* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 59/2018
% 19th January, 2018
SH. CHAND KHAN ..... Appellant
Through: Mr. Vatsal Kumar and Mr.
Chirag Sharma, Advocates
versus
SH. MOHAMMAD MUZEEB ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL) CM No.2308/2018 (Exemption)
1. Exemption allowed subject to just exceptions.
CM stands disposed of.
CM No. 2309/2018 (delay in re-filing)
2. For the reasons stated in the application, delay in re-filing is condoned.
CM stands disposed of.
CM No. 2306/2018 (delay of 457 days in filing the appeal) & CM No. 2307/2018 (stay) in RFA No. 59/2018
3. There is a large delay of 457 days in filing of the appeal by the appellant/defendant against the impugned judgment and decree RFA No. 59/2018 Page 1 of 5 decreeing the suit for recovery of Rs.13,50,000/- along with interest at 8% per annum simple. The delay is sought to be explained by the appellant/defendant by pleading that appellant/defendant was never told by his Advocate that evidence had to be led in the suit. In my opinion, the averments in the application for condonation of delay of 457 days are not believable because appellant/defendant is admittedly a builder. Surely a builder is not a layman in that sense of term of an illiterate person because a builder would otherwise have issues to deal with law or cases in courts, and consequently, the explanation of the appellant/defendant that the appellant/defendant was not informed by his Advocate of requirement to lead evidence cannot be believed. This is all the more so because evidence of the appellant/defendant has not been closed after giving one or two opportunities but has been closed after giving repeated opportunities. Though there is no reason to condone the delay and appeal is liable to be and is accordingly dismissed on account of barred by limitation however I have heard the case on merits hence this application is allowed for the appeal to be heard on merits.
RFA No. 59/2018 Page 2 of 5
4. The facts of the case are that the respondent/plaintiff filed the subject suit against the appellant/defendant for recovery of Rs.13,50,000/- along with interest on the ground that on the asking of the appellant/defendant the respondent/plaintiff had given a loan of Rs.10 lacs on 5.5.2008 and to secure which the appellant/defendant had issued four cheques of Rs.2.5 lacs each in favour of the respondent/plaintiff as stated in the para 5 of the plaint. As per the plaint, the respondent/plaintiff pleaded that since in spite of repeated requests amount of loan was not repaid in spite of the appellant/defendant receiving an amount with respect to a construction project entered into by the appellant/defendant with the society in which the respondent/plaintiff was a President, therefore, the subject suit came to be filed for recovery.
5. Though the appellant/defendant appeared in the suit and filed written statement. It also appears that a counter-claim was filed but counter-claim however was not considered for non-payment of court fee and in any case counter-claim was ex facie not maintainable because counter-claim was against the society for recovery of amounts due of the appellant/defendant against the society for construction but RFA No. 59/2018 Page 3 of 5 not against the respondent/plaintiff who was only a member of the society and the President of the society. As already stated above the appellant/defendant did not lead evidence in spite of repeated opportunities, and therefore evidence of the appellant/defendant was closed. Therefore, we have only the evidence which is led by the respondent/plaintiff to prove his case.
6. After pleadings were complete, the following issues were framed by the trial court:-
"1. Whether the defendant did not avail a loan of Rs.10 lakhs from the plaintiff and whether the cheques as detailed in para 5 of the plaint were not issued by him in discharge of a legal debt/liability? OPD
2. Subject to the decision on issue no.1, whether the plaintiff is entitled to recover a sum of Rs.13,50,000/- from the defendant as claimed? OPP
3. Whether the plaintiff is entitled to pendente lite and future interest?If yes, at what rate? OPP"
7. Trial court has held the relevant issue no. 2 in favour of respondent/plaintiff by relying upon the cheques proved in the case issued by the appellant/defendant in favour of the respondent/plaintiff being Ex.PW1/1 to Ex.PW1/4. In my opinion, in the facts of the present case once the respondent/plaintiff led evidence and appellant/defendant led no evidence there is no reason to disbelieve RFA No. 59/2018 Page 4 of 5 the case of the respondent/plaintiff and therefore there is no reason for setting aside of the impugned judgment and decree.
8. In view of the above discussion, the appeal is dismissed both on the ground of limitation and also by observing that even on merits appellant/defendant has no case.
JANUARY 19, 2018/ib VALMIKI J. MEHTA, J
RFA No. 59/2018 Page 5 of 5