Mahender Kumar Kanwaria vs Sh. Sanjay Barolia
2016 Latest Caselaw 5413 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RSA No. 231/2016

%                                                            19th August, 2016

MAHENDER KUMAR KANWARIA                                         ..... Appellant

                                   Through:   Mr. Arun Yadav, Advocate.

                          versus

SH. SANJAY BAROLIA                                              ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 30101/2016 (for exemption) Exemption allowed, subject to all just exceptions.

The application stands disposed of.

C.M. Appl. No. 30102/2016 (for condonation of delay in re-filing, under Section 151 CPC) This is an application seeking condonation of delay of 15 days in re-filing the second appeal.

For the reasons stated in the application, the same is allowed and the delay is condoned.

The application stands disposed of.

RSA No.231/2016 and C.M. Appl. No. 30100/2016 (for stay)

1. This Regular Second Appeal filed under Section 100 of the Code

of Civil Procedure, 1908 (CPC) impugns the Judgment of the First Appellate

Court dated 25.4.2016 by which the first appellate court has allowed the appeal

filed by the respondent/plaintiff against the Judgment of the Trial Court dated

25.8.2015. Trial court by its judgment had dismissed the suit for recovery of

Rs.1,49,500/- filed by the respondent/plaintiff. The first appellate court has

decreed the suit for recovery of monies holding that respondent/plaintiff had

proved that loan of Rs.1,00,000/- was granted by him to the

appellant/defendant.

2. The facts of the case are that respondent/plaintiff by means of a

cheque dated 8.7.2008 gave a loan of Rs.1,00,000/- to the appellant/defendant.

The cheque of Rs.1 lakh bearing no. 554745 drawn on ICICI Bank Limited,

Janakpuri, New Delhi was admittedly credited in the account of the

appellant/defendant. Since the appellant/defendant failed to pay the loan

amount in spite of requests and service of legal notice, the subject suit for

recovery came to be filed. Appellant/defendant contended that he never took

any loan from the respondent/plaintiff but it is the respondent/plaintiff who had

earlier taken a loan of Rs.3,50,000/- from the appellant/defendant and out of this

loan a sum of Rs.2,00,000/- was already returned in cash by the

respondent/plaintiff to the appellant/defendant and out of the balance of

Rs.1,50,000/- the subject cheque from ICICI Bank Limited was given in re-

payment of part of the balance amount. The suit was accordingly prayed to be

dismissed.

3. The only issue before this Court, and as was before the first appellate

court, was as to whether the appellant/defendant had given a loan of Rs.3,50,000/-

and the subject cheque for the amount of Rs.1,00,000/- was given towards re-

payment of balance amount of Rs.1,00,000/- out of the total balance remaining of

Rs.1,50,000/-. In this regard, the first appellate court has noted that the

appellant/defendant has filed no proof whatsoever that a loan of Rs.3,50,000/- was

given by the appellant/defendant to the respondent/plaintiff and also that if the

respondent/plaintiff had paid back earlier an amount of Rs.2,00,000/- then how and

when it was paid. Appellant/defendant, therefore, led no evidence whatsoever to

show that he had advanced any loan of Rs.3,50,000/- to the respondent/plaintiff for

the subject cheque of Rs.1,00,000/- being towards re-payment of a balance amount

of Rs.1,00,000/- out of the total balance of Rs.1,50,000/-. The first appellate court

in this regard has rightly observed in paragraph 13 of the impugned judgment that

the appellant/defendant failed to prove that the cheque of Rs.1 lakh was not

towards repayment of alleged loan granted by the respondent/plaintiff but was

actually towards the repayment of loan of Rs.1 lakh granted by the

appellant/defemdant to the respondent/plaintiff, and the same reads as under:-

"13. In the present case. to my mind, the onus of proving that Rs.1 lakh had been received by Defendant towards part repayment of his loan shifted upon Defendant in the course of trial. In order to discharge this onus, Defendant examined DW2 and DW3. Both these witnesses deposed by way of their affidavits that Plaintiff/Appellant had taken loan of Rs.3,50,000/- from the Defendant, out of which Plaintiff has repaid Rs.2 lakhs to the Defendant and the cheque of Rs. 1 lakh was issued by him to the Defendant towards repayment of the balance agreed amount. However, pertinently, both these witnesses i.e DW2 and DW3 in their cross-examination were not able to tell as to when the alleged loan of Rs.3,50,000/- was advanced to the Plaintiff by the Defendant. They were also unable to tell as to when sum of Rs.2 lakhs was

repaid by the Plaintiff to the Defendant, out of said alleged loan amount. Further, admittedly, no receipt or document was executed when the Defendant extended loan of Rs.3,50,000/- to the Plaintiff/Appellant or that he received Rs.2 lakhs from the Plaintiff towards part payment of the said loan. Thus, the witnesses of the Defendant, to my mind, failed to estabilsh his case that Defendant had extended loan of Rs.3,50,000/- to the Plaintiff or that Rs.1 lakh had been paid by the Plaintiff towards part repayment of the said loan amount. It is not the case of the witnesses of the Defendant that loan of Rs.3,50,000/- was extended in their presence to the Appellant/Plaintiff. In these circumstances, the Defendant/Respondent, to my mind, failed to discharge the onus of proving his plea that he had received Rs.1 lakh from the Plaintiff towards part repayment of his loan." (emphasis is mine)

4. In view of the above, I do not find that the first appellate court has

committed any material irregularity or grave illegality or any perversity in

arriving at a finding that the appellant/defendant was liable to re-pay the loan

amount as claimed by the respondent/plaintiff in the suit. I also note that the

first appellate court has granted reasonable pendente lite and future interest at

the rate of 9% per annum simple.

5. Accordingly, no substantial question of law arises for this Regular

Second Appeal to be entertained under Section 100 CPC.

6. The present second appeal is accordingly dismissed.

AUGUST 19, 2016                                            VALMIKI J. MEHTA, J
AK