Shri Vinod Lamba vs O.P.Hasija
2011 Latest Caselaw 1233 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 01.3.2011


+      RSA No.62/2009 & CM No.6792/2009 (for stay)


SHRI VINOD LAMBA                          ...........Appellant
                         Through:    Mrs.Mala Goel and Mr.Yashpal
                                     Singh, Advocates.

                   Versus

O.P.HASIJA                               ..........Respondent.
                         Through:    Nemo.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

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


INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

28.2.2009 which had endorsed the finding of the trial judge dated

30.9.2008 whereby the suit filed by the plaintiff O.P.Hisja seeking

recovery of ` 2,90,000/- from the defendants had been decreed

along with interest @ 10% per annum in his favour.

2. Case of the plaintiff is that the defendant no.2 was a family

friend. He was facing financial hardship. He requested the

plaintiff for financial support. He borrowed a sum of `2,00,000/-

from the plaintiff. The said amount was given through cheque

bearing No.454757 drawn on Canara Bank, Kalkaji. It was

deposited in the account of the defendant. It was agreed that the

defendant would repay the amount in six months along with

interest @ 15% per annum. Defendant did not adhere to this

arrangement. In spite of requests the amount was not repaid. Suit

was accordingly filed.

3. Defendant had filed his written statement denying that he

had taken a loan or that he was ever in financial hardship.

Defendant had entered into an agreement with one Mr.Sanjay

Bhatia in respect of acquisition of satellite TV rights etc including

doordarshan rights. This agreement was dated 17.2.2001.

Pursuant to this agreement the plaintiff had approached the

defendant to join him in this joint venture because the defendant

was already dealing with the business of buying copyrights etc.

Oral terms had been agreed between the plaintiff and the

defendant; signing amount had already been paid to Sanjay Bhatia

when the plaintiff had approached the defendant. A sum of

`4,00,000/- had been paid by defendant to Sanjay Bhatia; plaintiff

had paid his share of `2,00,000/-. This agreement between

defendant and Sanjay Bhatia was unsuccessful. A suit for recovery

was filed by the defendant against Sanjay Bhatia.

4. On the pleadings of the parties, following four issues were

framed:

1.Whether the plaintiff has the cause of action in his favour to file the present suit? OPP

2.Whether there was no agreement for the payment of the interest between the parties? OPD

3.Whether the plaintiff is entitled for the decree of `2,90,000/- alongwith interest as prayed for in the plaint? OPP

4.Relief, if any.

5. Oral and documentary evidence was led which included the

testimony of plaintiff and the defence of the sole defendant. Parties

were cross-examined at length.

6. Admittedly a sum of `2,00,000/- had been paid through

cheque by the plaintiff to the defendant. The contention of the

defendant that this was in terms a joint venture the agreement

which the defendant had entered into with Sanjay Bhatia and the

plaintiff had chosen to get himself included in the said venture. In

his cross-examination, the defendant had admitted that he had filed

a suit against Sanjay Bhatia for recovery of `4,00,000/-; plaintiff

was admittedly not a party in that suit; that suit had been decreed

in favour of the defendant. Trial judge had noted that the story of

investment in the joint venture set up by the defendant was

unbelievable. It is thus clear that this version as set up by the

defendant was not the correct version; the defendant in the natural

course would also have impleaded the plaintiff as a party when he

had filed his suit against Sanjay Bhatia as this was allegedly a joint

venture of all the three persons. The trial court had weighed the

evidence and the balance of probabilities were in favour of the

plaintiff qua the defendant. Suit of the plaintiff was accordingly

decreed.

7. In appeal vide the impugned judgment this finding was

endorsed. The impugned judgment had re-appreciated the oral

and documentary evidence to arrive at this finding; it had held that

no interference is called for. 8. This is a second appeal. It is

yet at the stage of admission. On behalf of the appellant, it has

been urged that the onus of proof is always upon the plaintiff which

he had failed to discharge. Reliance has been placed upon PLR

Vo.LVIII-1956 Sir Sobha Singh Vs. Bihari Lal Beni Parsahd, AIR

1939 Lahore 386 Bihari Lal Vs. Chandu Lal as also another

judgment reported in ILR (1974) I Delhi Bal Kishan Gupta Vs.

Ramdhar to support a submission that where in a suit for recovery

the amount was allegedly advanced as a loan the burden of proving

the amount was upon the plaintiff. There is no dispute to the

proposition.

8. The burden is upon the person who is alleging the fact and

this is clear from the provision of Section 101 and 102 of the

Evidence Act. It was for the plaintiff to prove his case; he had

proved it by both oral and documentary evidence. Apart from the

cheque which he had issued to the defendant, the plaintiff had

reiterated his averments on oath and he had been subjected to a

lengthy cross-examination. Both the fact finding courts below had

noted that nothing could discredit this testimony of the plaintiff.

He had discharged the burden of proof entitling him to the decree

which was passed in his favour.

9. This Court is sitting in second appeal. Interference is called

for in fact findings only if there is a perversity. Neither any

perversity has been urged nor has it been pointed out.

10. Learned counsel for the appellant has additionally submitted

that perusal of the decree drawn up on 30.9.2008 shows that it had

been drawn up on a stamp paper of `500/-; the decree was

insufficiently stamped; such a decree is nonest. This plea now

urged before this court was also urged before the first appellate

court. The impugned judgment had noted that this point has not

been raised in the written statement; no issue had been framed on

this count; it was a clear case where plaint had been entertained

on insufficient stamp paper due to a mistake/ inadvertently.

11. Order 7 Rule 11(c) of the Code of Civil Procedure

(hereinafter referred to as „the Code‟) reads as follows:

"11.Rejection of plaint - the plaint shall be rejected in the following

cases:-

....................

(c) where the relief claim is properly valued, but the plaint is written upon

paper insufficiently stamped, and the plaintiff, on being required by the

Court to supply the requisite stamp-paper within a time to be fixed by the

Court, fails to do so;

......................."

Section 11 of the Suit Valuation Act 1887 also indicates that

notwithstanding anything contained in Section 578 of the Code, an

objection that the Court which had no jurisdiction over the suit or

appeal had decided it by reason of over-valuation or under-

valuation should not be entertained by the appellate court unless

the under-valuation or over-valuation thereof has prejudicially

affected the disposal of the suit or the appeal on its merits. This

has neither been pleaded nor urged.

Section 149 of the Code empowers the Court to allow any

person, by whom court fee is payable to pay whole or part as the

case may be of such a court fee. This discretion which is

conferred in the Court under Section 149 of the Code is unfettered

and is over and above the obligation under Order 7 Rule 11 of the

Code. Order 7 Rule 11 only states the circumstances under which

the plaint shall be rejected; it is not an enabling provision; but only

a disabling one.

A conjoint reading of the aforenoted provisions show that this

argument of the appellant is also without any merit.

12. No substantial question of law as formulated in the body of

appeal has arisen. Appeal as also pending application is dismissed

in limine.

MARCH 01, 2011,nandan                            INDERMEET KAUR, J.