Delhi High Court

Vishwanath Jha vs Jay Prakash Panwar on 16 May, 2012

Author: Valmiki J. Mehta

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.530/2004

%                                                            16th May, 2012

         VISHWANATH JHA                                     ...... Appellant
                     Through:            Mr. Shakher Prit Jha with
                                         Mr. Vikrant Bhardwaj &
                                         Mr. Bhajan Singh, Advs.

                            VERSUS


         JAY PRAKASH PANWAR                                  ...... Respondent

                      Through:               None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This case is on the Regular Board of this Court since 5.3.2012.

No one appeared on behalf of the respondent on 4.5.2012. Again today, no

one appears on behalf of the respondent. I have therefore heard the counsel

for the appellant and after perusing the record am proceeding to dispose of

the appeal.

2. The challenge by means of this Regular First Appeal filed

under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 26.7.2004 by which the trial

Court passed a decree in favour of the respondent/plaintiff for a sum of

`2,50,000/- alongwith interest, which amount the respondent/plaintiff

claimed was the amount of the loan given by him to the appellant/defendant.

3. The facts of the case are that the respondent/plaintiff claimed

that the appellant/defendant approached him for a loan of `2,50,000/- to

repay another loan taken by him to purchase his house.

Respondent/plaintiff claims to have given the loan of `2,50,000/- to the

appellant/defendant on 7.10.1998, when the appellant/defendant is purported

to have signed a receipt for the amount of `2,50,000/-. The

respondent/plaintiff alleged non-payment of the loan with interest and

therefore filed the subject suit.

4. The appellant/defendant contested the suit and pleaded that the

appellant/defendant was in fact working for the brother-in-law, namely

Nahar Singh Saxena, of the respondent/plaintiff. As Sh.Nahar Singh Saxena

had accumulated dues towards the appellant/defendant of a sum of

`1,10,000/-, therefore, the said Sh. Nahar Singh Saxena paid a sum of

`1,10,000/- to the appellant/defendant and which is when the

appellant/defendant put his signatures on an agreement to record the receipt

of such amount of `1,10,000/-. The appellant/defendant pleaded that these

signatures put on the agreement of `1,10,000/-, which were only on the

revenue stamps, have been lifted from the agreement entered into with Sh.

Nahar Singh Saxena, and those stamps with signatures were put on the

receipt which is relied upon by the respondent/plaintiff for the alleged loan

of the sum of `2,50,000/-.

5. After the pleadings were completed, the trial Court framed the

following issues:-

"1. Whether there is any privity of contract between the parties. If so, what is its effect? Onus to prove upon the parties.

2. Whether the receipt dated 7.10.98 is forged and fabricated document, if so, what is its effect? OPD

3. Whether the plaintiff is entitled to decree of suit amount alongwith the interest, if so, at what rate? OPP

4. Relief."

6. The main issue which was to be decided in the suit, and which

is also the issue to be decided in this appeal, is whether the

appellant/defendant ever received a sum of `2,50,000/- from the

respondent/plaintiff under the receipt dated 7.10.1998. Learned counsel for

the appellant/defendant argues the following points in support of the appeal

for setting aside of the impugned judgment, and which arguments I accept in

toto, and which arguments show that the appellant/defendant never received

any loan from the respondent/plaintiff:-

i) The respondent/plaintiff in his cross-examination admitted that

he was only an employee getting a salary of `6,000/- per month, and

therefore, for such a person who was earning only `6,000/- per month

it is inconceivable that he could grant a loan for an amount of

`2,50,000/-, and that too in cash.

ii) The aforesaid aspect that the loan could never have been

granted by the respondent/plaintiff who was earning only `6,000/- per

month, is further confirmed by the fact that the appellant/defendant

was not in any manner related to the respondent/plaintiff, for such a

huge favour being granted to the appellant/defendant by the

respondent/plaintiff.

iii) The story of grant of loan of `2,50,000/- is quite clearly false

because why would the respondent/plaintiff, and who only claims to

be an acquaintance for the past six months with the

appellant/defendant, arrange an amount of `2,50,000/- by collecting

money from his relatives and selling of jewellery as stated by him,

and which the respondent/plaintiff would have done only if the

appellant/defendant was so closely related to the respondent/plaintiff

or so much obliged to the respondent/plaintiff, and which admittedly

is not the position.

iv) It is inconceivable for a person having only a monthly income

of `6,000/ to grant a loan of `2,50,000/- without any guarantee or

revisable security to ensure repayment of the huge amount of

`2,50,000/-

v) There are two signatures which appeared on the receipt dated

7.10.1998, Ex.PW1/A, one on top of the other, and there is no reason

as to why there should be two such signatures and that too across

three revenue stamps for the top set of signatures (which in fact have

been lifted from the agreement with Sh. Nahar Singh Saxena of

`1,10,000/-) and across two revenue stamps for the bottom signatures

especially taken with the fact that the second signatures are in fact

forged and fabricated signatures.

vi) The document, Ex.PW1/A is in two parts i.e. a promissory note

and a receipt, and only the receipt part thereof is signed and not the

promissory note part showing that the respondent/plaintiff did not

have sufficient signatures of the appellant/defendant with him to put

on that portion of the document which was a promissory note.

vii) The receipt dated 7.10.1998, Ex.PW1/A, is witnessed by two

witnesses both of whom are closely related to the respondent/plaintiff.

The first witness, Sh. Om Prakash is the brother of the respondent and

the second witness, Sh. Manoj Kumar is the sister's son of the

respondent/plaintiff. Both these persons came into the witness box

and admitted their relations with the respondent/plaintiff.

viii) The legal notice dated 27.8.2001 of the respondent/plaintiff was

served upon the appellant/defendant, claiming the suit amount and

relying upon the disputed document, Ex.PW1/A, immediately after

and as a counterblast to the legal notice dated 6.8.2001 sent by the

appellant/defendant to Sh. Nahar Singh Saxena claiming his dues.

7. Since I am completely agreeing with the arguments as raised on

behalf of the appellant/defendant, I need not again reproduce the same to

avoid prolixity. The aforesaid arguments quite clearly show that neither the

respondent/plaintiff had any legal means to give loan of a huge amount of

`2,50,000/-; considering that he himself was only an employee at `6,000/-

per month, nor were the relations so close that the respondent/plaintiff would

have taken loan from his relatives and sold his jewellery to give the loan of

`2,50,000/- to the appellant/defendant, and nor would the loan have been

given of the huge amount without the respondent/plaintiff securing himself

either by a guarantor or a proper security.

8. I may note that the trial Court has in the impugned judgment

observed that it has peeled the signatures of the appellant/plaintiff which