Jagmohan Behl vs Col Ks Gupta & Anr

,Date,Amount,Mode of payment

(a),1.8.1989,"75,000.00","By         Cheque

        No.533862

dt.1.8.1989 of Oriental Bank ofÂ

Commerce, Saket, New Delhi

A/c No.6206 of the Plaintiff No.1

(b),1.8.1989,"75,000.00","By         Cheque

        No.958203

dt.1.8.1989 of Oriental Bank ofÂ

Commerce, Saket, New Delhi

Account No.5026 of plaintiffs.

(c),30.9.1989,"4,37,000.00","By Cheque No.848833

dt.30.9.1989 of Oriental Bank

of Commerce, Saket, New

Delhi Account No.3007 (now

Computarised as 17007)Â of

Plaintiff No.1.

(d),30.9.1989,"13,000.00","By Cheque No.958206

dt.30.9.1989 of Oriental Bank

of Commerce, Saket, New

Delhi Account No.5026 of

plaintiffs.

(e),1.11.1989,"1,50,000.00","By Cheque No.958209

dt.1.11.1989 of Oriental Bank

of Commerce, Saket, New

Delhi Account No.5026 of

plaintiffs.

Â,TotalÂ,"7,50,000.00",Â

Ex.PW-1/6 to

Ex.PW-1/8","Savings bank’s passbooks of Oriental Bank of Commerce, joint

accounts of the Plaintiffs.",,

Ex.PW-1/9,"Deposit slip dated 16th August, 1990 showing deposit of sum of Rs.9,000/-.",,

Ex.PW-1/10,"Deposit slip dated 3rd July, 1993 showing deposit of Rs.50,000/-",,

Ex.PW-1/11,"Bank memo dated 12th July, 1993 showing return of the cheque for

Rs.50,000/-",,

Ex.PW-1/12,"Notice issued under Order XII Rule 8 CPC calling upon the Defendant to

produce the original receipts dated 21st February, 1995 for a sum of Rs.1

Lakh, dated April, 1997 for Rs.10,000/-, 1st November, 1999 for

Rs.50,000/-, 16th

May, 2000 for Rs.20,000/- and November 2001 for

Rs.12,000/-.",,

Ex.PW-1/14 -

Ex.PW-1/18",Carbon copies of these receipts mentioned herein above.,,

Ex.PW-1/19

&Ex.PW-1/20","Legal notice dated 9th September, 2002 along with speed post receipt.Â

Â",,

Ex.PW-1/22

&Ex.PW-1/23","Reminder dated 28th September, 2002 along with the speed post receipt.",,

Ex.PW-1/24,Statement of account.,,

Tax/Income Tax returns for M/s J.B. International have not been filed. Regarding the income tax return of Sh. Jagmohan Behl defendant is,,,

directed to file/ produce the details regarding interest paid to the bank mentioned in statement of computation of taxable income. Bank statement has,,,

been mentioned as enclosed but no such copy has been filed. Copy of the bank statement be also filed / produced on oath along with complete,,,

income tax returns of these years mentioned in para-5 of the application under disposal.,,,

In my considered view these documents are necessary to be produced by defendant within a fortnight in order to arrive at just decision and for,,,

deciding real matter in controversy between the parties. Parties shall bear their own cost. Application stands disposed off.â€​,,,

A perusal of the documents on record along with the orders passed on 26th April, 2007 in the application for discovery shows that the Defendant",,,

is clearly avoiding production of the computation of taxable income attached to his income tax returns. Those would clearly show the details of the,,,

interest amounts shown by the Defendant in his Returns as having been paid by him. Since the same are not produced, adverse inference would have",,,

to be drawn in respect of the income tax returns.Â,,,

The documents on record i.e. Ex.PW-1/1 to Ex.PW-1/5, passbook of the bank, deposit slips clearly show that the loan had indeed been extended",,,

by the Plaintiffs to the Defendant and the Defendant had made payment of interest on various dates. Even the Defendant admits to have taken a loan,",,,

though grudgingly, and further claims that he has repaid the same, without any evidence to prove the same. He also admits that he paid interest on",,,

various occasions. Thus far there can be no dispute.Â,,,

Coming to the question as to whether any interest was paid by the Defendant between 25th February, 1995 and November, 2001, as reflected in",,,

Ex.PW-1/14 to Ex.PW-1/18, a perusal of these receipts which are carbon copies shows that some are written in hand and are signed by the",,,

Plaintiffs. The paper, the manner of writing, the perforation of the stapler etc. clearly show that these carbon copies would have been attached to",,,

the originals, which were thereafter removed and separated. In the application under Order XI Rules 12 & 14 CPC the Plaintiffs called upon the",,,

Defendant to produce the original receipts which were not produced. In fact, the Defendant went to the extent of filing an application seeking that",,,

the said documents be deexhibited. On this, the Trial Court passed the order dated 28th July, 2008, which reads as under:",,,

“15. Therefore even if the documents have been marked as exhibits, if it has not been proved as per law, it can be looked into. Therefore, I am",,,

of the considered view that at this stage, it is not necessary for the court to de-exhibit these documents. That can be considered at the final stage of",,,

the case. Keeping in view the facts that in order to impart substantial justice, these documents be kept as it is as defendant is having ample",,,

opportunity where the cross examination of PW1 has yet to open. Therefore, there is no need to take off the record and expunge the exhibits",,,

exhibited in the affidavit of PW1 Col. Retd.,,,

K.S.Gupta.â€​,,,

The Court has perused the carbon copies of the receipts as there was no reason to believe that they are either tampered, manipulated or forged.Â",,,

Specific dates when the same have been executed, the amount mentioned therein along with the dates and the other surrounding circumstances",,,

namely the loan which was given and payment of interest by cash by the Defendant on several occasions leaves no doubt that these receipts are,,,

genuine. The Plaintiff has taken pains to preserve the carbon copies and the originals would have been obviously issued to the Defendant along with,,,

the Plaintiff’s signature. But the Defendant has chosen not to produce the same.,,,

Under the provisions of the Evidence Act, 1872, the person holding the primary evidence having not produced the same, despite notice being served,",,,

the secondary evidence viz., the Carbon copies are admissible in evidence as held by the Supreme Court in Ashok Dulichand v. Madhavlal Dube &",,,

Anr (1973) 4 SCC 664. The Defendant cannot merely deny saying that the receipts were never issued. If such a stand is taken, as has been done in",,,

the present case, the Court has to consider all the surrounding facts and circumstances as also evaluate the carbon copies to establish their",,,

genuineness. A perusal of the carbon copies on record and the contradictory pleas taken by the Defendant clearly leads this Court to the conclusion,,,

that the carbon copies are genuine. The last payment of interest as per these carbon copies of receipts is November, 2001 to the tune of Rs.12,000/-",,,

. Â,,,

This Court has arrived at this conclusion on the basis of the documents as also the lack of truthfulness and credibility in the Defendant’s,,,

pleadings and evidence. In the cross-examination, it is evident that the Defendant accepts that he had taken the loan but he repeatedly claims “I",,,

do not remember†on most questions/suggestions. The phrase “I do not remember†has been used umpteen times in the entire cross examination,,,

which makes it clear that the Defendant is not coming clean with the Court. In his affidavit, the Defendant tried to wriggle out of the factum of loan",,,

having been taken by him which established completely dishonesty. Thus, it is held that the Plaintiffs have been able to establish the giving of the",,,

loan and the various payments made by the Defendant. Â,,,

The last payment being in November, 2001, the question is as to whether the suit was filed within limitation. Section 14 of the Limitation Act,",,,

1963 clear and the same reads as under:,,,

“14. Exclusion of time of proceeding bona fide in court without jurisdiction. (1) In computing the period of limitation for any suit the time during,,,

which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against",,,

the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect",,,

of jurisdiction or other cause of a like nature, is unable to entertain it.",,,

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil",,,

proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such",,,

proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.",,,

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1)",,,

shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the",,,

ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.â€​,,,

The payment of interest on the loan even as of November, 2001 is clear acknowledgment of the existence of the loan. The written statement does not",,,

deny in response to the paragraph 6 of the plaint that no receipt was executed. In paragraph 6 the Plaintiffs had set out all the details of the,,,

receipts. In the Written statement except pleading “All other entries in cash are written false, baseless and are mere fabrication. The said entries",,,

are fictitious and are made to some how bring the suit within limitation, though the suit is hopelessly time-barred.â€​ there is nothing else.Â",,,

The non-filing of the income tax returns has to be held against the Defendant. In Rajesh Kumari v. Prem Chand Jain, AIR 1998 Del 80 a",,,

learned Single Judge of this Court held as under:,,,

“On the language of Section 19 above said, it is clear that the payment may be made either against the principal or on account of interest. In either",,,

case, the payment will be on account of the debt which is all that the provision requires. It is also settled that this provision is to be interpreted liberally",,,

so as to save the suits from being barred by limitation so long as its benefit can reasonably be extended to assist a claim, otherwise legal sustainableâ€​",,,

The Defendant relied upon the judgment of the Supreme Court in Syndicate Bank v. Channaveerappa Beleri and Ors (2006) 11 SCC 506 which,,,

interpreted the meaning of word “on demandâ€. As per the said judgment under Articles 21 & 22 of the Limitation Act cause of action for filing,,,

the suit in respect of the loan, which is payable on demand is different from that for a loan where money is deposited under an agreement. The",,,

Supreme Court held as under:,,,

“In the context of Article 21, the meaning and effect of those words is “always payable†or payable from the moment when the loan is made,",,,

whereas in the context of Article 22, the meaning is “payable when actually a demand for payment is madeâ€​",,,

Accord to Mr. Rustagi, even if it is taken that interest was paid on November, 2001, the same does not constitute written acknowledgment as per",,,

Section 14 of the Act. A receipt issued for payment of interest does not constitute acknowledgment or extent limitation as the said receipt merely,,,

constitutes an entry by the Plaintiffs and does not bear the signature of the Defendant. Since there is no signature of the Defendant on the receipt,",,,

there is no acknowledgment in November, 2001 and hence the suit is beyond limitation. He relies on Chanradhar Goswami v. Gauhati Bank Ltd.",,,

(1967) 1 SCR 898. The relevant portion of the said judgment reads as under:,,,

“Then we come to the question of limitation. The suit is clearly within time insofar as the liability for sale under the mortgage deed is concerned as,,,

it was filed within 12 years of the execution of the mortgage (see Art. 138 of the Limitation Act of 1908). As to the personal liability under this,,,

deed, that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Art. 116 ibid). Nor does the entry of",,,

payment of Rs.100/- in the accounts help the bank in this behalf. That entry is of no value under s.19 or s.20 of the Limitation Act for neither a,,,

writing signed by the appellants nor an acknowledgement of payment in the handwriting of the appellants or in a writing signed by them has been,,,

proved. Nor does this Art.85 of the Limitation Act of 1908 help the bank.â€​,,,

In Articles 21 & 22 of the Limitation Act, Article 21 prescribes the period of limitation prescribed as three years and in case of money lent under",,,

an agreement it shall be payable on demand. Paragraph 3 of the plaint reads as under:Â,,,

“That between the period 1.8.1989 to 1.11.1989 the Defendant took the loan of Rs.7,50,000/- from both the plaintiffs, repayable on demand by",,,

plaintiffs. The annual interest @ 12% per annum was to be split in four installments in a year and payable on quarterly basis.â€​,,,

Thus, as per the Plaintiffs, the loan was to be repaid on demand.  A perusal of the evidence shows that the Defendant paid interest both by",,,

way of cash and cheque. In his cross examination, he took the stand that he had taken some money from the Plaintiffs but he could not remember",,,

how much money was taken. He also could not remember how much he had paid back or showed any document to show the said payments. Thus,",,,

the Plaintiff made the first demand by way of legal notice dated 9th September, 2002. Thus, the period of limitation would run from this date. As",,,

per the judgment cited by the Defendant, when demand specifically provides for the period for making payment, then the right to sue accrues upon the",,,

said period expiring. In the present case, Ex.PW-1/19 legal notice dated 9th September, 2002, specifically called upon the Defendant to repay within",,,

two weeks. The said notice reads as under:Â,,,

“5. That I on behalf of my clients, call upon you to take immediate necessary steps in right earnest to perform your legal liability and to make",,,

payments to my clients of the outstanding amount of more than Rupees Twelve lakh covered as per details above, within two weeks of the receipt of",,,

this legal notice together with interest @ 12% per annum upto the date of actual payment.â€​,,,

The Plaintiffs thus made the demand and gave the Defendant two weeks’ time to make the payment. Upon expiry of the said period, the right",,,

to sue accrued. Thus, the suit is within the limitation.Â",,,

Apart from the issue of limitation, no other issue is pressed in this appeal. The factum of taking of loan is clearly proved. Payment of interest on",,,

various occasions has also been proved and execution of the receipts shows that even as on November, 2001 the Defendant had been making",,,

payments. Cross examination of the Defendant proves that his evidence lacks credibility. His income tax returns showed the payment of interest but,,,

computation has not been filed. Thus, adverse inference has to be drawn. In view of the above-mentioned facts and circumstances, no",,,

interference in the Trial Court judgment is called for. Decree passed by the Trial Court is upheld. The Defendant is directed to pay the decretal,,,

amount within a period of four weeks failing which the Plaintiff is permitted to execute the decree. In view of the conduct of the Defendant of,,,

having been denied the legitimate dues of the Plaintiffs, for so many years, costs of Rs.50,000/- shall be liable to be paid by the Defendant to the",,,

Plaintiffs.Â,,,

Appeal is dismissed. All pending applications are disposed of.,,,