Munish Kumar Sharma vs Anmesh Kumar Rai
2018 Latest Caselaw 6443 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 872/2018

%                                                    26th October, 2018

MUNISH KUMAR SHARMA
                                                         ..... Appellant
                          Through:       Mr. Prakash Gautam, Advocate
                                         with    Mr.   Vivek      Ojha,
                                         Advocate.
                          versus

ANMESH KUMAR RAI
                                                         ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Caveat No. 976/2018

1. No one appears for the caveator. Caveat stands

discharged.

C.M. No. 44442/2018(exemption)

2. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No. 872/2018 and C.M. No. 44441/2018(stay)

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

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

impugning the Judgment of the Trial Court dated 07.08.2018 by which

trial court has decreed the suit filed by the respondent/plaintiff for

recovery of Rs. 22,94,600/- comprising of the figure of the principal

loan amount of Rs. 14,90,000/- and the balance amount as interest,

repayable by the appellant/defendant to the respondent/plaintiff.

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

the subject suit pleading that he gave a loan of Rs. 14,90,000/- to the

appellant/defendant by means of two cheques. The first cheque was

dated 22.02.2012 for Rs. 4,90,000/- and the second cheque of

Rs.10,00,000/- was dated 30.01.2013. On 30.01.2013 when the

cheque of Rs.10,00,000/- was given to the appellant/defendant, then,

the parties had entered into a written Loan Agreement dated

30.01.2013 mentioning the factum of loan and its repayment with

interest. Two post dated cheques were also given, as stated in the loan

agreement, which were dishonoured on presentation, and consequently

after serving the Legal Notice dated 17.11.2015, the subject suit for

recovery was filed by the respondent/plaintiff.

5. The appellant/defendant contested the suit by filing

written statement. Receipt of the loan of Rs.14,90,000 as also

execution of the Loan Agreement dated 31.01.2013 were not disputed

by the appellant/defendant. It was contended by the

appellant/defendant that he had repaid the entire loan amount by cash

and cheques as detailed in para 5 of the written statement and this para

5 reads as under:-

"5. That the Defendant has already returned the entire loan amount to the Plaintiff by way of cheque and cash as per the requirement of the Plaintiff. The entire payment to the Plaintiff has been made as follows:-

     Sr. No.              Date                     Amount

     1.                   22.03.2013               Rs.2,00,000/-(Cash)

     2.                   23.03.2013               Rs.1,30,000/-(Cash)

     3.                   02.04.2013               Rs.1,20,000/-(Cash)

     4.                   04.09.2013               Rs.3,00,000/-(Cash)

     5.                   15.10.2013               Rs.1,15,000/-(Cash)

     6.                   21.10.2013               Rs.35,000/-(Cash)

     7.                   22.10.2013               Rs.71,000/-(Cheque)

     8.                   22.10.2013               Rs.1,65,000/-(Cash)

     9.                   24.10.2013               Rs.2,50,000/-(Cash)





      10.               24.12.2013              Rs.1,00,000/-(Cash)

     11.               27.12.2013              Rs.30,000/-(Cheque)

                                               Total       Rs.15,16,000/-
                                                       (Rupees    Fifteen
                                                       Lacs and Sixteen
                                                       Thousand Only)

It was further pleaded in the written statement that in spite of

repayment of the loan amount, the respondent/plaintiff did not return

the cheques, and therefore the appellant/defendant had written three

letters dated 28.08.2015, 03.11.2015 and 05.12.2015 to return the

security cheques and issue the receipts for cash payment but the

respondent/plaintiff failed to do so. It was also pleaded in the written

statement that there were various other banking transactions between

the parties for mutual financial needs. The suit was also pleaded to be

time barred. Hence, the suit was prayed to be dismissed.

6. After pleadings were complete, trial court framed the

issues and parties led evidence and these aspects are recorded in paras

5 to 11 of the impugned judgment, and these paras read as under:-

"5. Following issues were framed on 01.09.2016 by the Ld. Predecessor of this court:-

(i) Whether the plaintiff is entitled for a recovery of Rs.22,94,600/- (Rupees Twenty Two Lac Ninety Four Thousand Six Hundred Only) along with 18% future interest? OPP.

(ii) Whether the suit is barred by limitation? OPD.

(iii) Relief.

6. Plaintiff in support of his case has examined himself as PW1; Sh. Ravish Negi as PW2 and Sh. N.K. Sharma as PW3 while defendant in his defence has examined himself as DW1.

7. PW1 has deposed on the lines of the averments made in the plaint. During his cross-examination, he has denied the suggestion that the entire loan amount was repaid by the defendant between 22.03.2013 to 27.12.2013.

8. PW2 Sh. Ravish Negi has proved the statement of account of M/s P.R. Enterprises as Ex.PW2/1. This witness was not cross-examined by the defendant.

9. PW3 Sh. N.K. Sharma is the Ahlmad of the court of Ld. MM, PHC, New Delhi who has proved the record pertaining to CC No.39238/16 and CC No.42669/16. This witness was also not cross-examined by the defendant.

10. DW1 has deposed on the lines of his defence made in the written statement. He has proved the letters dated 28.08.2015, 03.11.2015 and 05.12.2015 as Ex.DW1/A, Ex.DW1/C and Ex.DW1/E with corresponding receipts as Ex.DW1/B, Ex.DW1/D and Ex.DW1/F respectively.

11. During his cross-examination, DW1 has admitted that notice under Order 12 Rule 8 CPC (Ex.DW1/P1) was served upon him. He has admitted that he has not filed any documentary proof to show that he had the cash, as mentioned in para 5 of the written statement or that he had paid the same to the plaintiff. He has denied the suggestion that Ex.DW1/D and Ex.DW1/B are not the postal receipts for the letters dated 03.11.2015 and 28.08.2015 respectively. He has denied that these documents/receipts are manufactured documents. He has admitted that he did not file any police complaint against the defendant for not returning his cheques and for not issuing cash receipts. He has admitted that he has not filed any documentary proof to show that there were any bank transactions between the parties after 27.12.2013."

7. The relevant issue for consideration before the trial court

was issue no. 1 and trial court has held this issue against the

appellant/defendant by observing that there is no dispute that the loan

was taken by the appellant/defendant and onus was upon the

appellant/defendant to prove that he had returned the loan amount with

interest but the appellant/defendant failed to discharge this onus. The

trial court has rejected the reliance placed by the appellant/defendant

on two letters dated 28.08.2015/Ex.DW1/A and

03.11.2015/Ex.DW1/C by observing that the appellant/defendant has

failed to prove that these letters were in fact sent to the

respondent/plaintiff inasmuch as the postal/courier receipts (Ex.

DW1/B and Ex.DW1/D) which are relied upon for the aforesaid letters

Ex.DW1/A and DW1/C show the sender's name as Mr. Rakesh

Kumar and Mr. Pankaj Kumar and which persons are different than

the appellant/defendant/Mr. Munish Kumar Sharma. This Court may

note that counsel for the appellant/defendant argued that Mr Rakesh

Kumar and Mr. Pankaj Kumar were employees of the

appellant/defendant but it is conceded before this Court that no

evidence was led by the appellant/defendant that Mr. Rakesh Kumar

and Mr. Pankaj Kumar were the employees of the appellant/defendant.

8. So far as sending of the Reply dated 05.12.2015 by the

appellant/defendant is concerned, this Court notes that the Reply dated

05.12.2015 was in response to a legal notice sent by the

respondent/plaintiff under Section 138 of the Negotiable Instruments

Act, 1881, and obviously therefore the appellant/defendant gave the

convenient reply of repaying the loan amount, however, the fact of the

matter is that the entire loan amount is said to be repaid in cash but not

a single document has been filed to evidence the factum of repayment

of loan by different amounts as stated in para 5 of the written

statement, much less by execution of specific receipts by the

respondent/plaintiff in favour of the appellant/defendant. The trial

court in my opinion has rightly, therefore, decreed the suit for

recovery of loan with interest by disbelieving the defence of the

appellant/defendant of having repaid the loan amount. This Court

would also like to note that the only repayment by two cheques

totalling to Rs.71,000/- and Rs.30,000/- are admitted by the

respondent/plaintiff and the respondent/plaintiff has stated that these

cheques were only towards payment of interest. Therefore, it is seen

that there is no credible documentary evidence filed by the

appellant/defendant of having repaid the entire loan amount in cash.

9. The relevant discussion of the trial court in this regard is

contained in paras 14 to 16 of the impugned judgment, and these paras

read as under:-

"Issue No.1

14. The onus of this issue is on the plaintiff. The defendant has not denied that loan of Rs.14,90,000/- through cheques was granted to him and an agreement on 30.01.2013 was executed between the parties. However, it is the defence of the defendant that the entire loan amount was repaid between 22.03.2013 to 27.12.2013 by cash and cheques. The plaintiff has not disputed having received amounts of Rs.71,000/- on 22.10.2013 and Rs. 30,000/- on 27.12.2013 through cheques. However, he had deposed that these amounts were not paid towards the loan amount. It is the case of defendant himself that parties were having further bank transactions with each other for mutual financial needs. Further, the total amount mentioned in para 5 of the written statement is Rs.15,16,000/-. In cross- examination, DW1 has deposed that there is no interest component in the total amount of Rs.15,16,000/-. It is unbelievable that defendant would have paid more than the loan amount to the plaintiff. I find the testimony of PW1 reliable and trustworthy. The courier receipt-Ex.DW1/B shows the sender's name as 'Rakesh Kumar'. Thus, the letter dated 28.08.2015 was not sent by the defendant. Had it been so, the courier receipt- Ex.DW1/B would have shown the sender's name as that of the plaintiff. Similarly, the postal receipt-Ex.DW1/D shows the name of the sender as 'Pankaj Kumar'. Thus, it has not been proved that letters dated 28.08.2015 and 03.11.2015 were sent by the defendant to the plaintiff. The defendant did not file any police complaint or case against the plaintiff for not returning his cheques and for not issuing the cash receipts.

15. The defendant in his written statement has categorically stated that after the loan amount had been paid, parties were having further bank transactions with each other for mutual financial needs. However, the defendant has failed to lead evidence to prove the same. In his cross-examination, DW1 has admitted that he has not filed any documentary proof to show that there were any bank transactions between the parties after 27.12.2013. Had there been any bank transactions between the parties after 27.12.2013, it would not have been difficult for defendant to produce the documentary evidence in this regard. The testimony of the defendant does not inspire confidence. The defendant has admitted the execution of the agreement dated 30.01.2013 wherein the defendant agreed to pay interest @ 1.5% per month on the total loan amount.

16. The plaintiff has been able to prove this issue. Therefore, the plaintiff is entitled to recover an amount of Rs.22,94,600/- from the defendant. However, the pendente lite and future interest claimed @ 18% p.a. is on higher side. The plaintiff is entitled to pendente lite and future interest @ 8% p.a. This issue is decided accordingly."

10. Learned counsel for the appellant/defendant sought to

argue that there were other transactions between the parties as

reflected from the bank account filed by the respondent/plaintiff as

Ex.PW1/6, but be that as it may, that even if there were other

transactions, the issue is not that whether there were other banking

transactions between the parties but the issue as to whether the

appellant/defendant had repaid the loan amount in cash as stated by

him, and as already discussed in detail above that no credible

evidence, much less credible documentary evidence, was led and

proved by the appellant/defendant to show repayment of the loan in

cash by him to the respondent/plaintiff.

11. In view of the aforesaid discussion, there is no merit in

the appeal. Dismissed.

OCTOBER 26, 2018                           VALMIKI J. MEHTA, J
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