ENTITY] Page No: 2/9 accordingly from September 2010 onwards, the employer of the plaintiff i.e. DTC started deducting a sum of Rs.10,000/- from the plaintiff's salary.
9. It is further stated that the following deductions have been made by the employer of the plaintiff from his salary:-
i) From 01.4.2008 to 31.8.2010 @ Rs.5,000/- Rs.1,45,000/-
ii) From 01.9.2010 to 31.7.2011 @ Rs.10,000/- Rs.1,00,000/-
Total Rs.2,55,000/-
10. It is further stated that as the said deductions made were illegal and unwarranted, the plaintiff has filed a suit for recovery of amount deposited from 01.4.2008 to 31.10.2008 @ Rs.5,000/- p.m. totaling Rs.35,000/- alongwith compensation towards loss of interest, mental pain, agony etc. assessed to the tune of Rs.50,000/- thereby totaling Rs.85,000/- which suit is pending being suit no.792/08.
11. It is further stated that after deducting the said amount of Rs.35,000/-, the plaintiff claims the remaining amount of Rs.2,20,000/- illegally deducted from 01.11.2008 to 31.7.2011.
12. It is further stated that the aforesaid deductions have been made at the instance of the defendant who has committed default in making payments to aforementioned bank of the loan availed by him. The plaintiff has no liability of paying the same in any way whatsoever. Hence, the plaintiff is entitled to recover the aforesaid amount from the defendant together with interest @ 18% p.a., being the prevalent market rate.
13. It is further stated that due to aforesaid defaults and misdeeds on the part of the defendant, the plaintiff and his other family members have been [ENTITY] v. [ENTITY] Page No: 3/9 unnecessary harassed, tortured and put to mental pain and agony etc. They have been deprived of using the deducted amount of salary for which the defendant is solely responsible.
14. It is further stated that the plaintiff repeatedly requested the defendant to refund the aforesaid amount so deducted from his salary but he has failed to do so. The plaintiff also got sent legal notice dated 16.12.2010 through his counsel which has been duly served upon the defendant who instead of complying with the same has sent a frivolous reply dated 15.01.2011 thereby taking a totally false and imaginary stand, without clearly stating anything about the payment of his outstanding dues to the Bank.
15. That now the plaintiff claims the following amounts:
i) Amount deducted w.e.f. 01.11.208 to 31.7.2011 Rs.2,10,000/-
ii) Interest @ 18% Rs. 10,000/- Total Rs.2,20,000/-
16. The plaintiff has filed the present suit to recover the aforementioned amount of Rs.2,20,000/-.
Version of Defendant
17. In the written statement, it is stated that the plaintiff has not come to the court with clean hands and has concealed actual and real material facts from the court. So, the suit is not maintainable.
18. It is further stated that the present suit is not maintainable in the present form and the same is liable to be dismissed. It is further stated that the plaintiff has filed the present suit only to harass the defendant and extort money. It is further stated that the plaintiff has no locus-standi to file the present suit [ENTITY] v. [ENTITY] Page No: 4/9 against the defendant. Further, the plaintiff has played fraud upon the defendant in the garb of friendship with the brother of the defendant who hand in gloves with the plaintiff. He has also filed a false suit against the defendant which is pending.
19. It is further stated that there is no privity of contract between the plaintiff and the defendant. Further, the plaintiff furnished guarantee/surety only on account of vested interest of the plaintiff that he wanted to run a bus which was owned and possessed by the defendant. It is further stated that the plaintiff has played a fraud upon the defendant in collusion with the aforementioned Bank. They have misused the cheque by filling the amount as per their own sweet will, which is against the provisions of law.
20. Replication has been filed by the plaintiff in response to the written statement filed by the defendant. In the replication, contents of the written statement have been denied while contents of the plaint have been reaffirmed as true and correct.
Issues
21. The following issues were framed by order dated 27.11.2012.
1. Whether the plaintiff is entitled to recovery of Rs.2,20,000/- from the defendant? OPP.
2. Whether the plaintiff is entitled to interest and if yes at what rate and for what period? OPP.
3. Relief.
Evidence
22. To prove his case, the plaintiff examined himself as PW1.
23. PW1 deposed the facts as mentioned in the plaint and replication and [ENTITY] v. [ENTITY] Page No: 5/9 relied upon the following documents:
PW1/1 - Original payment slip issued by employer of plaintiff PW1/2(colly) - Copy of legal notice dated 16.12.2010 & postal receipt PW1/3(colly) - Reply dated 15.01.2011 & postal envelope
24. Thereafter, plaintiff's evidence was closed. On 26.3.2013, defendant's evidence was closed.
Issue No.1 Whether the plaintiff is entitled to recovery of Rs.2,20,000/- from the defendant? OPP.
25. The onus to prove this issue was upon the plaintiff. The plaintiff has deposed that the defendant obtained a loan from Delhi State Co-operative Bank Ltd. He has further deposed that he stood as surety to the repayment of loan. He has also testified that since the defendant failed to repay the loan, the plaintiff had to pay it. By the present suit, the plaintiff seeks to recover Rs. 2,10,000/- which he had to pay to the Bank and Rs.10,000/- as interest.
26. In the Written Statement, the defendant has not denied that he had taken loan from Delhi State Co-operative Bank Ltd. and that the plaintiff stood surety to the repayment of the loan amount. The defendant has also stated that he does not know if the amounts as stated by the plaintiff were indeed deducted from plaintiff's salary for repayment of loan. To substantiate his claim that his salary was indeed deducted, the plaintiff has proved the pay slips issued by his employer. In these circumstances, it shall be presumed that the salary of the plaintiff was indeed deducted for repaying the loan amount which was obtained by the defendant.
[ENTITY] v. [ENTITY] Page No: 6/9
27. The defendant has stated in the Written Statement that the plaintiff stood as surety to the repayment of loan since he wanted a bus which was owned and possessed by the defendant. In the case of "[PRECEDENT]", where a party did not appear in the witness box to state his case on oath and did not offer himself to be cross-examined, the Hon'ble Supreme Court held as under:
"15. It was defendant No. 1 who contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500 were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs. 4,500 to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the Trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction.
16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in [PRECEDENT]. This was followed by the Lahore High Court in [PRECEDENT]. [PRECEDENT] and the Bombay High Court in [PRECEDENT]. The Madhya Pradesh High Court in [PRECEDENT] also followed the Privy Council decision in [ENTITY]'s case (supra). The Allahabad High Court in [PRECEDENT]. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in [PRECEDENT]., drew a presumption under [SECTION] of the [ACT] against a party who did not enter into the witness box."
28. The defendant did not come to the witness box and make himself available for cross-examination. Therefore, it shall be presumed that the allegation made by the defendant is incorrect. Even otherwise, the reason why the plaintiff [ENTITY] v. [ENTITY] Page No: 7/9 agreed to become a surety is immaterial.
29. [SECTION] of the [ACT] lays down that the surety upon payment shall be invested with all rights which the creditor has against principal debtor. [SECTION] of the [ACT] lays down in every contract of guarantee, there is an implied promise by the principal debtor to indemnify the surety and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee.
30. In view of the aforementioned [SECTION] of the [ACT] the defence that there is no privity of contract between the parties to the present suit is not tenable. The plaintiff has testified that he has made the payment of Rs.2,10,000/- to the Delhi State Co-operative Bank Ltd. for repaying the loan which the defendant had taken. There is no reason to disbelieve the same. In view of the [SECTION] of the [ACT], the plaintiff is now invested with the rights of Delhi State Co-operative Bank Ltd. which it had against the defendant. The surety can therefore sue the defendant to recover the amount that he had to pay to the Bank due to the lapse of the defendant. The plaintiff has also deposed that he is entitled to interest of Rs.10,000/-. This assertion has also gone unchallenged and unrebutted. There is no reason to disbelieve the same. This issue is therefore decided in favour of the plaintiff and against the defendant.
Issue No:2 Whether the plaintiff is entitled to interest and if yes at what rate and for what period? OPP.
31. The onus to prove this issue is on the plaintiff. The plaintiff is entitled to pendente-lite interest at the rate of 9 % p.a from date of institution of [ENTITY] v. [ENTITY] Page No: 8/9 suit till date of decree and future interest at the rate of 9 % p.a from date of decree till its realisation on decreetal amount and cost.
Issue No. 3: Relief
32. In view of the above circumstances, the suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs. 2,20,000/- with pendente- lite interest at the rate of 9% p.a. from date of institution of suit till date of decree and future interest at the rate of 9% p.a. from date of decree till its realisation on decreetal amount. Costs of the suit are also awarded in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. File be consigned to record room.
(ANNOUNCED IN THE OPEN COURT) ([ENTITY]) ON 10.7.2013 CIVIL JUDGE-01/CENTRAL ALL PAGES SIGNED DELHI [ENTITY] v. [ENTITY] Page No: 9/9