Chattisgarh High Court
Shambhu Prasad Jaiswal vs Abhishek Singh on 16 February, 2022
1
FA No.85 of 2020
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No.85 of 2020
{Arising out of judgment & decree dated 9-12-2019 passed by the
Seventh Additional District Judge, Ambikapur, District Surguja, in civil
suit No.01-B/2019}
1. Shambhu Prasad Jaiswal S/o Late Shankatha Prasad Jaiswal Aged
About 45 Years Occupation Contractor, R/o Namnakala, District
Surguja, Chhattisgarh.
---- Appellant/Plaintiff
Versus
1. Abhishek Singh S/o Shri Dinesh Singh Aged About 30 Years
Occupation - Contractor, R/o Ring Road, Bauripara, Ambikapur,
Tahsil - Ambikapur, District Surguja, Chhattisgarh.
---- Respondent/Defendant
For Appellant Mr. A.N. Bhakta & Mr. Vivek Bhakta,
Advocates
For Respondent None, despite service of notice.
Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Sanjay S. Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
16-02-2022
1. Challenge in this appeal is to the judgment & decree dated
9-12-2019 passed by the Seventh Additional District Judge,
Ambikapur, District Surguja, in civil suit No.01-B/2019 whereby
the suit for recovery of amount, was rejected.
2. The facts, in brief, are that the plaintiff claimed that he had
advanced loan of Rs.13,90,300/- on 2-11-2017 to the defendant.
FA No.85 of 2020
Out of which the defendant returned an amount of Rs.2,00,000/-
on 6-11-2017, however, the subsequent amount was not returned.
Therefore, legal notice sent to the defendant in the month of
January, 2019 and when he failed to make repayment of the loan
amount, the suit was filed.
3. Before the Court below, the defendant remained ex parte.
4. The trial Court, however, dismissed the suit on the ground that in
respect of copy of account, which was proved as Ex.P/3, the
plaintiff is not able to prove the fact that amount of loan was
advanced to the defendant according to the entry and to whom the
account belongs. The trial Court further held that on the basis of
oral agreement, since it is not supported by any documentary
evidence, no inference can be drawn and accordingly dismissed
the suit.
5. Learned counsel appearing for the appellant/plaintiff would
submit that in order to prove the fact that amount paid to
defendant, the plaintiff relied on document Ex.P/3 i.e. copy of
account. The application was moved by the plaintiff under Order
16 Rule 2 of the Code of Civil Procedure, 1908 (for short 'the
CPC') with a prayer to call the Bank officials to prove the fact that
the said amount was withdrawn by the defendant, as the cheque
was deposited in certain account and the said account belongs to
the defendant, however, the trial Court dismissed the said
application vide its order dated 22-10-2019 holding that the case is
FA No.85 of 2020
already fixed for final arguments and the prayer of like nature
cannot be allowed. Learned counsel would also submit that
because of such reason the appellant suffered an irreparable loss
and lost opportunity to prove his case. He would next submit that
on mere technicalities the orders have been passed, therefore, the
issue is required to be remitted back to the trial Court for fresh
adjudication.
6. The defendant remained ex parte before this Court too.
7. We have heard learned counsel for the appellant/plaintiff and have
also gone through the records of the trial Court. The primary
finding is recorded at paras 12 & 13 of the impugned judgment,
wherein it has been observed that to whom amount of
Rs.13,90,300/- was paid and in whose account it was deposited
has not been proved by the plaintiff. The Court further observed
that it has also not been proved by the plaintiff that the Account
No.0020123182163 belongs to whom, in which the amount was
transferred. The Court also observed that neither the promissory
note nor any agreement was produced by the plaintiff so that the
transaction can be proved.
8. We have also gone through the record and the document Ex.P/3,
which is a copy of account of the plaintiff. A bare perusal of the
same would show that an amount of Rs.13,90,300/- was debited/
paid to the Account No.0020123182163. Naturally, only by
mentioning of Account number, it cannot be said that the said
FA No.85 of 2020
account belongs to the defendant. From the record it is also
evident that an application under Order 16 Rule 2 of the CPC was
filed wherein the plaintiff claimed that the Branch Manager of the
State Bank of India should be summoned along with necessary
documents i.e. Account sheet so as to prove the fact that to whom
the Account No.0020123182163 belongs and to whom the amount
was paid. The said application was dismissed vide order dated
22-10-2019 by the Court below. Primary reading of the order
would show that the application was rejected on the ground that
the plaintiff's right of evidence is closed, therefore, it cannot be
again re-fixed for evidence of the plaintiff.
9. In our considered opinion, the learned Court below was too
technical in adopting such view. These nature of orders give rise
to multiplicity of proceedings instead of deciding the case on
merits. Had the application been allowed, irrespective of its
merits adjudication would have been there. The evidence, which
is required to be adduced before the Court, could have been
placed. Perusal of the order of the trial Court also shows that no
exorbitant delay was caused in the trial as the suit itself was filed
in the month of February, 2019. Therefore, only for the reason the
case was fixed for argument as such, such application to call for
evidence having dismissed appears to be erroneous.
10. In view of the above, we deem it appropriate to give an
opportunity to the plaintiff to prove the document Ex.P/3 by
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calling the Bank officials along with necessary original account
sheet so that he may be able to adduce proper evidence before the
Court. The plaintiff shall also be allowed to prove the fact that to
whom the Account No.0020123182163 belongs and whether the
transaction entered in Ex.P/3 is tallied with the entry of said
account number.
11. In the result, the appeal is allowed and the impugned judgment
and decree dated 9-12-2019 is set aside to the above extent. The
matter is remitted back to the Court below with a direction to
adjudicate the suit afresh after issuance of notice to the defendant.
12. No order as to cost(s).
Sd/- Sd/-
(Goutam Bhaduri) (Sanjay S. Agrawal)
Judge Judge
Gowri
