Shri Jai Prakash vs Shri Sunit
2008 Latest Caselaw 1256 Del

*                     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

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

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,

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.

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

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

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

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

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