Nitin Garg vs Arvind Tyagi
2018 Latest Caselaw 6800 Del

Citation : 2018 Latest Caselaw 6800 Del
Judgement Date : 15 November, 2018

Delhi High Court

Nitin Garg vs Arvind Tyagi on 15 November, 2018

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 626/2017

%                                                  15th November, 2018

NITIN GARG
                                                          ..... Appellant
                          Through:       Mr. Yeeshu Jain, Advocate (M.
                                         No.9811394417).


                          versus


ARVIND TYAGI
                                                         ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 20.12.2016 by which

trial court has dismissed the suit for recovery of Rs. 11 lakhs filed by

the appellant/plaintiff against the respondent/defendant being the

balance amount due to the appellant/plaintiff out of the friendly loan

of Rs. 15 lakhs given by the appellant/plaintiff to the

respondent/defendant.

2. It may be noted that suit has been dismissed although the

respondent/defendant was exparte in the suit and the

appellant/plaintiff led evidence and proved his case. The

respondent/defendant is also exparte in this Court as he has not

appeared after service.

3. The facts of the case are that the appellant/plaintiff

pleaded that he advanced a friendly loan of Rs. 15 lakhs in cash to the

respondent/defendant of which a sum of Rs. 4 lakhs was repaid to the

appellant/plaintiff. In discharge of his liability, the

respondent/defendant issued two self cheques bearing nos. 000085 and

000086 dated 20.05.2014 drawn on HDFC Bank, 72, Ved Mansion,

New Delhi-1. The cheques were from the account of M/s Mahip

Developers Pvt. Ltd. of which respondent/defendant was the

authorized signatory. The cheques were handed over to the

appellant/plaintiff by the father of the respondent/defendant, namely

Sh. Om Dutt Tyagi with the covering letter dated 06.05.2014. Despite

repeated requests, the balance loan amount was not repaid, and it was

found that there were no funds in the respondent's/defendant's bank

account. Thus, after serving a Legal Notice dated 23.01.2015, the

subject suit was filed.

4. The fact that appellant/plaintiff proved his case and

exhibited the necessary documents, is seen from para 5 of the

impugned judgment and this para 5 reads as under:-

"5. To prove its case, the plaintiff examined himself as PW1 who tendered his evidence by way of affidavit in which the contents of the plaint have been reiterated and he got exhibited the following documents:-

Sl. No. No. of Exhibits Details of Documents

1. Ex.PW1/A cheques bearing no.000085 and 000086 both dated 20.05.2014, both drawn on HDFC Bank, 72, Ved Mansion, New Delh-1, from the account maintained in the name of M/s Mahip Developers Pvt. Ltd.,

2. Ex.PW1/C Postal receipt

3. Ex.PW1/D Undelivered envelop

4. Mark A Copy of legal notice dated 23.02.2015 without signature

5. Mark B Internet postal tracking report

5. The trial court has dismissed the suit by firstly holding

that the appellant/plaintiff has failed to prove that how he had cash of

Rs. 15 lakhs for giving loan to the respondent/defendant and secondly

as to how the appellant/plaintiff has not proved that the

respondent/defendant had returned a sum of Rs. 4 lakhs in cash.

6. In my opinion, trial court has fallen into a grave error

because Section 118 of the Negotiable Instruments Act, 1881 states

that once a cheque is given, the cheque has to be presumed to have

been given for consideration. Once the appellant/plaintiff proved his

case and respondent/defendant remained exparte and led no evidence,

there was no reason to disbelieve the case of the appellant/plaintiff. In

fact, the appellant/plaintiff was being very fair because though a sum

of Rs. 4 lakhs was returned in cash, and this fact the appellant/plaintiff

could have concealed, the appellant/plaintiff yet admitted that an

amount of Rs. 4 lakhs had been repaid and only claimed the balance

amount of Rs. 11 lakhs out of the total loan amount of Rs. 15 lakhs.

7. In view of the aforesaid discussion, this appeal is