Delhi High Court
Jagdish Chander Gulati vs Usha Rani & Ors on 18 December, 2008
Author: Pradeep Nandrajog
4
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 18th December, 2008
+ RFA 492/2006
JAGDISH CHANDER GULATI ..... Appellant
Through : Mr. M.L. Bajaj, Adv.
versus
USHA RANI & ORS ..... Respondents
Through : Mr. B.S. Maan, Adv.
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. The respondents sought a summary decree against
the appellant, inter-alia, alleging that their predecessor-in-
interest, late Shri Shiv Charan Singh advanced a loan in sum
of Rs.8,00,000/-(Rupees Eight Lakhs Only) to the appellant
and that while accepting the loan, the appellant executed a
promissory note acknowledging the loan recording therein
that it was to be repaid with interest @ 24% per annum. It
was alleged that a mortgage agreement was executed by
late Shri Shiv Charan Singh affirming the receipt of the loan
and recording therein that possession of the property
mortgaged as also the title deeds were handed over as
security for repayment, but actually neither was possession
handed over nor were the title documents handed over;
only photocopy thereof was supplied. Alleging that neither
was the loan returned nor interest was ever paid, the suit
was filed for recovery of Rs.8,00,000/- (Rupees Eight Lakhs
only), being the loan amount plus Rs.5,84,416.43 (Rupees
Five Lakh Eighty Four Thousand Four Hundred sixteen and
paise forty three only) being the pre-suit interest.
3. Seeking leave to defend, the appellant stated that he
had repaid the loan evidenced by the fact that possession of
the mortgaged property was restored to him as also the title
documents relating thereto. He stated that late Sh. Shiv
Charan Singh, the predecessor-in-interest of the
respondents, had very friendly relations with him and on
said account when he returned the loan amount he did not
bother to obtain the receipt in acknowledgement of the
return of the loan.
4. In response to the application seeking leave to defend,
the respondents clarified once again that notwithstanding it
being recorded in the mortgage agreement that possession
of the mortgaged property was handed over and that
original title documents were handed over, the fact of the
matter was that only photocopies of the title documents
were received and possession was never received.
5. Declining leave to defend, learned Trial Judge has held
that the appellants have not referred to any written
acknowledgement by the appellant when stated loan was
returned by him to late Sh.Shiv Charan Singh. Learned Trial
Judge has held that no case was made out to grant leave to
defend. The result is the dismissal of the application
seeking leave to defend and the suit being decreed vide
decree dated 17.5.2006.
6. It is urged in the appeal that the fact that possession
of the mortgaged property is with the appellant and that the
title deeds are in his possession are good evidence to show
a triable defence raised entitling the appellant leave to
defend the suit. It is urged that the explanation given by
the respondents that the mortgage agreement records
incorrect facts itself requires an adjudication post trial.
7. Learned counsel for the respondents emphasized on
the fact that the appellant has not produced any receipt or a
document executed by late Sh.Shiv Charan Singh
evidencing return of the loan.
8. From the respective version of the parties, it is but
apparent, that they have transacted business in an inofficial
manner. If late Sh.Shiv Charan Singh wanted a security for
return of the loan in the form of a mortgage it is obvious
that he would have obtained the original title documents.
But, on the other hand, with respect to the conduct of the
appellant it has to be noted that any prudent person would
obtain a receipt when a loan is returned more so when,
while taking the loan, written acknowledgements were
given.
9. It is relevant to note that the appellant does not have
a direct proof of the loan being returned. The projected
defence is with respect to conduct of the parties where from
an inference that the loan was returned is sought to be
projected.
10. Under the circumstances, case is made out to grant a
conditional leave to defend.
11. We dispose of the appeal setting aside the impugned
judgment and decree dated 17.05.2006. Application filed by
the appellant seeking leave to defend is allowed on the
condition that the appellant would deposit within 8 weeks
from today, with the Learned Trial Judge, a sum of
Rs.5,00,000/- (Rupees Five Lakhs Only). Said amount would
be invested in a fixed deposit till the trial is over and would
enure for the benefit of the successful party.
12. The appellant shall file a written statement within two
weeks of the suit being restored before the Learned Trial
Judge.
13. Parties are directed to appear before the District and
Session Judge, Tis Hazari on 7th January, 2009 who shall
direct the parties to appear before the learned Successor
Judge.
14. No costs.
15. Copy of this order be supplied dasti to learned counsel
for the parties.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
DECEMBER 18, 2008
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