Rakesh Kumar & Anr. vs Ram Bhorsey Lal Rastogi Thr Lrs
2014 Latest Caselaw 6105 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision: November 24, 2014

+     RSA 357/2014
      RAKESH KUMAR & ANR.                               ..... Appellants
                  Through:             Mr. Mahipal Singh, Advocate

                          versus

      RAM BHORSEY LAL ROSTOGI THR LRS                     ..... Respondents
                  Through: Nemo.

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% ORAL

C.M.Nos.19221/2014 & 19222/2014 (u/S 151 CPC)

Allowed subject to all just exceptions.

RSA 357/2014 & C.M.No.19220/2014 ( for stay) While relying upon affidavit (ikrarnama) of 23rd September, 2005 [Ex.P-5] of appellant No.1, trial court has decreed respondent's suit for recovery of `2,26,500/- and the first Appellate Court has affirmed it.

The facts of this case are already noted in the opening paragraphs of the impugned judgment and need no reiteration. Suffice it would be to note that the settlement of 19th September, 2005 reached between the parties has been ignored by the courts below, as the same had taken place in the police station. However, there is another affidavit / ikrarnama of 22nd September, 2005 [Annexure-4] regarding consensus between the

RSA No.357/2014 Page 1 parties to sell the property in question.

At the hearing of this appeal, it was vehemently contended by learned counsel for appellants that reliance placed by both the courts below upon affidavit (ikrarnama) of 23rd September, 2005 [Ex.P-5] is unwarranted in view of previous affidavit (ikrarnama) of 22nd September, 2005 [Annexure-4], which is about appellants' selling the goods worth `2,00,000/- of respondent-plaintiff. According to learned counsel for appellants both the courts below have grossly erred in relying upon affidavit (ikrarnama) of 23rd September, 2005 [Ex.P-5] and thus, findings returned against the appellants are perverse on the face of it.

Upon hearing and on perusal of the judgments of the courts below and the material on record, I find that merely because there is no reference in the earlier affidavit (ikrarnama) of 22nd September, 2005 [Annexure-4] of appellants selling the goods worth `2,00,000/- of respondent, it would not per se render the affidavit (ikrarnama) of 23rd September, 2005 [Ex.P-5] unworthy of reliance because respondent- plaintiff has not been cross-examined on this aspect.

No substantial question of law arises in this second appeal. Finding no perversity in the judgment of the courts below, this appeal and applications are dismissed with no order as to costs.

                                                         (SUNIL GAUR)
                                                           JUDGE
NOVEMBER 24, 2014
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RSA No.357/2014                                                     Page 2