* HIGH COURT OF DELHI: NEW DELHI
Judgment reserved on: July 29, 2008
Judgment delivered on: August 7, 2008
+ R.F. A. No. 581/2007
Shri Jai Prakash .... Appellant
Through: Mr. Mohinder Singh, Mr. Ankur
Goel, Ms. Diksha Khanna,
Advocate
versus
Shri Sunit ... Respondent
Through: Mr. R.C. Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. In January 2003, a sum of Rupees Five Lakhs was given by the Respondent to the Appellant but on what account, is the moot question involved in this appeal. According to the Respondent/plaintiff, aforesaid sum was advanced as a friendly loan whereas according to the Appellant/defendant, the said amount was given as an advance towards supply of 100 Kgs of black pepper and the said supply was made on 15th May, 2003 and on account of delay in making of the said supply, interest R.F.A. No. 581/2007 Page 1 of 9 amount of Rs.11,336/- was given by the Appellant to the Respondent. Since the aforesaid money transaction between the parties was by cheques, therefore the same is not disputed but the purpose of making of the aforesaid payment is very much in dispute.
2. In short, the precise case of the Respondent / plaintiff before the Trial Court in the suit for recovery of Rupees Five Lakhs with interest, was that the above said amount was advanced by cheque in January, 2003 as a friendly loan and the interest on the aforesaid amount with effect from 17 th January, 2003 to 31st March, 2003 of Rs.11,336/- was also paid by cheque and the aforesaid payments stand proved by respondent's bank statement Ex.PW-1/1 and it remains undisputed.
3. Appellant/defendant contested the suit of the Respondent/plaintiff before the Trial Court, by taking the plea that in January 2003, Rupees Five Lakhs was received by the Appellant/defendant as advance payment towards supply of black pepper to the Respondent/plaintiff and the said supply was made on 15th May 2003 vide Bill Ex. DW-1/1 for Rs.5,07,005.40p and its entry was made in the account book as well as in the Sales Tax Account Register etc., which are Ex. DW-1/2 to Ex.DW-1/4 respectively. Payment of Rs.11,336/- by the Appellant/defendant to the Respondent/plaintiff is not in dispute but the same is said to be towards the interest paid on account of delayed supply of black pepper by the Appellant/defendant to R.F.A. No. 581/2007 Page 2 of 9 the Respondent/plaintiff.
4. The two issues framed by the Trial Court on the pleadings of the parties are as under:-
"(i) Whether the suit is not maintainable in view of preliminary objection No.B of the written statement?
(ii) Whether the plaintiff is entitled to a decree in the sum of Rs.7,32,500/- alongwith interest as prayed for? OPP."
5. Evidence was led by both the sides before the Trial Court. Sunit - PW-1, Proprietor of Respondent/plaintiff firm, had deposed before the Trial Court in support of the claim made in the suit filed by him and has got examined Manoj, PW-2 to assert that in Kirana business, no advance payment is given or taken for the sale/purchase of Kirana goods and the goods are sold by weight in the presence of the purchaser. Om Prakash, PW-3, Bank Official has proved the bank record Ex.PW-3/A to Ex. PW-3/C regarding payment of Rupees Five Lakhs by Respondent to the Appellant.
6. The evidence of Appellant/defendant before the Trial Court consisted of five witnesses. Jai Prakash, DW-5 is the proprietor of the Appellant/defendant firm and he has deposed in support of the documentary evidence, i.e., Bill Ex. DW-1/1, Copy of Ledger, Cash Book and Sales Book, etc. Ex. DW-1/2, and Copy of Sales Tax Register and Tax Deposit Receipt, Ex. DW- 1/3 and Ex. DW-1/4, placed by him on record. Besides this, Appellant/defendant had got examined Gauri Shanker, DW-1, R.F.A. No. 581/2007 Page 3 of 9 who is Commission Agent in Kirana items and as per his deposition, advance amount given and taken during the course of business of kirana items. Jai Singh, DW-2 is the payment collector of Appellant/defendant firm and he has deposed regarding supply of black pepper on 15 th May 2003 to the Respondent/plaintiff by Appellant/defendant. Chhajju Ram, DW-3 is the Cart Puller, who has claimed to have supplied 20 bags of black pepper and the premises of the Respondent/plaintiff on 15th May 2003 and as per the assertion of this witness, four other cart pullers had also unloaded the bags at the premises of the Respondent/plaintiff. Sunil Kumar, DW-4, is the official of the Sales Tax Department, who has been got examined to prove the sales tax record Ex. DW- 4/1 and Ex.
DW- 4/2 regarding payment of sales tax by the Appellant/defendant for the period in question. No other evidence was led by either side before the Trial Court.
7. Vide impugned judgment dated 18th August 2007, suit of the Respondent/plaintiff for a sum of Rupees Five Lakhs with interest @ 9% per annum has been decreed against Appellant/defendant which has led to the filing of the present appeal.
8. In this appeal, both the sides have been heard and the evidence on Trial Court record has been perused by us with the assistance of learned counsels for the parties. R.F.A. No. 581/2007 Page 4 of 9
9. Issue No.(i) relates to maintainability of the suit in the absence of the Respondent/plaintiff holding license for money lending. Finding on this issue has been returned by the Trial Court in favour of the Respondent/plaintiff by holding that one or two isolated transactions in the bank account statement Ex. PW- 1/1 of the Respondent/plaintiff are not sufficient to conclude that the Respondent/plaintiff is a money lender and for proving so, series of transactions indicating the business of money lending are required and the same are lacking in this case. Although, finding on this issue has been assailed by the Appellant before us but we find that there is no cross-examination of the Respondent/plaintiff (PW-1) regarding the nature of one or two transactions as reflected in the bank statement. In fact, there is categorical assertion of PW-1 regarding his not granting loan to anyone else except to the Appellant/defendant which is in question. It emerges from the evidence of PW-1 that he is a Commission Agent of rice and pulses and an income tax payee. Learned counsel for Appellant has not been able to draw our attention to any part of the evidence to show that the aforesaid finding on Issue No.(i) is incorrect. We concur with the finding on Issue No.(i) of the Trial Court and therefore, it is affirmed.
10. Trial Court's finding on Issue No.(ii) of Respondent/plaintiff being entitled to refund of loan amount of Rupees Five Lakhs with interest @ 9% per annum is assailed before us by the Appellant/defendant by contending that the Trial Court had R.F.A. No. 581/2007 Page 5 of 9 erred in not relying upon the sales tax record which shows that the sale of black pepper actually took place and in view of the documentary evidence, Ex. DW- 1/3 and Ex. DW- 1/4, the transaction in question was a business transaction and they were not friendly terms between the parties and for about two and half years of the alleged loan, no steps were taken by the Respondent/plaintiff to recover the same which belies the case of friendly loan set up by the Respondent/plaintiff.
11. As far as the documentary evidence of the Appellant/defendant is concerned, we find that so called bill Ex. DW- 1/1 is not duly proved on record as neither the Appellant/defendant (DW-5) nor any other witness of the Appellant/defendant including its payment collector Jai Singh (DW-2) claims to have signed this bill. Payment Collector (DW-2) of the Appellant/defendant has admitted in his evidence that he had not obtained the signatures of the Respondent/plaintiff (PW-1) or his employee on this bill in token of supply of black pepper being made by the Appellant to the Respondent. Even the Appellant/defendant (DW-5) has admitted that the bill Ex. DW- 1/1 does not bear the signatures of the Respondent/plaintiff or his representative in token of the receipt of the black pepper in question. Furthermore, this witness, DW-5 also admits that no one from the side of Respondent/plaintiff was present when the black pepper was weighed at the time of its alleged delivery. Therefore, this bill Ex. DW-1/1 has been rightly excluded from R.F.A. No. 581/2007 Page 6 of 9 consideration by the Trial Court.
12. As regards the ledger book, Ex. DW- 1/2, Jai Prakash (DW-5) has admitted that this book brought by him in the Court has loose pages and is not bound and it does not bear any serial numbers. In such a situation, Trial Court has not committed any error or illegality in not relying upon it. Sales Tax Deposit Register, Ex. DW- 1/3, ( Ex. DW- 4/1) has not been rightly relied upon by the Trial Court as it does not bear any signatures of any of the Tax Officials as per the deposition of Sales Tax Official, Sunil Kumar DW-4. Furthermore, it cannot be made out from this document that if any tax was paid in respect of the so called transaction in question. Sales Tax Receipt, Ex. DW- 4/2, does not give any break up to show if the so called transaction in question is covered by it. Therefore, it does not establish the case of the Appellant/defendant in any manner whatsoever.
13. Commission Agent (DW-1) has no doubt stated in his evidence that advance amount is taken and given in the business of kirana items but his evidence stands diluted as he has admitted that the rates of the kirana items fluctuate frequently due to weather changes and other market forces. Not only this, he has admitted that the prices of black pepper keep on fluctuating every day. This certainly demolishes the story of the Appellant/ defendant of taking an advance of Rupees Five Lakhs in January, 2003 and black pepper being supplied after about four months. It is pertinent to note that there is no R.F.A. No. 581/2007 Page 7 of 9 assertion by the Appellant/defendant as to within how much time, the so called supply of black pepper was to be made and on what basis, the payment of interest of Rs.11,336/- (w.e.f. 17th January 2003 to 31st March 2003) was made by the Appellant to the Respondent. Neither there is any averment nor any evidence to prove that there was any written or oral agreement or any market practice to pay interest on the delayed supply of spices (black pepper). In this view of the matter, Trial Court has rightly concluded that the aforesaid story of the Appellant/defendant does not inspire any confidence. Learned counsel for Appellant has failed to draw our attention to any part of the evidence on record to show that the finding of the Trial Court on this issue can be faulted with.
14. After having meticulously gone through the evidence on record, we find that the Trial Court has arrived at a right conclusion that the present case is of friendly loan transaction and was not a business transaction. As a result thereof, impugned judgment and decree passed by the Trial Court is affirmed and present appeal is dismissed being bereft of merit. However, in the facts of this case, parties are left to bear their own costs.
15. In obedience to the orders passed by this Court on 21st November, 2007, appellant had deposited with the Registrar General of this Court, Rupees Six Lakhs towards decretal amount. In view of the dismissal of this appeal, let this amount R.F.A. No. 581/2007 Page 8 of 9 be released to the respondent with interest, if any, accrued thereon, with liberty to respondent to take out execution for the remainder amount, if any.
16. The appeal accordingly stands disposed of. Trial Court record be sent back.
SUNIL GAUR, J
T.S. THAKUR, J
August 7, 2008
PKB
R.F.A. No. 581/2007 Page 9 of 9