Late Sh. Ravi Arya vs Ms. Meenakshi
2010 Latest Caselaw 3607 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI


                   RFA No. 590/2005
                         Judgment delivered on: 05.08.2010

Late Sh. Ravi Arya                       ..... Appellant
                       Through: Mr.Sanjeev Kumar, Advocate.

                       Versus

Ms. Meenakshi                            ..... Respondents
                       Through: Mr.Raj Kapoor, Advocate.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may        Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported             Yes
   in the Digest?


KAILASH GAMBHIR, J. Oral:
*

1. By the present appeal filed under Section 96 r/w

Order 41 Rule 1 of the Civil Procedure Code, 1908, the

appellant seeks to challenge the judgment and decree dated

29.04.2005 passed by the court of the Ld. Additional District

Judge in Civil Suit No. 14/2003, thereby decreeing the suit in

favour of the respondent.

2. Brief facts of the case relevant for deciding the

present appeal are that in the month of October 1999 the

husband of the appellant Shri Ravi Arya (since deceased)

approached the respondent for some financial requirements for

his business purpose and since he was known to the

respondent, she agreed to lend him a sum of Rs.2 lacs on the

condition that he should return the same in the year 2000 at

the earliest. In the repayment of the said loan amount the

appellant issued a cheque bearing no.54368 dated

25.2.2000, drawn on Corporation Bank, Tilak Nagar Branch,

New Delhi for a sum of Rs.2 lacs but the said cheque was

dishonoured by the bank on account of insufficient funds. On

approaching the husband of the appellant by the respondent

he promised to refund the same but he never refunded the said

amount. Thereafter, the respondent served a demand notice

dated 7.9.2002 but the husband of the appellant failed to make

payment of the loan amount and therefore the respondent filed

a suit bearing no.14/2003 under Order 37 CPC before the trial

court for recovery of the loan along with interest and vide order

judgment dated 29.4.2005, the suit was decreed in favour of

the respondent and against the appellant. Assailing the said

judgment, the appellant has preferred the present appeal.

3. The short question raised by the appellant in the

present appeal is that the ld. Trial court failed to appreciate the

fact that the respondent failed to prove the existence of any

written or oral loan agreement between the appellant and the

respondent for the advancement of loan amount of

Rs.2,00,000/- in lieu of which the alleged cheque was issued by

the deceased husband of the appellant. The contention of the

counsel for the petitioner is that a specific issue was framed by

the ld. Trial court with regard to the advancement of the said

loan amount of Rs.2,00,000/- and onus of the said issue was

laid on the respondent/plaintiff therein but no evidence was

adduced by the respondent on the said issue but still the ld.

Trial court decided the said issue in favour of the respondent.

4. I have heard learned counsel for both the parties.

5. The learned Trial court has decided the issue Nos.

3,4,5 & 6 together. For better appreciation of the controversy

the same are reproduced as under:-

iii) Whether the plaintiff has advanced a loan of Rs.2 lakhs as claimed in para No.1 of the plaint to the defendant? OPP.

iv) Whether the defendant had issued cheque No. 543468 dated 25.02.2000 for Rs.2 lakhs drawn on Corporation Bank, Tilak Nagar Branch, New Delhi towards repayment of the alleged loan amount in favour of the plaintiff? OPP.

v) Whether the plaintiff is entitled to recover the suit amount?

OPP.

vi) Whether the plaintiff is entitled to recover interest, if so, at what rate and to what amount?

6. The onus to prove all these issues was laid on the

respondent and since all the issues were interconnected so

based on the evidence led by the parties the trial court chose

to decide these issues together. It is an admitted case

between the parties that the respondent was not engaged

in the business of money lending. The respondent in her

deposition clearly stated that the husband of the appellant was

well known to her and he had approached the respondent for

the advancement of said loan amount of Rs.2,00,000/- because

of some dire need and the said amount was advanced by the

respondent to the deceased husband of the appellant on the

condition that he shall return the same in the year 2000 at the

earliest. It is further the case of the respondent that in

consideration of the said loan amount the husband of the

appellant had issued the cheque in question for a sum of

Rs.2,00,000/- dated 25.02.2000 drawn on Corporation Bank,

Tilak Nagar Branch, New Delhi. Before filing the said suit, the

respondent had also sent a legal notice dated 7.9.2002 through

registered AD and also through courier.

7. On the other hand, the defence of the appellant has

been that her husband had never approached the respondent

for any such financial requirement. The appellant also denied

issuance of any such cheque in favour of the respondent. It

was also alleged by the appellant that the alleged cheque

presented by the respondent was forged and fabricated by her

with unlawful intention and ulterior motives to squeeze money

out of him. In the cross-examination of the respondent, the

appellant for the first time introduced a new theory by

suggesting to the witness that the said signed cheque was

misplaced from the office of her husband along with two other

cheques. It also came in evidence that no such information

was given by the husband of the appellant to the Bank

regarding the missing of signed blank cheques or any

complaint lodged by him to the police reporting missing of such

signed cheques. The appellant also did not give any evidence

to show as to when the said cheques were signed by the

husband of the appellant and when the same were lost. It is a

settled legal position that the presumption is in favour of the

holder of the cheque and such a presumption becomes very

strong when the signatory does not dispute his signatures on

the dishonoured cheque. A perusal of the evidence led by

both the parties clearly shows that the respondent was

successful in proving the fact that the cheque in question was

handed over to her by the husband of the appellant and the

same returned dishonoured on its presentation by the

respondent with her bank due to insufficiency of funds. The

respondent has also proved due service of legal notice upon

the husband of the appellant through courier. So far as the

advancement of loan amount is concerned, there is an oral

testimony on both sides. But considering the fact that the

appellant failed to give any explanation, much less a plausible

one, as to how and under what circumstances the cheque for

the said amount of Rs.2,00,000/- was issued by him to the

respondent, therefore the contention that it was for the

discharge of a debt taken by the husband of the appellant

holds much ground. In the written statement filed by the

husband of the appellant the stand taken by him was that the

cheque was forged and fabricated by the respondent and in the

evidence the appellant introduced the theory of missing of the

said signed cheque along with two other cheques. Clearly the

said theory was introduced by the appellant as an afterthought

after finding it difficult to offer any explanation for the issuance

of the said cheque in favour of the respondent. The theory of

advancement of loan by the respondent gets strengthened due

to the issuance of the cheque by the husband of the appellant

and for which no explanation came forth from the appellant or

her husband. Therefore looking into the totality of the

circumstances and the facts proved on record, the findings of

the ld. Trial court on the said issues under no circumstance can

be termed as perverse or illegal.

8. Hence, in the light of the aforesaid discussion, there is no

merit in the present appeal and the same is hereby dismissed.

KAILASH GAMBHIR, J August 05, 2010 pkv/mg