Sh. Chand Khan vs Sh. Mohammad Muzeeb
2018 Latest Caselaw 510 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 59/2018

%                                                  19th January, 2018

SH. CHAND KHAN                                           ..... Appellant
                          Through:       Mr. Vatsal Kumar and Mr.
                                         Chirag Sharma, Advocates
                          versus

SH. MOHAMMAD MUZEEB                                    ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No.2308/2018 (Exemption)

1. Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No. 2309/2018 (delay in re-filing)

2. For the reasons stated in the application, delay in re-filing is condoned.

CM stands disposed of.

CM No. 2306/2018 (delay of 457 days in filing the appeal) & CM No. 2307/2018 (stay) in RFA No. 59/2018

3. There is a large delay of 457 days in filing of the appeal

by the appellant/defendant against the impugned judgment and decree

decreeing the suit for recovery of Rs.13,50,000/- along with interest at

8% per annum simple. The delay is sought to be explained by the

appellant/defendant by pleading that appellant/defendant was never

told by his Advocate that evidence had to be led in the suit. In my

opinion, the averments in the application for condonation of delay of

457 days are not believable because appellant/defendant is admittedly

a builder. Surely a builder is not a layman in that sense of term of an

illiterate person because a builder would otherwise have issues to deal

with law or cases in courts, and consequently, the explanation of the

appellant/defendant that the appellant/defendant was not informed by

his Advocate of requirement to lead evidence cannot be believed.

This is all the more so because evidence of the appellant/defendant has

not been closed after giving one or two opportunities but has been

closed after giving repeated opportunities. Though there is no reason

to condone the delay and appeal is liable to be and is accordingly

dismissed on account of barred by limitation however I have heard the

case on merits hence this application is allowed for the appeal to be

heard on merits.

4. The facts of the case are that the respondent/plaintiff filed

the subject suit against the appellant/defendant for recovery of

Rs.13,50,000/- along with interest on the ground that on the asking of

the appellant/defendant the respondent/plaintiff had given a loan of

Rs.10 lacs on 5.5.2008 and to secure which the appellant/defendant

had issued four cheques of Rs.2.5 lacs each in favour of the

respondent/plaintiff as stated in the para 5 of the plaint. As per the

plaint, the respondent/plaintiff pleaded that since in spite of repeated

requests amount of loan was not repaid in spite of the

appellant/defendant receiving an amount with respect to a construction

project entered into by the appellant/defendant with the society in

which the respondent/plaintiff was a President, therefore, the subject

suit came to be filed for recovery.

5. Though the appellant/defendant appeared in the suit and

filed written statement. It also appears that a counter-claim was filed

but counter-claim however was not considered for non-payment of

court fee and in any case counter-claim was ex facie not maintainable

because counter-claim was against the society for recovery of amounts

due of the appellant/defendant against the society for construction but

not against the respondent/plaintiff who was only a member of the

society and the President of the society. As already stated above the

appellant/defendant did not lead evidence in spite of repeated

opportunities, and therefore evidence of the appellant/defendant was

closed. Therefore, we have only the evidence which is led by the

respondent/plaintiff to prove his case.

6. After pleadings were complete, the following issues were

framed by the trial court:-

"1. Whether the defendant did not avail a loan of Rs.10 lakhs from the plaintiff and whether the cheques as detailed in para 5 of the plaint were not issued by him in discharge of a legal debt/liability? OPD

2. Subject to the decision on issue no.1, whether the plaintiff is entitled to recover a sum of Rs.13,50,000/- from the defendant as claimed? OPP

3. Whether the plaintiff is entitled to pendente lite and future interest?

If yes, at what rate? OPP"

7. Trial court has held the relevant issue no. 2 in favour of

respondent/plaintiff by relying upon the cheques proved in the case

issued by the appellant/defendant in favour of the respondent/plaintiff

being Ex.PW1/1 to Ex.PW1/4. In my opinion, in the facts of the

present case once the respondent/plaintiff led evidence and

appellant/defendant led no evidence there is no reason to disbelieve

the case of the respondent/plaintiff and therefore there is no reason for

setting aside of the impugned judgment and decree.

8. In view of the above discussion, the appeal is dismissed

both on the ground of limitation and also by observing that even on

merits appellant/defendant has no case.

JANUARY 19, 2018/ib                         VALMIKI J. MEHTA, J