Recovery of money
Querist :
Anonymous
(Querist) 06 September 2011
This query is : Resolved
SIR
I have file a suit for recovery money. u/s 138 i got compensation and for recovery of money i filed suit in civil court, now suit is in finale stage.
my question is that can i get full amount,cheque amount and interest? or after deducting cheque amount?
is there any law or case law or any written
document regarding this?
please guide me or give me case law abt this.
thank you
ajay sethi
(Expert) 06 September 2011
civil suit is for recovery of money . you are entitled to get the principal amount together with interest . i presume in the suit filed by you claim for interest has been made .
Shastri J.K.
(Expert) 06 September 2011
I vagree with mr.ajay sethi
Raj Kumar Makkad
(Expert) 06 September 2011
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SUIT FOR RECOVERY
Date of Judgment: 10.5.2011
R.S.A.No. 33/2008
SHRI AJAY TALWAR ………..Appellant
Through: None.
Versus
SHRI IQBAL SIDIQUE ……….Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned and the judgment and decree dated 10.12.2007 which had
reversed the finding of the trial judge dated 11.8.2005. Vide judgment and decree dated
11.8.2005 the suit filed by the plaintiff Ajay Talwar seeking recovery of Rs.64,800/- against the
defendant had been decreed for a sum of Rs.60,000/- along with interest 6% per annum. The
impugned judgment had dismissed the suit.
2. The case of the plaintiff is that the parties were known to one another and in May 2004
the defendant approached the plaintiff for financial assistance; he had given a loan Rs.60,000/-
for a period of 5-6 months; this was on 25.5.2004 in the presence of a witness. Receipt of this
loan was acknowledged by the plaintiff. He agreed to repay the said amount within a period of
five months. However the loan was not returned. On 25.10.2004 a cheque in the sum of
Rs.60,000/- drawn on Punjab National Bank, Yamuna Vihar, Delhi was issued by the defendant
in lieu of the payment against the loan. The same was dishonoured. In spite of requests
payment was not made by the defendant. On 10.12.2004 legal notice was sent to the defendant
but to no avail.
3. Defendant had contested the suit. It was stated that the defendant was having some
transactions with Chaman Lal from whom he had borrowed money and the same had been paid
back to him; during the transaction Chaman Lal has taken some blank signed cheques from the
defendant; which had not been returned. Defendant does not even know the plaintiff; the suit
of the plaintiff is filed on forged and fabricated documents. It was liable to be dismissed.
4. On the pleadings of the parties the following five issues were framed;
1.Whether the plaintiff is entitled to a decree of Rs.64,800/- as prayed for? OPP
2.Whether the plaintiff is entitled to any interest as claimed for? OPP
3.Whether the suit of the plaintiff is without any cause of action? OPD
4.Whether the defendant has issued the said cheques to Sh.Chaman Lal or to the plaintiff? OPD
5.Relief claimed.
5. Oral and documentary evidence was led. Plaintiff was held entitled to the relief claimed
for by him. Suit was decreed. In appeal this finding was set aside. Suit of the plaintiff was
dismissed.
6. This is a second appeal. It has been admitted and on 10.3.2010 the following
substantial question of law was formulated:
“Whether findings of the Appellate Court are perverse on facts and law?”
7. The matter is on Board. On 05.5.2011 a request had been made on behalf of the
appellant that counsel Mr.Sanjeev Joshi is out of station. Thereafter the matter has been
adjourned for next date i.e. 06.5.2011. Since then it has been remained on Board.
8. None has appeared for the parties.
9. The impugned judgment had after re-appreciation of the oral and documentary evidence
held as under:
“8. I have carefully perused the pleadings in the suit. It is contended at para 5 that after the
expiry of period of five months, the defendant did not return the loan amount. The defendant
showed his inability to repay the money in cash immediately but issued a cheque bearing
number 667058 dated 25.10.2004. This pleading unequivocally putsforth that the cheque was
issued after five months i.e. on 25.10.2004. The portion of this pleading is very important to
gather the date of issue of cheque.
9. As per the pleading, the cheque was issued on 25.10.2004 after persistent demand where
the defendant failed to re-pay the loan after five month, the cheque came to be issued.
10 I have also perused the documentary evidence at Ex. PW-1/1. The same is a receipt
dated 25.05.2004, when the plaintiff extended the loan to the defendant. In the receipt, which is
typed one, I see the typed writing that the defendant received Rs.60,000/- on 25.05.2004, for a
period of five months against an advance cheque bearing number 667058 dated 25.10.2004.
From the documentary evidence, it is clear that a post-dated cheque was issued on 25.05.2004.
The pleadings in the suit at para 5 contradicts the documentary evidence. The testimony of PW-
1 which is filed by way of an affidavit is in variance with the pleadings. The affidavit of Ajay
Talwar, Ex.P-1 shows that after expiry of five months, the cheque was issued. Hence, I find
contradictory evidence by PW-1 as opposed to the documentary evidence regarding the date of
issuance of cheque.
11 With this variance in pleadings and the evidence adduced by way of affidavit and the
documentary evidence at Ex.PW-1/2, the presumption u/s 118 of the NI Act, is to be viewed.
The case of the appellant is that he has issued a cheque to one Chaman Lal who is examined as
PW-2. The cross-examination of Chaman Lal shows that he admitted that he encashed a cheque
for a sum of Rs.13,100/- at the same time, he denied a suggestion that the defendant gave his
three cheques bearing numbers 667056 to 58 dated 21.06.2004, 21.07.2004 and 21.08.2004 for
a sum of Rs.13,100/-, 12,700/- & 12,000/- respectively. He also denied the suggestion that the
two cheques remained with him. He admits that the defendant in the trial court below had
certain monetary transaction with him. He also expressed ignorance by saying that he does not
remember as to when the cheque in question was given. He further deposed that it could be
after 2-3 months and the cheque was given in his presence. If the cheque was given in his
presence, it was on the date of Ex.PW-1/1 which is 25.05.2004. It is not after 2-3 months as per
his oral testimony,. The document shows that it was given on the same day of the initial
transaction. The pleadings at para 5 of the plaint is otherwise. Therefore, the testimony of PW-2
is unreliable to support the case of PW-1 despite there being a rebuttable presumption in his
favour.
12 I have also carefully examined the very document on which the entire claim was based,
namely the cheque at Ex.PW-1/2. It initially bore the date 21.08.2000 written in blue ink but
subsequently altered bearing the date as 25.10.2004, which correction is in black ink. The other
contents are in blue ink. Though, the signatures are admitted, the material alterations on
negotiable instrument at Ex.PW-1/2 is flagrantly visible to the naked eye. Section 87 of the NI
Act, cannot be ignored. Effect of material alteration-Any material alteration of a negotiable
instrument renders the same void as against anyone who is a party thereto at the time of making
such alternation and does not consent thereto, unless it was made in order to carry out the
common intention of the original parties. Keeping in view the above legal provision, the same
is subject to Sections 20, 49, 86 and 125 of the Act. Section 20 deals with if it is signed and so
delivered either only in bank or having returned incomplete negotiable instrument, it binds the
author. Section 49 deals with endorsement in blank. Section 86 deals with bill of exchange.
Section 120 deals with estoppels against denying the original validity of the instrument.
Therefore, the material alterations found on the cheque considering the estoppels cannot be
treated as fatal to the case of the plaintiff in the trail court. In view of the above, the cheque at
Ex.PW-1/2 cannot be questioned by the defendant. However, considering the fact that the
documentary evidence at Ex.PW-1/1 being in total variance with para 5 of the plaint, the say of
DW-1 at para 3 of the affidavit, wherein he had started that he had transaction with Chaman
Lal, is to be viewed. I have already noted the cross-examination of Chaman Lal, himself
wherein he admitted tht he had certain transactions with the defendant. In the crossexamination,
it is found that he had signed the receipt in the office of Chaman Lal. He denied a
suggestion that he knew the plaintiff and that he issued the cheque in favour of the plaintiff. In
view of the above evidence of DW-1 who stated that he had no privity of contract and the
plaintiff having not examined any independent witness to the transaction, the probability of the
case suggest that the cheque was issued to Chaman Lal, since the pleadings at para 5 and the
contents at point C to C in Ex. PW-1/1 are in total conflict. The evidence adduced is totally in
variance. Therefore, though the findings on issue number 4 have not been property appreciated.
Hence the findings on issue number 4 is hereby altered and held in favour of the defendant.
13 The findings of Ld. court below on issues 1 & 2 is based on the premise that the cheque
was issued in favour of the plaintiff upon the findings on issue number 4. Having now held
issue number 4 in favour of the defendant, the findings on issue number 1 & 2 of the court
below remains not sustainable in law. Consequently, it is to be held that the presumption under
Section 118 and 139 of the NI Act, have been successfully rebutted by the defendant in the trial
court. Therefore, the findings on issues 1 & 2 are altered holding that the plaintiff failed to pay
the transactions as alleged in the plaint since the documentary evidence at Ex.PW-1/1 and the
legal notices issues are in total contradictions with the plaint allegations. Consequently, I am to
hold that the plaintiff was not entitled to any relief. For the aforesaid reasons, I passed the
following order:-
ORDER
The appeal is allowed. The judgment and decree in suit No. 10/2005 dated 11.08.2005 passed
by the Ld. Civil Judge, is hereby set aside.
Consequently, the suit of the plaintiff in the court below stands admitted.”
10. There is no perversity in this finding. The substantial question of law is answered in
favour of the respondent and against the appellant. Appeal is dismissed.
Sd./-
INDERMEET KAUR, J.
MAY 10, 2011
Guest
(Expert) 06 September 2011
I agree with the opinion of Shri Ajay Sethi.
prabhakar singh
(Expert) 07 September 2011
Interest ,i hope you might have claimed through a notice before filing the suit.
