Delhi High Court
Om Prakash Makhija vs Manohar Lal on 21 July, 2015
Author: Rajiv Shakdher
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 471/2015
OM PRAKASH MAKHIJA ..... Appellant
Through: Mr. Subhash Tagra, Advocate
versus
MANOHAR LAL ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 21.07.2015
CM No.12615/2015 (Exemption)
1. Allowed subject to just exceptions.
RFA 471/2015 and CM No.12614/2015 (stay)
2. This is an appeal filed against the judgment and decree dated
30.03.2015, passed by the trial court. The facts pertaining to the case have
been noted, in detail, in the trial court order. Therefore, for the present, I
will be adverting only those facts which are necessary for the disposal of the
instant appeal.
2.1 The respondent/plaintiff approached the trial court with an action for
recovery of a loan which he had apparently, furnished to the
appellant/defendant.
2.2 According to the respondent/plaintiff, the loan in the sum of Rs.6
Lakh was advanced by way of two cheques, bearing no.497945 and 497947.
Both cheques, as averred, were dated 04.10.2005 and, were drawn on the
Oriental Bank of Commerce. The first cheque i.e. cheque No.497945 was
drawn in the sum of Rs.5 Lakhs, while the other cheque i.e. cheque bearing
no.497947 was, for a sum of Rs.1 Lakh (hereafter collectively referred to as
the cheques).
2.3 The respondent/plaintiff further avers that demand for money was
made in January 2008, which was avoided by the appellant/defendant;
whereafter a legal notice dated 19.07.2008 was issued.
2.4 It is the case of the respondent/plaintiff that the said legal notice was
served on 24.07.2008, and that, the appellant/defendant issued a reply to the
same, which is dated 13.08.2008.
2.5 According to the respondent/plaintiff, in the reply to the legal notice,
the defence taken was that the aforementioned cheques were issued towards
payments, which he had to allegedly make against supplies of goods by the
appellant/defendant.
2.6 The respondent/plaintiff being aggrieved, filed an action in the court
for money advanced as loan, in which, a similar defence was set up by the
appellant/defendant.
2.7 The appellant/defendant, in addition, also raised a defence of
limitation, and that, there was no cause of action which arose qua him.
3. Accordingly, the trial court framed the following issues :-
"..1. Whether the suit is barred by limitation? OPD
2. Whether the suit is without any cause of action? OPD
3. Whether the plaintiff purchased goods for Rs.6,12,443.80
from the defendant? OPD
4. Whether the plaintiff is entitled to a decree for the suit
amount? OPP
5. Whether the plaintiff is entitled to any interest on the
amount claimed. If so, at what rate and for what period?
OPP.."
4. The trial court by virtue of the impugned judgment has found all
issues against the appellant/defendant. Consequently, the trial court has
decreed the suit for a sum of Rs.6 Lakh alongwith interest at the rate of 9%
p.a. (simple), commencing from the date of institution of the suit till
realization.
5. This appeal, as indicated above, is preferred against the said judgment
and decree.
6. The learned counsel for the appellant has submitted that the
respondent/plaintiff has failed to prove his case, and that, the trial court
failed to take note of the fact that there were several transactions between
the parties qua which the respondent/plaintiff had issued cheques in the past
to the appellant/defendant.
7. I have heard the learned counsel for the plaintiff and perused the
record as well as the impugned judgment.
8. To be noted, the following facts are not disputed, before me :
(i). That the aforementioned cheques were issued by the
respondent/plaintiff.
(ii). That monies reflected against the cheques were received by the
appellant/defendant.
(iii). That the appellant/defendant was partially cross-examined, whereafter
he did not present himself for further cross-examination, despite, several
opportunities being given in that behalf by the trial court.
(iv). That the appellant/defendant did not adduce any evidence to
substantiate his principal defence that the aforementioned cheques were
issued by the respondent/plaintiff against the supplies made by him.
8.1 Qua the aforementioned aspects, the trial court has returned findings
of fact in paragraph 15 and 16 of the impugned judgment. For the sake of
convenience, the same are extracted hereinafter :-
"..15. The defendant in his WS has admitted the receipt of two
cheques amounting to Rs.6,00,000/- but he has failed to
discharge the burden that the said cheques were issued towards
the purchase of certain goods by the plaintiff. The defendant
has stated in his WS that the plaintiff had purchased goods
from him for a sum of Rs.6,12,443.80 and according to the
defendant in lieu of the purchases so made by the plaintiff he
had issued two cheques of Rs.6 lakh on 03.10.2005. The
burden was on the defendant to prove that the cheques in
question were given by the plaintiff towards the discharge of
his liability for purchase of goods from the defendant.
16. The defendant tendered his evidence by way of affidavit
on 10.07.2012. He was partly cross examined on 01.03.2013
and his further cross examination was deferred and the
defendant thereafter was given several opportunities to lead his
evidence but he failed to appear in the court and did not submit
himself for further cross examination. So the Ld. Predecessor
of his court closed the evidence of the defendant on
01.12.2014. The record of the case reveals that the defendant
has not moved any application for re-opening of his evidence
though he has been appearing in the court in person as is
evident from the order sheets. This conduct of the defendant
shows that he has not come to the court with clean hands. It is
also not understood as to why he has not submitted himself for
completing the cross examination though he kept on appearing
in the court to prove his case. So in these circumstances the
plaintiff has been able to prove that he had given the above
mentioned two cheques to the defendant and when he
demanded the amount the same was not returned by the
defendant despite receipt of the notice Ex. PW1/A. This issue
is, therefore, decided in favour of the plaintiff and against the
defendant...".
(emphasis supplied)
8.2 In so far as the issue of limitation as concerned, the trial court noted
that the aforementioned cheques in issue were issued on 04.10.2005,
whereas the suit was filed on 03.10.2008. Accordingly, the trial court, in my
view, quite correctly came to the conclusion that the suit was within
limitation.
8.3 In so far as the plea of lack of cause of action was concerned, the
same was also been dealt with, quite correctly, by the trial court, in that,
since the respondent/plaintiff had issued cheques against which moneys
were not repaid, and therefore, a cause of action arose in favour of the
respondent/plaintiff. In my view, no fault can be found with the reasoning.
in my view, was again correctly decided.
9. Having regard to the above, I find no merit in the appeal. The
captioned appeal and the pending application are accordingly dismissed.
RAJIV SHAKDHER, J
JULY 21, 2015
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