Gulshan Kumar vs Sunil Kukreja
2008 Latest Caselaw 1525 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    RFA 542/2006

     GULSHAN KUMAR                       ..... Appellant
             Through: Mr.Pradeep Chowdhary, Adv.

                  versus

     SUNIL KUKREJA                    ..... Respondent
              Through: Mr.R.L.Nanda, Adv. with
                       Mr.T.Parashar, Adv.

                         DATE OF DECISION:
%                           03.09.2008


     CORAM:
     HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
     HON'BLE MS. JUSTICE VEENA BIRBAL

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.           We   note     that   the   appeal   was   admitted    on

13.9.2006.

2.           Learned counsel for the parties pray that the appeal

may be heard for disposal without awaiting the printing of the

appeal paper book.

3.           Learned counsel for the parties pray that the trial

court record may be considered for disposal of the appeal.

4.           Trial Court record has been considered by us.

RFA No.542/06                                            Page No.1 of 8
 5.          Printing of paper book is dispensed with.

6.          The appellant was the plaintiff. The cause pleaded

in the suit was an alleged promissory note Ex.CW-1/1, stated

to have been executed by the respondent on 7.3.2002. Claim

of the appellant was that the respondent had taken a friendly

loan in sum of Rs.15 lacs from him and to repay the same had

executed 3 promissory notes on 2.3.2002, 4.3.2002 and

7.3.2002.

7.          The promissory note dated 7.3.2002 in sum of Rs.5

lacs was stated to be not honoured by the respondent when

appellant claimed to have demanded money under the said

promissory note.

8.          It be noted that pertaining to the other promissory

notes it was stated in the plaint that since no money was paid

by the respondent to the appellant pursuant to the demand

raised   under    the   said   2     promissory      notes,     separate

proceedings in relation thereto were pending.

9.          The   respondent       denied   having     executed        any

promissory note. The execution of the promissory note Ex. CW-

1/1 was denied.

10.         Thus, the main issue debated between the parties

was whether the respondent had received Rs.5 lacs as loan

from the plaintiff and to repay the same had executed the

RFA No.542/06                                                 Page No.2 of 8
 promissory note dated 7.3.2002, Ex.CW-1/1.

11.            At the trial, appellant examined himself as the only

witness.       The respondent examined himself as the only

witness.

12.            The appellant reiterated his version as pleaded in

the plaint. The respondent reiterated his version as pleaded in

the written statement.         However, evidence surfaced that

pursuant to a complaint lodged by the appellant an FIR under

Section 307 IPC stood registered against the respondent on

2.12.2002 for the reason the appellant told the local police that

the respondent had attempted to murder him. Pursuant to the

said FIR criminal proceedings were initiated before the court of

competent jurisdiction at Baghpat U.P. against the respondent

and were pending when parties led their respective evidence

in the suit.

13.            In view of the evidence led, the learned Trial Judge

has dismissed the suit filed by the appellant holding that the

appellant has failed to prove having advanced any loan to the

respondent and that the evidence negated the due execution

of the promissory note Ex. CW-1/1.

14.            4 reasons have been given by the learned Trial

Judge to dismiss the suit.

15.            The first reason is that, save and except the

RFA No.542/06                                           Page No.3 of 8
 promissory note, no other documentary evidence was placed

on record, much less proved, to support the version of the

appellant that a loan as pleaded was advanced by him to the

respondent. The second reason given by the learned Trial

Judge is the admission of the appellant that he was paying

income tax.     In the absence of any record produced to

evidence that the appellant had disclosed, to the Income Tax

authorities, the advancements of the loan by him as pleaded,

view taken is that a presumption would arise against the

appellant of not having advanced any loan.        Third reason

given by the learned Trial Judge is that the promissory note

bears the signatures of 2 persons as witnesses and none was

produced by the appellant. It has been held that the fact that

the appellant withheld the witnesses to the promissory note

required an adverse inference to be drawn against the

appellant. The last reasoning of the learned Trial Judge, is the

statement by the appellant during his evidence, that he went

to the respondent in the first and second week of February,

2005 to receive back the loan. With reference to the criminal

proceedings pending against the respondent at the instance of

the appellant where respondent is facing a charge for the

offence of a crime attracting Section 307 IPC, the learned Trial

Judge has drawn an adverse inference of falsity in the

RFA No.542/06                                       Page No.4 of 8
 testimony of the appellant, reasoning that no reasonable

person would believe that the appellant would have gone to

the respondent to ask for his money because of inimical

relationship between the parties.

16.        Though not expressly stated, we note that the ethos

of the reasoning of the learned Trial Judge is that if appellant

had produced the income tax record it would have revealed

the truth and that having not so done, an adverse inference

would be drawn as required by law. The law being that a party

which does not produce the best evidence is liable for an

adverse inference to be drawn against the party on the

reasoning that had said evidence come on record it would have

gone against the party concerned.

17.        Unfortunately, neither party drew the attention of

the learned Trial Judge to the signatures on the promissory

note for a visual comparison with the admitted signatures of

the respondent on the written statement, affidavits filed by the

respondent and the Vakalatnama filed by the respondent.

18.        We have visually noted the signatures of the

respondent on the disputed promissory note, Ex. CW-1/1.      We

have compared the same with his admitted signatures on the

written statement, the signatures on an affidavit filed by the

respondent on 29.9.2005, and his signatures on the affidavit

RFA No.542/06                                       Page No.5 of 8
 by way of evidence filed on 16.5.2006.

19.        A bare perusal and comparison of the signatures

reveal that the signature on Ex.CW-1/1 cannot be said to be in

the hand of the respondent.

20.        That apart, we concur with the reasoning of the

learned Trial Judge that in the absence of any corroborative

material to show advancement of the loan or for that matter

that the appellant had the requisite amount with him coupled

with the admitted fact that the appellant was assessed to

income tax and did not produce his income tax record an

adverse presumption had to be drawn against the appellant.

We also agree with the learned Trial Judge that the inimical

relationship between the parties belie the statement of the

appellant when he deposed that in the month of February,

2005 he went to the respondent to seek return of the money.

Indeed, if the respondent had attempted to take the life of the

appellant in the month of December, 2002 and was facing a

criminal   prosecution     for   having   committed   an   offence

punishable under Section 307 IPC, it would be difficult to

believe that the appellant would risk his life once again by

visiting the respondent.

21.        We may additionally note that the promissory note

requires interest to be paid @ 2% per month.          There is no

RFA No.542/06                                         Page No.6 of 8
 evidence on record that between 7.3.2002 i.e. the date when

the promissory note was executed and till the suit was filed

any interest was ever demanded or paid.                  This is also

suggestive of the fact that no promissory note was executed

by the respondent as alleged by the plaintiff.

22.          It is settled law that a civil dispute has to be decided

on the preponderance of probabilities and the evidence led by

the parties has to be considered and probablized with

reference    to   how   a   prudent   person    ought,    under    the

circumstances of the particular case, to act on the supposition

that a fact should be believed to exist or not to exist. As per

Section 3 of the Evidence Act, 1872 a fact is disproved when,

after considering the matters before it, the court either

believes that it does not exist, or considers its non-existence so

probable that a prudent man ought, under the circumstances

of the particular case, to act upon the supposition that it does

not exist.

23.          On the evidence on record the view taken by the

learned Trial Judge is reasonable and proper.

24.          We find no infirmity with the impugned judgment

and decree dated 10.8.2006.

25.          The appeal is dismissed.

26.          The respondent shall be entitled to costs against the

RFA No.542/06                                             Page No.7 of 8
 appellant.



                     PRADEEP NANDRAJOG, J.

VEENA BIRBAL, J. SEPTEMBER 03, 2008 vg