Maqsood Ahmed Siddiqui vs Mohd. Qasim Khan
2017 Latest Caselaw 1930 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RSA No. 59/2015 & CM No. 2388/2015

%                                                      20th April, 2017

MAQSOOD AHMED SIDDIQUI                                     ..... Appellant
                Through:                 Mr. Anzar       Hussain Pasha,
                                         Advocate.
                           versus

MOHD. QASIM KHAN                                      ..... Respondent

                           Through:      Mr. Yogesh Chhabra, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this Regular Second Appeal filed under Section 100 of

the Code of Civil Procedure, 1908 (CPC) the appellant/defendant

impugns the judgment of the First Appellate Court dated 17.9.2014 by

which the first appellate court set aside the judgment of the Trial Court

dated 12.8.2011 and decreed the suit for recovery of Rs.2.5 lacs with

interest. Trial court by its judgment dated 12.8.2014 had dismissed the

suit which was filed by the respondent/plaintiff for recovery of the loan

of Rs.2.5 lacs granted by the respondent/plaintiff to the

appellant/defendant.

2. The loan of Rs.2.5 lacs was given by the

respondent/plaintiff to the appellant/defendant on 4.10.2004. This has

been proved before the trial court in terms of the promissory note dated

4.10.2004 exhibited as Ex.PW1/1. Trial court has accepted that the

promissory note stands proved and hence the grant of loan to the

appellant/defendant stands proved.

3. Before the trial court, the respondent/plaintiff also proved

an acknowledgment of debt dated 30.9.2007 executed by the

appellant/defendant of promising to repay the loan of Rs.2.5 lacs. This

acknowledgment of debt was proved and exhibited as Ex.PW1/2. This

acknowledgment of debt in fact specifically refers to legal notice sent

by the respondent/plaintiff dated 25.9.2007, and because of which the

acknowledgment of debt Ex.PW1/2 was executed by the

appellant/defendant.

4. Trial court dismissed the suit by holding that the

acknowledgment of debt Ex.PW1/2 did not have a date. This was a

fundamental error because the acknowledgment of debt does have a

date i.e 30.9.2007, and which is the last typed content on the

acknowledgment of debt Ex. PW1/2. The first appellate court has

recognized his mistake committed by the trial court and has

accordingly set aside the finding of the trial court that there is no date

on the acknowledgment of debt Ex.PW1/2. That the promissory note

and acknowledgment were duly proved before the trial court is

undisputed and the only issue was whether the acknowledgment of

debt Ex.PW1/2 has a date, and which it has, being the date of

30.9.2007.

5. I may note that there was an aspect with respect to another

loan of Rs. 4.5 lacs granted by the respondent/plaintiff to the

appellant/defendant, and which was secured by cheques, and with

respect to which proceedings under Section 138 of the Negotiable

Instrument Act, 1881 are pending, however, such issue is not an issue

in the present suit, and hence no discussion is required on this aspect.

6. Learned counsel for the appellant/defendant also argued

that it is in fact the respondent/plaintiff who is liable to pay a sum of

Rs.17, 63,608/- to the appellant/defendant on account of business

relations between the appellant/defendant and the respondent/plaintiff,

however, not only this stand is a self-serving stand without any

documentary evidence as to how this amount is due from the

respondent/plaintiff to the appellant/defendant, it is also noted that if a

huge amount of Rs.17,63,608/- was due from the respondent/plaintiff

to the appellant/defendant then why the appellant/defendant has till

date not filed a suit and allowed the recovery of this huge amount to

get time barred. Appellant/defendant therefore cannot contend that

since he was entitled to Rs.17,63,608/-, therefore, the suit should be

dismissed.

7. In view of the above, no substantial question of law arises.

The first appellate court has rightly corrected the error of the issue of

the date of acknowledgment Ex.PW1/2 and rightly held that the

acknowledgement of debt Ex.PW1/2 is not undated but bears a date

which is 30.9.2007.

8. Dismissed.

APRIL 20, 2017/ib                            VALMIKI J. MEHTA, J