* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 59/2015 & CM No. 2388/2015
% 20th April, 2017
MAQSOOD AHMED SIDDIQUI ..... Appellant
Through: Mr. Anzar Hussain Pasha,
Advocate.
versus
MOHD. QASIM KHAN ..... Respondent
Through: Mr. Yogesh Chhabra, Advocate. CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
1. By this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) the appellant/defendant impugns the judgment of the First Appellate Court dated 17.9.2014 by which the first appellate court set aside the judgment of the Trial Court dated 12.8.2011 and decreed the suit for recovery of Rs.2.5 lacs with interest. Trial court by its judgment dated 12.8.2014 had dismissed the suit which was filed by the respondent/plaintiff for recovery of the loan of Rs.2.5 lacs granted by the respondent/plaintiff to the appellant/defendant.
RSA No. 59/2015 Page 1 of 4
2. The loan of Rs.2.5 lacs was given by the respondent/plaintiff to the appellant/defendant on 4.10.2004. This has been proved before the trial court in terms of the promissory note dated 4.10.2004 exhibited as Ex.PW1/1. Trial court has accepted that the promissory note stands proved and hence the grant of loan to the appellant/defendant stands proved.
3. Before the trial court, the respondent/plaintiff also proved an acknowledgment of debt dated 30.9.2007 executed by the appellant/defendant of promising to repay the loan of Rs.2.5 lacs. This acknowledgment of debt was proved and exhibited as Ex.PW1/2. This acknowledgment of debt in fact specifically refers to legal notice sent by the respondent/plaintiff dated 25.9.2007, and because of which the acknowledgment of debt Ex.PW1/2 was executed by the appellant/defendant.
4. Trial court dismissed the suit by holding that the acknowledgment of debt Ex.PW1/2 did not have a date. This was a fundamental error because the acknowledgment of debt does have a date i.e 30.9.2007, and which is the last typed content on the acknowledgment of debt Ex. PW1/2. The first appellate court has recognized his mistake committed by the trial court and has accordingly set aside the finding of the trial court that there is no date RSA No. 59/2015 Page 2 of 4 on the acknowledgment of debt Ex.PW1/2. That the promissory note and acknowledgment were duly proved before the trial court is undisputed and the only issue was whether the acknowledgment of debt Ex.PW1/2 has a date, and which it has, being the date of 30.9.2007.
5. I may note that there was an aspect with respect to another loan of Rs. 4.5 lacs granted by the respondent/plaintiff to the appellant/defendant, and which was secured by cheques, and with respect to which proceedings under Section 138 of the Negotiable Instrument Act, 1881 are pending, however, such issue is not an issue in the present suit, and hence no discussion is required on this aspect.
6. Learned counsel for the appellant/defendant also argued that it is in fact the respondent/plaintiff who is liable to pay a sum of Rs.17, 63,608/- to the appellant/defendant on account of business relations between the appellant/defendant and the respondent/plaintiff, however, not only this stand is a self-serving stand without any documentary evidence as to how this amount is due from the respondent/plaintiff to the appellant/defendant, it is also noted that if a huge amount of Rs.17,63,608/- was due from the respondent/plaintiff to the appellant/defendant then why the appellant/defendant has till date not filed a suit and allowed the recovery of this huge amount to RSA No. 59/2015 Page 3 of 4 get time barred. Appellant/defendant therefore cannot contend that since he was entitled to Rs.17,63,608/-, therefore, the suit should be dismissed.
7. In view of the above, no substantial question of law arises. The first appellate court has rightly corrected the error of the issue of the date of acknowledgment Ex.PW1/2 and rightly held that the acknowledgement of debt Ex.PW1/2 is not undated but bears a date which is 30.9.2007.
8. Dismissed.
APRIL 20, 2017/ib VALMIKI J. MEHTA, J
RSA No. 59/2015 Page 4 of 4